DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, AFL-CIO,
and its affiliate Local Union No. 561 and Joe
W. Manley and Scovill, Inc., Schrader Automo-
tive Products Division, Party to the Contract.
Case 26-CB-1860
7 June 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND ZIMMERMAN
On 28 January 1983 Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint alleges that Respondent United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL-CIO, and
its affiliate Local Union No. 561, hereinafter re-
ferred to as Respondent International and Respond-
ent Local, respectively, violated Section 8(b)(1)(A)
and (2) of the Act by maintaining and enforcing a
provision in their collective-bargaining agreement
with the Employer which grants superseniority for
purposes of layoff and shift preference to certain of
Respondent Local's officers and officials.1 The Ad-
The full text of the applicable provision, art. VI, sec. 13, is as fol-
lows:
Notwithstanding anything that may be contained herein, the last per-
sons to be laid off or affected by shift preference shall be the follow-
ing elected officers and officials of the Union during their terms of
office.
In no case shall the Company be under obligation to retain an em-
ployee because of preferred seniority status who is not qualified to
perform the available work.
For the purpose of this section only, the elected officers and officials
of the Union will not be permitted to exercise preferred seniority
rights to displace other employees for temporary layoffs.
( 1) President
(2) Vice President
(3) Recording Secretary
(4) Financial Secretary
(5) Shop Chairman
(6) Members of the Shop and Negotiating Committee (not to
exceed five (5) in number including the Chairman)
(7) Trustees (not to exceed three (3) in number)
(8) Guide
(9) Sergeant-at-Arms
(10) District Committeemen
266 NLRB No. 175
ministrative Law Judge found that the Local's offi-
cers and officials named in the complaint 2 occupied
positions which "relate in general to the furthering
of the collective bargaining relationship" and rec-
ommended dismissing the complaint, citing, inter
alia, Otis Elevator Co. 3 and Limpco Mfg., Inc.4 For
the reasons stated below, we do not agree.
The facts are not in dispute. As found by the
Administrative Law Judge, the current collective-
bargaining agreement between the Respondents
and the Employer recognizes seniority as an ele-
ment of preference between employees in matters
relating to layoff, recall, and promotion. The super-
seniority clause quoted above provides that, not-
withstanding the seniority system, the last persons
to be laid off or affected by shift preference shall
be certain elected officers and officials of Respond-
ent including, inter alia, Respondent Local's re-
cording secretary, financial secretary, trustees,
guide, sergeant-at-arms, and board members at
large. This superseniority provision was utilized by
Edna Hafner, Respondent Local's financial secre-
tary, and by Dillion Hafner, one of Respondent
Local's board members at large, on multiple occa-
sions during the 10(b) period 5 to avoid being laid
off or forced into a lower-paying job classification.
The shift maintenance portion of the provision was
not, insofar as the record reflects, utilized by any
of Respondent Local's officials within the 10(b)
period. 6
As noted above, the Administrative Law Judge
recommended that the complaint be dismissed,
finding that each of Respondent Local's officials
enumerated in the complaint performed duties enti-
tling them to exercise superseniority rights under
the standards set forth in Limpco Mfg. However,
the Board recently reexamined the issue of super-
seniority for union officials in Gulton Electro-Voice,
Inc.,7 and upon reconsideration decided to overrule
(11) Board Members at Large (not to exceed three (3) in number)
2 The complaint alleges that, with respect to layoff protection, the su-
perseniority provision was unlawful only to the extent it included the re-
cording secretary, financial secretary, trustees, guide, sergeant-at-arms,
and board members at large.
3 231 NLRB 1128 (1977).
4Electrical Workers, UE Local 623 (Limpco Mfg.. Inc.), 230 NLRB 406
(1977), enfd. sub nom. Anna D'Amico v. N.L.R.B., 582 F.2d 820 (3d Cir.
1978).
' The original charge in this proceeding was filed on 27 May 1982. As
none of the established exceptions to the 6-month limitations period pro-
vided in Sec. 10(b) of the Act is alleged to be applicable herein, that sec-
tion precludes our finding of any unfair labor practices which may have
occurred prior to 27 November 1981. See, generally, Machinists Local
1424 [Bryan Mfg. Co.] v. N.L.R.B., 362 U.S. 411 (1960).
6 The defensive shift preference provision, which to avoid confusion
we shall refer to as "shift maintenance" or "shift protection," operated
only to prevent the displacement of the named union officials by a unit
employee having greater natural seniority seeking a preferred shift.
7 266 NLRB 406 (1983).
952
AUTO WORKERS LOCAL 561
Limpco and its progeny. In Gulton, the Board an-
nounced, for reasons fully rationalized therein, that:
We will find unlawful those grants of super-
seniority extending beyond those employees
responsible for grievance processing and on-
the-job contract administration. We will find
lawful only those superseniority provisions
limited to employees who, as agents of the
union, must be on the job to accomplish their
duties directly related to administering the col-
lective-bargaining agreement.8
Here, the Administrative Law Judge engaged in
a detailed examination of all record evidence con-
cerning the duties of the union officials identified in
the complaint, and found that none of the normal
duties of those officials involves day-to-day admin-
istration of the collective-bargaining agreement or
any steward-like functions. No exceptions were
filed to these findings; accordingly, we shall defer
to them. Therefore, as it is apparent that none of
the identified union officials meets the standards set
forth in Gulton, we find that the maintenance and
enforcement of the bargaining agreement provision
granting superseniority for the purpose of layoff
protection was unlawful insofar as it applied to Re-
spondent Local's recording secretary, financial sec-
retary, trustees, guide, sergeant-at-arms, and board
members at large. For the same reasons, we further
find that the maintenance of the shift protection
portion of the bargaining agreement's supersenior-
ity clause was unlawful as it applied to the forego-
ing officers and officials.9
Accordingly, we find that, by the maintenance
and enforcement of the superseniority clause with
respect to the above-named officers and officials,
Respondent Local and Respondent International
have violated Section 8(b)(1)(A) and (2) of the Act.
We further find that, by according Edna Hafner
and Dillion Hafner superseniority under the unlaw-
ful clause to the detriment of other unit employees,
Respondent Local and Respondent International
further violated Section 8(b)(1)(A) and (2).
