## Facts

- Glencoe Distilling Company sold its plant and assets to Barton Brands, Ltd.; both workforces were represented by the same local union but had been in separate units.
- After the purchase, Barton and the Union negotiated an integrated bargaining unit and initially adopted a dovetailed seniority list that combined employees by total plant seniority, including certain laid-off former Glencoe employees.
- Barton employees accepted dovetailing in part based on management’s stated plans to expand and build a new bottling facility at the former Glencoe site.
- Barton later abandoned the expansion plan and sold part of its business, leading to reduced operations and layoffs.
- Facing job insecurity, many Barton employees pressed the Union to replace dovetailing with “endtailing,” placing former Glencoe employees below Barton employees hired before the acquisition (at least for layoff purposes).
- The Union ultimately proposed endtailing in negotiations, and Barton agreed and applied the new seniority arrangement.
- As a result, 12 former Glencoe employees, including Edward Humes, were laid off; under the earlier dovetailed list, they would have remained employed.
- Humes filed unfair-labor-practice charges against both the Union and Barton; the NLRB found violations by the Union under NLRA §§ 8(b)(2) and 8(b)(1)(A), and by Barton under §§ 8(a)(3) and 8(a)(1), and ordered remedies.
- Barton and the Union petitioned for review; the NLRB cross-applied for enforcement.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that the Union violated NLRA §§ 8(b)(2) and 8(b)(1)(A) by bargaining for endtailing and thereby breaching the duty of fair representation.
2. Whether substantial evidence supported the NLRB’s finding that Barton violated NLRA §§ 8(a)(3) and 8(a)(1) by accepting and implementing the endtailing provision.

## Decision

- The Seventh Circuit granted review in relevant part and declined to enforce the NLRB’s order to the extent it treated the bargained-for endtailing arrangement as an unfair labor practice on this record.
- The court held that seniority restructuring is a core bargaining judgment that often harms one group while benefiting another and is not unlawful solely because its effects are severe.
- The evidence did not show that the Union acted arbitrarily, discriminatorily, or in bad faith in the sense required to establish a duty-of-fair-representation breach.
- The court found insufficient proof that endtailing was motivated by hostility to protected activity, retaliation, or other statutorily proscribed discrimination that would satisfy §§ 8(b)(2) and 8(a)(3).
- Because Barton adopted the provision in collective bargaining without evidence of an independent unlawful purpose or collusion to penalize protected rights, Barton’s agreement and implementation did not establish violations of §§ 8(a)(3) or 8(a)(1).

## Legal Principles

- A union breaches the duty of fair representation only when its conduct toward bargaining-unit members is arbitrary, discriminatory, or in bad faith; poor outcomes or hard bargaining choices are not enough.
- Bargaining over seniority necessarily involves tradeoffs among employee groups; adopting one seniority scheme over another is generally within the union’s discretion absent prohibited motives or irrational decision-making.
- NLRA § 8(a)(3) targets discrimination that encourages or discourages union membership or protected activity; disparate seniority outcomes alone do not establish the required statutory nexus.
- A union’s causing an employer to apply a seniority provision violates § 8(b)(2) only if the employer discrimination would violate § 8(a)(3), including the required unlawful motive or effect.
- An employer does not commit §§ 8(a)(3) and 8(a)(1) violations merely by agreeing to and applying a contested seniority clause proposed in bargaining, absent evidence of a prohibited objective or scheme aimed at protected rights.

## Conclusion

The Seventh Circuit held that endtailing of seniority, negotiated and implemented in response to economic conditions and majority preferences, did not constitute an unfair labor practice on the record presented because the NLRB failed to show arbitrary or bad-faith union conduct or discrimination of the type prohibited by the NLRA, and the employer lacked an independent unlawful purpose.


Barton Brands, Ltd. v. National Labor Relations Board, 529 F.2d 793 (7th Cir. 1976)