Truck Drivers Local 692

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America (Great Western Unifreight System) and Marion Boyd Lee, Jr. Case 21-CB-4374 March 7, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed by Marion Boyd Lee, Jr., an individual, herein called the Charging Party, and duly served on General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Respondent, the Regional Director for Region 21 of the National Labor Relations Board issued a complaint on December 8, 1972, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(l)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the Complaint and Notice of Hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that the Charging Party, an employee of Great Western Unifreight System, herein called the Company, was one of the employees in an appropriate unit represented by the Respondent and covered by the collective-bargaining agreement between the Respondent and the Compa- ny. On or about June 15, 1972, the Charging Party was discharged by the Company and on or about June 20, 1972, he filed a grievance with the Respondent protesting his discharge. Since on or about June 20, 1972, the Respondent has failed and refused, for arbitrary reasons, to timely process the grievance. Subsequently, the Respondent filed an answer and amended answer admitting all the factual allegations in the complaint, but denying that it has failed and refused, for arbitrary reasons, to timely process the grievance and denying that it had committed unfair labor practices within the meaning of the Act. On January 17, 1973, the Respondent filed with the Board's Division of Judges, a request for a bill of particulars as to the "arbitrary reasons for Respon- dent's alleged acts or non-action" in failing and refusing timely to process the Charging Party's grievance. The General Counsel filed a memoran- dum in opposition. In his ruling of January 30, 1973, Administrative Law Judge Irving Rogosin directed 209 NLRB No. 52 the General Counsel to furnish the Respondent with a bill of particulars, along with a statement of the acts or conduct upon which the General Counsel relies to establish "arbitrary reasons." Pursuant to this direction, the General Counsel served the Respondent with an answer to Respondent's bill of particulars reiterating the substance of the allega- tions in the complaint and also alleging that the Respondent, through its business representative, Dominick Scaccia, had failed and refused to process the grievance with the Company until July 20, 1972, when it had become time-barred under the collective- bargaining agreement with the Company, and the Charging Party had lost all rights to avail himself of the terms of the contractual grievance procedure. Thereafter, the Respondent filed an amended answer to the complaint in which it denied the allegation that the Charging Party had filed a grievance on June 20, 1972, and that it had failed and refused, for arbitrary reasons, or for any reasons, to timely process the grievance. The amended answer further alleged that the Respondent had processed the grievance expeditiously and in good faith, and that the arbitration panel ruled that the grievance was time-barred under the agreement between the Re- spondent and the Company. On February 12, 1973, the Respondent filed an Alternative Motion for Summary Judgment or Bill of Particulars, alleging, inter alia, that the General Counsel's answer to Respondent's bill of particulars was insufficient and requesting that the General Counsel "state the acts or conduct on which he relies to establish arbitrariness on the part of the Respon- dent." By order of February 16, 1973, Judge Rogosin denied the Respondent's motion and request. On March 12, 1973, the Respondent filed with the Board in Washington, D.C., a Motion for Summary Judgment on the ground that the complaint, as modified by the bill of particulars, did not state a violation of the Act. Under all the particular circumstances herein, the Respondent's motion was viewed as constituting, in effect, a request under Section 102.26 of the Board's Rules and Regulations for special permission to appeal, and an appeal from the failure of Administrative Law Judge Rogosin in his order of February 16, 1973, to direct the General Counsel to supply particulars as to the Respondent's alleged "arbitrary reasons" for its conduct. Accord- ingly, the Board, on April 23, 1973, granted the Respondent's request for special permission to appeal, granted its appeal, and ordered the General Counsel promptly to furnish a specific statement as to the Respondent's alleged arbitrary reasons for its action or nonaction with respect to the Charging Party's grievance. On May 4, 1973, the General Counsel filed a TRUCK DRIVERS LOCAL 692 response to the Board's order for a further bill of particulars in which he stated: The arbitrary reasons attributed to Respondent in paragraph 9 of the Complaint and Notice of Hearing issued on December 8, 1972, consist of Respondent's Business Representative Dominick Scaccia's negligence in failing to file and process in a reasonable and timely manner the grievance submitted to Respondent by employee Marion Lee in connection with Lee's discharge by Great Western Unifreight System as set forth in para- graph 