Petition for enforcement of decision and order of National Labor Relations Board requiring respondents to cease and desist from violating the National Labor Relations Act by enforcing superseniority clause and to reimburse laid-off employees for loss of earnings. Enforced.
Before: FEINBERG, Chief Judge, MESKILL and NEWMAN, Circuit Judges.
Petitioner National Labor Relations Board (NLRB or the Board) seeks enforcement of a decision and order issued against respondent Niagara Machine & Tool Works (the Company) and respondent Local 508, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union). The Board found that in enforcing and threatening to enforce a provision in the Company's collective bargaining agreement that granted superseniority to certain union officials, the Company violated sections 8(a)(1) and (3) of the National Labor Relations Act, 28 U.S.C. § 158(a)(1), (3), and the Union violated sections 8(b)(1)(A) and (2), 29 U.S.C. § 158(b)(1)(A), (2). For reasons stated below, we grant the Board's application for enforcement of its order.
The facts found by the Board are fully set out in its decision, reported at 267 NLRB No. 112, and are briefly summarized here. On May 1, 1980, the Company and the Union entered into a three-year collective bargaining agreement, which contained a provision, reproduced at the margin,*fn1 granting superseniority to five members of the Union's executive board, among others. The same provision had appeared in prior agreements since 1947, but apparently had not been invoked before 1981.
Between November 1981 and April 1982, the provision was invoked on behalf of three members of the executive board, causing the layoff of six employees, each with greater seniority in terms of length of employment ("normal" seniority) than the executive board member protected by the provision. In particular, Recording Secretary Cherry Germann exercised her superseniority three times, causing the layoff of three workers with greater normal seniority. Joseph Duncan, a union guide, twice exercised his superseniority, causing the layoff of two workers with greater normal seniority. Sergeant-at-Arms Clay Wilson exercised his superseniority once, causing the layoff of one worker with greater normal seniority. In addition, a Company supervisor told an employee that he would be laid-off in order to retain Robert Hayes, a union trustee and member of the executive board. This predicted layoff, however, apparently never occurred.
The executive board acts on behalf of and makes recommendations to the Union membership. It participates in the formulation of bargaining demands and makes recommendations to the membership on strike votes. All board recommendations, however, including those relating to grievance processing and collective bargaining, are subject to the final authority of the membership. Moreover, the executive board has delegated direct handling of grievances and bargaining to the shop committee. (Although shop committee members also receive superseniority, their status is not at issue here.) None of the four officers involved in this case was a member of the shop committee. Moreover, none had significant responsibility for contract negotiations or grievance handling. The only in-plant function of the four officers stemming solely from executive board membership involved answering questions about the Union from fellow employees and relaying information from the Company to unit employees.
In her capacity as recording secretary, Germann performed the bulk of her duties away from the plant. In fact, the only duty of that office requiring her presence at the plant was maintenance of the Union bulletin board. Clay Wilson, the Union's sergeant-at-arms, had no in-plant duties specific to that office. Nor did Joseph Duncan have any in-plant duties as a union guide. Robert Hayes, as a trustee, occasionally signed vouchers for Union expenditures in the plant, but had no other in-plant duties.
In September 1982, the Board's General Counsel filed a complaint against the Company and the Union, charging that enforcement (and threatened enforcement) of the superseniority provision contravened the Act. After a hearing, the Administrative Law Judge (ALJ) found that the provision in question was lawfully applied and dismissed the complaint. The NLRB disagreed, and concluded that the Company and the Union had violated the Act by enforcing the superseniority provision. The Board relied on the new rule recently enunciated in Gulton Electro-Voice, Inc., 266 N.L.R.B. 406 (1983), enf'd sub nom. Local 900, International Union of Electrical, Radio & Machine Workers v. NLRB, 234 U.S. App. D.C. 85, 727 F.2d 1184 (D.C. Cir. 1984). The Board's order, among other things, required the parties to cease and desist from violating the Act and jointly and severally to reimburse the laid-off employees for loss of earnings. This petition by the Board followed.
Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, expresses the Act's policy of insulating employees' jobs from their organizational rights so that job rights and benefits are not dependent on union activities. See Radio Officers' Union v. NLRB, 347 U.S. 17, 40, 98 L. Ed. 455, 74 S. Ct. 323 (1954); NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, 1163, 1166-67 (2d Cir. 1976). Sections 8(a)(3) and 8(b)(2) prohibit employers and unions from discriminating with respect to tenure or terms of employment in a way that encourages or discourages union membership; these sections are designed to protect, among other things, the right of employees to be good, bad or indifferent union members. Radio Officers' Union, supra, 347 U.S. at 40; NLRB v. Local 50, American Bakery & Confectionery Workers Union, 339 F.2d 324, 328 (2d Cir. 1964), cert. denied, 382 U.S. 827, 15 L. Ed. 2d 72, 86 S. Ct. 62 (1965). Not every action that encourages or discourages union membership is unlawful, however. If the allegedly discriminatory action is not "inherently destructive" of employee rights, an employer or union can prevail if it shows "legitimate and substantial business justifications" for the action. NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 18 L. Ed. 2d 1027,, 87 S. Ct. 1792 (1967); Local 900, supra, 727 F.2d at 1186.
The Board first addressed the validity of superseniority provisions in Dairylea Cooperative Inc., 219 N.L.R.B. 656 (1975), enf'd sub nom. NLRB v. Milk Drivers & Dairy Employees, Local 338, supra. In that case, the Board considered the validity of a provision in a collective bargaining agreement that gave shop stewards superseniority not only for layoff and recall purposes but also for all benefits under the agreement where seniority was a factor. The Board stated that while superseniority discriminates on the basis of union-related activities and hence is in tension with section 7 of the Act, the benefits that limited types of superseniority furnish to all unit employees compensate for the inherent discrimination. Id. at 658. The Board concluded that superseniority provisions for the shop stewards, limited to layoff and recall, are presumptively valid, while superseniority provisions as to other job benefits are presumptively invalid. Id.
Following Dairylea, the Board was faced with the question of whether superseniority for layoff and recall could be extended beyond shop stewards to other union officers. United Electrical, Radio & Machine Workers of America, Local 623 (Limpco), 230 N.L.R.B. 406 (1977), enf'd sub nom. D'Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978), answered that question in the affirmative. The Board ruled, however, that such superseniority for other officials would be upheld only upon a showing that they have responsibilities that bear "a direct relationship to the effective and efficient representation of unit employees" by the bargaining unit. Id. at 407-08. In assessing the activities of union officials, the Limpco decision also appeared to extend the rationale of Dairylea by focusing on the entire collective bargaining process, which requires a functioning union organization, rather than merely on in-plant, on-the-job activities. The Limpco decision and subsequent cases revealed a deep division within the Board. See, e.g., American Can Co., 244 N.L.R.B. 736, 737 (1979) ("Board members have ...