Joy Technologies

National Labor Relations Board - Board Decisions

Jan 15, 1992

306 N.L.R.B. 1 (N.L.R.B. 1992)

1
306 NLRB No. 1
JOY TECHNOLOGIES
1 The collective-bargaining agreement provides that:
Any employee who either when recalled or to avoid layoff, finds
it necessary to accept work which is in a different job classifica-
tion and/or department (except his old department), from his
previous regular job classification must return to his regular job
classification if and when such job classification becomes avail-
able. In this event, where applicable, upon the employee’s return
to his job classification, the employee will then have the privi-
lege of returning to his previous regular Machine Tool if and
when it becomes available.
Contrary to the dissent’s implication, the collective-bargaining
agreement does not expressly require the Respondent Employer ei-
ther in plant 1 or in plant 2 to give Beightol a GRP position. The
only pertinent contractual provision, quoted above, was directed to
employees and not to the Respondent Employer, and was in fact ini-
tially interpreted by the Employer as requiring that Beightol take the
vacant GRP position in plant 1.
2 The judge found, and it is undisputed, that Beightol was a union
agent who must be on the job to accomplish duties directly related
to administering the collective-bargaining agreement. See Gulton
Electro-Voice, Inc., 266 NLRB 406, 409 (1983).
3 The superseniority provision is as follows:
The Union Department Stewards and the Shop Committee
shall head the Seniority List when certified by the Union to the
Company. However, when any employee ceases to be a Steward
or Committeeman, such employee shall take his regular place on
the Seniority List. When an entire shift in a department is not
working, Steward superseniority on that shift in that department
immediately ceases. If and when the Steward’s shift would start,
the Steward’s super-seniority becomes effective. Employees
working overtime onto a shift previously not working does not
constitute a start up of that shift. The above defined seniority
will not apply for the purposes of shift preference, job bidding,
machine tool preference, overtime entitlement or scheduling of
vacations. When a Committeeman or Steward is certified to rep-
resent employees on all or any of the shifts such Steward or
Committeeman cannot be displaced by other employees for any
reason when certified or where he may have moved by his elec-
tion to exercise his Company seniority as provided in Item 75
hereof.
Joy Technologies, Inc. and Walter L. Burgard and
International Association of Machinists and
Aerospace Workers, Local 1842 of District
Local No. 83, AFL–CIO, Party to the Contract
International Association of Machinists and Aero-
space Workers, Local 1842 of District Local
No. 83, AFL–CIO and Walter L. Burgard and
Joy Technologies, Inc., Party to the Contract.
Cases 6–CA–22290 and 6–CB–8061
January 15, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 20, 1990, Administrative Law Judge
Lowell Goerlich issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent Employer filed an answering
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaints allege: (1) that the Respondent
Union violated Section 8(b)(1)(A) and (2) by demand-
ing that the Respondent Employer transfer a higher
paying position from one plant to another and award
that position to a union committeeman, pursuant to the
superseniority clause in the parties’ collective-bar-
gaining agreement; (2) that the Respondent Employer
violated Section 8(a)(1), (2), and (3) by acquiescing to
the demand to the detriment of other employees; and
(3) that both Respondents violated the Act by main-
taining an overly broad superseniority provision in
their collective-bargaining agreement. The judge dis-
missed the complaints. For the reasons set forth below,
we disagree and find the violations alleged.
I. FACTUAL FINDINGS
The facts are undisputed. The Respondent Employer
manufactures and sells coal-mining equipment. It oper-
ates three plants known as plants 1, 2, and 3. A gen-
eral repair person (GRP) retired and this resulted, after
several personnel moves not in issue here, in a vacant
GRP position in plant 1 on the second shift. No em-
ployee bid on this position.
Under the collective-bargaining agreement Beightol
was required to return to the vacant GRP position.1
Pursuant to the agreement, the Employer announced its
intention to recall Beightol to the GRP position, which
was in plant 1. Beightol, the senior qualified employee,
had been laid off from the GRP position. Subsequent
to the layoff, Beightol was reassigned, in accordance
with the labor agreement, to the position of cleaning
service person (CSP) in plant 2, a lower-grade position
than GRP. Beightol was also the sole union com-
mitteeman for plant 2. The transfer to plant 1 would
have resulted in Beightol no longer being able to func-
tion as plant 2 representative.2 The Respondent Union
argued not only that the superseniority provision of the
collective-bargaining agreement3 required that Beightol
remain within his area of representation, but also that
the higher paying position of GRP be transferred to
plant 2, shift 1, and awarded to Beightol. The Re-
spondent Employer acquiesced to the Respondent
Union’s demand. This caused a chain reaction in the
work force the result of which was, among other
things, that the Charging Party, Burgard, was bumped
from the first to the second shift for a period of 6
weeks.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The clause, which is fully set forth above, clearly states that the
committeeman cannot be ‘‘displaced by other employees for any rea-
son.’’
