121 underwent a permanent not a temporary decrease and employees not retained as a result were not subject to recall to the positions that were eliminated thereby. There is nothing in the Agreement to suggest that the contract uses the term "layoff" to mean anything other than a temporary suspension of employment.
The National Labor Relations Board ("NLRB") has consistently ruled that contractual provisions for superseniority in circumstances other than layoff and recall are presumptively unlawful. Niagara Machine & Tool Works, 267 N.L.R.B. 661 (1983), enforced sub nom, N.L.R.B. v. Niagara Machine & Tool Works, 746 F.2d 143 (2d Cir. 1984); Gulton Electro-Voice, Inc., 266 N.L.R.B. 406 (1983), enforced sub nom, Local 900, I.U.E v. N.L.R.B., 234 U.S. App. D.C. 85, 727 F.2d 1184 (D.C. Cir. 1984); Perfection Automotive Products Corp., 232 N.L.R.B. 690 (1977); United Electrical, Radio and Machine Workers of America, Local 623, 230 N.L.R.B. 406 (1977) (Limpco Manufacturing, Inc.), petition for review denied sub nom, D'Amico v. N.L.R.B., 582 F.2d 820 (3d Cir. 1978); Dairylea Cooperative, Inc., 219 N.L.R.B. 656 (1975), enforced sub nom, N.L.R.B. v. Milk Drivers Local 338, 531 F.2d 1162 (2d Cir. 1976). See also Local 1384, U.A.W. v. N.L.R.B., 756 F.2d 482, 488-90 (7th Cir. 1985).
This contract's superseniority provision is clearly and expressly limited to layoffs and inapplicable to the permanent reduction of force in Department 121. On February 26, 1982, plaintiff Mielcarek was entitled by virtue of his departmental seniority to stay in Department 121. Therefore, Oscar Mayer breached the Agreement in allowing superseniority to three stewards with less seniority than plaintiff Mielcarek and retaining them in preference to plaintiff Mielcarek upon the permanent reduction in work force of Department 121.
But whether Oscar Mayer breached the Agreement is not dispositive. Plaintiff Mielcarek must also prove Local 125's conduct regarding the superseniority issue was in bad faith, or arbitrary or discriminatory in violation of its duty of fair representation. Plaintiff Mielcarek has not pleaded nor proved animus toward him on the part of any union official; there was no bad faith. The only questions are whether the union conduct was arbitrary or discriminatory.
Local 125 formulated its policy regarding superseniority in Department 121 in October, 1981, when it was not known how many employees would remain in that department after the permanent reduction in work force. Local 125's policy was formulated after consultation with the international union's counsel; exactly what counsel advised and the factual assumptions on which counsel's opinion was based is not known. Mr. Quattrone stated that the local union's determination was based on the NLRB's ruling in Dairylea and Union Carbide Corporation, 228 N.L.R.B. 1152 (1977).
The union's reliance on Dairylea and Union Carbide was misplaced. In Dairylea, the NLRB ruled that a contractual provision granting preference to union stewards for layoff, recall, overtime assignment, vacation selection and assignment of route, shifts and hours constituted an unfair labor practice in violation of 29 U.S.C. §§ 158(a)(1), 158(a)(3), 158(b)(1)(A), and 158(b)(2) because it discriminated in favor of union membership. The NLRB ruled that superseniority benefits applied beyond layoff and recall situations were presumptively unlawful. Dairylea, 219 N.L.R.B. at 658. In Union Carbide, the NLRB found that presumption of illegality rebutted where a clause granting union stewards the right to refuse department or shift transfers justified; stewards in Union Carbide had jurisdiction over a single department and forfeited their stewardships when transferred. Union Carbide, 228 N.L.R.B. at 1153.
Local 125 did little to reevaluate the superseniority question when plaintiff Mielcarek filed Grievance No. 49. The grievance did receive the functional equivalent of consideration at the third step of the grievance procedure but was not arbitrated. Local 125's Executive Board did not vote on whether to demand arbitration; the Board and Mr. Quattrone informally decided not to demand arbitration on the basis of their earlier assessment of the superseniority clause. Local 125's processing of plaintiff Mielcarek's superseniority grievance was hardly a model of vigorous union activity. However, the responsible union officer did attempt to assess both the meaning and legality of the Agreement's superseniority provision. The union's processing of Grievance No. 49 was not so perfunctory or arbitrary that it violated the duty of fair representation. Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228-29 (3d Cir. 1981); Medlin v. Boeing Vertol Co., 620 F.2d 957 (3d Cir. 1980). Mere negligence in the processing of a grievance does not constitute a breach of the duty.
