ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before Seitz, Chief Judge, Aldisert, Circuit Judge, and Stern, District Judge.*fn*
This petition of Anna M. D'Amico (petitioner) to review a decision and order of the National Labor Relations Board (Board), 230 N.L.R.B. No. 59 (June 23, 1977), raises an important issue as to the validity of a clause in a collective bargaining agreement granting, Inter alia, a union recording secretary superseniority in case of layoffs.
The undisputed facts may be summarized. Limpco Manufacturing, Inc. (the Company) employs about 38 employees at the three separately operated divisions of its union shop. Its employees are represented by United Electrical, Radio and Machine Workers of America, Local 623 (the Union). The collective bargaining agreement between the Company and the Union provides in pertinent part (Article XI, Section 5):
The highest seniority preference will be given to Officers and Union Stewards in regard to layoffs provided they are (cap)able of performing the available work in their work unit.
The Union's Constitution and By-Laws provide, Inter alia, for a Recording Secretary. The Union's Recording Secretary, Patricia Jenkins (Jenkins), was the only officer employed by the Company during the period here involved. The Union also utilized a chief steward and three shop stewards who were employees at the three divisions of the Company. Two stewards worked in the same division as the petitioner and Jenkins.
On July 3, 1975, petitioner was laid off by the Company for economic reasons. Petitioner had greater seniority than Jenkins and admittedly would have been retained and Jenkins laid off except for the quoted provision of the collective bargaining agreement.
The General Counsel for the National Labor Relations Board filed a complaint with the Board against the Union claiming that petitioner's layoff constituted an unfair labor practice. After a hearing, the Administrative Law Judge (ALJ) found that the Union was guilty of an unfair labor practice, contrary to § 8(b) (1)(A) and (2) of the Labor-Management Relations Act, by invoking its superseniority clause to deprive petitioner of her job and causing the Company to violate § 8(a)(3).
By a vote of 3 to 2 the Board reversed the determination of the ALJ and ordered the General Counsel's complaint dismissed. Petitioner now seeks review of that action pursuant to § 10(f) of the Act as amended. 29 U.S.C. § 160(f).
Petitioner asserts that the Union violated § 8(b)(1)(A) and (2) of the Act (29 U.S.C. § 158(b) 1 and 2) which provide in pertinent part:
(b) It shall be an unfair labor practice for a labor organization or its agents
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 (*fn1 ) of this title . . .;
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) (*fn2 ) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the ...