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order that
they cease and desist therefrom and take certain af-
8 Guhron. supra, 409,
8 As applied to the "grievance handlers" with "steward-like" duties.
however, we find that the shift protection portion of the clause is pre-
sumptively lawful. Unlike a true shift "preference" clause, the instant
clause is purely defensive in nature and assures that an official with stew-
ard-like duties for a particular shift is able to remain on that shift. In this
regard. the shift protection clause is akin to layoff protection and the
same considerations which lead us to find presumptively lawful steward
superseniority for layoff protection similarly mandate that steward super-
seniorit: for defensive shift maintenance be found presumptively lawful
firmative action designed to effectuate the policies
of the Act.
We have found that the superseniority provision
here in dispute is unlawful and we shall therefore
order that Respondent Local and Respondent
International cease and desist from maintaining or
enforcing the superseniority clause in the collec-
tive-bargaining agreement with respect to Re-
spondent Local's recording secretary, financial sec-
retary, trustees, guide, sergeant-at-arms, and board
members at large. To remedy the discriminatory
application of the unlawful clause, we shall order
Respondent Local and Respondent International to
notify the Employer and all affected employees in
writing that they have no objection to the rein-
statement of all affected employees to the positions
they held prior to the enforcement of the supersen-
iority clause against them. We shall further order
that Respondent Local and Respondent Interna-
tional, jointly and severally, make all affected unit
employees whole for any loss of earnings they may
have suffered as a result of the discrimination
against them.' ° Backpay shall be computed in the
manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as
provided in Florida Steel Corp., 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Finally, we shall order that
Respondent Local and Respondent International
cease and desist in any like or related manner from
restraining or coercing employees they represent in
the exercise of the rights guaranteed employees by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Scovill, Inc., Schrader Automotive Products
Division, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW,
AFL-CIO, and its affiliate Local Union No. 561,
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. By maintaining and enforcing a seniority
clause in their collective-bargaining agreement with
the Employer which accords Respondent Local's
recording secretary, financial secretary, trustees,
guide, sergeant-at-arms, and board members at
large superseniority, Respondent Local and Re-
spondent International have engaged in, and are
LO We note that the Employer has executed a settlement agreement
covering companion 8(a)(l) and (3) charges in which it has agreed to cer-
tain joint liability for the make-whole remedy and has further agreed to
cease and desist from maintaining and enforcing the instant superseniority
clause
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in, unfair labor practices within the mean-
ing of Section 8(b)(l)(A) and (2) of the Act.
4. By according Edna Hafner and Dillion Hafner
superseniority to the detriment of other unit em-
ployees under the seniority clause found unlawful
herein, Respondent Local and Respondent Interna-
tional have engaged in, and are engaging in, unfair
labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
5. The foregoing unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFL-
CIO, and its affiliate Local Union No. 561, their of-
ficers, agents, and representatives, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or otherwise giving
effect to those clauses in their collective-bargaining
agreement with Scovill, Inc., Schrader Automotive
Products Division, according Respondent Local's
recording secretary, financial secretary, trustees,
guide, sergeant-at-arms, and board members at
large superseniority for purposes of layoff and shift
maintenance, or for any other purpose.
(b) Causing or attempting to cause the Employer
to discriminate against employees in violation of
Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing the employees of the Employer in the ex-
ercise of their rights protected by Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Jointly and severally make any unit employ-
ees whole for any loss of earnings they may have
suffered as a result of the discrimination against
them, such lost earnings to be determined in the
manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Notify the Employer and all affected employ-
ees in writing that Respondents have no objection
to reinstating the affected unit employees who but
for the unlawful assignment of superseniority
would not have been laid off or reassigned.
(c) Post at their meeting halls copies of the at-
tached notice marked "Appendix."" Copies of
I In the event that 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 Pursu-
said notice, on forms provided by the Regional Di-
rector for Region 26, after being duly signed by
Respondents' representative, shall be posted by
them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to
ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail signed copies of the attached notice
marked "Appendix" to the Regional Director for
Region 26 for posting by the Employer, if it is
willing.
(e) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps Respondent Local and Respond-
ent International have taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT maintain and enforce any
agreement with Scovill, Inc., Schrader Auto-
motive Products Division, according our re-
cording secretary, financial secretary, trustees,
guide, sergeant-at-arms, and board members at
large superseniority for the purposes of layoff
and shift maintenance.
WE WILL NOT cause or attempt to cause
that employer to discriminate against employ-
ees by requiring that the above-named union
officials be retained as active employees, when
954
AUTO WORKERS LOCAL 561
other employees who have greater seniority in
terms of length of employment are laid off or
reassigned.
WE WILL NOT in any like or related manner
restrain or coerce the employees of Scovill,
Inc., Schrader Automotive Products Division,
in the exercise of their rights set forth above.
WE WILL jointly and severally make any
unit employees whole for any loss of earnings
they may have suffered as a result of the dis-
crimination against them, plus interest.
WE WILL notify the Employer that we have
no objection to reinstating the affected unit
employees who but for the unlawful assign-
ment of superseniority would not have been
laid off or reassigned.
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW,
AFL-CIO, AND ITS AFFILIATE
LOCAL UNION No. 561
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Nashville, Tennessee, on October
18, 1982.' The charge was filed by Joe W. Manley, an
individual, herein referred to as Manley, on May 27
(amended July 7). The complaint was issued on July 7
alleging that United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, AFL-
CIO, and its affiliate Local Union No. 561, herein re-
ferred to as the International Union and Local Union, re-
spectively, and jointly as the Unions or Respondents,
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended, herein called the Act, by in-
voking sections of an existing collective-bargaining
agreement with Scovill, Inc., Schrader Automotive
Products Division, herein called the Company, regarding
seniority preference to certain officers and officials of the
Local Union to the detriment of Manley, employee John
Baynham, and other unnamed employees. 2 The issues
presented by the case are (a) whether the Unions violat-
ed Section 8(b)(1)(A) of the Act by maintaining a clause
in the collective-bargaining agreement with the Compa-
ny which granted superseniority for shift maintenance,
layoff, and recall to the Local Union's recording secre-
tary, financial secretary, guides, sergeant-at-arms, trust-
ees, and executive board members-at-large, and (b)
whether the Unions violated Section 8(b)(2) of the Act
by causing the Company to grant superseniority to such
officers to the detriment of other unit employees.
