Consolidated Freightways

National Labor Relations Board - Board Decisions

May 15, 1991

302 N.L.R.B. 984 (N.L.R.B. 1991)

984
302 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989.
2 There was also one slot on each of the three remaining shifts: 12 noon,
1 p.m., and 2 p.m.
3 The record supports the judge’s finding that for the relevant period the
drivers on the 8 a.m. shift averaged more overtime than those on the 9 a.m.
shift.
4 219 NLRB 656 (1975), enfd. sub nom. NLRB v. Teamsters Local 338, 531
F.2d 1162 (2d Cir. 1976).
Consolidated Freightways and International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO and
Frank Centi. Cases 34–CA–4479 and 34–CB–
1243
May 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 21, 1990, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent Employer and the Respondent Union each
filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions and a supporting and
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 question before us is whether the Respondent
Employer violated Section 8(a)(1) and (3) and the Re-
spondent Union violated Section 8(b)(1)(A) and (2) by
awarding Shop Steward Alphonse Alba a preferential
starting time in accordance with the parties’ contrac-
tual superseniority provision.
I. FACTUAL FINDINGS
The Respondent Employer employs approximately
18 unit employees whose shift starting times are deter-
mined by seniority. The Respondent Employer periodi-
cally posts a bid list of available starting times and the
number of openings for each such shift. Employees,
with the sole exception of the union steward, sign up
in descending order of seniority. When the steward—
the only person regularly present at the facility who
has grievance handling responsibilities for the Union—
signs the bid lists, he has available to him the fol-
lowing contractual provision for departure from natural
seniority:
The Union Steward shall be accorded Super Se-
niority with respect to terms and conditions of
employment for layoff and recall purposes only,
and in other situations that assure the Steward
greater accessibility to co-workers to genuinely
assist him to perform his functions as a Steward
which will be to the benefit of co-workers.
On October 18, 1989,1 the Respondent Employer
posted a bid sheet listing five 3 a.m., six 8 a.m., and
five 9 a.m. starting slots for the period beginning Octo-
ber 22. The bid sheet posted on November 8 for the
period beginning November 12 listed five 3 a.m.,
seven 8 a.m., and five 9 a.m. starting slots.2 With re-
spect to both of these work periods, Shop Steward Al-
phonse Alba invoked the superseniority clause in the
collective-bargaining agreement to obtain an 8 a.m.
starting time when otherwise, based on his natural se-
niority alone, he would have been required to relin-
quish that opportunity in favor of employee Frank
Centi and to work the 9 a.m. shift.3
Drivers on the 8 and 9 a.m. shifts punch in during
the 15 minutes preceding the start of their shifts and
spend, on the average, another 15 minutes at the dis-
patch window waiting for their assignments. They then
either leave within 10 or 15 minutes or, if their trucks
are not loaded, spend some dock time loading before
commencing their runs. The record shows that the em-
ployees on the 3 a.m. shift, who perform both dock
work and driving, generally take their lunchbreaks be-
tween 8 and 8:30 a.m. and then, on the average, leave
the facility for their driving runs sometime after the 9
a.m. drivers have left.
II. ANALYSIS AND CONCLUSIONS
The complaint alleges that the Respondents violated
the Act both by maintaining the superseniority clause
in their collective-bargaining agreement and by enforc-
ing it on the specified dates to Alba’s benefit. For the
reasons set forth below, we agree with the judge that
the clause is not unlawful on its face, but we disagree
with his finding that its application on October 18 and
November 8 constituted a violation of Section 8(a)(3)
and (1) and Section 8(b)(1)(A) and (2).
1. Since the contract clause on its face permits the
steward to invoke superseniority for purposes beyond
layoff and recall, and since it sanctions job-related dis-
crimination based on union activity, it is presumptively
illegal under Dairylea Cooperative,4 The burden of re-
butting this presumption rests on the parties asserting
its legality and here requires the Respondents to
produce evidence that their provision for superseniority
‘‘in other situations’’ is justified by the policies of the
Act.
