McQuay-Norris, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1397 (N.L.R.B. 1981)

MCQUAY-NORRIS. INC.
McQuay-Norris, Inc. and James Dickerson.
Local No. 24, United Automobile, Aerospace and
Agricultural Implement Workers of America
and James Dickerson. Cases 25-CA-11897 and
25-CB-4040
September 30, 1981
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 31, 1981, Administrative Law Judge
Russell M. King., Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent Em-
ployer and Respondent Union each filed exceptions
and a supporting brief, and the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent Employer,
McQuay-Norris, Inc., Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, and the Re-
spondent Union, Local No. 24, United Automobile,
Aerospace and Agricultural Implement Workers of
America, Indianapolis. Indiana, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order, except that the at-
tached Appendixes II and III are substituted for
those of the Administrative Law Judge.
MEMBER FANNING, dissenting:
I would dismiss the complaint in its entirety be-
cause I do not agree with the restrictions placed on
superseniority by Dairylea Cooperative Inc., 219
NLRB 656 (1975), enfd. 531 F.2d 1162 (2d Cir.
1976), and its progeny. See my dissents in Dairylea,
supra; A.P.A. Transport Corp., 239 NLRB 1407
(1979); and The American Can Company, 244
NLRB 736 (1979).
APPENDIX II
NOTICE To EMPI OYF.l S
POSTI:D BY ORDER 01 THE
NATIONAl. LABOR REI.ATIONS BOARD
An Agency of the United States Government
Whenever layoffs or recalls are necessary in our
plant in Indianapolis, Indiana, where our employees
are represented by Local No. 24, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, and covered by an agreement
between us and that Union,
WE WILL NOT permit said Union to invoke
superseniority of such agreements for other
than a reasonable number of local union offi-
cers whose duties involve the administration of
such agreements, the processing of grievances,
or the furtherance of the bargaining relation-
ship wherever such permission results in the
displacement of unit employees with greater
seniority status under such agreements for pur-
poses of layoff and recall, subject to other pro-
visions regarding skill and ability.
WE WilI. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights protected by
Section 7 of the National Labor Relations Act.
WE WII.. make whole for any wage losses,
plus interest, those senior employees suffered
who would have been retained in or recalled
to active employment at our Indianapolis, Indi-
ana, plant on or after January 18, 1980, but for
the retention of Union Guide Juanita Faust.
MCQUAY-NoRRIS, INC.
APPENDIX III
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Whenever layoffs or recalls occur in the McQuay-
Norris, Inc., plaint in Indianapolis, Iniana, where
our members are employed under the terms of
agreements between McQuay-Norris, Inc., and
Local No. 24, United Automobile, Aerospace and
Agricultural Implement Workers of America,
WE Wil.l. NOT invoke the superseniority
provision of such agreements for other than a
reasonable number of union officers whose
duties involve the administration of such
agreement, the processing of grievances, or the
furtherance of the bargaining relationship
258 NLRB No. 191
1397
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARI)
whenever such invocation results in the dis-
placement of unit employees with greater se-
niority status under such agreements for pur-
poses of layoff and recall, subject to other pro-
visions regarding skill and ability.
WE WII.L NOT in any like or related manner
restrain or coerce employees of McQuay-
Norris, Inc., in the exercise of their rights pro-
tected by Section 7 of the National Labor Re-
lations Act.
WE WILL make whole for wage losses, plus
interest, those senior employees suffered who
would have been retained in or recalled to
active employment at McQuay-Norris, Inc.,
Indianapolis, Indiana, plant on and after Janu-
ary 18, 1980, but, for the retention and recall
of Union Guide Juanita Faust.
LOCAL
MOBILE,
TURAL.