I All dates are in 1982 unless otherwise specified.
2 At the hearing. the General Counsel identified two such additional
employees. N. J. Bishop and Mable Duke, and further argued that any
employee whose position was affected in the "bumping" chain as a result
of the exercise of the alleged unlawful seniority provisions herein would
be entitled to a make-whole remedy
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Unions, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation with an office and
plant in Dickson, Tennessee, where it is engaged in the
manufacture of automotive parts. The Company annually
sells and ships from its Dickson, Tennessee, plant prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Tennessee. Further,
it annually purchases and receives at its Dickson plant
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Tennes-
see. The complaint alleges, the Unions' answer admits,
and I find that the Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The complaint further alleges that the
Unions are labor organizations within the meaning of
Section 2(5) of the Act. Based on the Unions' admission
in the answer, I find this allegation established.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Material Facts
The Union represents a unit of production and mainte-
nance employees3 at the Company's Dickson plant and
has had successive collective-bargaining agreements with
the Company covering such employees since 1966. The
current bargaining agreement is effective by its terms for
the period March 29, 1980, to March 25, 1983. The
agreement 4 recognizes seniority (length of continuous
service with the Company) as an element of preference
between employees in matters relating to layoffs, recalls,
and advancement to higher rated jobs, and contains pro-
visions governing application of seniority. It also con-
tains the following provision at article VI, section 13,
which gives rise to the case sub judice:
Notwithstanding anything that may be contained
herein, the last persons to be laid off or affected by
shift preferences shall be the following elected offi-
cers and officials of the Union during their terms of
office.
In no case shall the Company be under obligation
to retain an employee because of preferred seniority
status who is not qualified to perform the available
work.
For the purpose of this section only, the elected
officers and officials of the Union will not be per-
3 The unit normally consists of between 470 to 500 employees utilized
on 3 shifts. However, the Company has employed as many as 700 em-
ployees in the past. The Local Union also represents a separate unit of
office employees composed of approximately 60 employees.
'G.C. Elh 2.
5 Under art. VI, sec. 4(1), employees were allowed to exercise their
seniority to change to a more desirable shift within their classification in
their department, bumping, if necessary, a junior employee.
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to exercise preferred seniority rights to dis-
place other employees for temporary layoffs. 6
(1) President
(2) Vice President
(3) Recording Secretary
(4) Financial Secretary
(5) Shop Chairman
(6) Members of the Shop and Negotiating
Committee (not to exceed five (5) in number in-
cluding the Chairman)
(7) Trustees (not to exceed three (3) in
number)
(8) Guide
(9) Sergeant-at-Arms
(10) District Committeemen
(11) Board Members at Large (not to exceed
three (3) in number)
It is undisputed that the foregoing provision has been
in the preceding collective-bargaining agreements since
1966 without significant change except for the addition
in 1970 of the "Board Members" to those entitled to
"preferred seniority." It also appears to be undisputed
that the superseniority clause for officers has been in-
voked several times since 1975. Determination of the le-
gality of the above "preferred" or superseniority provi-
sion, insofar as it is applicable to certain of the Local
Union's officers, requires the identification of such offi-
cers and their functions within their respective positions.
Initially, it must be noted that the General Counsel does
not contend that the superseniority provision is unlawful
to the extent it applies to the union president (Jean
Daugherty), vice president (Billy Springer), shop chair-
man, members of the shop and negotiating committee, or
the district committeemen apparently because the per-
sons occupying these positions were directly engaged in
the in-plant processing of employee grievances or other-
wise directly involved in in-plant contract administration.
It is urged, however, that the seniority provision is un-
lawful to the extent it grants superseniority to Financial
Secretary Edna Hafner, Recording Secretary Ruby
Rumsey, Trustees John Forrester, Janice Tidwell, and
Minnie Lee Jones, Sergeant-at-Arms Bill Wallace, Guide
Ted Melton, and Board Members-at-Large Fred Ewell,
Christine Dunlop, and Dillion Hafner.
At the outset, it must be noted that all union officers
are elected for 3-year terms. They perform various
duties, but the Company's industrial relations manager,
Robert Young, testified that since occupying his position
3 years earlier, and in performing his responsibilities in
connection with the administration of the collective-bar-
gaining agreement for the Company, he has had no deal-
ings with employees in the positions of financial secre-
tary, recording secretary, guide, sergeant-at-arms, trust-
ee, or executive board member-at-large. Similarly, Sam
Johnston, the Company's director of employee relations
for its automotive group since 1978, and Young's superi-
or, testified without contradiction that, although he spent
a substantial portion of his time in the Dickson plant and
8 Temporary layoffs are defined in the agreement as not exceeding 6
working days in each 6-month period commencing March 29, 1980.
maintained his principal office there until 1981, he, too,
had no dealings with union representatives occupying
the positions listed immediately above. Moreover, based
on the record, it does not appear that there is any con-
tention by the Union that its officers or officials in the
disputed positions participate in a direct way in the proc-
essing or handling of grievance matters within the plant.
Nor does it appear that the occupants of the disputed po-
sitions directly involve themselves in contract negotia-
tions.
The International Union's constitution 7 sets forth the
duties and functions of those employees in the disputed
union positions. With respect to the position of recording
secretary, the constitution requires that the recording
secretary keep a record of the proceedings of the Local
Union, sign all orders on the treasury authorized by the
Union, conduct and file general correspondence for the
Local Union not pertaining directly to the duties of
other officers, and perform certain periodic reporting of
functions to the International Union relative to the local
collective-bargaining agreement, a listing of all classifica-
tions and rates of pay for the plant or plants covered by
the agreement, and such additional information "gained
through negotiations with the respective plant manage-
ment that may be useful to other Local Unions in their
collective bargaining."8 Rumsey, the Union's recording
secretary, retired from employment by the Company in
1980 but continued to occupy her position since office in
the Union was open to retired employees. Although the
Union's constitution required applicants for membership
in the Union to be, at the time of application, "an actual
worker in and around the plant,"9 it is clear that the fact
that Rumsey was no longer actively employed by the
Company did not preclude her from fulfilling her duties
and functions as recording secretary.10 It is also clear,
however, that because she is retired and not subject to
layoffs by the Company, her services to the union mem-
bership would not be lost as a result of economic reduc-
tions by the Company as might be the case of officers
employed by the Company not entitled to invoke a su-
perseniority clause.