With respect to the facial lawfulness of the clause
in issue, we find that the parties have met their
Dairylea burden through the language limiting the
steward’s entitlement to superseniority in situations
other than layoff and recall. The restriction of
superseniority to only those ‘‘other situations’’ that
985CONSOLIDATED FREIGHTWAYS
5 We find no merit in the General Counsel’s cross-exception to the judge’s
failure to find that the clause is unlawful because it does not, by its terms,
limit superseniority for shift preference to situations ‘‘essential’’ to the
Union’s grievance handling responsibilities. In this case the presence of a
steward on any particular shift is not necessary or ‘‘essential’’ to meeting
overall grievance handling duties. However, as the Board stated in Auto Work-
ers Local 1331, supra at 1447, as to superseniority for shift preference ‘‘. . .
strict necessity in not the determinant; the determining factor is the purpose.’’
Here increased accessibility to unit employees is a purpose that satisfies the
Dairylea standard.
6 Thus, it is not necessary to determine whether the parties met the super-
lative degree standard created by the judge, under which he found that Alba
would have been required to select the 3 a.m. shift in order to secure the
‘‘greatest’’ access to employees.
7 We note that the difference between the 8 and 9 a.m. shifts with respect
to numbers of employees to whom Alba would be readily available is not un-
substantial. Nothing in this decision is intended to suggest that union stewards
may exercise special shift preferences where only minimal or sporadic dif-
ferences in employee accessibility are shown.
1 Unless indicated otherwise, all dates referred to relate to the year 1989.
‘‘assure the Steward greater accessibility to co-work-
ers’’ for the performance of his duties, which include
grievance handling, is clearly intended to, and does,
further the effective administration of the parties’ col-
lective-bargaining agreement. Since Alba is the only
steward for a multishift work force, he can better serve
the overall unit by working a shift that provides him
contact with a greater number of employees than
would the shift to which he would be assigned by the
use of natural seniority. Auto Workers Local 1331
(Chrysler Corp.), 228 NLRB 1446 (1977).5
2. Turning now to whether the applications of the
superseniority provision were lawful, we find, contrary
to the judge, that they were. Alba used his super-
seniority to work the 8 a.m. shift, rather than the 9
a.m. shift to which he would have been assigned by
the use of natural seniority. As shown below, he would
serve more employees by working the 8 a.m. shift than
by working the 9 a.m. shift. Concededly, he could
have served even more employees by working the 3
a.m. shift. However, the fact that he did not use his
superseniority to work that shift does not render un-
lawful the application of the superseniority clause. It is
sufficient, for Dairylea purposes, that superseniority
was used to enhance the Union’s ability to represent
employees. The fact that it was not exercised to en-
hance that ability to the maximum extent possible does
not render the exercise unlawful.6
Thus, we now examine the record to determine
whether Alba’s use of superseniority on the two dates
in question met this comparative degree standard—i.e.,
did Alba have access to a greater number of employees
on the 8 a.m. shift than he would have had on the 9
a.m. shift.
On the 8 a.m. shift Alba had the opportunity to con-
sult with either five or six other employees on that
shift for the half hour between clocking in at 7:45 a.m.
and receiving driving assignments at 8:15 a.m. Since
the 3 a.m. combination employees generally take their
lunchbreak between approximately 8 and 8:30 a.m.
Alba had access to these five employees for at least a
portion of that period. Thus, on Alba’s preferred 8 a.m.
shift he had reasonable access to approximately 10 or
11 employees for grievance handling purposes. With
respect to the 9 a.m. shift, however, on the days in
question Alba would have had pre-assignment access
to only four other employees on that shift and with an
8:45 a.m. arrival time he would not have been able to
consult with any of the 3 a.m. shift employees during
their usual breaktime. Accordingly, we find that Alba’s
use of superseniority in these instances met the parties’
lawful ‘‘greater accessibility’’ standard.7 We shall
therefore dismiss the allegations that the Respondent
Employer and the Respondent Union violated Section
8(a)(1) and (3) and Section 8(b)(1)(A) and (2), respec-
tively.