No. 24, UNITED AUTO-
AEROSPACE AND AGRICUL-
IMPLEMENT WORKERS OF
AMERICA
DECISION
STArTE.MEINT OF THE CASE
RUSSEI.I. M. KING, JR., Administrative Law Judge:
These consolidated cases were heard by me in Indiana-
polis, Indiana, on November 13 and 14, 1980. The charge
in both cases were filed by an individual, James Dicker-
son, on February 21, 1980. An amended charge in Case
25-CB-4040 was filed on March 28, 1980, and also on
said date a consolidated complaint was issued by the Re-
gional Director for Region 25 of the National Labor Re-
lations Board on behalf of the General Counsel. The
complaint alleges the unlawful layoff of employees James
Dickerson and Robert Markey because of the improper
application of a preferential seniority agreement ("super-
seniority" agreement) contained in the union contract be-
tween the Respondents. These layoffs, the General
Counsel contends, resulted in the wrongful retention of
union officers Don Hentrup (Trustee) and Juanita Faust
(Guide), both with less seniority than Dickerson or
Markey, in violation of Sections 8(a)(1) and (3),
8(b)(1)(A) and 8(b)(2) of the National Labor Relations
Act, as amended (the Act).' Both the Respondent Em-
'The pertinent parts of the Act provide as folloAs:
Sec. 8(a) It shall be an unfair labor practice for a empllyer-
(I) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in sectionl 7 ....
(3) by discriminatiorn in regard to hire or enure of employmient
or any term or condition of employment to encourage or discour-
age membership in anll labor organizatiln .
Sec. 8(b) It shall he n unfair labor practice for a labor orgalniza-
lion or its agentts-
(I) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in sectionl 7: Provided That this paragraph hall
not impair the right (of a labor organizalion Io prescribe its o, n
ployer (the Company) and the Respondent Union (the
Union) deny the allegations in the consolidated com-
plaint and maintain that the superseniority provisions of
the contract were properly applied, resulting in the re-
tention of Hentrup and Faust.
Upon the entire record,' including my observation of
the demeanor of the witnesses, : and after due considera-
tion of the briefs filed herein by the General Counsel, the
Company, and the Union, I make the following:
FINDINGS 01 FACI
I. JURISI)IClION
The pleadings and admissions herein establish the fol-
lowing jurisdictional facts. At all times material herein,
the Company has maintained its principal office and
place of business in St. Louis, Missouri, and various
other facilities in the State of Indiana, including a facility
or plant at Indianapolis, Indiana, the facility involved
herein, and is, and has been at all times material herein,
engaged at said facility and location in the manufacture,
sale, and distribution of automotive bearings, and related
products. During the 12-month period ending February
21, 1980, the Company, in the course and conduct of its
operations, sold and shipped from said facility products,
goods, and materials valued in excess of $50,000 directly
to points located outside the State of Indiana and in the
course and conduct of its operations, it purchased and re-
ceived at said facility, products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of Indiana. Thus, and as admitted, I find and
conclude that the Company is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
As also admitted, I find and conclude that the Union
is, and has been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the Act.
rules ith respect to Ihe acquisition or retentiion of membership
therein.
(2) to cause or attempt to cause an employer to discriminate
against an employee with respect to whom membership in such or-
ganization has been denied or terminated on some ground other
than his failure to tender the periodic dues and the initiation fees
unifirmly required as a conldition of acquiring or retaining mem-
bership
Sec 7 Employees shall have the right to self-organization, It
firm, join, or assist labor orgaiizations. to hargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for Ihe purpose of collectise bargaining or
other mutual aid or protection . .
Certain errors il the transcript are hereb) noted alld corrected.
' The facts found herein are based on the record as a sshole and upon
nmy observation of the witnesses. The credihility resolutions hereii have
been derived from a review oif the enitire testimonial record and exhibits
with due regard fior the logic of probability. the demeanor of the it-
lnescs, and tie teaching of V/.lRB. v. Wahoin Manuja'currng Cnompan
& Logunilh' I'url Co., 369 U.S 404. 48 (1962) As to s tho testifyinig in
contlradiction of findings herein. their estimlony has been discredited
either as ha ilng bee i conflicit ith the estlimonlly of credible svilne,,ss
or because it as i aid of itself incredible arid Iun orthy of elief. All
eslti lnon. regardless of whether or nlot menti oned or alluded to herein.
has been revies: ed and weighed in light of the entire record
1398
MCQUAY-NORRIS. INC.