8 of the Complaint. As a result of Respondent's negligence in failing to file the grievance in a reasonable and timely fashion, said grievance became time-barred under the terms of the collective-bargaining agreement covering employees of Great Western Unifreight System. As a result, Lee has lost all rights to avail himself of the terms of the grievance procedure applicable to employees of Great Western Unifreight System as set forth in the collective-bargaining agreement referred to above. Thereafter, on May 9, 1973, the Respondent filed with the Board in Washington, D.C., a Motion for Summary Judgment on the ground that the com- plaint. as modified by the response for further particulars, fails to state a violation of the Act. On June 18, 1973, the General Counsel filed an opposi- tion to the Respondent's Motion for Summary Judgment.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this -proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment It has been well established by the courts and the Board that a union, as the exclusive bargaining representative of the employees in the appropriate i In addition to alleging the substance of his further bill of particulars, the General Counsel's opposition added the following details (1) the Charging Party was terminated by the Company for allegedly refusing and/or failing to report for work without being given one written warning notice as required by the collective-bargaining agreement; (2) the Respon- dent's business agent assured the Charging Party that he had sufficient grounds for a meritorious grievance, (3) the Charging Party filled out the grievance form and left it at the Respondent's office, (4) the grievance was not presented to the Company until July 10, 1972, after the contractual time for filing had passed , and (5) the Company took the position that the grievance was untimely and lacking in merit 2 Ford Motor Company v Huffman, 345 U S 330 (1953); Vaca v. Sipes, 386 U.S. 171(1967); Miranda Fuel Company, Inc, 140 NLRB 181; Local No. 18, International Union of Operating Engineers, AFL-CIO and its agent, George E. Miller (Ohio Pipe Line Construction Company), 144 NLRB 1365; 447 unit, has the statutory duty fairly to represent all those employees both in its collective bargaining and in its enforcement of the resulting collective-bargain- ing agreement.2 In Miranda, supra, the Board first enunciated the doctrine that a breach of the duty of fair representation constituted an unfair labor practice. In that case, the Board found that Section 7 of the Act conferred upon employees the right to be free from unfair, irrelevant, and invidious treatment by their exclusive collective-bargaining representa- tive in matters affecting their employment. Accord- ingly, it found that the union there involved breached its duty of fair representation in violation of Section 8(b)(1)(A) of the Act when it caused an employee's reduction in seniority for considerations which were irrelevant, invidious, or unfair, and in so doing, the Board, at 185, characterized the union's conduct as "arbitrary conduct." 3 In his opposition to the Respondent's Motion for Summary Judgment, the General Counsel concedes that a union has broad discretionary power to settle or abandon grievances and that a union would not breach its duty of fair representation through slight negligence or the exercise of poor judgment. He maintains, however, that the Respondent's negli- gence in failing timely to file and process the admittedly meritorious grievance, thereby causing serious injury to the Charging Party by the termina- tion of his employment and the loss of contractual grievance procedure rights, falls squarely within the definition of "arbitrary"4 and, therefore, constitutes a breach of the Respondent's duty of fair representa- tion violative of Section 8(b)(l)(A) of the Act under the Miranda doctrine. Conversely, the Respondent argues that negligence, by definition, is not an arbitrary reason and therefore the complaint herein as modified by the General Counsel's bills of particulars, alleging unfair repre- sentation based solely on the Respondent's negli- gence, does not state a violation of Section 8(b)(1)(A) of the Act and should be dismissed. We find merit in the Respondent's position because we do not equate mere negligence with irrelevant, invidious, or unfair Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp), 170 NLRB 1234; Local 933, United Automobile, Aerospace and Agricultural Implement Workers of America (UA W), 193 NLRB 223. 3 Although the Board's Miranda decision was denied enforcement by a divided Second Circuit Court (326 F.2d 172, 1963), the Fifth Circuit Court approved the Miranda doctrine in Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers ofAmerica, AFL-CIO v. N.LR B, 368 F.2d 12 (C.A. 5, 1966), enfg. 150 NLRB 312, and the Supreme Court indicated its approval of the doctrine in Vaca v. Sipes, supra 4 The General Counsel cites Black's Law Dictionary as defining "arbitrary" as ". . done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason ... 