Radio And Television Broadcast Engineers Union, Local 1212, I.B.E.W., Afl-Cio

National Labor Relations Board - Board Decisions

Apr 1, 1988

288 N.L.R.B. 374 (N.L.R.B. 1988)

374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Radio and Television Broadcast Engineers Union,
Local 1212, I.B.E.W., AFL-CIO and WPIX,
Inc. Case 2-CB-11109
April 1, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On January 16, 1987, Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, fmdings, and
conclusions only to the extent consistent with this
Decision and Order.
I. FACTS1
In 1968 Joseph Tomeselli was hired by WPIX as
a film splicer. In 1978 he transferred to WPIX's en-
gineering department and became a member of the
Respondent Union.
In August 1982 the Union, by letter, informed
WPIX that Tomaselli had been appointed business
representative of the Union and would be taking a
leave of absence pursuant to section 3.09 of its col-
lective-bargaining agreement with WPIX. 2 There-
after, Tomaselli discussed the matter with the vice
president and chief engineer for WPIX, Robert
Murch, who approved the arrangement effective
August 25, 1982.
As a business representative, Tomaselli negotiat-
ed collective-bargaining agreements on behalf of
the Respondent with 25 TV and radio stations. He
The facts are set forth in greater detail by the judge.
2 Sec. 3.09 provides:
Section 3.09: (a) At the written request of the Union, for the con-
duct of Union business in connection with the broadcasting industry
only, any employee shall be granted a leave of absence without pay
for a period not to exceed two (2) years.
Such employee's seniority shall continue to accrue throughout
such a leave for layoff purposes only.
(b) Leave of absence may be granted by the Employer for a
period not to exceed six (6) months upon written application by any
employee, stating reasons therefore and, if the leave is for a month
or more, the approval of the Union, provided that no employee shall
apply for a leave of absence primarily to enable him to solicit or
accept employment elsewhere Such employee shall continue to
accrue semonty throughout such leave of absence for layoff pur-
poses only.
. . .
(d) Upon the return of an employee from a leave of absence,
he/she shall be reemployed in the same position or a position gener-
ally similar to that in which he/she previously held and with the
same experience or length of service rights held preceding such
leave
also processed grievances and participated in arbi-
trations. The Union alleges that in May 1984 a
letter was sent to Murch, informing WPIX that in
accordance with section 3.09(a) of the contract,
Tomaselli's leave of absence would be extended for
an additional 2 years. 3 WPIX denies receiving such
a request.
In July 1985, Tomaselli informed WPIX that he
no longer served as business representative and re-
quested reinstatement. 4 Shortly thereafter, Toma-
selli was notified by Murch that no vacancies
within WPIX were available, and reinstatement
was refused.
The dispute regarding Tomaselli's reinstatement
was the subject of a grievance and ultimately went
to arbitration. The arbitrator found that WPIX vio-
lated the collective-bargaining agreement. 5 The ar-
bitrator ordered WPIX to reinstate Tomaselli.
WPIX has not complied with the award.6
CONTENTIONS OF THE PARTIES7
The question before us is whether the Respond-
ent's demand for Tomaselli's reinstatement pursuant
to section 3.09 of the collective-bargaining agree-
ment violates Section 8(b)(1)(A) and (2) of the
Act.
The General Counsel contends that section 3.09
is unlawful because it provides greater benefits to
an employee on a union-related leave of absence
than to an employee on a nonunion-related leave of
absence, thereby encouraging membership in the
Union. The benefits at issue are a longer leave of
3 Sec. 3.09(a) does not explicitly provide for an extension of the leave
of absence
4 Tomaselli was paid a salary by the Respondent while serving as a
business representative.
5 The arbitrator found that the Union had notified WPIX of a request
for an extension of Tomaselh's leave, that WPIX had accepted the exten-
sion, and that the parties thereby modified sec. 3.09 (a) of the contract.
The judge assumed without deciding that the arbitrator's finding that the
parties mutually agreed to extend Tomaselh's leave for an additional year
was correct. We note that Tomaselli continued to be included in WPIX's
group insurance plan, and WPIX continued to bill the Umon for the cost
of bis coverage. Accordingly, we find, as did the arbitrator, that the par-
ties mutually agreed to the extension of the leave of absence.
6 Subsequently, the Respondent moved in Federal district court to
confirm the award. WPIX requested that the award be set aside. The
Board moved to intervene and requested the court stay its proceeding
pending Board determination. The court granted the Board's request.
7 The Respondent excepts to the judge's failure to defer to the arbitra-
tor's award. As concluded by the judge, we find no merit in this excep-
tion. In deciding the Umon's grievance, the arbitrator looked only to
whether WPIX violated sec. 3.09 of the contract by refusing to reinstate
Tomaselli. He did not consider the legality of the clause itself, the issue
WPIX's charge has placed before us. Therefore, deferral to the arbitra-
tor's award is not warranted under the criteria set forth in Olin Corp., 268
NLRB 573 (1984).
8 Specifically, the complaint alleged that the Respondent violated the
Act by maintaining and enforcing sec. 3.09(a) of the contract, by de-
manding that Tomaselli be reinstated to his former position of employ-
ment, and by filing for arbitration regarding WPIX's failure to do so.
288 NLRB No. 49
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.) 375
absence and the option to be gainfully employed
elsewhere while on leave of absence.9
The General Counsel and the Charging Party
contend that these disparate benefits are analogous
to those superseniority clauses proscribed by Daily-
lea Cooperative, 219 NLRB 656 (1975), enfd. sub
nom. NLRB v. Teamsters Local 338, 531 F.2d 1162
(2d Cir. 1976), as applied in Gulton Electro-Voice,
Inc., 266 NLRB 406 (1983), enfd. sub nom. Electri-
cal Workers UE Local 900 v. NLRB, 227 F.2d 1184
(D.C. Cir. 1984), and Mead Packaging, 273 NLRB
1451 (1985). In its brief to the Board, the Charging
Party argues that the unique benefits afforded by
section 3.09(a) are inextricably linked to union ac-
tivities and are available only to employees who
engage in union business. Thus, according to the
General Counsel and the Charging Party, the Re-
spondent violated the Act by seeking to enforce a
clause which contains such union-related benefits,
The Respondent contends that the clause at issue
is not comparable to that found unlawful in Dairy-
lea, supra. Rather, the Respondent, relying on
Stage Employees IATSE Local 695 (Twentieth Cen-
tury Fox), 261 NLRB 590 (1982), argues that the
leave of absence provision does not provide a pref-
erence but merely a restoration of the seniority an
employee would have continued to receive had he
remained on the job. The Respondent further notes
that the right to be gainfully employed during the
union-related leave of absence is of limited value
because the right is restricted to employment as a
union official in connection with the broadcast in-
dustry. Thus, as in Twentieth Century, ibid., the
provision at issue in this case simply preserves an
employment opportunity for the former union offi-
cial, granting no extra benefits.
The Respondent argues that the General Coun-
sel's and the Charging Party's reliance on Mead
Packaging, supra, is misplaced. According to the
Respondent, the dispute in Mead Packaging arose
because the employer unilaterally terminated cer-
tain contractual benefits enjoyed by employees on
union-related leaves of absence. These benefits in-
cluded employer-paid insurance and pension cover-
age. The Board found that the continuation of the
insurance and pension coverage for union officers
while on leave of absence constituted disparate
treatment which did not "further the effective ad-
9 The complaint alleges, and the General Counsel further contended,
that employees on union-related leaves were benefited by the option to
continue in WPIX's medical and group life insurance program. The judge
dismissed this allegation of the complaint. The judge noted that the
record indicates that employees on other nonunion) types of leaves
of absence are provided medical coverage by WPIX. In contrast, in To-
maselli's situation, the Dmon has paid the premiums for his coverage
Thus, WPIX's actions in regard to medical payments were more gener-
ous for employees on nonunion leaves of absence No exceptions were
filed to the judge's dismissal of this allegation of the complaint.
ministration of bargaining agreements." The Re-
spondent notes that union officials in Mead re-
ceived insurance coverage and pension multipliers
that were not necessary to achieve the legitimate
aim of not discouraging employees from seeking or
accepting union office. The provision of the insur-
ance coverage and pension multipliers was unnec-
essary because the union official could be compen-
sated or reimbursed for those items by the union.