The duties of the financial secretary, Edna Hafner, are
varied and extensive. Under the union constitution,
Hafner was obligated to receive all dues and fees as well
as all other income to the Local Union. She is further re-
quired to write all checks drawn on the Local Union's
funds and to make monthly reports in writing at the
monthly membership meetings concerning receipts and
disbursements. She is also charged with depositing all
collections in such banks as the trustees might direct.
The financial secretary makes additional reports to the
International Union, receives membership applications,
provides members with copies of the constitution and
local bylaws, maintains all membership records, and
keeps an inventory of all records and property of the
7 G.C. Exh 3.
8 G.C. Exh. 3, art. 40, sec. 3.
g G.C. Exh. 3, art. 6, sec. 2
i' However, Jean Daugherty, the union president, testified that
Rumsey, during the period 1975 to 1977, invoked the superseniority
clause to avoid layoff.
956
AUTO WORKERS LOCAL 561
Local Union. Hafner, called as a witness by the Union,
testified that she spent about 20 hours a week engaged in
the above duties and is paid by the Union for whatever
lost time from her employment that she incurs. Addition-
ally, she receives $75 per month from the Local Union
to cover "expenses."" Hafner testified that she had fre-
quent contact with the Company's personnel office in the
performance of her duties, primarily in relation to dues
checkoff and recordkeeping. Hafner maintained an office
and all her records in the local union hall located within
sight of the plant. While Hafner testified that she has
been questioned several times by employees regarding
their rights under the collective-bargaining agreement,
and she has sought to assist them by reading the agree-
ment to them, she conceded that, where a grievance ap-
peared to be involved, she referred the employees to the
shop chairman or district committeeman. She further
conceded that she did not involve herself with grievance
processing.
The Local Union's trustees' duties are set forth in the
Union's constitution' 2 as follows:
The Trustees shall have general supervision over all
funds and property of the Local Union. They shall
audit or cause to be audited by a Certified Public
Accountant selected by the Local Union Executive
Board, the records of the Financial Officers of the
Local Union semiannually as provided herein, using
duplicate forms provided by the International
Union, a copy of which shall be forwarded to the
International Secretary-Treasurer immediately
thereafter. It shall also be their duty to see that the
Financial Officers of the Local Union are bonded in
conformity with the laws of the International
Union. The trustees shall see that all funds shall be
deposited in a bank subject to an order signed by
the President and Treasurer and/or Financial Secre-
tary. In Local Unions where safety deposit boxes
are used, the Trustees shall see that the signatures
of the President, Treasurer and one (1) of the Trust-
ees are required before admittance to the safety de-
posit box is permitted. In the event the books are
not received for audit within fiften (15) days after
the end of each six-month period, the Chairperson
of the Trustees shall make a report to the next
meeting of the Local Union for action.
The International Union's chief auditor and director of
the auditing department, Rayburn Frye, testified as to
the importance of the duties of the trustees. In brief, it
was Frye's testimony that the trustees were relied upon
by the Unions as an important part of checks and bal-
ances necessary to ensure the maintenance of the Unions'
reputation for honesty and integrity.
With respect to the duties of the sergeant-at-arms, the
constitution provides at article 40, section 13:
It shall be the duty of the Sergeant-at-Arms to in-
troduce all new members and visitors and assist the
'L The Local Union president receives an identical amount for her ex-
penses while the recording secretary receives $35 per month for ex-
penses.
12 G.C. Exh. 3, art. 40, sec. 12
President in preserving order when called upon to
do so. S/He shall also take charge of all property of
the Local Union not otherwise provided for, and
perform such other duties as may be assigned to
her/him from time to time.
The duties attendant to the position of "Guide" are
stated in the constitution, article 40, section 14, as fol-
lows:
It shall be the duty of the Guide to maintain order,
inspect the membership receipts, satisfy her/himself
that all present are entitled to remain in the meeting
of the Local Union and perform such other duties
as are usual to the office.
The record herein reflects no further evidence of the
duties of the sergeant-at-arms or the guide except that as
union executive officers they are members of the Local
Union executive board.
The International union constitution' 3 provides that,
in addition to the executive officers, the Local Union
may elect executive board members-at-large, and the
Local Union herein in its bylaws provided for the selec-
tion of three board members-at-large. The duties of the
executive board members are set forth and defined in
both the constitution and the Local's bylaws.' 4 Essen-
tially, the executive board is empowered to represent the
Local between membership meetings, although it may
not transact business which may affect the vital interests
of the membership until the approval of the membership
is secured. The executive board meets monthly during
the same week but prior to the general membership
meeting, although special meetings may be called by the
president or a majority of the board members. Attend-
ance at the board meetings and regular membership
meetings by union officers is required unless officially ex-
cused by the board, and failure to attend two out of
three consecutive meetings results in automatic removal
from the office. One function of the board, according to
Union President Daugherty, has been to make recom-
mendations to the membership regarding union concerns.
Discussions of the executive board include discussions on
grievances and recommendations to be made to the
membership regarding submission of grievances to arbi-
tration. In fact, Daugherty credibly testified without con-
tradiction that no grievance had ever been taken to arbi-
tration without the recommendation of the exclusive
board, although the executive board's recommendation is
not binding on the membership.
While Daugherty testified that the Company in recent
months had sought a midterm concession from the Union
regarding seniority (unrelated to preferred seniority), and
while the proposal had come to the executive board
through the Union's negotiating committee and had been
discussed by the board, the board had taken no specific
action on the matter and made no recommendations
thereon prior to its submission to the general member-
ship.