II. A.LtEGIlD lIUNF:AIR ABOR PRACTICESs
A. Background
Over the period of approximately the last 7 years, the
Company has sustained a business decline and has been
required to reduce the number of its employees from ap-
proximately 200 down to 17. Robert Markey was laid off
January 18, 1980, and James Dickerson was laid off Feb-
ruary 25, 1980. 4 Union trustee Hentrup and Union Guide
Faust were retained allegedly under the "superseniority"
provisions of the contract. The hire dates of all four are
as follows: Dickerson, 7/26/48; Markey, 9/05/50; Hen-
trup, 8/11/53; and Faust, 2/16/55. Out of the 17 remain-
ing employees, 12 employees are union officers. Of these
12, only 2 were senior in time to Dickerson and 4 were
senior in time to Markey. The 12, their positions and hire
dates, are as follows: George Senior, zone committee-
man, 4/3/39; Marjorie Johnson, trustee, 9/16/46; All-
ward Holland, sergeant-at-arms, 2/27/50: Ruby Angle,
financial secretary, treasurer, and zone committeeman,
5/05/50; Gene Hamilton, timestudy steward. 4/9/51:
Don Hentrup, trustee, 8/11/53; LaRue Naylor, zone
committeeman, 8/12/53; Juanita Faust, guide, 2/16/55;
Charles Wilson, trustee and zone committeeman,
5/23/55; Peter Parot, recording secretary and steward,
9/6/55; Robert Thornton, vice-president, vice-chairman
of bargaining committee, delegate to council, and ste-
ward, 5/2/57; and Malcolm Biggs, president, and chair-
man of bargaining committee, 4/11/62. The union con-
tract establishes a "bumping" system involving both se-
niority and skill. The result is that the least senior em-
ployee is laid off unless a more senior employee who is
displaced cannot perform the job of the junior employee,
in which case the senior employee would be laid off. Of
the 12 remaining officers, some were retained through
skill, some through superseniority, and apparently some
through both skill and superseniority. 5
The material section of the contract itself, dated De-
cember 8, 1977, is as follows (sec. 5, art. 6):
Local Union Bargaining Committeemen and
Local Union Executive Officers shall have top
ranking seniority and shift preference within their
Bargaining Unit or Zone. Bargaining Committee
members as such shall be given first consideration
for such seniority preference and Executive Officers
shall receive next preference in the same order as
they rank in the provisions of the International
Union Constitution. Shop Stewards shall have top
ranking seniority within their respective depart-
ment, zone or shift, except when displaced by a
Committeeman. Committeemen will only displace
Stewards when both the Committeeman and Ste-
ward work within the same department, zone or
shift and such displacement is necessitated due to a
reduction of force. In cases of complete cessation of
operation within a Bargaining Unit Zone, Executive
'Dickerson a recalled in June 19I0
'My concer i this case ill onl hbe directed to the four enlplo ee,
invoiv\cd i . Ilentrup aid Faust (retained) arid D)ickerson and MMarke
(laid off). These four emnployee' ere the onl, ones v hich. for %khateser
reasons. were placed inll issue hy the Cieneral Counllsel in this case.
Officers and Bargaining Committeemen so affected
will be permitted to exercise displacement rights ac-
cording to preferential seniority in the first instance
and actual seniority in the second instance. The
Committeeman shall be the last to leave the Bar-
gaining Unit.
All of the above-named Union Officials shall be per-
mitted to use only their actual seniority for the pur-
pose of job bidding.
A supplementary preferential seniority agreement was
also entered into (December 12, 1977) and reads as fol-
lows:
This agreement supplements the Company-Union
Contract Agreement as signed, 12-8-77 regarding
special seniority rights for the following: All Board
Members, Committeemen and Stewards (including
Time Study Stewards), in the Indianapolis Division
during periods of displacement, union bargaining
committee members, executive officers and stewards
shall hold their jobs on the basis of actual seniority.
If displaced and unable to secure a job by actual se-
niority, they will be placed by the company on
those jobs held by the least senior employees, sub-
ject only to their ability to perform the job.
The Union will notify the Company in writing of
all members holding such positions and terminations
of such.
Under the Union's constitution, the local officers (includ-
ing trustees and the guide) constitute the local executive
board and under sections 5 and 6, article 38, of the
Union's constitution, the executive board has the follow-
ing obligations and duties:
It shall be the duty and obligation of all Local
Union officers and Executive Board Members, and
all other official representatives of the Local Union,
whether elected or appointed, to support, advance,
and carry out all provisions of this Constitution. of-
ficial policies of the International Union, and, to the
extent not inconsistent with the foregoing, all offi-
cial policies of the Local Union.