However, argues the Respondent, in this case, only
the Employer could return a union official to his
former job. Thus, in the Respondent's view, this
provision is necessary for effective contract admin-
istration.
III. THE ADMINISTRATIVE LAW JUDGE'S
DECISION
The judge concluded that the leave of absence
provision bestows on union officials significant ben-
efits which are not granted to other unit employees
and has a substantial adverse effect on the rights of
other unit employees. Thus, according to the
judge, the leave of absence provision is similar to
those provisions found unlawful in Dairylea Cooper-
ative, supra, and its progeny."
As noted, the benefits at issue, from section 3.09
of the contract, are a longer leave of absence and
the option to be gainfully employed elsewhere. In
finding that these benefits were significant and had
potentially significant consequences on the job
rights of other employees, the judge emphasized
that section 3.09 accords employees serving as
union officials seniority accrual for the time spent
on their extended leave." The judge found that
the clause allows a union official to return to his or
her former job with seniority greater than those
employees who have spent more time performing
work for the Employer.
The judge, in examining precedent, acknowl-
edged the apparent inconsistencies between Mead
10 See Gulton Electra- Voice, Inc., 266 NLRB 406 (1983), enfd. sub nom.
Electrical Workers UE Local 900 v. NLRB, 227 F 2d 1184, 60 (D.C. Cir.
1984); Electrical Workers IUE Local 663 (Gulton Electra Voice), 276
NLRB 1043 (1985); Mead Packaging, 273 NLRB 1451 (1985).
11 The judge concluded that application of sec. 3 09 to Tomaselli dis-
advantaged 57 bargaining unit employees who had been employed after
Tomaselh. The judge found that 46 employees were hired by WPIX be-
tween Tomaselli's hire and the commencement of his leave. Of the 46
employees, 31 had more actual time spent in the unit than Tomaselli had
when he sought reinstatement. Therefore, the judge found that according
accrued seniority to Tomaselh while not performing work for WPIX
would provide him with a significant preference.
The Respondent refutes the above-stated findings, contending that To-
maselh's seniority should have been calculated as of his initial hiring by
WPDC in 1968 rather than his transfer to the unit in 1978. The Respond-
ent argues Tomaselli would thereby have a great deal more service with
WPIX than any of the employees to whom the judge referred in his deci-
sion.
In light of our disposition of this case, infra we find it unnecessary to
resolve these contentions.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Packaging, supra, and Twentieth Century, supra,
noting that "I am somewhat troubled by Twentieth
Century and have some difficulty in reconciling the
holding therein with Mead." The judge concluded
that "there is indeed an inconsistency in the reason-
ing applied in both cases, and I can only conclude
which I do that whatever vitality Twentieth Centu-
ry possessed has been dissipated by Mead."
Having found that the collective-bargaining
agreement provided substantial disparate benefits to
union officials, the judge further found that the Re-
spondent failed to show that these benefits fur-
thered the effective administration of bargaining
agreements and failed to demonstrate the existence
of any other sufficiently compelling legitimate in-
terests served by such clauses that would warrant
overcoming the presumption of illegality dictated
by Dairylea Cooperative, 219 NLRB 656 (1975),
enfd. sub nom. NLRB v. Teamsters Local 338, 531
F.2d 1162 (2d Cir. 1976). Thus, the judge ultimate-
ly concluded that the discriminatory result from
the clause is analogous to that of the superseniority
clauses condemned in Dairylea, ibid. He therefore
found that the Respondent's efforts to enforce the
clause violated Section 8(b)(1)(A) and (2) of the
Act.
IV. ANALYSIS AND CONCLUSIONS
The collective-bargaining agreement between
WPIX and the Union provides that an employee
wishing to serve as a union official may be granted
a leave of absence for a period of 2 years while se-
niority continues to accrue for layoff purposes.
Under the contract, a WPIX employee seeking
leave for other purposes is entitled to a 6-month
leave of absence with accrued seniority for layoff
purposes provided he or she does not solicit or
accept employment elsewhere.
In deciding whether a particular collective-bar-
gaining provision that makes some distinction on
the basis of union status or activity violates Section
8(b)(1)(A) and (2), we shall use a three-step analy-
sis, with the qualification that the third step need
not be reached in all cases. First we look to see
whether the provision treats employees differently
on the basis of union status or activity. Next we
look at whether this distinction tends to encourage
the union status or activity in question. If the
answer to either of those first two questions is no,
then we need not reach the third step. If the
answer to both is yes, then we determine whether
the disparate treatment that tends to encourage or
discourage union activity is justified by policies of
the Act.12
In this case we need not reach the third step.
Clearly the clause at issue here does treat em-
ployees differently on the basis of union-related
considerations. Employees who take a leave of ab-
sence without pay to engage in "the conduct of
union business in connection with the broadcasting
industry" may take a longer leave of absence than
may employees who take a leave of absence for
purposes unconnected with the Union. In both
cases the employees lose no seniority for layoff
purposes while they are on leave, but the period of
no loss of seniority is longer for those on union-re-
lated leave. Hence, the answer to the first question
is "yes."
Although we find that section 3.09 of the collec-
tive-bargaining agreement creates a distinction be-
tween those on union-related leave and those on a
leave of absence for other purposes, we further
find that this distinction does not tend to encourage
employees to become active unionists so that they
might be selected to take temporary union jobs."
Instead, it merely removes, in part, a condition that
would discourage employees from taking tempo-
rary union jobs. 14 Thus, an employee who stays at
his job with WPIX is no worse off with respect to
seniority than an employee who takes a leave of
absence to work for the Union; and that employee
who remains on the job is no more disadvantaged
by his fellow employee's having taken the leave for
that purpose than he would be if that individual
had remained on the job. It is unreasonable to sup-
pose that an employee would take an outside-the-
plant union job simply to retain the seniority that
he would possess even if he did not take such job.
12 If the answers to the first two questions are unclear, it may be nec-
essary, in certain circumstances, to examine the justification for the dis-
tinction according to the third step of our analysis,
13 Contrary to the Judge we see no significance in that aspect of the
provision which forbids an employee to take a leave of absence to solicit
or accept employment elsewhere while it allows employees to take a
leave of absence to work for the Union. The fact that the employee on
union-related leave would receive pay for his work or that the job might
conceivably lead to other positions with the Union provides no encour-
agement or incentive for unit employees to become active umonists that
they might be chosen business representatives. Moreover, any possibility
of the business representative position leading to further union Jobs is too
speculative to conclude reasonably that it would provide an inducement
for employees to be active unionists. Indeed, in the case before us Toma-
selli did not embark on a career with the Union but rather sought to
return to his position with WPIX.
14 As previously noted, sec 3.09(a) and (b) allows the employee on
union-related leave and nonunion-related leave to accrue seniority for
layoff purposes only. sec. 3.09(d) provides that for other than layoff pur-
poses the seniority for an employee returning from a leave of absence is
based on seniority held immediately preceding the leave. Thus, an em-
ployee who took leave to take a union Job in the broadcastmg industry
might in fact come back at a disadvantage—relative to those who took
no leave—when seniority for other purposes, e.g., qualification for holi-
day and vacation pay, was concerned.
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.)

377
y
Were he faced with the prospect of losing such se-
niority, however, he might well be discouraged
from taking leave to engage in that particular union
activity.
This is unlike the circumstances in Dairylea Co-
operative, 219 NLRB 656 (1975), enfd. sub nom.
NLRB v. Teamsters Local 338, 531 F.2d 1162 (2d
Cir. 1976), and Gulton Electro-Voice, Inc., 266
NLRB 406 (1983), enfd. sub nom. Electrical Work-
ers IUE Local 900 v. NLRB, , 727 F.2d 1184 (D.C.
