N.L.R.B. v. American Can Co.
| Decision Date | 31 August 1981 |
| Docket Number | No. 80-1173,80-1173 |
| Citation | 658 F.2d 746 |
| Parties | 108 L.R.R.M. (BNA) 2192, 92 Lab.Cas. P 12,974 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Stanley H. Egan and Donald R. Egan, Intervenors, v. The AMERICAN CAN COMPANY; United Steelworkers of America, and Local 5490 of the United Steelworkers of America, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John D. Burgoyne, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel; Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with him on the brief), for petitioner.
James S. Frank, Simpson, Thacher & Bartlett, New York City (Martin H. Zuckerman and Cecelia T. Roudiez, Simpson, Thacher & Bartlett, New York City, on the brief), for respondent American Can Co.
Richard Breen, Chicago, Ill. (David L. Gore, Bernard Kleiman, Chicago, Ill., with him on the brief), for respondents United Steelworkers of America and Local 5490 of the United Steelworkers of America.
Before DOYLE, McKAY and SEYMOUR, Circuit Judges.
The National Labor Relations Board has petitioned this court pursuant to § 10(e), 29 U.S.C. § 160(e), of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. The Board seeks enforcement of an order entered against the respondents, American Can Company, United Steel Workers of America (hereinafter called the "the International Union") and Local 5490 on August 30, 1979.
The order finds that application of a superseniority clause to certain Union officers was unlawful. It directed the respondents to take remedial action. The employer, American Can Company, the International Union and the Local object to this order and take the position in this appeal that it should be denied enforcement.
The Company, a national operation, had one of its plants in Denver, Colorado until December 5, 1979. Aluminum cans were manufactured and sold there.
Beginning in 1966, the employees at the Denver plant were covered by a collective bargaining agreement between the Company and the International Union. The particular agreement in this case covered a term from February 15, 1974 to February 28, 1977. Local 5490 represented the production and maintenance employees at the Denver plant; the membership averaged about 40 persons.
The agreement contained a general rule that layoffs and recalls from layoffs would be in accordance with employee seniority. Thus, those with the longest continuous service were the last to be laid off and the first to be recalled. However, another clause in the agreement contained the provision that is particularly applicable here, that of superseniority. It reads as follows:
SuperSeniority
11.12 At each location covered by this agreement, super-seniority shall apply to a total of not more than ten local union officers and grievance committeemen who, notwithstanding their positions on the seniority roster, shall have preferential seniority in case of layoff or recall, provided there is work available which they can perform. The employees to whom super-seniority will apply will be designated to the company in writing. (R. 204)
In September of 1975, in accordance with the above provision, the Local Union submitted a list of ten union officials for whom it claimed superseniority. In October, 1975, the Company informed the Union that it would cease production at the Denver plant in early December. As is usual in this kind of situation, the International Union removed all of the officers of the Local, and appointed a staff representative, Wayne Anzick, as administrator of Local 5490. On December 1, 1975, again in conformity with normal procedure, Anzick reappointed all of the officers of Local 5490. Soon thereafter, on December 5, 1975, the Company laid off all but eleven employees who were retained to assist in closing down the plant. Two of these, C. E. Bugh and D. R. Howard, were retained on the basis of superseniority. On January 5, 1976, two employees, W. S. Miller and S. Schneider, were recalled on the basis of superseniority. Following general layoffs in February, the only employee on the job was C. A. Burton. On March 3, 1976, the Company confirmed with Anzick that superseniority was still claimed for Union officers. On May 20, 1976, Local 5490 was dissolved. Anzick notified the Company of this fact and indicated that superseniority was no longer claimed for union officers on May 26, 1976. On May 25, 1976 1 Howard was recalled on the basis of superseniority, and worked until laid off on September 2, 1976.
The recalls and retentions which are at issue here are those having to do with Schneider and Howard. The exercise of superseniority as to Bugh and Miller is unchallenged. This is apparently because both men were grievance committeemen and also served as stewards. Retention of a third employee, C. Thompson, was originally challenged, but the parties now apparently agree that Thompson was retained on the basis of specific job qualifications. All other employees recalled or retained had sufficient seniority so that they would have been recalled or retained without regard to superseniority. The parties all agree that but for the application of superseniority to Howard and Schneider, other employees with longer service would have been retained or recalled.
Howard was a trustee of Local 5490, while Schneider served as a guard. The Union constitution describes their respective duties as follows:
Duties of Guards. It shall be the duty of the Guards to take charge of the door and see that no one enters who is not entitled to do so.
Duties of Trustees. It shall be the duty of the Trustees to have charge of the hall and all property of the Local Union, subject to the direction of the Local Union, and perform such other duties as the Local Union may require. (R. 542)
At the hearing before the Administrative Law Judge no evidence was presented regarding the duties that were actually performed by Schneider. There was testimony by Charles Burton, former President of Local 5490, that Howard served as Chairman of the Health and Safety Committee, in addition to his duties as Trustee. Burton testified that Howard continued to raise safety problems with the Company up until his final termination in September of 1976.
The Administrative Law Judge and at least one member of the Board found this testimony irrelevant on the ground that superseniority was available only to grievance committeemen and union officers. It is not disputed that Howard was accorded superseniority on the basis of his position as trustee, and not as a result of his activity on the Health and Safety Committee.
Charges were filed against all the respondents by two former employees, S. H. Egan and D. R. Egan, who were members of Local 5490 before its decease. On the basis of these charges, the NLRB issued complaints against all of the respondents charging that the Union had violated § 8(b)(1)(A) and (2) of the National Labor Relations Act 2 and that the Company had violated the § 8(a) (1) and (3) of the Act. 3 Following a hearing held in May of 1977, the Administrative Law Judge recommended, on November 4, 1977, that the Board should order remedial action.
The Board issued two opinions. The first of these was issued April 5, 1978, 235 NLRB 704. This was a two to one decision. Chairman Fanning and Member Truesdale found that respondents had not violated the NLRA, and dismissed the complaint. The majority held superseniority accorded union officers to be presumptively lawful, and found that the General Counsel had not produced sufficient evidence to overcome that presumption. Member Penello dissented, indicating that in his view superseniority is presumptively unlawful when extended to union officers, and had been invalidly applied in this case.
On May 2, 1978, the Egans petitioned this court for a review of the Board's decision. Thereafter, the Board moved for permission to withdraw the record in order to reconsider its decision. This motion was granted October 23, 1978. On August 30, 1979, the Board issued a Supplemental Decision and Order, 244 NLRB No. 78. There three Board members found that the respondents had violated the NLRA and ordered remedial action; two members dissented. The Board then petitioned this court for enforcement of its order. We conclude that the action of the Board should be affirmed and that the order should be enforced.
The question presented in this review is whether the grant of superseniority to Howard and Schneider impermissibly interfered with the rights of other American Can Company employees to refrain from union activities or by discrimination in a term of employment impermissibly encouraged participation in union activities.
Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, requires that the employee shall have the right to refrain from any or all union activities. Section 8 of the NLRA prohibits certain types of employer conduct. It reads, in part:
(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 157 of this title;
(3) by discrimination in regard to hire or tenure or any term or condition of employment to encourage or discourage membership in any labor organization ... 29 U.S.C. § 158(a)(1), (3).
Section 8(a)(3) goes on to make an exception allowing a union and an employer, in a collective bargaining agreement, to require employees to maintain union membership as a condition of employment. This statute states that only payment of dues and initiation fees may be required as a condition of membership in a union. Section 8(b) prohibits restraint or coercion of employees by unions in the exercise of the rights guaranteed in Section 157 of...
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