ORDER
The complaint is dismissed.
Thomas Doerr, Esq., for the General Counsel.
William C. Lynch, Esq. (Lynch, Traub, Keefe & Errante), for
Respondent Employer.
Burton Rosenberg, Esq. (Zolot & Rosenberg), for Respondent
Union.
Statement of the Case
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 21, 1990, in Hartford, Connecticut.
The consolidated complaint and notice of hearing issued on
December 8, 1989,1 and was based upon unfair labor practice
charges filed on October 24 by Frank Centi, an individual.
The consolidated complaint alleges that since about April
1988, Consolidated Freightways (Respondent Employer) and
Local 443, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO
(Respondent Union) (at times, collectively called Respond-
ents) have maintained a collective-bargaining agreement pro-
viding for superseniority for the shop steward; Respondents
admit this much of the consolidated complaint. The consoli-
dated complaint further alleges that on about October 18 and
November 8, and on other dates presently unknown, Re-
spondent granted Alphonse Alba, the shop steward, super-
seniority and a preferential starting time when it was not es-
sential to Respondent Union’s grievance handling respon-
sibilities. This is alleged to violate Section 8(a)(1) and (3)
and Section 8(b)(1)(A) and (2) of the Act.
On the entire record, including the briefs filed, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer, a Delaware corporation with an of-
fice and place of business located in Milford, Connecticut
(the facility), is engaged in the transportation of freight. Dur-
ing the 12-month period ending November 30, Respondent
Employer, in the course and conduct of its business oper-
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Four of these employees begin at 3 a.m., Monday through Friday; one (the
employee who performs only dockwork) begins at 10 p.m. on Sunday, and 3
a.m., Tuesday through Friday.
3 It was initially not very clear what detriment Centi suffered if any, by
being bumped. He testified that the 8 a.m. shift is preferable because you can
gain an hour a day of pickups and, presumably, an additional hour’s pay each
day. Fellow employee Jerry Kard testified that the 8 a.m. shift results in a
greater opportunity for overtime. This testimony is supported by Respondent’s
payroll records (discussed more fully, supra) which establish that for the pe-
riod involved the employees on the 8 a.m. shift averaged 9 hours 40 minutes
per shift, while the employees on the 9 a.m. shift averaged 8 hours 48 min-
utes.
4 Received in evidence were Respondent’s payroll records for 8 weeks, be-
ginning the week ending October 21. The calculations that follow are from
the first 6-weeks’ payroll records (the week ending October 21 through the
week ending November 25) which I found to be a representative sample.
These payroll records were useful because (for Respondent Employer’s payroll
purposes) each employee’s time is separated into driving time and platform
time.
ation, derived gross revenue in excess of $50,000 from the
transportation of freight and commodities in interstate com-
merce. Respondents admit, and I find, that Respondent Em-
ployer is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent Union admits, and I find, that it is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Respondent Employer employs approximately 18 regular
unit employees at the facility; 17 of these employees are
pickup and delivery drivers. The remaining employee per-
forms only dock work. Alba is the only shop steward at the
facility. Respondent employs a business representative, Rob-
ert Bayusik, who covers the facility, as well as other employ-
ers’ locations. He testified that the ‘‘normal process’’ is for
the steward to handle the employees’ grievances at the first
step. If the steward cannot resolve it at that stage, then
Bayusik will become involved and discuss the grievance with
the terminal manager. On occasion, when the steward was on
vacation, Bayusik has handled a grievance without the stew-
ard first being present. If Bayusik was given the grievance
directly at a time when the steward was present, Bayusik
would tell the employee to first discuss it with the steward
who would initially address it.