5 219 NLRB 656 (1975), enfd. sub nom. NLRB v. Teamsters Local
338, 531 F.2d 1162 (2d Cir. 1976).
6 The fact that here we are dealing with a transfer rather than a
layoff is a distinction without significance. See, e.g., Auto Workers
(Scovill, Inc.), 266 NLRB 952, 953 fn. 9 (1983) (steward super-
seniority for defensive shift maintenance like layoff protection and
presumptively lawful).
7 Our dissenting colleague does not dispute the Dairylea Coopera-
tive rule that a superseniority clause going beyond layoff and recall,
like the one here, is presumptively illegal, and that the heavy burden
of rebutting that presumption falls on the party asserting the clause’s
lawfulness, in this case, the Respondents. Neither does our dissenting
colleague contest Revere Copper’s requirement that a lawful super-
seniority clause must go no further than conferring the minimal pro-
tection necessary to preserve the steward’s area of representation.
Most importantly, our dissenting colleague does not specifically
challenge our finding that transferring the GRP position from plant
1 to plant 2 and awarding it to Beightol—a privilege, so far as the
record shows, not afforded any other unit employee—went beyond
what was minimally necessary for Beightol to remain in his area of
representation. Our dissenting colleague maintains that the Respond-
ents did not violate the Act because they freely and in ‘‘good faith’’
negotiated an agreement to transfer the GRP position to plant 2. We
perceive two flaws in the dissent’s analysis. First, the dissent ignores
the adverse impact of the transfer on other employees. Second, the
dissent’s considerations are beside the point under the cases dis-
cussed above. The question is whether the result of the Respondents’
‘‘good faith’’ efforts—the transfer of the GRP position to plant 2,
which benefited committeeman Beightol—was minimally necessary
for Beightol to do his committeeman’s job. If not, then the transfer
unjustifiably discriminated against and coerced all those unit em-
ployees who were not committeemen including Burgard, who was
bumped to the second shift as a result.
Of course, we support dispute resolution through negotiations. But
superseniority clauses must be negotiated and applied within certain
legal boundaries. See Dairylea Cooperative, supra; Revere Copper,
supra. An employer and a union cannot insulate themselves from the
Act by the simple expedient of ‘‘agreeing’’ to violate employee
rights. The principle behind the justification for transfer of the GRP
position relied on by our dissenting colleague—that the parties in
‘‘good faith’’ agreed to the transfer of the GRP job to plant 2—was
also rejected in Dairylea, supra at 657. This justification cannot
overcome the presumption of illegality of the Respondents’ interpre-
tation of the superseniority clause. Were it otherwise, the Dairylea
requirements would be meaningless because superseniority provi-
sions are usually negotiated in ‘‘good faith.’’ Neither we nor our dis-
senting colleague propose to change those requirements now.
8 Radio Officers v. NLRB, 347 U.S. 17 (1954).
9 Dairylea, supra.
II. ANALYSIS AND CONCLUSIONS
Based on the foregoing facts, the judge found that
the superseniority provision was applied in a geo-
graphically defensive manner to allow Beightol to re-
main in the area he represented. The judge also found
that the provision itself was not overly broad. We dis-
agree.
Because the superseniority clause on its face permits
the committeeman to invoke superseniority for pur-
poses going beyond layoff and recall,4 it is presump-
tively unlawful under Dairylea Cooperative.5 The bur-
den of rebutting a presumptively illegal superseniority
provision rests on the parties asserting its lawfulness.