Cir. 1984), in which the clauses at issue clearly en-
courage employees to become union officers be-
cause they gained seniority they could not have
possessed had they not done so. Those cases teach
that where superseniority clauses are concerned, a
clause will be lawful only if justified in terms of
the collective-bargaining policies of the Act. As
noted above, we see no need to reach the "justifi-
cation" inquiry in the present case.15
Thus, our analysis is, in essence, discernible in
the judge's decision that was adopted by the Board
in Stage Employees IATSE Local 695 (Twentieth
Century Fox), 261 NLRB 590 (1982). The clause in
issue here provides the employee returning from 'a
union-related leave of absence with a restoration of
his job in no better position than if he had never
left, rather than a preference or benefit. Thus, to
the extent that the foregoing analysis is inconsistant
with Mead Packaging, 273 NLRB 1451 (1985), we
overrule that case.
Accordingly, based on the above, we find that
section 3.09 of the parties contract does not accord
an unlawful preference to employees serving as
union officials. Therefore, the Respondent's actions
in seeking to have Tomaselli reinstated to his job at
WPIX did not violate Section 8(b)(1)(A) and (2) of
the Act.
ORDER
The complaint is dismissed.
15 We 'note, however, a substantial number of collective-bargaining
agreements contain provisions similar to that m issue in this case. In 1986
30 percent of all labor contracts studied contained special provisions
gtanting employee grievance representatives preference in seniority rights
(not superseniOrity). See BNA, Basic Patterns in Union Contracts 36
(11th ed. 1986). We take notice of R. Exh. 8 entitled "Basic Patterns in
Umon Contracts" published by the Bureau of National Affairs dated Sep-
tember 20, 1983, which indicates that union-related leave-of-absence pro-
visions were found in 76 percent of the sample contracts, 87 percent in
manufacturing and 59 percent in nonmanufacturing agreements. Although
not controlling, these statistics are mdicative of the tremendous instability
in labor relations which would result if we deemed all union-related leave
of absence provisions unlawful.
Jonathan Leiner, Esq. and David E. Leach III, Esq., for
the General Counsel.
Richard H. Markowitz, Esq. (Markowitz' and Richman), of
Philadelphia, Pennsylvania, for the Respondent.
Richard L. Marcus, Esq. (Reuben and Proctor), of Chica-
go, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant
to charges filed on 2 August 1985, 1 in Case 2-CB-11109
by WPIX Inc. (WPIX or the Company), the Region
issued a complaint and notice of hearing on 21 April
1986. The complaint alleged that Radio and Television
Broadcast Engineers Union, Local 1212, (Re-
spondent or the Union) violated Section 8(b)(1)(A) and
(2) of the Act, by in substance attempting to maintain
and enforce the provisions of a collective-bargaining
agreement between the parties, granting greater benefits
to those engaged in union business.
The specific benefits referred to in the complaint are
(a) a longer leave of absence; (b) the option to be gain-
fully employed elsewhere while on a leave of absence;
and (c) the option to continue in WPIX's medical and
group life insurance program.
A hearing was held before me with respect to the alle-
gations set forth therein in New York, New York, on 18
June 1986. Briefs have been received from all parties and
have been carefully considered.
Based on the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
WPTX is a New York corporation engaged in the op-
eration of radio and television broadcasting stations.
During the past year WPIX derived gross revenues in
excess of $100,000. During the same period of time, it ad-
vertised products sold nationally and subscribed to na-
tional wire services.
It is admitted and I so find that WPLX is now and has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is also conceded and I so conclude that Respondent
is a labor organization within the meaning of Section
2(5) of the Act.
III. FACTS
Respondent and WPIX have been parties to successive
collective-bargaining agreements since at least 1949. Re-
spondent represents a unit of television engineers and
technicians employed by WPIX in its engineering depart-
ment.
Since 1949, the contracts between the parties have
contained leave-of-absence clauses relating to union busi-
ness in one form or another. Since 1971 each of the par-
ties collective-bargaining agreements, including the one
All dates are in 1985 unless otherwise specified.
378

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
presently in force, running from 15 June 1984 to 14 June
1987, contains the following provisions:
Section 3.09: (a) At the written request of the
Union, for the conduct of Union business in connec-
tion with the broadcasting industry only, any em-
ployee shall be granted a leave of absence without
pay for a period not to exceed two (2) years.
Such employee's seniority shall continue to
accrue throughout such a leave for layoff purposes
only.
(h) Leave of absence may be granted by the Em-
ployer for a period not to exceed six (6) months
upon written application by any employee, stating
reasons therefor and, if the leave is for a month or
more, the approval of the Union, provided that no
employee shall apply for a leave of absence primari-
ly to enable him to solicit or accept employment
elsewhere. Such employee shall continue to accrue
seniority throughout such leave of absence for
layoff purposes only.
The collective-bargaining agreement also provides in
Section 309(c) that employees may be granted 6 months
of maternity leave, which may be extended by mutual
agreement with continuation of seniority.
Section 309(d) provides that an employee returning
from any leave of absence shall be reemployed in the
same or a similar position as previously held, and with
the same experience or length of service rights held im-
mediately preceding such leave.
Joseph Tomaselli was hired by WPIX as a film splicer
in 1968. In 1978 he transferred to the engineering depart-
ment and into the bargaining unit represented by Re-
spondent. He became a member of Respondent in late
1978, and has remained a union member ever since.
By letter dated 19 August 1982, from Respondent's
business manager Richard Clements, WPIX was in-
formed that Tomaselli had been appointed business rep-
resentative of the Union, and that he would be taking a
leave of absence to so serve, effective 25 August. Toma-
selli thereafter discussed the matter with Robert Murch,
vice president and chief engineer for WPIX, who ap-
proved the arrangement.
During this discussion; Tomaselli informed Murch that
during his leave of absence, he wished to continue to be
covered by WPIX's medical and dental benefits set forth
in the contract, but that Respondent would pay the pre-
miums. Subsequently a letter was sent by the Union to
WPIX's vice president of personnel, confirming this ar-
rangement. Thereafter, pursuant to this procedure, Re-
spondent reimbursed WPIX for the premiums that it paid
on Tomaselli's behalf.2
During his leave of absence, Tomaselli negotiated col-
lective-bargaining agreements on behalf of Respondent,
with 25 of the 28 television and radio stations whose em-
ployees it represents. In this connection Tomaselli was
the principle spokesman for Respondent in its negotia-
2 While he was on leave of absence from WPIX, Tomaselli was paid a
salary by Respondent.
tions with WPIX in 1984, leading to the collective-bar-
gaining agreement currently in force between the parties.
Tomaselli, as part of his duties as business representa-
tive, also processed grievances of members employed in
the various bargaining units, as well as participating in
arbitrations on their behalf. He engaged in these func-
tions with respect to employees of WPIX, and dealt with
officials of the station in connection with grievances of
such ,employees.
In May 1984 Tomaselli and Clements discussed the
possibility of extending Tomaselli's leave of absence be-
cause his term as business representative had not expired.
Accordingly, Clements dictated a letter to its office man-
ager, addressed to Murch, informing WPIX that in ac-
cordance with section 309(a) of the contract, 3 Tomasel-
li's leave of absence would be extended for an additional
2 years. Tomaselli testified that he saw the letter dictated
and signed by Clements, and that Clements instructed
the office manager to mail it to Murch of WPIX.
Tomaselli further testified that he saw the office man-
ager place the letter in an envelope and into the outgo-
ing mail basket, the contents of which are customarily
mailed at the end of each business day. Michael DeIeso,
Respondent's present business manager and financial sec-
retary, testified that he pulled a copy of such letter from
the Union's files.
Murch on behalf of WPDL, denied receiving such a
letter, and testified that to his knowledge no one from
WPIX had seen or received such letter, prior to 16 De-
cember 1985. It is undisputed, however, that it continued
to include Tomaselli in its group medical and dental
plan, and bill the Union for the cost of such coverage,
beyond the original 2-year period of his leave of absence.