The contract between Respondent Employer and Respond-
ent Union contains the following provision:
The Union Steward shall be accorded Super Seniority
with respect to terms and conditions of employment for
layoff and recall purposes only, and in other situations
that assure the Steward greater accessibility to co-work-
ers to genuinely assist him to perform his functions as
a Steward which will be to the benefit of co-workers.
There are a number of different shifts at the facility; Re-
spondent Employer posts a bid list of the available times and
the number of openings for each. The employees sign the list
designating the shift they choose. Seniority determines who
gets which shift. Centi has greater seniority than Alba (ab-
sent the superseniority provided for in the agreement, of
course). The principal shifts begin at 8 a.m. and 9 a.m. On
the October 18 bid list, there were six ‘‘slots’’ for the 8 a.m.
shift; there were seven ‘‘slots’’ on the November 8 bid list
for this shift. There were five ‘‘slots’’ for the 9 a.m. shift
on both of these dates. The next most populated shift begins
at 3 a.m.; the employees beginning on this shift are ‘‘com-
bination’’ employee—drivers/dockmen. There were five
slots2 for this shift on the weeks in question. The remaining
starting times were 12 noon, 1 p.m., and 2 p.m. for the
weeks in question. One employee worked on each of these
shifts during the periods in question.
The genesis of this matter occurred on October 18 and No-
vember 8. On each of these days, Centi attempted to sign the
bid list for an 8 a.m. slot and on each occasion, he was
bumped by Alba who used his contractual superseniority to
obtain the 8 a.m. starting time. As a result, Centi obtained
a 9 a.m. starting time on each of these weeks. Centi filed
grievances with the Union regarding being bumped by Alba,
but they were rejected by the Union on the ground that Alba
was given the 8 a.m. shift to be most accessible to the em-
ployees at the facility.3
The 3 a.m. Shift
As stated, supra, with the exception of the one dockman,
the remaining employees on this shift (four on the dates in
question) are combination employees performing both dock
work and driving. Beginning when they arrive, they handle
inbound freight and load the trucks at the facility. These are
the trucks that will be driven by the 8 a.m. and 9 a.m. driv-
ers, as well as other trucks. When they are finished loading
the trucks, some, or all of them, will take out trucks them-
selves. The order in which they go is determined by senior-
ity; the most senior of these combination men is given the
opportunity to go out first. The witnesses’ testimony varied
on when these combination men usually leave the facility
and go on the road; Centi testified that they leave at 9 a.m.
‘‘most of the time.’’ Employee James LaVelle testified that
the combination men usually spend 5 or 6 hours a day at the
facility before leaving on their runs. John Demke, Respond-
ent’s terminal manager at the facility, testified that these
combination men go out on the road, generally, between 7:30
and 8:30 a.m. Respondent’s payroll records4 establish that a
total of 136 employee shifts were worked during this 6-week
period beginning at 3 a.m. or 10 p.m. on Sunday. With the
exception of the dockman who did no driving during this pe-
riod about 95 percent of these shifts involved both dock
work and driving. The calculations from these payroll
records establish that (excluding the dockman’s shifts and the
Sunday 10 p.m. shift) the average amount of time the em-
ployees spent doing platform work on each shift was 6 hours
20 minutes. Although not as critical, the average amount of
time these 3 a.m. shift employees spent on driving duties per
day during this period was 3 hours. Using these calculations,
during this 6-week period, on the average, the employees on
this shift (again excluding the dockman’s shifts and the Sun-
day 10 p.m. shifts) left the facility to go on their runs at 9:50
a.m., and returned and clocked out at 12:50 p.m. These
records also reveal that (with the same exclusions) approxi-
mately 60 percent of those shifts involved dock work of 6
hours or more resulting in these employees being present at
the facility at 9 a.m. or thereafter.