Under the facts of this case, had the Respondent
Employer done as it had originally intended to do and
transferred Beightol to plant 1, it would have deprived
the employees in plant 2 of their representative. The
Union had a legitimate interest in preventing that oc-
currence. Thus, the Union acted lawfully to the extent
that it insisted that Beightol remain in plant 2. Had this
been the extent of the parties’ action, it could aptly be
described as ‘‘geographically defensive.’’ As the Board
stated in Mechanics Educational Society Local 56 (Re-
vere Copper), 287 NLRB 935, 936 (1987), ‘‘The exer-
cise of superseniority to protect a steward from layoff
from his area of representation is consistent with
Dairylea Cooperative . . . but what is permitted is
only the minimal exercise of such protection.’’ (Em-
phasis added, citation omitted.)6 Here, however, the
parties additionally agreed to transfer the higher paying
position of GRP from plant 1 to plant 2 and to award
that position to Beightol to the detriment of other unit
employees. This action went beyond what was mini-
mally necessary for Beightol to remain in a job in his
area of representation and thus ran afoul of the Act.7
Further, the fact that Beightol might have lost wages
by remaining a CSP or have resigned as a committee-
man in order to secure the GRP position is not disposi-
tive of the lawfulness of the application of the super-
seniority clause:
[I]t nevertheless remains the union’s task to build
and maintain its own organization, and where the
immediate problem is simply a matter of encour-
aging employees to be stewards a union can alone
handle the situation simply by paying employees
or by giving them other nonjob benefits . . . .
[Dairylea, supra at 659.]
The Respondent Employer argues that because
Beightol would have spent the majority of his time on
union business, the transfer of the additional GRP po-
sition to plant 2, which already had a first-shift GRP
position, was necessary in order to ensure that the
work of the GRP was performed. The fallacy of this
argument is that it presupposes that it was lawful for
the Respondents to agree to transfer the GRP position
to plant 2 initially. The Respondent Employer also
contends that the recall provision of the collective-bar-
gaining agreement merely requires that the displaced
employee be returned to the classification from which
he was displaced. It does not, according to the Re-
spondent Employer, prohibit it from exercising its
managerial discretion to transfer the classification to a
different plant. The policy of the Act, however, gen-
erally is to insulate job benefits from union activities.8
Departure from that policy must be justified.9 Contrary
to any implication by the dissent, the record contains
no evidence of any instance where the contract was in-
3JOY TECHNOLOGIES
10 The exceptions, as listed in the superseniority clause, are: shift
preference, job bidding, machine tool preference, overtime, and
scheduling vacations.
terpreted to permit the transfer of job classifications to
accommodate other unit employees, and there is no
contract language that could be so interpreted. Here it
is clear that the Respondent Employer transferred the
GRP position to plant 2 solely to ensure that Beightol
would remain union committeeman and obtain the
higher paying position. That worked to the detriment
of other unit employees and has not been shown to
have been necessary.
Consequently we find that the Respondent Union by
demanding that the GRP position be transferred to
plant 2 and that Committeeman Beightol be awarded
that position violated Section 8(b)(1)(A) and (2) of the
Act. We also find that the Respondent Employer, by
agreeing to the Respondent Union’s demand, violated
Section 8(a)(3), (2), and (1) of the Act.
The complaint also alleges that the Respondents vio-
lated the Act by maintaining an overly broad super-
seniority clause in their collective-bargaining agree-
ment.
The last sentence of the superseniority provision
states that a ‘‘Committeeman cannot be displaced by
other employees for any reason . . . .’’ (Emphasis
added.) As discussed above, the provision is overly
broad on its face and thus presumptively unlawful. Not
only have the Respondents failed to rebut the presump-
tion, but the Respondent Employer conceded as much,
as the judge found. The judge, notwithstanding the
foregoing, found that when the last sentence of the
superseniority provision is read together with the rest
of the clause, which sets forth certain restrictions on
superseniority, the last sentence ‘‘may’’ be construed
lawfully. (The full text of the clause is set forth at fn.
3, supra.)
We do not agree with the judge’s construction. As
the provision is written, the restrictions do not purport
to apply to displacing a committeeman. Moreover,
even under the judge’s reading, the superseniority
clause is unlawful. For example, if the Respondent
Employer decided to reduce the number of GRP’s in
plant 2, it would appear that Beightol could, even if
he had the least natural seniority, exercise his super-
seniority and remain a GRP. This is because down-
grading is not listed as an exception to the super-
seniority clause.10 As set forth above, such job reten-
tion is unnecessary for Beightol to remain in his area
of representation.
