## Facts

- A collective-bargaining agreement between a union and an employer contained a “superseniority” clause giving certain union officers preferential seniority for layoff and recall.
- The preference operated solely because an employee held union office, allowing covered officers to be retained or recalled ahead of employees with greater service time.
- The clause covered officers including a recording secretary and a financial secretary.
- Those officers did not perform on-the-job grievance processing or other contract-administration functions requiring their continuous presence at the facility.
- In 1980, the clause was applied to retain the recording secretary while more senior employees were laid off.
- The NLRB’s General Counsel alleged the clause and its application unlawfully encouraged union activity by conditioning layoff protection on holding union office.
- An ALJ found the clause lawful under then-existing Board treatment of layoff/recall superseniority provisions.
- The NLRB reversed, adopting a standard under which superseniority is presumptively lawful only if limited to layoff/recall and restricted to officers whose on-the-job presence is necessary to administer the agreement.

## Issues

1. Whether a layoff/recall superseniority clause for union officers who lack on-the-job contract-administration duties violates NLRA §§ 8(a)(3) and 8(b)(2) as discriminatory encouragement of union activity.
2. Whether the NLRB acted within its discretion in refining its approach and limiting presumptively lawful superseniority to officers needed at work for grievance handling or contract administration.
3. Whether employee ratification of a collective-bargaining agreement containing an unlawful superseniority clause bars Board relief or constitutes a waiver of statutory protections against discrimination encouraging union membership.

## Decision

- The D.C. Circuit denied the union’s petition for review and granted the NLRB’s cross-petition for enforcement.
- The court upheld the Board’s conclusion that granting superseniority to officers whose presence is not needed for contract administration is discriminatory encouragement of union activity prohibited by NLRA §§ 8(a)(3) and 8(b)(2).
- The court upheld the Board’s authority to adopt and apply the refined presumption limiting lawful superseniority to layoff/recall preferences for officers with necessary on-the-job representational duties.
- The enforced order required the union and employer to stop maintaining and applying the unlawful clause and to provide appropriate remedial relief.

## Legal Principles

- Preferential job protection tied to union office may violate NLRA § 8(a)(3) and § 8(b)(2) when it discriminates in tenure-related decisions in a manner that encourages union membership or activity.
- Superseniority provisions are presumptively lawful only when (1) confined to layoff and recall and (2) limited to union officials whose on-the-job presence is necessary to administer the collective-bargaining agreement (e.g., grievance handlers).
- Extending superseniority to officers without required on-the-job contract-administration functions is unlawful because it conditions a significant employment benefit on holding union office.
- Statutory protections against discriminatory encouragement of union membership are not nullified by employee ratification of a contract term that violates the NLRA.

## Conclusion

The D.C. Circuit enforced the NLRB’s order invalidating a layoff/recall superseniority clause as applied to union officers who did not perform necessary on-the-job contract-administration work, holding that such preferences unlawfully encourage union activity in violation of NLRA §§ 8(a)(3) and 8(b)(2) and that the Board acted within its discretion in adopting this limiting standard.


Loc. 900, Int’l Union of Elec. Workers v. NLRB (Gulton Electro-Voice, Inc.), 727 F.2d 1184 (D.C. Cir. 1984)