On 3 July 1985 Tomaselli sent a letter to WPIX in-
forming it that he was no longer business representative,
and asked to meet with March to discuss his reinstate-
ment. Much, by letter dated 11 July, responded that no
vacancies were then available nor anticipated, and that
therefore a meeting to discuss Tomaselli's reinstatement
would be fruitless. Thereafter, on 23 July, Respondent's
business manager DeIeso sent a letter to WPIX, asserting
that the Company was violating the collective-bargaining
agreement by refusing to reinstate Tomaselli, and that
the letter was to serve as a grievance by Respondent.
The letter also noted that section 309 of the contract au-
thorized the leave, and that such leave had been ex-
tended by Respondent's letter of 25 May 1984.
By letter dated 29 July, Murch responded to the
Union's letter by reasserting that no position was avail-
able for Tomaselli, and denied that the Union's 1984
letter was ever received or approved by WPIX or any of
its representatives or that his leave of absence had been
extended. Finally the letter concluded that the reinstate-
ment sought by the Union was "wholly unwarranted
under the law."4
3 In fact sec. 309(a) makes no mention of an extension of the leave of
absence.
4 In this connection the letter stated that the law prohibits employers
from according benefits to officers or employees of labor organizations
that represent their employees.
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.) 379
-
Respondent in the instant proceeding, placed in evi-
dence two documents. The first, a document issued by
the United States Department of Labor Statistics in Oc-
tober 1980, stated inter alio. that "leaves are commonly
granted for a week or two to attend Union conventions."
The report goes on to say that "generally employees
who are elected or appointed to full time union positions
receive leaves of a year or more which may be ex-
tended." Finally, the report states that leave-of-absence
clauses pertaining to union employment appeared in 761
of the 1765 agreements surveyed.
The other document introduced, an analysis of "pat-
terns and union contracts," published by the Bureau of
National Affairs dated 20 September 1983, indicates that
leave-of-absence provisions to perform union duties were
found in 76 percent of the sample contracts, 87 percent
in manufacturing, and 59 percent in nonmanufactufing
agreements.
Additionally long-term leave provisions to assume
union office or to participate in other union business
were found in 70 percent of the collective-bargaining
agreements surveyed.
The record also reflects that the bargaining unit to
which Tomaselli seeks reinstatement contains 88 employ-
ees. On the seniority list of unit employees, 57 employees
were hired subsequent to Tomaselli's original hiring date.
Thus, the Union's position with regard to his reinstate-
ment would result in Tomaselli being employed with
greater seniority than these 57 employees for layoff pur-
poses.
I would also note that a total of 10 employees were
hired by WPIX in the 6-month period after Tomaselli's
hire in late 1978, and that from July 1979 to early
August 1982, 36 employees were hired. Looking at the
list another way, Tomaselli by virtue of his additional
union-related leave, accumulated 2 extra years of seniori-
ty at WPIX (i.e., February 1983-July 1985) while he was
working for the Union and not performing services for
WPIX. If Tomaselli were reinstated but not credited
with this additional 2 years of service for seniority pur-
poses, a total of 26 employees, all of whom have per-
formed more unit work for WPIX than Tomaselli, would
be ahead of him on WPIX's list.
IV. ANALYSIS
A. The Deferral Issue
Respondent, in its answer, urges that deference should
be given to the arbitrator's award, and that the complaint
accordingly be dismissed.
The Board's current standards for deferral to arbitra-
tion awards are set forth in Olin Corp., 268 NLRB 573
(1984). In order to defer to such an award, it must be
found that the arbitrator's award adequately considered
the unfair labor practice issue, and the award must not
be "clearly repugnant to the Act." In my view the arbi-
trator's award fails to meet either of the above require-
ments for deferral.
In Daitylea Cooperative, 219 NLRB 656 (1975), enfd.
sub nom. NLRB v. Teamsters Local 338, 531 F.2d. 1162
(2d Cir. 1976), the Board considered the lawfulness of
Murch testified that on receipt of Tomaselli's request
for reinstatement, he discussed the matter with various
officials of WPIX as well as legal counsel. They con-
cluded, according to Murch, that TOmaselli had exceed-
ed the 2-year leave-of-absence provision in section 309 of
the contract, and it need not reinstate him. Murch admit-
ted that had Toniaselli requested reinstatement prior to
the Z years having expired, WPIX would have complied
with the contract and given him back his job.
On 8 August Respondent filed demand for arbitration
with respect to the failure to reinstate Tomaselli. Subse-
quently a hearing was held before arbitrator Milton
Rubin on 16 December. On 20 February 1986 the arbi-
trator issued his award. The arbitrator found that it
should be presumed that Respondent's 25 May 1984
letter to WPIX was mailed and delivered. He noted fur-
ther that WPIX continued to deal with Toniaselli as a
business representative, after the 2-year period had ex-
pired, "with continued recognition of his leave status by
continued payment of insurance premiums." According-
ly, the arbitrator concluded that the Union had notified
WPIX of the extension of Tomaselli's leave, that WPIX
had accepted that extension, and that the parties thereby
modified section 309(a) of the contract. Therefore, arbi-
trator Rubin found that WPIX's refusal to reinstate To-
maselli violated the contract, and ordered it to reinstate
Tomaselli with compensation for lost earnings and bene-
fits.
The arbitrator's decision made no reference or findings
relating to the lawfulness of section 309(a) of the con-
ttact under the National Labor Relations Act.
WPIX has not complied with the arbitrator's award in
any respect, and Respondent thereafter moved in Federal
court to confirm the award. WPIX responded with a
counterclaim urging that the award be set aside.
The National Labor Relations Board has moved to in-
tervene in that case, and has requested that the district
court stay its proceeding pending Board determination in
the instant case. As of the date of the close of this hear-
ing, no decision had been made by the court with respect
to the Board's request for a stay.
Tomaselli is the only employee of WPIX ever to have
been granted a leave of absence to serve in a full-time
union position. The collective-bargaining agreement is
silent regarding what obligation WPIX has if any to con-
tinue providing medical and dental coverage for employ-
ees out on leave of absence or for medical or maternity
leave. In practice, however, according to Murch, Re-
spondent has continued to pay premiums for and provide
coverage to all employees who were out of work for
medical leave or other types of leaves of absences.
Munch recalled two cases of employees who were out on
leaves of absences due to illness of members of their
family, and testified that he believed that WPIX contin-
ued to cover these employees for medical benefits during
the months that they were not at work.
Munch also testified that some employees had been
absent due to illness in excess of 6 months, that WPLX
retained these employees on the seniority list and permit-
ted them to return to work. Additionally as noted, these
employees also had their medical coverage continued
while they were`out on leave.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clauses in collective-bargaining agreements, granting
union stewards superseniority. The issue to be decided in
the instant case is whether Respondent by seeking to
compel WPDC to reinstate Tomaselli, and by maintaining
and enforcing section 309(a) of its collective-bargaining
agreement with WPIX, has violated the proscriptions of
Dairylea and its progeny.
In assessing whether an arbitrator has adequately con-
sidered the unfair labor practice issue, the Board requires
that the contractual issue be "factually parallel" to the
unfair labor practice issue and that the arbitrator be pre-
sented generally with the facts relevant to resolving the
unfair labor practice. In the instant case the theory of the
unfair labor practice under Dairylea relates to differential
and preferential benefits for union officials over that of
other employees. It is clear that such an issue was not
"factually parallel" to the issue at the arbitration. The ar-
bitrator made no factual findings pertinent to nor any
reference to the legality of the clause in question under
the Act, nor the significance of the fact that other em-
ployees do not enjoy the same benefits granted to union
officials under section 309.
The arbitrator's decision was solely concerned with
whether WPIX violated the contract by virtue of its fail-
ure to comply with its agreement to modify and extend
Tomaselli's leave of absence pursuant to section 309 of
the contract. The arbitrator answered that question in
the affirmative.
Moreover, assuming that section 309 of the contract is
found to be violative of the Dairylea standards, then the
arbitrator's award would be "clearly repugnant" to the
Act. Thus in Olin, supra, the Board further defined
"clearly repugnant," as "palpably wrong," put another
way "not susceptible to an interpretation consistent with
the Act." A finding that the clause was in and of itself
violative of the Act under Dairylea would render an ar-
bitrator's award enforcing such a clause "not susceptible
to an interpretation consistent with the Act."
