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KINTSCHE v. WOODARD

November 21, 1985

CARL J. KINTSCHE, Plaintiff
v.
EMORY WOODARD, JR. and UNITED STEEL WORKERS OF AMERICA, Defendants



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 I. FINDINGS OF FACT

 Plaintiff Carl J. Kintsche is a citizen of the Commonwealth of Pennsylvania. Mr. Kintsche has been employed by the Lansdowne Steel & Iron Company ("Lansdowne") since February 9, 1979. The plant at which Mr. Kintsche has been employed is located in Morton, Pennsylvania.

 Defendant United Steelworkers of America (the "Union") is an international union. The Union is the certified representative of the workers at the Lansdowne facility in Morton. Mr. Kintsche has been a member of the Union throughout his employment by Lansdowne.

 Defendant Emory Woodard, Jr. was the representative of the international Union to the local Union during all relevant periods. He also was and remains a Subdistrict Director of the international Union for the region including the Lansdowne plant.

 A collective bargaining agreement with Lansdowne negotiated by the Union and ratified by the workers was signed on June 5, 1980 (the "collective bargaining agreement"). At all relevant times the collective bargaining agreement was in force between Lansdowne and the Union. (The collective bargaining agreement was attached to the pretrial order filed in this case.)

 Under the collective bargaining agreement, seniority was defined as "the length of an employee's service with the company and it shall apply plantwide." Collective Bargaining Agreement, Article VIII, § 34 (June 5, 1980).

 The collective bargaining agreement further provided:

 
a) For purposes of lay off only, the President, Vice President, Recording Secretary, Financial secretary and Treasurer of Local Union and up to six (6) Shop Stewards shall be considered as having top seniority during their term of office, provided, however, they are currently able to perform the work required on the jobs available. The Union will promptly and from time to time notify the Company of the names of such employees who are to receive such seniority preference.
 
b) The President of the Local Union shall have preference for day shift assignment during his term of office.
 
c) In the event appropriate Federal Law or Orders of any Federal Commission or Authority require a revision of the seniority provisions of this Article, such Law or Order shall govern.

 Collective Bargaining Agreement, Article VIII, § 43 (June 5, 1980). This provision was not amended during any period relevant to this case.

 During all layoffs after the effective date of the collective bargaining agreement until the events of which plaintiff complains no shop steward on the Grievance Committee of the Union was ever denied the benefit of the "superseniority" afforded by the collective bargaining agreement.

 When the collective bargaining agreement was negotiated, the employees of Lansdowne worked in three shifts. Two shop stewards were elected for and served on each shift. In April, 1982, Mr. Kintsche was elected by members of the local Union to be a shop steward on the day shift and serve on the Grievance Committee. At the time of the election, members of the local Union were told that shop stewards enjoyed superseniority. The parties agree that from his election until January 4, 1984, Mr. Kintsche at all times enjoyed superseniority.

 On February 18, 1982, Bernard Klieman, General Counsel of the international Union, issued a memorandum entitled "SUPERSENIORITY FOR LOCAL UNION OFFICERS" to all district directors and department heads of the Union in the United States. (Ex. D-1). This memorandum discusses, inter alia, the decisions of the National Labor Relations Board ("NLRB") in American Can Co., 244 NLRB 736, 102 LRRM 1071 (1979); Otis Elevator Co., 231 NLRB 1128, 96 LRRM 1108 (1977); and Dairylea Cooperative, Inc., 219 NLRB 656, 89 LRRM 1737 (1975), enforced sub nom. NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, (2d Cir. 1976). The memorandum states, "we have taken the position . . . that superseniority is proper for the top five officers of the local union and the grievance committee members or stewards." However, the memorandum acknowledges that the rulings in American Can Co. and Otis Elevator Co. suggest limits on the number of "union officials" who may be given superseniority and that "the policy outlined above may well have to be adjusted in plant closing where the number of employees has been drastically reduced or where the number of officers retained on the basis of superseniority is large compared to the non-officer employee complement." (Emphasis added).

 On March 5, 1983, Mr. Klieman issued a memorandum entitled "Superseniority for Local Union Officers in Light of Gulton Electro-Voice " to all district directors and department heads of the Union in the United States. (Ex. P-A). This memorandum discussed Gulton Electro-Voice, Inc., 266 NLRB 406, 112 LRRM 1361 (1983). This memorandum informed union personnel that union officers not involved in processing grievances or on-the-job contract administration would no longer have superseniority. The memorandum also stated:

 
In light of Gulton Electro-Voice, we have taken the position that as a rule superseniority for Presidents and Vice Presidents as well as grievance committee members can probably be sustained under the new Board law on the grounds that they do perform representation duties on the job.

 The local Union informed its Recording Secretary, Financial Secretary and Treasurer that they no longer had superseniority. These three officers acquiesced in this decision.

 When the Union and Lansdowne entered into the collective bargaining agreement in 1980, Lansdowne was employing at Morton approximately 200 to 270 workers working in three shifts. The size of the work force fluctuated in subsequent years. In October, 1983, the work force was approximately 50 workers working in three shifts: there were five shop stewards. In October, 1983, some Union members began complaining that too many Union functionaries had superseniority in proportion to the number of workers still on the job. These complaints continued through December, 1983.

 Meetings were held between the management of Lansdowne and the Union on October 1, and November 1, 1983, regarding reduction of the workforce. The November 1, 1983 meeting was attended by the President and Vice-President of Lansdowne and by representatives of both the local and international Union, one of which was Emory Woodard, Jr. During the November 1, 1983 meeting the subject of superseniority for shop stewards was considered. The Lansdowne officers asked Mr. Woodard to investigate the legal implications of the NLRB's ruling in American Can Co.

 The minutes of the November 1, 1983 meeting (Ex. D-2), which were prepared by John P. Hilferty, Jr., the President of Lansdowne, stated in part:

 
THE UNION BROUGHT THE FOLLOWING ITEMS UP FOR DISCUSSION AT THIS SPECIAL MEETING:
 
1. SUPERSENIORITY - THE UNION GAVE THE COMPANY THE FOLLOWING GUIDELINE FOR ADMINISTRATION OF SUPERSENIORITY DURING TIME OF REDUCED EMPLOYMENT:
 
A. THE PRESIDENT AND VICE-PRESIDENT WOULD REMAIN AS A RESULT OF THE U.S.W.A. INTERPRETATION OF A RECENT NLRB DECISION.
 
B. THE LEAST SENIOR OF THE FIVE SHOP STEWARDS WOULD BE LAID OFF, BECAUSE OF THE CURRENT TWO SHIFT PRODUCTION SCHEDULE. THE CURRENT CONTRACT REFERS TO UP TO SIX SHOP STEWARDS. THE INTENT OF THAT CLAUSE WAS FOR COVERAGE DURING A THREE SHIFT PRODUCTION SCHEDULE, WITH TWO SHOP STEWARDS PER SHIFT; THEREFORE, WHEN THE COMPANY IS ...

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