987CONSOLIDATED FREIGHTWAYS
The 8 a.m. Shift
This is the largest shift at the facility; Respondent’s pay-
roll records establish that for the 6-week period in question,
there were 196 employee shifts worked on this shift. These
drivers punch in between 7:45 and 8 a.m. and then con-
gregate at the dispatch window at the facility where they are
given their assignments for the day, which is contained in the
driver manifest. On the average, they spend 10 to 15 minutes
at the dispatch window. If the trailer is already loaded, which
is usually the case, the drivers place a hand truck in the trail-
er, close the trailer door, hook up the trailer to the tractor,
and proceed from the facility to their first delivery. This
takes, on the average, an additional 10 to 15 minutes. If their
trailer is not loaded, they load their own trailer and the time
spent doing this is listed on the payroll records as dock (or
platform) time. After returning to the facility in the late after-
noon, the drivers usually spend approximately 20 minutes
doing the required paperwork prior to clocking out for the
day. Respondent’s payroll records establish that Respondent
Employer’s drivers on the 8 a.m. shift averaged almost 9
hours of driving and 40 minutes of dock work per shift dur-
ing this period.
The 9 a.m. Shift
The work and procedures of the drivers on the 9 a.m. shift
is substantially the same as the drivers on the 8 a.m. shift
except (obviously) that they begin an hour later and the num-
ber of shifts worked on the 9 a.m. shift during this period
was about one-half the number of shifts worked on the 8
a.m. shift during this period. According to Respondent’s pay-
roll records, the employees on this shift averaged 8 hours 10
minutes of driving and 38 minutes of dockwork, per shift.
The 12 noon, 1 p.m., and 2 p.m. Shifts
There was little testimony about these shifts. However,
Respondent’s payroll records establish 92 employee shifts
worked on these shifts during the 6-week period in question;
this breaks down to about one employee per shift (or three
total) per day. Additionally, these employees spent substan-
tially more time driving than they did performing dock work.
IV. ANALYSIS
The principal case in this area is, of course, Dairylea Co-
operative, 219 NLRB 656 (1975). In that case, the contract
provided that the steward should be considered the senior
employee in the craft in which he is employed, and the stew-
ard used this clause to bypass otherwise more senior route
drivers to obtain the best route in the area. The Board stated
(at 658):
In reaching the above conclusion, we are aware that it
is well established that steward superseniority limited to
layoff and recall is proper even though it, too, can be
described as tying to some extent an on-the-job benefit
to union status. The lawfulness of such restricted super
seniority is, however, based on the ground that it fur-
thers the effective administration of bargaining agree-
ments on the plant level by encouraging the continued
presence of the steward on the job. It thereby not only
serves a legitimate statutory purpose but also redounds
in its effects to the benefits of all unit employees. Thus,
super seniority for layoff and recall hag a proper aim
and such discrimination as it may create is simply an
incidental side effect of a more general benefit accorded
all employees. It has not, however, been established in
this case or elsewhere that super seniority going beyond
layoff and recall serves any aim other than the imper-
missible one of giving union stewards special economic
or other on-the-job benefits solely because of their posi-
tion in the Union. That is not to say, of course, that
proper justification may not be forthcoming in some fu-
ture case involving particular circumstances calling for
steward super seniority with respect to terms and condi-
tions of employment other than layoff and recall. Con-
sequently, there is no occasion here for finding super
seniority—even that going beyond layoff and recall—
to be per ge unlawful. The issue ultimately is one of
justification.
In conclusion, the Board found:
super seniority clause which are not on their face lim-
ited to layoff and recall are presumptively unlawful,
and that the burden of rebutting that presumption (i.e.
establishing justification) rests on the shoulders of the
party asserting their legality.
In Auto Workers Local 1331 (Chrysler Corp.), 228 NLRB
1446 (1977), the issue was the legality of the contract
clauses giving preference in the assignment of overtime and
weekend work to both stewards and committee persons. (The
agreement additionally provided for the equalization of over-
time, whenever possible.) Because both stewards and
committeepersons play an active role in the grievance proce-
dure at the plant, the Board found ‘‘ample justification’’ for
the clauses in questions, stating: ‘‘Here, the presence of both
stewards and committeepersons during overtime is desirable
for the efficient handling of grievances, a benefit for all unit
employees then at work.’’