Accordingly, I find it inappropriate to defer to the ar-
bitrator's award. Laborers Local 380 (Mautz & Oren), 275
NLRB 1049 (1985); Stage Employees Local 695 (Twentieth
Century Fox), 261 NLRB 590, 591 (1982).
B. Alleged Unlawfulness of Respondent's Conduct
As noted above, the instant case revolves around the
interpretation and or applicability of Dairylea and its
progeny to the instant case. Daitylea, in construing the
legality of a clause providing superseniority to shop
stewards for all contractual benefits, noted that such a
clause, "ties job rights and benefits to union activities, a
dependent relationship essentially at odds with the poli-
cies of the Act; which is to insulate the one from the
other." (219 NLRB at 658.)
The Board, while recognizing that even superseniority
for shop stewards limited to layoff and recall to some
extent ties benefits to union status, nevertheless con-
structed a separate justification for such a clause:
The lawfulness of such restricted super seniority is,
however, based on the ground that it furthers the
effective administration of bargaining agreements on
the plant level by encouraging the continued pres-
ence of the steward on the job. It thereby not only
serves a legitimate statutory purpose but also re-
dounds in its effects to the benefit of all unit em-
ployees. [Ibid.]
As for superseniority clauses going beyond layoff and
recall, the Board concluded that such clauses have the
impermissible aim of giving union stewards special on-
the-job benefits solely because of their position in the
Union. Therefore such clauses "are presumptively un-
lawful, and the burden of rebutting that presumption
(i.e., establishing justification) rests on the shoulders of
the party asserting their legality." Ibid.
Finally the Board in Daitylea considered the argument
that such clauses were necessary to encourage employees
to become stewards and compensate for the fact that the
"inconvenience and other disadvantages of being a stew-
ard may very well in some situations discourage employ-
ees from accepting the position." (Id. at 659.) The Board
felt that, "even so, it nevertheless remains the Union's
task to build and maintain its own organization, and
where the immediate problem is simply a matter of en-
couraging employees to be stewards a union can alone
handle the situations simply by paying employees or by
giving them other nonjob benefits for work in such a ca-
pacity." Ibid.
Subsequent to Dairylea, numerous cases were decided
invalidating superseniority clauses that provide prefer-
ences for union officials in various benefits other than
layoff or recall-5
The Board also had occasion to consider disparate
benefits in contexts other than superseniOrity, and found
extra wages for stewards to be equally unlawful. Team-
sters Local 20 (Seaway Food Town), 235 NLRB 1554
(1978); 6 Teamsters Local 119 Plumbers (Mobile Mechani-
cal), 255 NLRB, 1056 (1981).
In Gulton Electra-Voice, Inc., 266 NLRB 406 (1983),
enfd. sub nom. Electrical Workers UE Local 900 v.
NLRB, 227 F.2d 1184 (D.C. Cir. 1984), (Gulton 1), the
Board reaffirmed Daitylea, but overruled a series of cases
decided subsequent thereto, that extended the privilege
of allowable superseniority clauses as set forth in Dairy-
lea to union officers as well as stewards. The Board in
Gulton I reasoned that the justification for permitting su-
perseniority for stewards limited to layoff and recall was
to ensure enforcement of the contract by retaining on-
the-job union representatives responsible for processing
grievances. The Board reasoned further that such justifi-
cation did not extend to union officers unless they per-
form stewardlike on-the-job duties. Thus the Board con-
cluded:
5 W: R. Grace & Co., 230 NLRB 259, 262, 263 (1977) (job preference
and overtime); Pattern Makers & League (Michigan Pattern), 233 NLRB
430 (1977) (preference in hiring and referral), Teamsters Local 823 (Road-
way Express), 232 NLRB 851, 854 (1977) (assignments and vacation
choice); Electrical Workers ILIE Local 663 (Gallon Electra- Voice), 276
NLRB 1043 (1985) (job bumping) (Gulton II).
6 I note that in Seaway Food Town, supra, the Board majority rejected
the argument of the Union as well as the dissent, that 5-cent-per-hour
extra compensation for shop stewards was justified by various expenses
that the steward incurs, and that such extra compensation was "reasona-
ble and a just method of facilitating the administration of the collective
bargaining agreement by the parties."
4
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.) 381
We will find unlawful those grants of superseniority
extending beyond those grants of employees respon-
sible for grievance processing and or on-the-job
contract administration. We well 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 adminis-
tering the collective bargaining agreement. [Id. at
409.]
Furthermore, the Board in Gulton I rejected the ra-
tionale set forth in prior cases7 that superseniority for
nonsteward union officers was lawful because it promot-
ed the effective and efficient representation of employees,
by their collective-bargaining representatives.
In agreement with the dissent in Limpco, the Board
concluded that it "should not be in the business of assur-
ing that a union has an efficient and effective organiza-
tion to conduct collective bargaining where this results
in the linkage of job rights and benefits to union activi-
ties. . . . To broaden the proper objective of superse-
niority; i.e., to protect the whole process of collective
bargaining . . . discriminatorily tips the balance against
individual employee rights" (Id. at 409, quoting 230
NLRB at 409.)
Finally in Mead Packaging, 273 NLRB 1451 (1985), the
Board applied the principles set forth in Dairylea and
Gulton I to facts strikingly similar to the instant case,
albeit in a different context. In Mead the Board was
faced with an 8(a)(5) allegation that the Employer had
unilaterally ceased to provide contractual benefits to
union officers who were on union-related leaves of ab-
sence.
While the specific benefits that the Employer unilater-
ally ceased to provide were insurance coverage and pen-
sion multiplier increases, the Board emphasized all the
disparate benefits received by the union officers as fol-
lows:
Under the Respondents' collective-bargaining
agreements with the Union as implemented by the
Respondents' supplemental related policies, employ-
ees may take leaves of absence for up to 4 years in
order to accept employment as officers of the
Union. During those union-related leaves, they con-
tinue to receive coverage under the Respondents'
group insurance programs as well as contractual in-
creases in pension benefit multipliers. In contrast,
employees who take other types of leave are limited
to considerably shorter time periods, do not receive
insurance coverage and/or pension multiplier in-
creases for as long a time, and are prohibited from
engaging in gainful employment while on leave. [Id.
at 1452.]
The Board after fmding that the Union officers therein
while on union leave, engaged in contractual negotia-
tions, arbitrations, and monitored the collective bargain-
7 Electrical Workers IUE Local 623 (Limpco Mfg.), 230 NLRB 406, 407
(1977), enfd. sub nom. Anna M. DAmico v. NLRB, 582 F.2d 820 (3d Cir.
1978); Otis Elevator Co., 231 NLRB 1128 (1977).
ing agreements between it and the Employer (Mead) as
well as other employers, continued as follows:
It is apparent that the Respondents provided ben-
efits to union officers which were not available to
other employees. In order to be found lawful, the
disparate treatment must "further the effective `ad-
ministration of bargaining agreements on the plant
level by encouraging the continued presence of the
steward on the job." Dairylea supra at 658. We find
that the Respondents' provision of these extra bene-
fits to union officers did not meet this standard and,
therefore, that the discriminatory impact on non-
union officer employees is much more than simply
an incidental side effect of a more general benefit
accorded all employees. [273 NLRB at 1452.]
The Board then went on to find that no 8(a)(1) and (5)
violation can be found because the Employer merely de-
clined to continue to provide a benefit to union officers
that had an unlawful disparate impact on employees. The
Board went further, however, by stating:
[I]f the issue were before us we would find that the
Respondents' provision of additional benefits to
union officers under their collective-bargaining
agreements with the Union violated Sections 8(a)(3)
and 8(b)(2) of the Act. [Ibid.]
The complaint alleges and the General Counsel con-
tends that Respondent has violated the Act by Maintain-
ing and enforcing section 309(a) of the contract by de-
manding that Tomaselli be reinstated to his former posi-
tion, of ertiployment and by ffiing for arbitration regard-
ing WPIX's failure to do so.