In the absence of bad faith or arbitrary conduct the sole remaining issue is whether the union acted in a discriminatory manner. In cases or proceedings dealing with unfair labor practice charges under 29 U.S.C. §§ 158(a)(3) and 158(b)(2), superseniority provisions are often labeled "discriminatory." See, e.g., Local 1384, U.A.W. v. N.L.R.B., 756 F.2d 482 (7th Cir. 1985); Niagara Machine & Tool Works, supra; Gulton Electro-Voice, supra; Dairylea, supra. However, the use of the term "discriminatory" in context refers to the tendency of such contractual provisions to promote union membership, and does not mean that they necessarily and conclusively establish improper motivation. In an unfair labor practice proceeding under 29 U.S.C. §§ 158(a)(3) and 158(b)(2), improper motivation must be proved, although the burden of proof is sometimes shifted. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967); Radio Officer's Union v. N.L.R.B., 347 U.S. 17, 74 S. Ct. 323, 98 L. Ed. 455 (1954); Local 1384, U.A.W., 756 F.2d at 487-88. In this hybrid breach of contract/duty of fair representation suit, discrimination must be proved not presumed from the existence or application of the Agreement's superseniority provision.
Plaintiff Mielcarek has failed to prove improper motivation. The contract's superseniority provision was facially valid but improperly applied by Oscar Mayer and Local 125 to a permanent reduction of force. Local 125 was not attempting to discriminate in favor of union members or others; because the union interpreted the Agreement erroneously, it acted in a manner which incidentally might have encouraged union activity. This does not establish a breach of the duty of fair representation. Therefore plaintiff Mielcarek cannot prevail on his claim of an improper grant of superseniority.
Plaintiff Mielcarek's forklift grievance is also without merit. He was given sufficient time in which to qualify as a forklift operator; Oscar Mayer reasonably concluded that plaintiff Mielcarek was not able to operate a forklift properly. He later qualified to operate a somewhat different type of forklift but that does not alter the reasonability of Oscar Mayer's conduct. Oscar Mayer did not breach the Agreement.
Local 125 did not breach the duty of fair representation with regard to the forklift grievance. Mr. Quattrone was largely responsible for Oscar Mayer's giving plaintiff Mielcarek an additional week within which to qualify as a forklift operator. The union processed plaintiff Mielcarek's grievance and he got what he demanded: a written explanation of why he was disqualified. Because there was no breach of the labor contract or the union's duty of fair representation, plaintiff Mielcarek cannot prevail on the claim with regard to his failure to qualify as a forklift operator.
All facts referred to in this discussion shall be deemed incorporated in the court's specific Findings of Fact preceding this Discussion.
Conclusions of Law
Plaintiff Reid received the job to which she was entitled when Department 164 closed; she filed no valid grievance as to any other matter.
As to plaintiff Reid, there was no breach of the Agreement by Oscar Mayer and no breach of the duty of fair representation by the union.
Plaintiffs Cronin, Aaron, Baxter and Cofey were required to request Group A jobs expressly to be considered for them; they did not do so.
As to plaintiffs Cronin, Aaron, Baxter and Cofey, there was no breach of the Agreement by Oscar Mayer and no breach of the duty of fair representation by the union.
As to plaintiff Mielcarek's seniority claim, Oscar Mayer applied Article 3, Section 2, expressly applicable only in the event of a layoff, to a reduction in force; this was a breach of the Agreement. The union erroneously agreed with this misinterpretation and erred in not pursuing the matter through arbitration. However, the union while acting mistakenly or even negligently did not act arbitrarily, discriminatorily, or in bad faith.
With regard to plaintiff Mielcarek's seniority, the union did not breach its duty of fair representation and Oscar Mayer was entitled to rely on the outcome of the grievance procedure provided for in the Agreement.
As to plaintiff Mielcarek's forklift grievance, Oscar Mayer was justified in finding him not qualified to perform the duties of the job he chose on February 25, 1982. There was no breach of the Agreement by Oscar Mayer and no breach of the duty of fair representation in processing this grievance by the union.
Both defendants are entitled to judgment in their favor on all counts.
AND NOW, this 8th day of January, 1986, in accordance with the court's Findings of Fact and Conclusions of Law this date, it is ORDERED that:
Judgment is entered in favor of defendants Oscar Mayer Corporation, a Division of General Foods Corporation, and The United Food and Commercial Workers Union, Local 125, AFL-CIO on all counts.