The Executive Board shall be empowered to repre-
sent the Local Union between meetings of the
Local Union when urgent business requires prompt
and decisive action. In no case, however, shall the
Executive Board transact any business that may
affect the vital interests of the Local Union until the
approval of the membership is secured, or of the
shop organization in the case of an Amalgamted
[sic] Local Union.
Sections 12 and 14, article 40. of the Union's constitution
set forth the duties of trustees and the guide as follows:
Trustees
The Trustees shall have general supervision over all
funds and property of the Local Union. They shall
audit or cause to be audited by a Certified Public
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accountant selected by the Local Union Executive
Board, the records of the Financial Officers of the
Local Union semi-annually as provided herein,
using duplicate forms provided by the International
Union, a copy of which shall be forwarded to the
International Secretary-Treasurer immediately
thereafter. It shall also be their duty to see that the
Financial Officers of the Local are bonded in con-
formity with the laws of the International Union.
The Trustees shall see that all funds shall be depos-
ited in a bank subject to an order signed by the
President and Treasurer and/or Financial Secretary.
In Local Unions where safety deposit boxes are
used, the Trustees shall see that the signatures of
the President, Treasurer and one (I) of the Trustees
are required before admittance to the safety deposit
box is permitted. In the event the books are not re-
ceived for audit within fifteen (15) days after the
end of each six-month period the Chairman of the
Trustees shall make a report to the next meeting of
the Local Union for action.
Guides
It shall be the duty of the Guide to maintain order,
inspect the membership receipts, satisfy himself that
all present are entitled to remain in the meeting of
the Local Union and perform such other duties as
are usual to the office.
The Union's bylaws state as follows regarding the local's
executive board:
The membership is the highest authority of this
Local Union and shall be empowered to take or
direct any action not inconsistent with the constitu-
tion or bylaws.
Between membership meetings, the Executive
Board shall be the highest authority of the Local
Union and shall be empowered to act on behalf of
the membership to the extent that urgent business
requires prompt and decisive action subject to sub-
sequent membership approval. The Executive Board
may not take any action affecting the vital interests
of the Local Union without prior membership ap-
proval.
Between meetings of the Executive Board, the
President shall exercise general administrative au-
thority and shall be empowered to act on behalf of,
and take action permitted to the Executive Board.
subject to subsequent approval of the Executive
Board.
The Executive Board shall have authority to make
disbursements of Local Union funds, but not exceed
One Hundred (100.00) Dollars in any single dis-
bursement.
The Executive Board, shall carry out the provisions
of these bylaws. It shall also see that the proper
procedures for the trial of Local members is carried
out.
For approximately I year, the Union had not been able
to hold a regular membership meeting because of the in-
ability to obtain a quorum. The executive board itself
was thus carrying on the business and responsibilities of
the Union and usually met informally most mornings in
the plant and before the shift started.
B. Applicable Law
A review of recent Board law regarding superseniority
clauses would logically begin with the Board's holdings
in Dairylea Cooperative, Inc., 219 NLRB 656, (1975) (then
Chairman Murphy, Members Jenkins, Kennedy, and
Penello: Member Fanning dissenting), enfd. 531 F.2d
1162 (2d Cir. 1976). Here, the Board held that a contract
provision providing superseniority for a union steward
was presumptively valid only for layoff or recall situa-
tions. Member Fanning felt the decision was too restric-
tive. Next in United Electrical, Radio and Machine Work-
ers of America, Local 623 (Limpco Mfg., Inc.), 230 NLRB
406, (1977), and Otis Elevator Company, 231 NLRB 1128
(1977) (in both: Chairman Fanning, Members Murphy
and Walther; Members Jenkins and Penello dissenting),
the Board expanded Dairylea to include other union offi-
cers (recording secretary, sergeant-at-arms, and executive
board member), thereby furthering the effective adminis-
tration of the bargaining agreements on the plant level.