Consequently we find that the Respondent Union
has violated Section 8(b)(1)(A) and (2), and the Re-
spondent Employer has violated Section 8(a)(3), (2),
and (1) by maintaining the superseniority clause in
their contract.
CONCLUSIONS OF LAW
1. Joy Technologies, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By demanding that the Respondent Employer
transfer a higher paying position from one plant to an-
other and then demanding that the position be filled by
a union committeeman, the Respondent Union has en-
gaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act.
4. By transferring a higher paying position from one
plant to another and then filling that position with a
union committeeman, the Respondent Employer has
engaged in unfair labor practices within the meaning of
Section 8(a)(1), (2), and (3) of the Act.
5. By maintaining an overly broad superseniority
provision in the collective-bargaining agreement the
Respondent Union and the Respondent Employer have
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) and Section 8(a)(1), (2), and
(3) of the Act respectively.
6. The foregoing unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order that they
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
We have found that the superseniority clause is un-
lawful and we shall order that the Respondents cease
and desist from maintaining and enforcing the clause.
As we have also found that the clause was unlawfully
applied, we shall order the Respondent Employer to re-
turn the GRP position to plant 1 and to rescind all per-
sonnel actions that were a consequence of the Re-
spondents’ unlawful conduct. We shall also issue a
standard make-whole order for any monetary losses
suffered by the employees as a result of the Respond-
ents’ unlawful conduct to be computed in the manner
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that:
A. Respondent Joy Technologies, Inc., Franklin,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining and enforcing superseniority provi-
sions in its collective-bargaining agreement with Inter-
national Association of Machinists and Aerospace
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 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.’’
12 See fn. 11, supra.
1 My colleagues assert that the Respondents ‘‘went beyond what
was minimally necessary for Beightol to remain in his area of rep-
resentation.’’ The assertion is incorrect. Beightol’s area of represen-
tation was plant 2. Absent the agreement of Respondents, Beightol
would have been removed from plant 2.
Workers, Local 1842 of District Local No. 83, AFL–
CIO according superseniority to union officials that is
not required to further the effective administration of
the collective-bargaining agreement.
(b) Discriminating against employees by conferring
benefits of superseniority on union officers that were
not necessary for the effective administration of the
collective-bargaining agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Return the position of GRP to plant 1 and re-
scind all personnel actions which were a consequence
of the unlawful conduct.
(b) Jointly and severally with the Respondent Union
make its employees whole for any loss of earnings
they may have suffered as a result of the discrimina-
tion against them, plus interest.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its establishment in Franklin, Pennsyl-
vania, copies of the attached notice marked ‘‘Appendix
A.’’11 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by
the Respondent Employer’s authorized representative,
shall be posted immediately upon receipt, and main-
tained for 60 consecutive days, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent Employer to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Employer has taken to comply.
B. Respondent International Association of Machin-
ists and Aerospace Workers, Local 1842 of District
Local No. 83, AFL–CIO, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Maintaining and enforcing superseniority provi-
sions in its collective-bargaining agreement with Joy
Technologies, Inc. according superseniority to union
officials that is not required to further the effective ad-
ministration of the collective-bargaining agreement.
(b) Causing or attempting to cause the Respondent
Employer to discriminate against Walter L. Burgard
and other employees by conferring superseniority ben-
efits on union officials that are not necessary for the
effective administration of the collective-bargaining
agreement.
(c) 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. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Respondent Employer in writing that
it has no objection to returning the GRP position to
plant 1 and to rescinding all personnel actions that
were a consequence of the unlawful conduct.
(b) Jointly and severally with the Respondent Em-
ployer 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.
(c) Post at its offices and meeting halls copies of the
attached notice marked ‘‘Appendix B.’’12 Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent
Union’s authorized representative, shall be posted by
the Respondent Union immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondent Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent Union has taken to comply.
MEMBER RAUDABAUGH, dissenting in part.
I disagree with my colleagues’ position that the
good-faith efforts of the Employer and the Union to
accommodate their mutual interests were unlawful
under the Act.