3 G.C. Exh. 3. art. 38, sec. 5.
:4 Resp. Exh. 4.
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board members-at-large have no specified duties apart
from their attendance at, and deliberations in, the execu-
tive board.
The economic conditions in the spring of 1982 gave
rise to the instant case because, as a result of such condi-
tions, the Company found it necessary to reduce its work
force to approximately 350 employees. This represented
a substantial reduction and necessitated the invocation of
the superseniority clause by certain union officers, there-
by adversely affecting the natural seniority of Manley,
the Charging Party herein, as well as others. Thus, In-
dustrial Relations Manager Young testified that Manley,
who was employed in the maintenance department in a
skilled trade classification, was laid off on May 14
through May 17, and May 21 through May 26. Another
maintenance department employee, John Baynham, re-
turning to work from medical leave on May 21, was laid
off on that date through June 13. Both Manley and
Baynham had more natural seniority than Dillion Hafner
who, as a Local Union board member-at-large, exercised
his superseniority to remain on the job. It is undisputed
that, had natural seniority been applied, Manley and
Baynham would have avoided the layoff since they were
senior to Hafner and the layoff affected more than one
employee in the same classification and department.
The General Counsel also produced evidence regard-
ing the exercise of superseniority by Edna Hafner, finan-
cial secretary. Thus, Young, testifying from company
records, testified that Hafner was employed as a gauge
tester, labor grade 7, in department 306, as were employ-
ees N. J. Bishop and Mable Duke. Duke possessed the
greatest natural seniority of the three, while Bishop was
second to Duke. Bishop, however, was "excessed" on
November 6, 1981, and bumped into a lower labor grade.
After further "excessing" and bumping, Bishop was not
recalled to her gauge-testing position until June 7, but on
June 9 she was again excessed and transferred into an-
other position. She was not recalled again to the gauge-
tester position until August 24. Duke also was excessed
from January 11 to April 28, May 13 to May 18, May 26
to June 7, and from July 15 to August 2. On each occa-
sion, rather than being laid off, she chose to downgrade
to a lower-graded position in other classifications, possi-
bly displacing other employees. During this period,
Hafner remained in her gauge-tester position by virtue of
her superseniority.
The Union, through the testimony of President
Daugherty, acknowledged that superseniority had been
invoked several times in prior years. She recalled specifi-
cally that prior trustees and recording secretaries had
avoided layoffs through their exercise of superseniority.
There was no evidence regarding invocation of the shift
maintenance provision by any union official within the 6-
month period prior to the filing of the charge. However,
there was uncontradicted testimony by Edna Hafner that
Dillion Hafner, her husband at the time, had in 1980 and
before exercised his superseniority to "hold" his position
on the day shift.
B. Positions and Arguments of the Parties
In brief, the General Counsel argues herein that the
granting of superseniority to the union officials specified
above, who assertedly "do not serve as stewards or
engage in the administration of the collective bargaining
agreement at the Employer's premises," violates Section
8(b)(1)(A) of the Act because, in effect, it discriminates
in the employment relationship against those employees
who choose to exercise their Section 7 rights not to
become "enthusiastic" union members. Maintenance of
the clause to the extent it applies to the specified union
officers here is, therefore, urged to be in itself violative
of the Act. Moreover, since the evidence presented
shows that the alleged illegal clause was invoked by
Edna Hafner and Dillion Hafner to the detriment of the
Charging Party and other employees, causing them to be
laid off, the General Counsel argues that the Unions
caused the Company to discriminate against such em-
ployees in violation of Section 8(b)(2) of the Act.' 5 Al-
though the General Counsel's brief contains no detailed
argument on the point, it is clear from comments at hear-
ing, as well as references in her brief, that the General
Counsel reads the superseniority provision as also ac-
cording superseniority to all union officers and officials
for shift preference. It is, therefore, urged that this too
makes the clause violative of the Act.
The Unions argue initially that the complaint herein is
barred by Section 10(b)' 6 of the Act because the cause
of action accrued either when the superseniority provi-
sion was negotiated in 1966 or when the individual offi-
cers herein were initially granted superseniority outside
the 10(b) period. With respect to the merits of the case,
the Unions contend that the superseniority provision is
valid since the union officers to whom it applies perform
official duties with respect to the administration of the
collective-bargaining agreement. The Union argues fur-
ther that the Board decision in Dairylea Cooperative, 219
NLRB 656 (1975), enfd. sub nom. Teamsters Local 338 v.
N.L.R.B., 531 F.2d 1162 (2d Cir. 1976) (hereinafter
Dairylea), is based on an inference that superseniority
benefits in that case (superseniority for all purposes)
tended to encourage union activity and was intended to
do so, whereas the facts of the instant case will not sup-
port such an inference because superseniority is limited
to layoff, recall, and shift maintenance, and the union of-
ficers who are entitled to invoke superseniority are duly
elected by the employees. Finally, the Union argues that
the superseniority issues should be considered and their
legality determined using the concept of the duty of fair
representation. Thus, the Union contends that the Board
has applied the principle of duty of fair representation to
determine violations in other cases involving seniority
such as Red Ball Motor Freight, 157 NLRB 1237 (1966),
enfd. 379 F.2d 137 (D.C. Cir. 1967), which involved
dovetailing of seniority resulting from mergers. In appli-
cation of the principle of the duty to fairly represent, the
'5 Sec. 8(b)(l)(A) of the Act prohibits a union from coercing or re-
straining employees in the exercise of rights guaranteed in Sec. 7 of the
Act, including the right to refrain from union activity. Sec. 8(b)(2) pro-
hibits a union from causing or attempting to cause an employer to dis-
criminate against employees in order to encourage membership in the
union.
16 Sec. IO(b) provides in pertinent part that "no complaint shall issue
based upon any unfair labor practice occurring more than six months
prior to the filing of the charge wsith the Board . .