The complaint and the General Counsel contend that
by such conduct Respondent caused and attempted to
cause WPIX to encourage membership in Respondent by
granting to employees who are on union-related leave of
absence the following benefits, which benefits are not
available to other WPIX employees who are on leave of
absence for nonunion-related business:
(a) a longer leave of absence;
(b) the option to be gainfully employed elsewhere
while on a leave of absence; and
(c) the option to continue in WPIX's medical and
group life insurance program.
Although there is no dispute, but that disparate bene-
fits were provided with respect to longer leaves and the
opportunity to be employed, an issue is presented con-
cerning the question of medical and insurance benefits.
The General Counsel argues that because the record
does not establish any evidence that employees on other
types of leaves of absences were provided these benefits
for periods in excess of 6 months, and WPIX continued
to cover Tomaselli for these benefits subsequent to 6
months from the commencement of his leave, the requi-
site discrimination has been established. I find the Gener-
al Counsel's position in this regard to be untenable. I
note initially that the burden of proof rests on the Gener-
al Counsel, and he must prove that employees have been
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
treated disparately in this area. In fact the evidence dis-
closed on this record indicates that employees on other
types of leaves of absence are also provided medical cov-
erage by WPIX. Indeed, such coverage has been paid for
by WPIX, in contrast to Tomaselli's situation when the
Union has paid the premiums for his coverage. Thus, if
anything WPIX's action in regard to medical payments
was more generous to employees on nonunion leaves of
absences.
Moreover, the collective bargaining is silent regarding
any requirement for providing such coverage to employ-
ees on either type of leave of absence, so that WPIX's
actions in that regard are purely voluntary, and cannot
be attributed to any actions of Respondent. Finally the
complaint allegation deals with Respondent's attempt to
enforce the collective bargaining by demanding reinstate-
ment of Tomaselli, as well as arbitrating WPIX's failure
to do so. There is no evidence that Respondent's con-
duct in this regard consisted in whole or in part of any
attempt to compel WPIX to provide medical and insur-
ance benefits for Tomaselli.
Accordingly, the allegation in the complaint relating
to medical and insurance benefits must be dismissed. I so
recommend.
Turning to the clauses dealing with a longer leave of
absence and the opportunity to be employed elsewhere,
for employees on leave for union business, there is no
dispute but that these benefits are disparately provided.
Thus, employees on leaves of absence for nonunion busi-
ness are limited to 6 months as opposed to 2 years for
union business leaves, and such employees cannot take
leave "primarily to enable him to solicit or accept em-
ployment elsewhere."
The General Counsel and Charging Party contend that
these disparate benefits fall within the proscriptions con-
tained in Dairylea as applied in Gulton I and Mead, and
that Respondent has violated the Act by maintaining and
enforcing such clauses.
Respondent on the other hand argues that these
clauses are not unlawful under Daitylea, and that Mead is
distinguishable on its facts and in its holding. In this con-
nection Respondent quite correctly points out that the
"extra benefits" unilaterally ceased by the Employer in
Mead were the employer-paid insurance and pension
coverage, and not the length of the leave of absence or
its allowance of union employment.
Thus Respondent argues that the "benefits" referred to
in the above-quoted language by the Board, as having
been unlawful, related solely to these medical and pen-
sion benefits, and have no applicability to the other dis-
parate benefits found therein, i.e., longer leaves and the
opportunity to engage in employment while on leave.
I am persuaded that the General Counsel and Charg-
ing Party's interpretation of Mead is the correct one, and
that Respondent's attempt to maintain and enforce
clauses providing for these benefits is unlawful.
Although the precise holding of Mead is limited to the
provision of medical and pension benefits, it appears to
me that the sweeping language and rationale used by the
Board therein applies to the other disparate benefits pro-
vided as well. Indeed, the Board took the trouble to list
the length of leave and opportunity to be employed in
the same paragraph as the medical benefits, and empha-
sized the contrast between union-and nonunion-related
leaves in these areas.
I am somewhat troubled by Stage Employees Local 695
(Twentieth Century Fox), 261 NLRB 590 (1982), and have
some difficulty in reconciling the holding therein with
Mead. In Twentieth Century, supra, the parties collective-
bargaining agreement provided, subject to certain proce-
dural requirements, that a union official is entitled to
claim his former employment with his former employer,
"as though he had never left such job."
Other employees did not have such rights, and leaves
of absence for regular employees were restricted to 6
months. An employee sought reinstatement pursuant to
that provision of the contract, and the Employer refused.
The Union therein went to arbitration, and the arbitrator
as here found that the Employer violated the contract by
not reinstating the former union official, and ordered the
Employer to reinstate him An 8(b)(1)(A) and (2) com-
plaint was issued against the Union.
The judge, affirmed by the Board without significant
comment, dismissed the complaint. The judge reasoned,
as does the Respondent in the instant case, that the pro-
vision for reinstatement rights of former union officials,
and indirectly extended leave of absence greater than
that enjoyed by other employees, is not unlawful under
Dairylea. The judge found, "I see no preference, but
merely a restoration. After an employee becomes a union
official and is thereafter restored to his former position,
he is not better off than if he had never left his unit posi-
tion in the first instance. Thus, under article 76, there is
no incentive for a union employee to seek to become a
union official, because at the conclusion of such union
service and on return of his unit position, the employee
has but the same seniority he would have accrued if he
had never left." (261 NLRB at 593.)
Therefore the judge found that neither the contract
nor the arbitrator's award provided an improper prefer-
ence to union officials and that the Union had not violat-
ed the Act as alleged.
As noted, I have some difficulty in reconciling Mead,
supra, with the holding in Twentieth Century, supra. Such
is made even more difficult by the fact that Mead made
no reference to Twentieth Century whatsoever in its deci-
sion.8
One distinction between Twentieth Century on the one
hand, and Mead and the instant case on the other, is the
absence of any other disparate benefit. Thus, the only
disparate benefit present in Twentieth Century was the ex-
tended period of the leave. Although Mead Packaging
and the instant case both included the opportunity to be
gainfully employed while on leave for union officials in
contrast to no such rights by other employees on leave
of absence.
There is indeed an inconsistency in the reasoning ap-
plied in both cases, however, and I can only conclude,
8 This is perhaps not so surprising, m view of the fact that Twentieth
Century was not cited, relied on, or distinguished to me herem by any of
the parties in their excellent, well reasoned, and otherwise complete
briefs.
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.) 383
which I do, that whatever vitality Twentieth Century,
supra, possessed has been dissipated by Mead.9
Thus the reasoning of the judge in Twentieth Century,
adopted by the Board, in failing to find an improper
preference in an extended disparate leave of absence for
union officials, was simply that such a provision was not
a preference, but a restoration of the seniority he would
have continued to receive had he remained on the job.
Such reasoning would have identical application to the
disparate benefits specifically found unlawful in Mead.
Thus the union officers in Mead would have continued
to receive the medical coverage and pension multipliers
had they remained in the employ of Mead, and the argu-
ment that providing these benefits to them when they
were on union leave can be construed as a restoration
has the same appeal. In fact I see no meaningful distinc-
tion in the Board's reasoning in Mead, between the medi-
cal and pension benefits specifically found to be unlaw-
fully disparate and the longer leave and opportunity to
be gainfully employed, disapproved of therein, but not
specifically found unlawful.
I am persuaded therefore that Mead is dispositive here,
and that the clauses are presumptively unlawful.
Respondent makes a number of arguments in support
of its position that these clauses are not violative of the
Act. Citing the Supreme Court cases underlying the
Board's "inherently destructive" rationale of Dairylea,"
Respondent argues that since the harm to employee
rights from the discriminatory conduct here is "compara-
tively slight and a substantial and legitimate business end
is served, the . . . conduct is prima facie lawful." (Great
Dane, supra at 34.)
I cannot agree with either Respondent's assessment of
the degree of harm to employee interests caused by its
discrimination, or its claim that a substantial and legiti-
mate business end is served by the clauses in question.