In brief, the facts are that employee Beightol had
been laid off from a GRP position and was holding a
CSP position in plant 2. A GRP vacancy came open
in plant 1. Under the contract, as interpreted, the Em-
ployer was obligated to return Beightol to a GRP posi-
tion if one came open. The problem was that Beightol
was the sole union committeeman (grievance handler)
for plant 2. Hence, to return Beightol to the GRP posi-
tion in plant 1 would mean that plant 2 would be
stripped of representation. Hence, the Employer and
the Union agreed to transfer the GRP position to plant
2 and give it to Beightol.1 In that way, Beightol would
5JOY TECHNOLOGIES
2 My colleagues assert that I have ignored the adverse impact that
the grant of superseniority will have on employees. I have not done
so. A grant of superseniority will necessarily have an adverse impact
on those employees who have only natural seniority. However,
where, as here, the superseniority is justified, it is lawful notwith-
standing that impact. See Gulton Electro-Voice, Inc., 266 NLRB 406
(1983).
3 My colleagues contend that Beightol could have remained a CSP
in plant 2. However, the contract required that he be given a GRP
position if one became available. The contract left the parties free
to locate that GRP position wherever they chose.
occupy the GRP position, and plant 2 would have rep-
resentation. The change served the legitimate represen-
tational interests of the employees and the Union. Fur-
ther, it was acceptable to the Employer. In this latter
regard, the Employer previously had three GRPs in
plant 1 and one in plant 2. As a result of the change,
it now had two GRPs in each plant. Although plant 1
has two shifts and plant 2 has one shift, the union
committeeman spends some of his worktime on rep-
resentational matters. In short, the Employer found that
it could live with the new situation, and the Union
found that the new situation satisfied its representa-
tional needs. In these circumstances, I would not con-
demn as unlawful the good-faith effort to accommo-
date legitimate interests.2 Instead, I would agree with
the judge that the parties used superseniority in a le-
gitimate ‘‘geographically defensive manner.’’3
APPENDIX A
NOTICE TO EMPLOYEES
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 and enforce superseniority
provisions in our collective-bargaining agreement with
International Association of Machinists and Aerospace
Workers, Local 1842 of District Local No. 83, AFL–
CIO according superseniority to union officials that is
not required to further the effective administration of
the collective-bargaining agreement.
WE WILL NOT discriminate against any employees
by conferring benefits of superseniority on union com-
mitteemen that are not necessary for the effective ad-
ministration of the collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL return the position of general repair person
to plant 1 and rescind all personnel actions which were
a consequence of transferring the position.
WE WILL jointly and severally with the Union make
any unit employees whole for any loss of earnings they
may have suffered as a result of transferring the posi-
tion, with interest.
JOY TECHNOLOGIES, INC.
APPENDIX B
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain and enforce superseniority
provisions in our collective-bargaining agreement with
Joy Technologies, Inc. according superseniority to
union officials that is not required to further the effec-
tive administration of the collective-bargaining agree-
ment.
WE WILL NOT cause or attempt to cause Joy Tech-
nologies, Inc. to discriminate against any employee by
conferring benefits of superseniority on union officials
that are not necessary for the effective administration
of the collective-bargaining agreement.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL notify Joy Technologies, Inc., in writing,
that we have no objection to returning the position of
general repair person to plant 1 and to rescinding all
personnel actions which were a consequence of trans-
ferring the position.
WE WILL jointly and severally with the Employer
make any unit employees whole for any loss of earn-
ings they may have suffered as a result of transferring
the position, with interest.
INTERNATIONAL ASSSOCIATION OF MA-
CHINISTS AND AEROSPACE WORKERS
LOCAL 1842, DISTRICT LOCAL NO. 83,
AFL–CIO
Kim Siegert, Esq., for the General Counsel.
R. Stanley Mitchel, Esq., of Pittsburgh, Pennsylvania, for Joy
Technologies, Inc.
Eugene Marcaccio, Grand Lodge Representative, of Stan-
ford, Connecticut, for International Association of Machin-
ists and Aerospace Workers, Local 1842 of District Lodge
No. 83, AFL–CIO.
Walter L. Burgard, Esq., of Franklin, Pennsylvania, pro se.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There being no objections thereto, counsel for the General Coun-
sel’s motion to correct transcript is granted and the transcript is cor-
rected.
2 The Employer operated three plants; two are located in Franklin,
Pennsylvania, and the third is located in Reno, Pennsylvania.
3 Under the contract there were to be three committeepersons at
plant 1 and one at plant 2. A transfer of Beightol to plant 1 would
have caused Beightol to lose his committee position in plant 1.