NLRB v. Teamsters Local 443, 600 F.2d 411 (2d Cir.
1979), involved a company that provided airport limousine
service, employing full-time and part-time drivers; the con-
tractual provision involved granted superseniority ‘‘for all
purposes.’’ Citing Auto Workers Local 1331, supra, the court
stated that superseniority for shift selection is justified when
it is shown that it would provide the steward with greater ac-
cessibility to his coworkers, thereby benefiting all his fellow
employees. The court found that the evidence established the
necessity for the steward to work the early morning trips in
order to ‘‘maximize contact with other company employ-
ees.’’ This was a ‘‘legitimate justification for superseniority
as to shift selection.’’ In Gulton Electro-Voice, 266 NLRB
406 (1983), the Board rejected the standard of some prior
Board cases, and found: ‘‘We will find lawful only those
superseniority provisions limited to employees who, as
agents of the union, must be on the job to accomplish their
duties directly related to administering the collective-bar-
gaining agreement.’’
In Auto Workers Local 561 (Scovill, Inc.), 266 NLRB 952
(1983), the Board considered the legality of a contract clause
providing that specified union officers would be the last per-
son laid off or affected by shift preference. Although the
Board found a violation because the duties of the individuals
named in the complaint did not involve day-to-day adminis-
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tration of the collective-bargaining agreement or any stew-
ard-like functions, the Board found (at fn. 9) that this con-
tract clause was presumptively lawful as applied to ‘‘griev-
ance handlers’’ with ‘‘steward-like’’ functions. The Board
reasoned that unlike a true shift preference clause, the clause
in Scovill was ‘‘defensive in nature’’ and was meant to as-
sure that this individual would be able to remain on the shift.
The Board reasoned that ‘‘the shift protection clause is akin
to layoff protection and the same considerations which lead
us to find presumptively lawful steward superseniority for
layoff protection similarly mandate that steward supersenior-
ity for defensive shift maintenance be found presumptively
lawful.’’
Initially, it is clear that Alba, as a steward, is a grievance
handler, and, in fact, the only present at the facility. The evi-
dence establishes that all grievances must first be handled by
him, except when he is on vacation. He, therefore, comes
within the Board’s language in Gulton Electro-Voice, supra,
as an individual for whom superseniority may be lawful. The
first half of the contract’s superseniority provision provides
for superseniority for layoffs and recall; this is presumptively
valid under Dairylea, supra. However, it was the remaining
portion of the superseniority clause of the agreement that was
employed herein to assist Alba: ‘‘and in other situations that
assure the Steward greater accessibility to co-workers to
genuinely assist him to perform his functions as a Steward
which will be to the benefit of co-workers.’’ As it was not
meant to protect Alba from layoff, this provision and the
granting of super-seniority to Alba on about October 18 and
November 8 is not the ‘‘purely defensive superseniority pro-
tection’’ referred to by the Board in Scovill, supra, Electronic
Workers IUE Local 663 (Gulton Electro Voice), 276 NLRB
1043 fn. 14 (1985), or Mechanics Educational Society Local
56 (Revere Copper), 287 NLRB 935 (1987); the supersenior-
ity exercised in the instant matter was therefore presump-
tively unlawful. The ultimate issue then is whether Respond-
ents have established that they granted Alba’s request to be
on the 8 a.m. shift in order to obtain greater accessibility to
the employees.
Without his superseniority, Alba would have been on the
9 a.m. shift on the weeks in question; through his superse-
niority he jumped over Centi and obtained the 8 a.m. shift,
which Respondents, and its witnesses at the hearing, claim
gave him the greatest accessibility to the employees. Counsel
for General witnesses generally testified that the 3 a.m. shift
gave the greatest accessibility to the facility’s employees.