With respect to the provision for a 2-year period for a
leave of absence for union leave (extended here by the
parties to 3 years)," Respondent asserts that no signifi-
cant benefits are granted by the extra leave. Moreover
Respondent contends that the effect of such clauses on
other employees is nil as no other employee is adversely
affected by such leave of absence. The core of this argu-
ment is that the clause simply removes a disincentive that
otherwise would exist, i.e., loss of a permanent job, and
is in effect a restoration rather than a preference. Al-
though this argument as noted was approved in Twenti-
eth Century, supra, it was implicitly rejected by the more
recent Mead decision.
I conclude that contrary to Respondent's view, such a
clause does grant significant benefits to union officials,
and has a substantial adverse effect on the rights of other
unit employees.
Thus, Tomaselli, by virtue of the parties extending the
2-year limitation to 3, was given 2 more years while on
9 I note that as far as my research discloses, Twentieth Century, supra,
has not been cited in any subsequent case
10 Radio Officers Union v. NLRB, 347 U.S. 17 (1954); NLRB v. Great
Dane Trailers, 388 U.S. 26 (1967)
11 In view of my disposition of the issues here, I shall assume without
deciding that the arbitrator's finding that the parties mutually agreed to
extend Tomaselh's leave for an additional year was correct
leave of absence than other employees who took or con-
templated taking a leave of absence for the contractually
prescribed 6-month period. This can hardly be described
as a limited or slight difference."
The significance of this disparity is more strikingly
demonstrated by examining the effect on the unit em-
ployees who remained working for WPIX.
Tomaselli, having been on a leave well in excess of the
6-month period accorded to other employees, would or-
dinarily (in the absence of the disparate clause) if permit-
ted to return to work, be relegated to the bottom of the
seniority list and treated as a new employee. Therefore,
the result of the Union's position disadvantages 57 bar-
gaining unit employees, who had been hired after Toma-
selli's original hiring date. Perhaps more significant,
however, is the fact that 46 such employees were hired
by WPIX between Tomaselli's hire and the commence-
ment of his leave. Of these 46 employees, 31 had more
actual time spent in the unit than Tomaselli, when Toma-
selli sought reinstatement in July 1985. Thus, the accord-
ing of accrued seniority to Tomaselli, for the 3 years
spent as a union official, and while not performing work
for WPIX, would in effect provide him with a significant
preference over such employees. Because even employ-
ees on nonunion leaves receive 6 months of accrued se-
niority from WPIX, it is reasonable to conclude that the
illegal preference accorded to Tomaselli was only 2-1/2
years of extra accrued seniority credit. Even in that
event, and giving Tomaselli the 6 months' seniority
credit permitted to employees on nonunion-related
leaves, 26 employees would have been bypassed on the
seniority list by Tomaselli if he was reinstated with ac-
crued seniority. This is so, notwithstanding the fact that
such employees had performed over 6 months more
actual bargaining unit work for WPIX than Tomaselli
did prior to his leave commencing."
In my view such a preference accorded to Tomaselli,
by virtue of his union status, has potentially significant
consequences in the event of a layoff and is akin to the
superseniority preferences deemed unlawful in the Dairy-
lea and Gulton cases.
With respect to the right to be gainfully employed
during the union-related leave of absence, Respondent
argues that this benefit is also of limited value. It con-
tends that while other employees cannot take leaves to
solicit or accept employment elsewhere, employees on
union-related leave cannot accept "any" employment
either, but are restricted to employment "in connection
with the broadcasting industry."
12 The fact that Tomaselh's leave was extended for a year pursuant to
the mutual modification of the clause, further demonstrates the invidious
nature of the preference. Thus, theoretically Tomaselh's leave could have
been additionally extended by subsequent modifications, further lengthen-
ing the gap between union- and nonumon-related leave, and further
heightening the discriminatory effect.
13 These include employees whose seniority dates range from January
15, 1979, to January 25, 1981. Thus by July 1985, when Tomaselh sought
reinstatement, these employees had more than 4 years' on-the-job lemon-
ty, as compared to Tomaselh's actual nonpreferential seniority of 4 years
and 3 months (3 years and 9 months actual seniority, plus 6 months of
seniority accrued from the nondiscriminatory period of time of his leave).
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I do not perceive this limitation to in any way lessen
the value of this benefit, which I also view as significant.
WPIX undoubtedly sought the restriction on employees
work opportunities, as Respondent points out in its brief,
"since it obviously did not want employees to take a
leave of absence to seek or try other employment."
However, this is precisely the option that the contract
clause accords to employees on leave to become union
officers. Although such employees cannot accept other
employment, the clause to become a union official is a
substantial opportunity for career development and ad-
vancement, which is denied to other employees.
Respondent in this regard, stresses the transitory
nature of union positions, and the uncertain job tenure of
union officers. It is certainly not uncommon, however,
for union officers to remain in their positions for substan-
tial periods of time, and occasionally to move up to
higher positions in the union hierarchy. Indeed, I would
note that in Mead, supra, three of the union officials in-
volved were out on union-related leave for periods of
time ranging from 10 to 16 years. The fourth such union
official was on leave for nearly 4 years. It is interesting
that all four of them were still serving as union officers
at the time the case was being litigated, with no indica-
tions that their tenures were about to end appearing in
the decision. Moreover, in Twentieth Century, supra, the
union official therein, had served as an officer for 8
years, being elected to three successive terms as business
representative, before seeking reinstatement to his former
job.
Accordingly, I conclude that the option to be em-
ployed as a union officer while on a leave of absence
does afford employees a significant chance for bettering
ones career opportunities, and is far from a "limited"
benefit as urged by Respondent.
Turning to the question of "substantial and legitimate
business interests" being served by such clauses, Re-
spondent asserts that such provisions are necessary to
"insure the presence of full time Union officers to en-
force and administer the collective bargaining agree-
ment," and to "further the process of collective bargain-
ing." Essentially Respondent argues that the disincentive
of loss of seniority and or job rights that would be cre-
ated by the absence of such clause providing these bene-
fits to union officials would prevent unions from obtain-
ing any union officers. Initially, I find that such dire pre-
dictions by Respondent about the potential effect of the
absence of such clauses are grossly exaggerated and un-
supported by any record evidence. Indeed an examina-
tion of Respondent's own documents that it submitted in
evidence herein, reveals this not to be so. Respondent, as
noted, submitted in evidence surveys of major collective-
bargaining agreements compiled by the U.S. Department
of Labor and the Bureau of National Affairs Of the 1765
collective-bargaining agreements surveyed, only 761 (ap-
proximately 43 percent) contained clauses providing for
leaves of absence for union employment. In another
study cited in the report, of 430 selected collective-bar-
gaining agreements surveyed, 251 (approximately 58 per-
cent) contained such leave provisions. Of these 251
agreements, 177 provide for seniority accrual during the
leave.
The B.N.A. survey introduced by Respondent indicat-
ed that 70 percent of the contracts that it analyzed pro-
vided long-term leave provisions to serve as a union offi-
cer. As to seniority accrual 89 percent of the long-term
leave provisions surveyed discuss seniority. Seniority ac-
cumulates for the length of the leave in 60 percent of the
seniority provisions and is retained in 38 percent. Two
percent of the clauses provide for accumulation for a
specified period followed by retention.
It is thus obvious that Respondent's own documentary
evidence indicates that a substantial number of union
contracts, in some cases a majority of those surveyed,
contained no provisions at all for leaves of absence to
serve as union officers. Moreover, of those that do con-
tain such clauses, a substantial number do not provide for
the accrual of seniority during the leave, as does the
clause in question herein. One can presume that the
Unions in these cases are able to attract and obtain union
officers from the ranks of unit employees, notwithstand-
ing the absence of such disparate clauses as are included
in Respondent's contract in the instant case.
Although it cannot be disputed that the possibility of
job and or seniority loss, should an employee accept
union employment, would have an inhibitory effect on
the ability of the Union to recruit officers or representa-
tives, such a consideration is not sufficiently compelling
to justify the discrimination here. Indeed, such arguments
were rejected in Dairylea itself, and have been treated
similarly ever since.