4 Departmental seniority was observed.
5 Plant 2 had only one shift.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The origi-
nal charge in Case 6–CB–8061, filed on December 5, 1989,
by Walter Burgard was served by certified mail on Inter-
national Association of Machinists and Aerospace Workers,
Local 1842 of District Local No. 83, AFL–CIO (the Union
or the Respondent Union) on December 6, 1989. A first
amended charge was filed by Burgard on March 1, 1990, and
served on the Respondent Union on or about March 2, 1990.
A second amended charge was filed by Burgard on March
2, 1990, and served on the Respondent Union on or about
March 2, 1990.
The original charge in Case 6–CA–22290 filed by Walter
L. Burgard on December 5, 1989, was served by certified
mail on Joy Technologies, Inc. (Joy, the Respondent Em-
ployer, or the Company) on December 6, 1989. A first
amended charge was filed by Burgard on March 1, 1990, and
served on the Respondent Employer on or about March 1,
1990.
An order consolidating cases was issued on March 2,
1990, and the complaints were duly served on the Respond-
ents. In the complaints, among other things, it is alleged that
the Respondent Employer violated Section 8(a)(1), (2), and
(3) of the National Labor Relations Act (the Act) and that
the Respondent Union violated Section 8(b)(1)(A) and (2) of
the Act by a union committeeman’s exercise of super-
seniority. The Respondents filed timely answers denying that
they had engaged in the unfair labor practices alleged.
The matter came on for hearing on June 15, 1990, at
Franklin, Pennsylvania. Each party was afforded a full op-
portunity to be heard, to call, examine and cross-examine
witnesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
On the entire record1 in these cases and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
I. THE BUSINESS OF THE EMPLOYER
At all times material, the Respondent Employer, a corpora-
tion with an office and place of business in Franklin, Penn-
sylvania, is engaged in the manufacture and nonretail sale of
coal mining equipment.
During the 12-month period ending February 29, 1990, the
Respondent Employer, in the course and conduct of its busi-
ness operations described above, purchased and received at
its Franklin, Pennsylvania facility products, goods, and mate-
rials valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania.
During the period of time described above, the Respondent
Employer, in the course and conduct of its operations de-
scribed above, shipped from its Franklin, Pennsylvania facil-
ity products, goods, and materials valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania.
The Respondent Employer is now, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR UNION INVOLVED
The Respondent Union is, and has been at all times mate-
rial, a labor organization within the meaning of Section 2(5)
and Section 8(b)(4) of the Act.
III. THE UNFAIR LABOR PRACTICES
Material Facts
Paul Pleger, a general repair person (GRP) employed in
the Respondent Employer’s maintenance department, retired
on November 1, 1989, from a job in plant 1 on shift 22 Em-
ployee Albert Kachik, a GRP, bid on Pleger’s vacant job and
was awarded the job. This circumstance resulted in the va-
cancy of Kachik’s job. Employee Regis Reed successfully
bid for Kachik’s job. Reed’s vacant job was then posted, but
there were no qualified bidders; thus employee Lynn
Rembold, who was a GRP on the first shift, was realigned
to the second shift. Rembold’s vacant job became subject to
recall (‘‘Somebody not working in the classification who had
rights to recall back to it’’). Thus the Respondent ‘‘offered
the position to the senior qualified employee laid off from
the position,’’ who ‘‘would have been Randy’’ Beightol, the
union committeeman for plant 23 maintenance department.4
Beightol at the time was a cleaning service person (CSP)
or janitor on the first shift at plant 2.5 Prior to filling the job
as CSP Beightol had been a GRP, which was a higher grad-
ed position than CSP.
Had he not been a committeeman, according to Daryl
Beam, the Employer’s labor relations manager, Beightol
would have been contractually required to take the job
Rembold had vacated in plant 1. Beam drew his opinion
from the following provision of the contract between the
Union and the Company.
E. Any employee who either when recalled or to
avoid layoff, finds it necessary to accept work which is
in a different job classification and/or department (ex-
cept his old department), from his previous regular job
classification must return to his regular job classifica-
tion if and when such job classification becomes avail-
able. In this event, where applicable, upon the employ-
ee’s return to his job classification, the employee will
then have the privilege of returning to his previous reg-
ular Machine Tool if and when it becomes available.
[Emphasis added.]