In Expedient Services, Inc., 231 NLRB 938 (1977), the
three-member panel who constituted the majority in
Limpco, and, Otis Elevator (Chairman Fanning and Mem-
bers Murphy and Walther) held valid a superseniority
clause covering union officers who were also stewards in
a layoff, recall, or demotion situation. A similar result
was reached regarding a union financial secretary in
Allied Industrial Workers of America, AFL-CIO, and its
Local No. 148 (Allen Testproducts Division, The Allen
Group, Inc.), 236 NLRB 1368, (1978) (Chairman Fan-
ning, Members Murphy and Truesdale; Members Jenkins
and Penello dissenting, consistent with their dissents in
Limpco, and Otis Elevator). In The American Can Compa-
ny [1], 235 NLRB 704 (1978) (Chairman Fanning and
Member Truesdale; Member Penello dissenting) the posi-
tions of the union "guard" and a union trustee were in-
volved and the majority held that a superseniority clause
covering all union officers was presumptively valid
whether or not a documentary description of their duties
showed no visible or direct impact on the administration
of the union contract. Subsequent to American Can Com-
pany [], two significant events occurred. The individual
charging parties in American Can Company [ appealed
the Board's decision to the 10th Circuit, and in enforcing
the Board's decision in Limpco, the Third Circuit com-
mented that the Respondent (employer) "was obligated
to produce credible proof that the individual in question
was officially assigned duties which helped to implement
the collective-bargaining agreement in a meaningful
way." A,4nna . D'Amico v.. AL.R.B., 582 F.2d 820 (3d
Cir. 1978). These events prompted the Board to move
the 10th Circuit to withdraw the record in American Can
Company [ and to reconsider its Decision and Order
therein. The effect of this reconsideration was to reverse
the previous outcome, although by a divided five-
1400
MCQUAY-NORRIS, INC.
Member Board. The American Can Company [11], 244
NLRB 736 (1979) (Members Jenkins, Penello, and
Murphy; Chairman Fanning and Member Truesdale dis-
senting). In American Can Company [11., Members Jen-
kins and Penello, remaining ever consistent, would not
permit union officers to benefit from superseniority
except when the officers also serve as stewards or other-
wise engage in administration of the contract at the place
and during the hours of their employment. Member
Murphy, while finding the subject superseniority clause
lawful on its face, concluded that the General Counsel
had met his initial burden of proving affirmatively that
the application of the clause was invalid because the
functions of the union officers involved did not relate in
general to the furthering of the bargaining relationship.'
Chairman Fanning and Member Truesdale, in dissenting,
would continue to find superseniority clauses presump-
tively valid where all officers were included, and "who
contribute, in their official capacities, to the ability of the
union to represent all the employees in the unit effective-
ly and efficiently."
As ot the date of this Decision, the Board has only
three members, Chairman Fanning, Member Jenkins, and
Member Zimmerman, who has not yet had a chance to
speak to the matter. Since American Can Company [11] is
the Board's last word on the subject, I feel that I must
consider it to be the controling law to this case.7 I will
thus attempt to apply the thoughts of the majority in
American Can Comany [II] to this case, which are two-
fold. First, union officers may not benefit from supersen-
iority clauses except when they serve as stewards or oth-
erwise engage in administration of the union contract at
the place and during their hours of employment
(Member Jenkins and former Member Penello). Second-
ly, while superseniority clauses are lawful on their face,
if the General Counsel proves, without adequate rebuttal,
that the functions of the union officers involved did not
relate in general to the furthering of the bargaining rela-
tionship, the application of the clause becomes invalid
(former Member Murphy).
C. Evaluation of the Law Evidence and Initial
Evidence and Initial Conclusions
I. Union Guide Juanita Faust
From the testimony of employees Dickerson, Markey,
and Plant Superintendent Lykens, it is clear and unrebut-
ted that both Dickerson and Markey had the skill and
ability, through many years of experience, to perform
Faust's job. It is also clear from Lykens' testimony that
Faust maintained her job by virtue of superseniority
alone, and I so find in this case.
Under the Union's constitution, Faust, as union guide,
was charged with the following responsibilities:
h Member Murphy, in her concurring opinion. referred to language in
the Third Circuit's decision in affirming and enforcing Litnpeo "where the
court stated it read he Board s Decision to mean that "the union wras
obligated to produce credible proof that the individual in queslion ras
officially assigned duties which helped to implement the collectie-hbar-
gaining agreement in a meaningful way." Members Jenkin, and 'Pencllho.
in their concurring opinion. did notl mention the Third Circuit's decisilon
7 This is not to indicitce either agreement or disagreemetll xilh ( hair-
man Fanning's polition on he subject, which has been steadfast.