958
AUTO WORKERS LOCAL 561
union is entitled, the argument goes, to a "wide range of
reasonableness," in meeting the needs of those it repre-
sents so long as it acts in good faith and with honesty of
purpose. Ford Motor Co. v. Huffman, 345 U.S. 330
(1953). The Union asserts that, measured under the duty
to fairly represent standard, the superseniority clause in-
volved herein cannot be found unlawful. While not
clearly stated, this assertion would appear to be based in
part on the premise that the reasonableness of the senior-
ity provision in issue had been shown by the ratification
by employees of the provision in the collective-bargain-
ing agreement for over 15 years, and through the elec-
tion of the union officers to whom the provision applies
every 3 years.
C. Analysis and Conclusions
Turning first to the Union's 10(b) argument, support
for the Union's position can be found in N.L.R.B. v.
Auto Warehousers, 571 F.2d 860, 863 (5th Cir. 1978),
which is cited in the Union's brief along with Machinists
Lodge 1424 v. N.L.R.B. [Bryan Mfg. Co.], 362 U.S. 411
(1960). In Auto Warehousers, the court refused to enforce
on 10(b) grounds a Board finding at 227 NLRB 628 that
an employer and a union violated the Act by maintaining
and enforcing a superseniority provision in their collec-
tive-bargaining agreement which granted superseniority
to union stewards for "all purposes" including job bid-
ding. While the execution of the collective-bargaining
agreement had occurred outside the 10(b) period, the
steward in that case had exercised his superseniority on a
job bid within the 6-month period prior to filing of the
charge. The Board held that the steward's bid constitut-
ed a renewal of the unlawful superseniority clause, thus
starting a new 6-month period of limitations making the
charge timely under Section 10(b). The court, however,
held that the superseniority clause was not per se unlaw-
ful, and only presumptively unlawful, so that an inquiry
into its legality depended upon justification for the clause
at the time of its execution. The court relied largely on
Machinists Lodge 1424 [Bryan Mfg. Co., supra, where the
Supreme Court had rejected as time-barred a challenge
to a collective-bargaining agreement containing a union-
security provision executed with a minority union out-
side the 10(b) period.
The Board has not followed the reasoning of the court
in Auto Warehousers. See, e.g., Actors' Equity Association,
247 NLRB 1193 (1980), enfd. 644 F.2d 939 (2d Cir. 1981).
The Board has consistently held that the maintenance of
a presumptively invalid superseniority clause is unlawful,
and such maintenance and enforcement within the 6-
month period prior to the filing of the charge is suffi-
cient to defeat a defense based on Section 10(b). See
Connecticut Limousine Service, 235 NLRB 1350 (1978),
enfd. in part sub nom. N.L.R.B. v. Teamsters Local 443,
600 F.2d 411 (2d Cir. 1979); Preston Trucking Co., 236
NLRB 464 (1978); Perfection Automotive Products, 232
NLRB 690 (1977); A.PA. Transport Corp., 239 NLRB
1407 (1979). As the Board said in A.P.A. Transport Corp.,
supra at 1409, fn. 9, "Mere longevity of contractual lan-
guage does not establish its legality." And as the Second
Circuit commented in Actors Equity, supra at 644 F.2d
943, with regard to the restrictive interpretation of Sec-
tion 10(b) sought by the respondent in that case:
[Such a] reading of § 10(b) would mean that no
union member could challenge the validity of an ex-
isting disparate dues schedule [utilized in connection
with a union-security clause] where the practice had
existed for more than six months prior to the filing
of charges. We decline to adopt such a preclusive
rule.
I conclude from the foregoing that determination of
the validity of a superseniority clause must be based
upon justification for the clause offered at the time it is
put in issue, not at the time the agreement of which it is
a part was executed. Resort to time-barred events or cir-
cumstances is, therefore, unnecessary here. In this
regard, Machinists Lodge 1424, supra, is inapposite to the
instant case. Moreover, I further conclude that Section
10(b) is no bar to the determination of the validity of the
superseniority clause sub judice without regard to wheth-
er such clause is considered presumptively valid or in-
valid because in either case Section 10(b) becomes opera-
tive only when the legality of the clause is put in issue.
Accordingly, I reject the 10(b) defense and find the issue
presented timely with respect to the charge.
Considering next the merits of the case, analysis must
begin with Dairylea. In Dairylea, the then full Board,
Fanning dissenting, held that a contractual provision
granting superseniority to union stewards for purposes
other than layoff and recall was presumptively invalid
and placed the burden of establishing the validity of such
a clause on the union. The premise for the holding was
that while superseniority for stewards for layoff and
recall purposes served to provide a continuity in repre-
sentation to employees which was clearly to their bene-
fit, the grant of superseniority in other respects connect-
ed a grant of benefits to union activism having a neces-
sary tendency to discriminate against those employees
who exercise their right not to engage in union activity.
Cases following Dairylea failed to find unanimity
among Board Members, and exceptions and limitations
upon Dairylea began to develop. In IATSE (McGregor-
Werner, Inc.), 227 NLRB 558 (1976), a three-member
panel of the Board (Chairman Murphy and Members
Fanning and Penello), refused to find that a supersenior-
ity clause granting shift preference to stewards, in addi-
tion to layoff and recall, was unlawful where no shift
preference had, in fact, ever been granted. Moreover, the
Board held that a steward's exercise of superseniority to
laterally bump a unit employee in order for the steward
to retain his job classification and labor grade even on a
different shift was not unlawful under Dairylea. Member
Fanning concurred in the result because of his basic dis-
agreement with Dairylea which he found too restrictive.
A similar result was reached by the same Board panel in
Hospital Service Plan of New Jersey, 227 NLRB 585
(1976). In that case, the Board specifically rejected the
conclusion that superseniority could lawfully be invoked
strictly for layoff.
In Union Carbide Corp., 228 NLRB 1152 (1977), a case
arising in the context of a refusal-to-bargain charge based
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the employer's refusal to enforce a superseniority pro-
vision, a Board panel of Chairman Murphy and Members
Fanning and Jenkins found that the superseniority provi-
sion, to the extent it granted stewards the right to main-
tain their departments and shifts when they would other-
wise be transferred, was not unlawful in view of the jus-
tification provided in this case. Chairman Murphy in a
concurrence first noted that she would find presumptive-
ly lawful superseniority clauses applicable to union offi-
cers whose functions related in general to furthering the
bargaining relationship. She would allow such supersen-
iority to extend to job retention clauses including not
only layoff and recall but also to shift assignment and job
category and classification retention. Then, in Electrical
Workers UE (Limpco Mfg., Inc.), 230 NLRB 406 (1977),
affd. sub nom. D'Amico v. N.L.R.B., 582 F.2d 020 (3d
Cir. 1978), a Board majority (Members Jenkins and Pen-
ello dissenting), specifically found a provision granting
superseniority for layoff purposes to union officers who
might not have steward-type functions was not unlawful.