7JOY TECHNOLOGIES
6 The superseniority provision of the contract is as follows:
103. The Union Department Stewards and the Shop Com-
mittee shall head the Seniority List when certified by the Union
to the Company. However, when any employee ceases to be a
Steward or Committeeman, such employee shall take his regular
place on the Seniority List. When an entire shift in a depatment
is not working, Stewad super-seniority on that shift in that de-
partment immediately ceases. If and when the Steward’s shift
would start, the Steward’s super-seniority becomes effective.
Employees working overtime onto a shift previously not work-
ing does not constitute a start up of that shift. The above defined
seniority will not apply for the purposes of shift preference, job
bidding, machine tool preference, overtime entitlement or sched-
uling of vacations. When a Committeeman or Steward is cer-
tified to represent employees on all or any of the shifts such
Steward or Committeeman cannot be displaced by other employ-
ees for any reason when certified or where he may have moved
by his election to exercise his Company seniority as provided
in Item 75 hereof.
7 ‘‘A shift realignment occurs when you have a number of people
at one plant and you want to move one or more, whatever the num-
ber you need, to another plant. There’s no increase in the work
force, you just redistribute the people.’’
8 The provision of the contract is as follows:
75(a) In order for the Company to carry on efficient operations,
it is necessary to maintain a normal proportion of skilled and
unskilled help on all shifts. However, the Company will grant
an employee shift preference and at that time, machine tool pref-
erence within his Job Classification, according to seniority
schedule. At the time the employee exercises a shift preference
he will also be given, where applicable, sectional or plant pref-
erence provided these changes do not curtail the efficiency of
such operations. Requests by the employee for shift change if
granted on account of seniority shall not be made more than
once a year. Employees displaced by provisions of this para-
graph may exercise seniority in their classification to obtain their
desired shift as well as plant or section. However, this action
shall not mean that this employee has used the shift preference
rights provided for in this paragraph. [Emphasis added.]
9 The Respondent Employer concedes this proposition in its
posthearing brief at Br. 5.
Nevertheless, Rembold’s GRP job was not filled; instead,
Beightol was placed in a GRP position in plant 2 on the first
shift. Beam explained:
[O]riginally, we had thought Randy should move from
Plant 2 to Plant 1 . . . .
We met with the union and mentioned to them that’s
the way we thought this should go. There was a dis-
agreement from the union on it, and we considered
what they were saying, took a look at the contract lan-
guage, and said, okay, the two things acting here that
we could see was the idea of—he had to take a recall
to his regular job. And the super seniority language did
not exclude plant preference from being considered,
and the super seniority issue all acted together to give
him that position at Plant 2.6 [Emphasis added.]
Although Bill Knox, senior to Beightol, was a GRP already
on the first shift at plant 2 at the time, Beightol was given
the GRP on the first shift at plant 2. According to Beam,
when Beightol became eligible for a GRP job he bumped
Knox because of his superseniority. Knox was ‘‘considered
out of that position.’’ Knox, nevertheless, was continued in
plant 2 on a temporary basis. His permanent job would have
been in plant 1. ‘‘[K]nowing that Randy was the shop com-
mitteemen [sic] and was out of the . . . plant frequently on
union business, we needed someone to cover for him when
he was on union business, so there was a shift realignment
that was posted.’’7 ‘‘And Bill Knox, since he was then, at
that point, considered out of a permanent position at Plant
2, bid on that position as a shift realignment.’’ Knox was the
only bidder. Thus, after all the alleged contractual maneu-
vering was completed, Beightol and Knox both ended up as
GRPs in plant 2 on shift 1.
On October 30, 1989, Burgard filed a grievance com-
plaining that the labor agreement was violated when Beightol
was not transferred to plant 2, shift 2.
The grievance was answered, ‘‘The action that recently
transpired relating to this matter was a result of mutual
agreement between the Company and the union committee as
the contract language did not specifically address this in-
stance. It was felt that this nonprecedential arrangement satis-
fied both parties and caused the least amount of disruption
to the workforce and the department.’’ (G.C. Exh. 6.)
Under the provisions of the contract the grievance could
not be submitted to arbitration.