Thus in Mead, supra, the General Counsel made the
identical contention urged here by Respondent. The
Board held:
The General Counsel contends that these benefits
were provided legitimately to the union officers be-
cause, if the benefits were unavailable, individuals
would be unwilling to serve as union officers for ex-
tended periods. The Union thus would lose continu-
ity and experience in its leadership and effectiveness
as the employees' collective bargaining representa-
tive.
As noted above, however we rejected this posi-
tion in Gulton where we found that "assuring that a
union has effective and efficient organization" was
insufficient justification for linking job rights to
union activities. [273 NLRB at 1452.]
Moreover, in the recent Gulton II case, the Board re-
versed a judge's finding lawful a clause protecting a
union official because "without such protection the chief
steward may quit." The Board cited Guhon I and Dairy-
lea to the effect that "it nevertheless remains the union's
task to build and maintain its own organization, and
where the immediate problem is simply a matter of en-
couraging employees to [serve as a union representative]
a union can alone handle the situation simply by paying
employees or by giving them other nonjob benefits."
(276 NLRB 1043.)
The Second Circuit Court of Appeals specifically ap-
proved this reasoning while enforcing Dailylea, supra,
and repeated the observation that a union must offer the
incentives necessary to attract qualified officials. The
ELECTRICAL WORKERS IBEW LOCAL 1212 (WPIX, INC.) 385
court continued that "the policy of. . . 8(b)(2) is to insu-
late employees' jobs from their organizational rights
• . . . For a union to employ job related benefits to
maintain its own organization would thus fly in the face
of this statutory purpose." (531 F.2d at 1166 and 1167.)
In further support of its position, Respondent cites
BASF Wyandotte Corp., 274 NLRB 978 (1985), as well as
other cases providing union-related benefits to employ-
ees," and asserts that these cases, rather than Mead and
Dairylea are dispositive of the instant case. Once again, I
do not agree.
In BASF, supra, the Board was concerned with a
clause that permitted union officers 4 hours of paid time
per day to conduct union business, including grievance
processing. The Employer unilaterally discontinued that
privilege and an 8(a)(5) complaint was filed. The Board
found that such payments were mandatory subjects of
bargaining, and did not violate Section 302 of the Act as
alleged by the employer therein. It concluded additional-
ly that these payments did not constitute unlawful sup-
port under Section 8(aX2) of the Act, and found that the
Employer violated Section 8(a)(5) of the Act by discon-
tinuing these privileges.
Respondent argues that the Board in BASF affirmed
. the validity of these payments, notwithstanding the fact
that other employees did not enjoy such benefits. It as-
serts that the Board implicitly determined therein that
the clause served a legitimate and substantial business
justification "of the the administrations and enforcement
of the collective bargaining agreement and the further-
ance of the collective bargaining relationship."
Respondent views Tomaselli's situation as comparable
to that of the officials in BASF, in that Tomaselli also ne-
gotiated contracts on behalf of and processed grievances
involving the unit here. Thus Respondent contends that
his status as business representative rebounded to the
benefit of the unit employees, which outweighs any
slight discrimination that might exist.
In my view BASF, and the other cases cited by Re-
spondent set forth above are clearly distinguishable fac-
tually and legally from the instant case, as well as from
Dairylea and Mead.
Initially I would note that neither BASF nor the other
cases cited analyzed the particular benefits involved
under the standards set forth in Daitylea and its progeny.
Indeed their concerns were with Section 302 or Section
8(a)(2) of the Act, which were the principal defenses
raised by the employers therein. But in any event, I find
the holdings in those cases to be perfectly consistent
with Dairylea principles.
The benefits in those cases, such as payment for union
business, grievance handling, and negotiations, and the
use of company property and time to conduct various
union functions, are benefits which, unlike the discrimi-
14 Coppinger Machinery Service, 279 NLRB 609 (1986), and Axelson
Inc, 234 NLRB 414 (1978), enfd 599 F 2d 91 (5th Or 1979) (payment to
employees for time spent conducting union negotiations); Sunnen Prod-
ucts, 189 NLRB 826, 828 (1971) (use of company time and property for
negotiations); Hesson Corp., 175 NLRB 96 (1969) (permitting employee
committee to hold meetings on paid time to prepare to meet with man-
agement, to conduct steward classes on company property, and to con-
duct union elections on paid time)
natory benefits in the instant case, are of limited dura-
tion, and have no detrimental effect on job rights of
other employees. Moreover, also unlike the clauses here,
the benefits in these cases all directly relate to on-the-job
unit functions, resulting in benefits to all unit employees.
In contrast, during Tomaselli's leave of absence he did
negotiate contracts for and process grievances on behalf
of WPIX unit employees, he also performed similar func-
tions on behalf of employees employed by 24 other em-
ployers. I do not believe that the amount of time Toma-
selli spent representing other employees of different em-
ployers can be said to have substantially benefited the
WPIX unit. While the amount of his time spent on other
shops, vis-a-vis WPIX, was not established on the
record, it can safely be assumed based on the numbers of
employers involved, that a relatively small portion of his
time was devoted to WPIX matters, while he was on
leave of absence.
I note that in Mead, supra, the union officials therein
performed precisely the same functions as Tomaselli
during their leaves of absences, and such was found in-
sufficient to justify the discriminatory disparate benefits
to such union officials.
Accordingly, and in sum, I conclude that the collec-
tive-bargaining agreement here provides substantial dis-
parate benefits to union officials (lengthier leave and the
opportunity to be employed) which have potentially sig-
nificant consequences on the job rights of other unit em-
ployees. I emphasize particularly in this regard the fact
that the clause in question accords union officials seniori-
ty accrual for the time spent while on their extended dis-
parate leave. This can result as it in fact would have in
the instant case, in the union official returning to the job
with a seniority position higher than other employees
who have spent more actual time performing unit work
for their employer. Thus had Tomaselli been permitted
to return to WPIX in July of 1985 with his seniority ac-
crued, 26" unit employees would have been so bypassed
and disadvantaged. In my view this discrimination is
comparable to the superseniority clauses condemned in
Dairylea.
Such clauses are therefore presumptively unlawful.
Respondent has not shown that these benefits further the
effective administration of bargaining agreements on the
plant level by encouraging the continued presence of the
union official on the job. Dairylea, supra, Mead, supra.
Nor has it demonstrated the existence of any other suffi-
ciently compelling legitimate interests served by such
clauses that would warrant the overcoming of this pre-
sumption of illegality and that would justify the tying of
important job rights and benefits to union activities.
Thus the "discriminatory impact on nonunion officer
employees is much more than simply an incidental side
effect of a more general benefit accorded all employees."
Mead, supra, Dairylea, supra.
Based on the above, I conclude that by maintaining
and enforcing these provisions of the contract, and by
demanding Tomaselli's reinstatement and arbitrating his
15 As noted, this figure does take in to account the fact that other em-
ployees on nonunion-related leaves can accrue 6 months of seniority
3 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievance over WPIX's failure to do so, Respondent has
violated Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1.WPIX is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By maintaining and enforcing Section 309(a) of its
collective-bargaining agreement with WPIX, Respondent
has engaged and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent's actions in maintaining
and enforcing Section 309(a) of the collective-bargaining
agreement between it and WPIX was unlawful, I shall
recommend an order that Respondent cease and desist
from maintaining, enforcing, or attempting to enforce
such a clause.
It is also appropriate to order Respondent to cease and
desist from pursuit of its grievance seeking Tomaselli's
reinstatement, Gulton II, supra, withdraw such griev-
ance, and withdraw its lawsuit in Federal court seeking
to enforce an arbitration award relating to such griev-
ance. Inland Boatmen's Union (Dillingham Tug), 276
NLRB 1261 (1985); Teamsters Local 705 (Emery Air
Freight), 278 NLRB 1303 (1986); Stage Employees Local
32B-32J (Allied Teamsters Maintenance Co.), 258 NLRB
430, 435 (1981).
[Recommended Order omitted from publication.]