During the two periods in question, there were six or seven
drivers on the 8 a.m. shift. These drivers arrived at, or short-
ly before, 8 a.m., at which time they congregate at the dis-
patcher’s window where they received their manifest listing
their deliveries for the day. This takes, on the average, about
15 minutes. On most days, their trailers were already packed
and they leave the facility, on the average, at about 8:30. The
payroll records establish that, on the average, they did not re-
turn to the facility until 6:10 p.m. (9 hours of driving, and
40 minutes of dock work, plus a half hour for lunch). Being
on the 8 a.m. shift clearly gave Alba access to the other
five/six drivers on this shift and made this access convenient
for the 15 minutes that these drivers congregated at the dis-
patcher’s window. In addition to the 8 a.m. drivers, the five
combination employees who arrived at 3 a.m. (except for the
dockworker who arrives at 10 p.m. on Sunday) are also
present at the facility, remaining until, on the average, 9:20
a.m., when they go out on their runs. However, the drivers
on the 8 a.m. run have only from 15 to 30 minutes presence
at the facility and there is no evidence that the combination
employees are in close proximity to the dispatcher’s window
or Alba’s trailer to make them realistically accessible to him
during, what in reality, is a very brief period. During the
drivers 9 hours out on the road they have almost no access
to the other employees.
On the other hand, if Alba had taken the 3 a.m. shift, he
would have had access to the other four combination em-
ployees on this shift. Because of the nature of this work this
access would have been a lot more convenient than the ac-
cess on the 8 a.m. shift; these employees are loading trucks
during a 5-hour period when no other employees are present
at the facility. In addition, they have the ability to take their
30-minute lunchbreak together. Additionally, a majority of
these employees are still present at the facility after 9 a.m.
and a steward on this shift would have access (depending on
his rights under the contract) to employees on both the 8
a.m. or 9 a.m. shifts.
In summary, while on the 8 a.m. shift during this period,
Alba had easy, but brief, access to the five or six other driv-
ers on this shift, and access, although brief and probably in-
convenient, to the 3 a.m. shift employees before leaving the
facility as well as possible access to the three employees on
the 12 noon, 1 p.m., and 2 p.m. shifts when he returned to
the facility. On the other hand, if Alba were on the 3 a.m.
shift during this period, he would have had easy access to
the 4 other 3 a.m. shift employees, and probably have access,
as well to the 11 or 12 drivers on the 8 a.m. and 9 a.m. shift,
prior to going out on his run. In addition, on the average,
they returned to the facility from their run and clocked out
50 minutes after the 12 noon employee began working and
10 minutes prior to the arrival of the 1 p.m. shift employee.
I therefore agree with counsel for General Counsel’s wit-
nesses and find that the 3 a.m. shift provided for the greatest
accessibility. Although I find that the contract clause herein
is not unlawful, I find that Respondents have not sustained
their burden to establish that Alba’s exercise of super-
seniority was to assure his greater accessibility to the bar-
gaining unit employees. I therefore find that by the exercise
and grant of this superseniority on about October 18 and No-
vember 8, Respondents violated Section 8(a)(1) and (3) and
Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1. Consolidated Freightways is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By granting superseniority to Alphonse Alba over the
actual seniority of Frank Centi, Respondent Employer and
Respondent Union violated Section 8(a)(1) and (3) and Sec-
tion 8(b)(1)(A) and (2) of the Act.
4. The foregoing are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
989CONSOLIDATED FREIGHTWAYS
THE REMEDY
Having found that Respondents have violated the Act, I
shall recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act. Having found that Alba was improperly
granted superseniority in order to bypass Centi for bidding
for the 8 a.m. shift for the two periods in question, and hav-
ing found, as well, that the 8 a.m. shift drivers work longer
hours and therefore earn more than the 9 a.m. drivers, I shall
recommend that Respondents be ordered to jointly and sever-
ally make Centi whole for any loss of earnings he suffered
during these two periods by being bumped to, and working
on, the 9 a.m. shift rather than the 8 a.m. shift, on which
he would have been employed during these periods, absent
the violation. Backpay shall be computed as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]