On March 26, 1990, Albert Kachik submitted a shift pref-
erence request8 for a first-shift GRP job in plant 1. His re-
quest was granted. As a result Burgard was bumped on April
2, 1990, from the first shift to the second shift. Kachik held
greater seniority than Burgard. Burgard asserted that his
transfer to shift 2 would not have occurred if Beightol had
been transferred to plant 1. According to Burgard, had
Beightol been transferred to plant 1 on the second shift at
the time of Pleger’s retirement, Kachik would not have
bumped him but would have bumped Rembold. ‘‘If Beightol
had went to the second shift originally, when the man
bumped me, he would have not bumped me, he would have
bumped a younger maintenance man.’’ Had Beightol been
transferred to the second shift, Rembold would not have been
moved from the first shift to the second shift. Thus, when
Kachik exercised his preference for the first shift, Rembold,
whose seniority was less than that of Burgard, would have
been bumped to the second shift rather than Burgard. Be-
cause of Beightol’s remaining in plant 2, Burgard became the
youngest in seniority on the first shift, whereas if Beightol
had been transferred to the second shift in plant 2, Rembold
would have been the youngest in seniority on the first shift
and the first to be bumped to the second shift. By Beightol’s
remaining in plant 2, Burgard was deprived of seniority pro-
tection that would have allowed him to remain on shift 1
when Kachik exercised his senior seniority to bump on to the
first shift. Burgard is now on the first shift.
CONCLUSIONS AND REASONS THEREFOR
The last sentence of section 103 of the contract, supra,
standing alone, to wit: ‘‘When a Committeeman or Steward
is certified to represent employees on all or any of the shifts
such Steward or Committeeman cannot be displaced by other
employees for any reason when certified or where he may
have moved by his election to exercise his Company senior-
ity as provided in Item 75 hereof’’ is obviously an overly
broad provision.9 See Dairylea Cooperative, 219 NLRB 656
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As stated in Gulton, ‘‘agents of the union, who must be on the
job to accomplish their duties directly related to administrating the
collective-bargaining agreement.’’ 266 NLRB at 409.
11 The Respondent Employer asserts at Br. 4, ‘‘a new
committeeperson would have to be elected for Plant 2 and that
committeeperson would be out of the classification on union busi-
ness most of the time, thus Joy would need another GRP to take
his place. Therefore there was an economic justification for agreeing
to the Union’s position and moving the new GRP position to Plant
2 where no further changes would be required to have the necessary
work performed.’’
(1975), enfd. sub nom. Teamsters Local 338 v. NLRB, 531
F.2d 1162 (2d Cir. 1976).
However, when that sentence is read with the remainder
of section 103, the sentence is so limited that section 103
may be construed as having a narrower application barring
stewards and committeemen from exercising superseniority
for any reason other than in conformity with the approved
superseniority construction of the Act.
Because under section 103, the restraints on the exercise
of superseniority are not applicable to plant preference, the
question here is whether committeeman Beightol’s exercise
of seniority to remain in plant 2 ran afoul of the proscrip-
tions of the Act.
It seems clear from the evidence that Beightol was a union
agent who came within the terms of Gulton Electro-Voice,
Inc., 266 NLRB 406 (1983).10 Indeed his union activities
were of such an extensive and demanding nature that em-
ployee Knox was continued in plant 2 to cover Beightol’s
absences on union duties.
As such an agent, Beightol was entitled to superseniority
under the contract and the statute; however, the General
Counsel contends that he was not entitled to exercise super-
seniority for the purpose he did, plant preference. Had
Beightol been restrained from exercising superseniority as a
committeeman to remain in plant 2, he would have lost his
committeeman’s job in plant 2 and plant 2 would have been
left without his union representation for the maintenance de-
partment.11 Thus the employees’ choice of their representa-
tive would have been nullified. This situation seems not un-
like the Board’s observations in Electronic Workers IUE
Local 663 (Gulton Electro Voice), 276 NLRB 1043, 1044
(1985). ‘‘Bumping a zone steward to a job in another zone
would disrupt the continuity in the first zone’s employees’
union representation. Therefore, granting a zone steward pro-
tection against bumping from his zone would be defensive in
nature and akin to the shift protection found lawful in Scovill
[266 NLRB 952 (1983)].’’
A fortiori, transferring a committeeman from one plant to
another would appear to have a like disruptive effect. The
continuity of the committeeman’s representation in the plant
from which he is transferred would be interrupted.
By allowing Beightol to utilize his superseniority, under
the circumstances, for plant preference, his superseniority
was exercised in a geographically defensive manner. Such
utilization of superseniority is not proscribed by the Act. The
finding is for the Respondents.
[Recommended Order for dismissal omitted from publica-
tion.]