The majority opinion justified its position by stating that
it did not consider that the administration of the collec-
tive-bargaining agreement was limited solely to griev-
ance processing or other "steward-type" duties per-
formed at the workplace. Rather, what was at stake was
"the effective and efficient representation of employees
by their collective-bargaining representative." Id. at 407.
The Board went on to hold that the General Counsel
continued to have the burden of proving affirmatively
that the application of the superseniority provision as ap-
plied to union officers in a layoff situation was unlawful,
and found that the General Counsel had failed in that
case to establish that the application of superseniority to
a union officer, a recording secretary, was unlawful.
The Board adhered to Limpco, supra, in Expedient
Services, 231 NLRB 938 (1977) (Members Murphy and
Walther with Chairman Fanning concurring); Otis Eleva-
tor Co., 231 NLRB 1128 (1977) (Members Jenkins and
Penello dissenting); and The American Can Co., 235
NLRB 704 (1978) (Chairman Fanning and Member
Truesdale, with Member Penello dissenting). In American
Can, hereafter referred to as American Can I to distin-
guish it from the second decision of the Board in the
same case upon reconsideration, the majority held that a
simple documentary description of officers' duties show-
ing no visible or direct impact by them on contract ad-
ministration is insufficient to overcome the presumption
of validity of a superseniority clause applicable to offi-
cers and to establish a violation of the Act. See also In-
dustrial Workers AIW (Allen Testproducts Division), 236
NLRB 1368 (1978) (Members Jenkins and Penello dis-
senting). The Board also continued to adhere to Dairylea
and applied it to find violations in cases where supersen-
iority was extended for "all purposes" to union stewards
or officials. See, e.g., Perfection Automotive Products,
supra; Connecticut Limousine Service, Inc., supra, Preston
Trucking Company, Inc., supra; A.P.A. Transport Corp..
supra.
In 1979 following the court's decision in Limpco,
supra, in which it commented that the Union there was
obligated to produce credible proof that its union officer
in question was officially assigned duties which helped to
implement the collective-bargaining agreement in a
meaningful way, the Board decided to reconsider Ameri-
can Can I. In American Can 11, 244 NLRB 736 (1978),
the Board split upon predictable lines. The "aggregate
majority" composed of Members Jenkins, Murphy, and
Penello reversed the original holding in the case, Mem-
bers Jenkins and Penello on the ground that they would
not allow union officers to benefit from superseniority
except when such officers also served as stewards or oth-
erwise engaged in administration of the contract at the
place and during their hours of employment, and
Member Murphy on the ground that, while supersenior-
ity for officers was presumptively lawful, the General
Counsel had rebutted the presumption there by showing
the officers were not engaged in contract administration.
Chairman Fanning and Member Truesdale dissented be-
cause of their basic disagreement with Dairylea and its
progeny. However, it is clear that they would necessari-
ly agree at least with Member Murphy's position that su-
perseniority for union officers is presumptively lawful.
The last case thus far in which the Board has consid-
ered superseniority for union officers was McQuay-
Norris, Inc., 258 NLRB 1397 (1981). There a panel ma-
jority of Members Jenkins and Zimmerman, with Chair-
man Fanning dissenting, affirmed an administrative law
judge's application of American Can II to find a violation
of the Act in the grant of superseniority to a union
"guide" whose functions were "concerned with the orga-
nizational and internal functions of the union [local]
itself, and not with contractual matters pertaining to bar-
gaining and grievances and the like." Id. at 1401.
Because of the change in Board composition since
McQuay-Norris, the position of the present majority of
the Board is open to pure speculation. However, based
on the most recent precedent cited above, I conclude
that the superseniority clause in the instant case is pre-
sumptively lawful. This conclusion extends to the shift
maintenance portion of the clause also because I do not
interpret the provision to grant superseniority for shift
preference. In providing that the officers and stewards
would be the last affected by shift preference, the clause
only prevents their displacement by a unit employee
having higher natural seniority seeking a preferred shift.
Thus, the officers and stewards by virtue of shift mainte-
nance rights in the superseniority clause were allowed
only to retain what they had as opposed to supersenior-
ity for shift preference where it could be said they gain a
benefit. In this respect, shift maintenance is analogous to
the exercise of superseniority for lateral bumping which
the Board has found not inconsistent with Dairylea prin-
ciples and, therefore, lawful. Expedient Services, Inc.,
supra; Hospital Plan of New Jersey, supra.
The question remains whether the grant of supersen-
iority to the officers herein in dispute is "justified" on
the evidence presented. With respect to the position of
recording secretary, it is quite clear that the incumbent,
Rumsey, has no functions in the daily administration of
the bargaining agreement. Indeed, Rumsey is retired and
her continued presence at the plant is obviously unneces-
sary for the fulfillment of her duties. Accordingly, I find
superseniority for the position of recording secretary is
960
AUTO WORKERS LOCAL 561
unjustified if based only on the specific duties ascribed to
the position in the International constitution, and where,
as here, the incumbent is not actually employed by the
Company.
The functions of the financial secretary are rather ex-
tensive as detailed in the constitution, and the duties of
the position are sufficiently important to the Local Union
to warrant a stipend or expense pay to the incumbent.
While the position admittedly is important to the Local
Union's functioning, the duties of the position relate pri-
marily to income collection and disbursements, as well as
internal recordkeeping. The incumbent's only contact
with the Company in connection with the bargaining
agreement administration is in verifying the accuracy of
dues remissions by various employees under the checkoff
provision of the agreement. This is not, I conclude, an
insignificant function, although presence on the job to
fulfill the position is not apparently necessary. However,
she performs essentially the same duties as the financial
secretary for whom superseniority was found justified by
the Board in Allen Testproducts, supra. I would, there-
fore, conclude that the position of financial secretary
does relate in general to the furtherance of the bargain-
ing relationship, and that the superseniority clause is,
therefore, valid as applied to that position.