. . . to maintain order, inspect the membership re-
ceipts, satisfy [herself] that all present are entitled to
remain in the meeting of the Local Union and per-
form such other duties as are usual to the office.
As guide, Faust was also a member of the Union's (local)
executive board, and as such shared the following re-
sponsibilities under the Union's constitution:
. . . to support, advance and carry out all provi-
sions of [the] Constitution, official policies of the In-
ternational Union. and, to the extent not inconsist-
ent with the foregoing, all official policies of the
Local Union.
Under the tests of American Can Company [I]. supra, the
evidence must show that Faust engaged in the adminis-
tration of the union contract at the plant and during
working hours, and that her functions related in general
to the furthering of the bargaining relationship between
the Union and the Company. I find that the evidence is
simply lacking in these respects. Faust's job as guide was
concerned with the organizational and internal functions
of the union (local) itself, and not with contractual mat-
ters pertaining to bargaining and grievances, and the
like.' I, thus, find and conclude that the superseniority
clause was unlawfully applied by the Company and the
Union in Faust's retention, and, thus, in violation of the
Act as alleged in the complaint.
2. Union Trustee Don Hentrup
Although Hentrup's position as trustee also made him
a member of the executive board, his duties as trustee
were also solely internal, having "general supervision
over all funds and property of the Local Union." As
with Union Guide Faust, I also find that Hentrup, as a
trustee, also fails in this case to meet the test of American
Can Company [II], supra.
Both the Union and the Company argue in that Hen-
trup was retained not through superseniority but because
of his skill or ability. It is clear from the testimony of
employees Dickerson, Markey, and Plant Superintendent
Lykens that neither Dickerson nor Markey had either
the skill or ability to perform Hentrup's job, and I so
find. However, Lyken conceded that employee Robert
Hamilton, who was on layoff but senior to Hentrup,
"would possibly be capable" of performing Hentrup's
job.9 Lykens further testified that Hentrup was retained
because of "both" superseniority and skill. I can not find
from the evidence in this case that Hentrup was retained
at the prejudice of a more senior employee, although I
do find Hentrup was not retainable through supersenior-
ity alone. There is simply no evidence in the record from
which I could conclude that employee Robert Hamilton
failed to claim Hentrup's job because he assumed Hen-
The nion had a Ihree-niember hargaininllg committee. I;our /,,ne
comnlitteellen ad mto e.ards.
u Robert Halmilton's hire date was JanuarN 30. 1953. and tllntrup', xsas
August I I. 1953 He vas I;lid off Janluar: 4. 1980. before Dickersion and
Markc ftce did not testif in this case and is no a part t , the calse
There is no c idence that he attempted to "bump" t crntrulp or of V hat
I11s talirnlelts \rcr
1401
DECISIONS OF NATIONAL LA3OR REL.ATI()NS BOARD
trup was protected by superseniority. Since, Hentrup
was never tested through skill or ability at his job, in my
opinion it would be illogical, incorrect, and serve no pur-
pose to conclude that he was retained because of super-
seniority, or that the clause was applied to retain him un-
lawfully. I will thus recommend that the portion of the
complaint involving Hentrup be dismissed.
Upon the foregoing findings of fact, initial conclusions,
and upon the entire record, I hereby make the following:
CONCI.USIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union violated Section 8(b)(l)(A) and (2) of the
Act by requesting the Respondent Employer to retain
Union Guide Juanita Faust under the superseniority pro-
vision of the applicable collective-bargaining agreement
while senior employees hold superior contractual reten-
tion and recall rights were denied retention and recall in-
asmuch as the union duties of the guide do not involve
the representation of unit employees in matters involving
the administration of the agreement or grievance proc-
essing, or the furtherance of the bargaining relationship.
4. The Respondent Employer violated Section 8(a)(1)
and (3) of the Act by complying with the above request
of the Union.
5. The job of union trustee, as held by employee Don
Hentrup, was not protected by and under the supersen-
iority clause of the applicable collective-bargaining
agreement.
6. The above unfair labor practices, found in para-
graphs 3 and 4, above, affect commerce within the mean-
ing of the Act.
7. Except as found in paragraphs 3 and 4 above, the
Respondent Employer and the Respondent Union have
not otherwise violated the Act.