The duties for the positions of guide, sergeant-at-arms,
trustee, and board members-at-large, as previously de-
scribed herein, clearly reflect that they have no functions
with respect to the day-to-day administration of the col-
lective-bargaining agreement. The justification for the
application of the superseniority provision to these posi-
tions, as well as the recording secretary, can be found, if
at all, in their membership on the Local Union executive
board. The undisputed evidence here shows that, as
members of the executive board, the officers discussed
grievances and made recommendations to the member-
ship for arbitration of grievances. Indeed, Union Presi-
dent Daugherty testified that no grievance had been
taken to arbitration without the recommendation of the
executive board. In addition, the recordi 7 reflects that
the executive board in the past considered and took a po-
sition on the issue of moving a job classification or posi-
tion from one bargaining unit, the production unit, into
the office unit. Similarly, evidence in the form of board
minutes' s shows it took a position with respect to seek-
ing legal advice concerning possible unfair labor prac-
tices by the Company. And the board considered and de-
cided to recommend to the membership that advice of an
attorney be followed with respect to an issue concerning
vacation pay. And finally, the record' 9 establishes that
the executive board had in 1980 even discussed the inter-
pretation and application of contractual superseniority to
ensure representation of unit employees at all times.
The foregoing, in my opinion, establishes that the ex-
ecutive board members by virtue of their right to vote
on the matters under deliberation, including matters di-
rectly affecting the administration of the collective-bar-
gaining agreement, occupy positions which relate in gen-
eral to the furthering of the collective-bargaining rela-
? Resp. Exh. 6.
's Resp. Exh. 9
'9 Resp Exh. 10
tionship. Accordingly, I find that the extension of super-
seniority to the financial secretary, recording secretary,
guide, sergeant-at-arms, trustees, and board members-at-
large did not unlawfully discriminate against employees
or unlawfully encourage membership in the Union.2 0 I,
therefore, conclude that the Union did not violate Sec-
tion 8(b)(1)(A) or (2) in the maintenance and application
of the superseniority provision herein. I shall, therefore,
recommend that the complaint be dismissed in its entire-
ty.21
CONCLUSIONS OF LAW
1. Scovill, Inc., Schrader Automotive Products Divi-
sion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, AFL-CIO, and its
20 In my opinion, this conclusion is buttressed by the Board's decision
in Limpco, supra, and Otis Elevator. supra. where the Board specifically
found that union officers, by virtue of their membership on an executive
board, had responsibilities "for administration of the local, including the
latter's collective-bargaining agreement." Id. at 11129 1 do not view
American Can II or McQuay-Norris, supra, as overruling Limpco and Otis
Elevator. While the Board in McQuay-Norris found that the application of
superseniority to the position of "guide" was not justified based simply
on membership on the executive board, the details regarding the func-
tions of the executive board were not spelled out aside from the responsi-
bilities noted in the union's constitution which the Board apparently con-
cluded were not enough to justify superseniority. Here. I have concluded
that the functions of the executive board members, as detailed, do sup-
port the legitimacy of the superseniority clause Other administrative law
judges have reached similar conclusions subsequent to McQuay-Norris re-
garding the legitimacy of superseniority provisions as applied to members
of local executive boards. See Wayne Transportation, JD-471-82 (Oct. 25,
1982); Gulton Electro-Voice, Inc., 266 NLRB 406 (1983). Cf. International
Harvester Co., JD-(ATL)-71-82 (Aug. 30, 1983), where the functions of
the union officers vis-a-vis the executive board were not discussed and a
violation of the Act found See also the pre-McQuay-NVorris decisions of
administrative law judges in Design & Mfg. Corp., 267 NLRB No 77
(Aug. 25, 1983), and Chrysler Corporation-.Amplex Division of Chrysler
Corp., JD-252-81 (June 1, 1981).
If McQuay-Norris is read to mean superseniority can be applied only to
persons actively engaged in collective-bargaining agreement administra-
tion within the plant during the hours of their employment (Members
Jenkins' and Penello's position), then the result reached herein is clearly
wrong However, American Can II on which McQuay-Norris is based
does not support that proposition, for a majority of the Board as then
composed had clearly expressed its opposition to such a restrictive posi-
tion both in that case and prior cases. Moreover, the "two tests" for le-
gitimate utilization of superseniority postulated by the administrative law
judge in McQuay-Norris based on the opinions of Members Jenkins and
Penello on the one hand and Member Murphy on the other in American
Can II cannot be applied in conjunction, for one "test" is broader than
the other. Thus, the adoption without comment of the administrative law
judge's decision by the panel majority of Members Jenkins and Zimmer-
man in McQuay-Norris can be understood only on the basis that they be-
lieved that a violation was established under either "test." It, therefore,
remains unclear in my view whether Board Member Zimmerman sub-
scribes to the Jenkins-Penello position or the Murphy position.
21 In view of the conclusion reached here, I find it unnecessary to
treat the Unions' argument that the issues herein should be considered,
and a determination of the violation made, under the broad concept of a
union's duty of fair representation It is to be observed, however, that the
Board in its prior decisions involving superseniority has not seen fit to
broadly apply the terminology of the fair representation doctrine to su-
perseniority cases It appears that the Board sees the Dairylea line of
cases simply as not being an exception to the doctrine of fair representa-
tion, but, instead, generally encompassed by it See Explo. Inc., 235
NLRB 918 (1978)
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliate Local Union No. 561 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent Unions did not violate Section
8(b)(1)(A) or (2) of the Act by maintaining in their col-
lective-bargaining agreement with the Company a provi-
sion granting preferred seniority in layoff, recall, and
shift maintenance to the Local Union's executive board
members including the positions of financial secretary,
recording secretary, guide, sergeant-at-arms, trustees, and
board members-at-large or by applying the clause to the
detriment of the natural seniority of unit employees.
4. The Respondent Unions did not violate the Act in
any respect alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
962