THE REMEDY
Having found that the Respondents violated the Act
by a discriminatorily unlawful application of their super-
seniority provision, I shall recommend that it be ordered
to cease and desist from any such discriminatory applica-
tion. Because Union Guide Juanita Faust was retained
pursuant to an unlawful application of the superseniority
provision of the collective-bargaining agreement in dero-
gation of the rights of senior employees to contractual
retention and recall rights, I will recommend that the
Respondent Union and the Respondent Employer make
whole any wage losses suffered by those senior employ-
ees who would have been retained or recalled on and
after January 18, 1980, but for the unlawful retention of
Juanita Faust, less any net earnings such employees re-
ceived in the periods they would have been employed.
The lost wages and interest thereon shall be computed in
the manner prescribed in Pf W. Woolworth Company, 90
I w ill howcver. ad ai inlldiitd earlier. forrmalll conclude hat Iten-
Irup 'ea.s nol prtlccted hy te sIrpersclllirily clause
NLRB 289 (1950), and with interest as set forth in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, McQuay-Norris, Inc., Indianapolis,
Indiana, facility and plant, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Permitting, in any layoffs or recalls within the unit
covered by agreements with Local 24, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, superseniority to be invoked for other than a
reasonable number of local union officers whose duties
involve the administration of the agreement, the process-
ing of grievances or the furtherance of the bargaining re-
lationship whenever such invocation or permission re-
sults in the displacement of unit employees with greater
seniority status under the agreement for purposes of
layoff or recall, subject to other provisions regarding
skill and ability.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Make whole those unit employees who would have
been retained or recalled under the agreement but for the
retention or recall of Union Guide Juanita Faust from on
and after January 18, 1980, at the Employer's Indianapo-
lis, Indiana, plant in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant and facility in Indianapolis, Indi-
ana, copies of the attached notice marked "Appendix
II."' Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly signed
by the Respondent Employer's representative, shall be
posted by the Respondent Employer immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
"Sec gnerally, Isi Plrnumbing & Ilcating Co., 138 NLRB 71h (1962)
I" In Ihe ecnt ioi ceplitlons, are filed as pro ided h Scc. 1()2 4 of
the Rules and Regulations of Ihe Nationall Iahor Relalionls Board the
findings, cnclusions. iand rcommended Order hcrcin shall, as prosided
in Sec 1()2.48 of the Rule, ad Regulatilns. he adopted h the Board and
hCcomc ils filldirlgs. ctlllusions. and ()rder, and all ohictionl s thereto
shall h dccmicd waicd for all prpos.es
' Il tile cent that his ()rdcr is eniforced h a Jdgntill of a United
State, Court of Appeals. the '.sords il the iltice reading "I'osted h5
Order of thc National Il hor Rlations I:oard" shall rclad I'osed Puru-
a.n t a Jdglmt of the Utnitd Sales Courl of Appeals Enforcing ant
()rdcr of the Nalional ahor Relations oalrd "
1402
MCQUAY-NORRIS, INC.
ent Employer to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent Employer has taken to comply
herewith.
B. The Respondent Union, Local No. 24, United
Automobile, Aerospace and Agricultural Implement
Workers of America, Indianapolis, Indiana, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Invoking, in any layoffs or recalls within the unit
covered by agreements with McQuay-Norris, Inc., at its
Indianapolis, Indiana, facility and plant, superseniority
for other than a reasonable number of local union offi-
cers whose duties involve the administration of the
agreement, the processing of grievances, or the further-
ance of the bargaining relationship whenever such invo-
cation results in the displacement of unit employees with
greater seniority status under the agreement for purposes
of layoff and recall, subject to other provisions regarding
skill and ability.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights protected by
Section (7) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Make whole those unit employees who would have
been retained or recalled under the agreement but for the
retention of Union Guide Juanita Faust, on and after Jan-
uary 18, 1980, at the Employer's Indianapolis, Indiana
plant in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Post at the meetings hall of the said Local 24. or at
other appropriate places as indicated later herein, copies
of the attached notice marked "Appendix III."'4 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 25, after being duly signed by the Re-
spondent Union's representative, shall be posted immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent Union to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25. in
writing, within 20 days from the date of this Order, what
steps the Respondent Union has taken to comply here-
with.
'l See n 1t3 supra.
1403