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerations which the Board, in Miranda, supra, also characterized as "arbitrary conduct." In support of its position, the Respondent cites several court decisions. In Bazarte,5 the Third Circuit Court, in the context of a refusal further to press a grievance, decided that "an employee, therefore, is subject to the union's discretionary power to settle or even abandon a [meritorious ] grievance so long as it does not act arbitrarily" and that "[p]roof that a union acted negligently or exercised poor judgment is not enough to support a claim of unfair representa- tion."6 In Encina,7 also in the context of a refusal to process a grievance, a Federal district court held that even proof of "poor quality" representation is insufficient to support a claim, of unfair representa- tion, without a showing "that the Union's actions in refusing to arbitrate his case were arbitrary, discrimi- natory or in bad faith ...."8 Finally, in Brough,9 which involved a suit brought by an employee who alleged that the union breached its duty of fair representation by negligently failing to discover a defect in the employer's machine with the result that the employee was injured, the First Circuit Court, in affirming the district court's grant of the union's motion for summary judgment, stated at 750 that "[t]he Labor-Management Relations Act imposes upon the exclusive bargaining representative only a duty of good faith representation, not a general duty of due care." In addition to the aforementioned court decisions, there are also Board decisions which support the principle that something more than mere negligence is required for union action or nonaction to be considered arbitrary and, therefore, a breach of the duty of fair representation in violation of Section 8(b)(1)(A) of the Act. Thus, in the precedent establishing the Miranda case, the Board, in support of its contention that the union's action was arbitrary and without legitimate purpose, noted, at 188, that "the Union sought to have the employee forfeit his contract seniority, first on one groundless basis and finally on another basis which was `in conflict with the agreement.' " Similarly, in Local 933, sup a,10 the Board affirmed an Administrative Law Judge's finding of an 8(b)(1)(A) violation where the union agent's handling of an employee's grievance was found to be perfunctory, arbitrary, discriminatory, and in bad faith because the asserted untimeliness of the grievance was a sham and because the union agent, who opposed the employee's effort to become a steward, avoided first-step consideration in the grievance procedure by the employee's immediate supervisor in favor of second-step consideration by a less friendly supervisor. Further, in Local 485, supra,11 the Board, in finding that the union violated Section 8(b)(1)(A) of the Act by failing to press an employee's grievance concerning his discharge noted that the union's business agent resented the employ- ee's activities in opposition to him at a union meeting, threatened to get rid of him, referred to the employee as an "instigator," and made no attempt even at an opportune time to informally discuss with the employer the employee's discharge. Finally, in Local 18, supra,12 the Board reversed an Administra- tive Law Judge's Decision and dismissed an 8(b)(1)(A) complaint, based on the allegation that the failure to refer for employment an employee from the hiring hall, because the union neglected to reregister him as requested, was allegedly motivated by unfair or irrelevant or invidious reasons. The Board found, at 1368: "Mere forgetfulness or inadvertent error is not the type of conduct that the principles of Miranda were intended to reach. And there is no convincing evidence that the Respondent's agents removed Long's card from the referral files for any reason other than an honest belief that Long had in fact failed to reregister." From the above court and Board decisions, it is clear that negligent action or nonaction of a union by itself will not be considered to be arbitrary, irrele- vant, invidious, or unfair so as to constitute a breach of the duty of fair representation violative of the Act. Something more is required. In the instant case, the modified complaint merely alleges only that the Respondent negligently failed and refused to timely process the meritorious grievance to the serious detriment of the Charging Party. Nothing more is charged. Absent an allegation showing something more than negligence alone, we conclude that the negligent conduct of the Respondent alleged herein does not constitute by itself a breach of the duty of fair representation in violation of Section 8(b)(1)(A) of the Act. We shall, accordingly, grant the Respondent's Motion for Summary Judgment and dismiss the complaint herein in its entirety. On the basis of the entire record, the Board makes the following: 5 Bazarte v. United Transportation Union, 429 F 2d 868 9 Brough v United Steelworkers of America, 437 F 2d 748 6 Id at 872 10 193 NLRB 223. 7 Enema v Tony Lama Company, Inc, 316 F Supp 239, affd 448 F 2d 11 170 NLRB 1234 1264 (C A 5) 12 144 NLRB 1365. 8 Id at 243-244 TRUCK DRIVERS LOCAL 692 449 FINDINGS OF FACr 1. THE BUSINESS OF THE COMPANY The Company, with an office, terminal, and place of business in Compton, California, is engaged in the transportation of freight by motor truck. During the past calendar year, in the course and conduct of its business operations, the Company derived gross revenue in excess of $50,000 from the transportation of freight in interstate commerce. We find, on the basis of the foregoing, that the Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED General Truck Drivers. Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. CONCLUSIONS OF LAW The conduct of the Respondent, as alleged in the modified complaint herein, does not violate Section 8(b)(1)(A) of the Act. ORDER It is hereby ordered that the Respondent's Motion for Summary Judgment be, and it hereby is, granted, and the modified complaint be, and it hereby is, dismissed in its entirety. MEMBER FANNING, concurring: I agree with my colleagues that the Respondent's Motion for Summary Judgment should be granted and the complaint in this case dismissed in its entirety. In doing so, however, I do not agree with the majority's statement that the Supreme Court in Vaca v. Sipes approved the Board's Miranda Fuel doctrine. Although the Court was willing to "assume" for purposes of its decision therein that a breach of the duty of fair representation was an unfair labor practice. as the Board majority and the Fifth Circuit Court of Appeals had held, the Court did not, in fact, adopt that view.';' 1 dissented from Miranda because I did not believe that every arbitrary or putatively "unfair" act by a union with respect to its members was automatically an unfair labor practice pro- scribed by Congress. The situation in Vaca v. Sipes and the instant case are good examples of my reasons for objecting to the Miranda rule. In the former case the Court held that an employee did not have an absolute right to require a union to take his grievance to arbitration, even though the evidence indicated that the underlying grievance was meritorious.14 In the instant case we hold that an employee cannot validly complain of unfair treatment because the Union through negligence failed to process his grievance at an appropriate time. Both of these cases, in my view, are factually similar to the circumstances under which the Board majority found an unfair labor practice in Miranda. All that occurred in that case was a refusal by the union to accord seniority rights to one of its members, who claimed he was entitled to more seniority than his fellow union members had determined was his due as a matter of contract right. I am of the view that a union should be accorded a reasonable amount of discretion in the exercise of its representative function. If every intraunion resolu- tion of a question concerning seniority or grievance were subject to an over-the-shoulder appraisal by the Board for fairness, the burden on unions and the Board ultimately would become intolerable. This is not to say that 1 condone or sanction gross inisconduct by unions toward employees, whether or not the duty of representation is involved. In the recent Siebenoller case (International Brotherhood of Painters, etc., (W. J. Siebenoller, Jr., Paint Co.), 205 NLRB No. 110), 1 joined my colleagues in finding violations of Section 8(b)(2) and 8(b)(1)(A) where a union took coercive action against an employer to cause the employer not to hire black employees. The facts in that case showed that the union went further and brought false charges against the employer in furtherance of its objective. Clearly, in my opinion, the record warranted the inference that such conduct would encourage union membership by demonstrat- ing the potency of union power. It was equally clear that no legitimate function of union representation justified such blatant use of union force to cause unlawful discrimination against an employee or group of employees. Similarly, in International Union of Operating Engineers, Local 18, AFL-CIO (W. F. Murphy), 204 NLRB No. 112, 1 agreed with my colleagues that the union violated Section 8(b)(2) and 8(b)(1)(A) by refusing to refer a member to a job on the ground that he had behaved improperly as a union member during an election and at the union office. It has long been well settled that unions which operate exclusive hiring halls have a special obliga- tion not to discriminate against members or non- 13 Supra at 186 14 Ibid at 194-195 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members except for the application of lawful union- security contracts or reasons relating to the legiti- mate performance of their representational duties. These cases would not seem to pose serious questions of fair or unfair representation. Yet the Siebenoller case was rationalized by the Administra- tive Law Judge and the Board majority on that ground alone . Why so? Is there some magic in the phrase "duty of fair representation " that requires its invocation whenever a union engages in misconduct against an employee or a group of employees? In the Miranda case the majority concluded that Section 8(b)(1)(A) was violated when a union in its represent- ative function took action against an employee on grounds that were "irrelevant, invidious or unfair." But these words have absolutely no meaning or force until they are translated into the statutory language of "restraint and coercion" which Congress used in that section of the Act. I prefer to interpret the statute, as I did in Miranda and subsequent cases, and as I have done in the instant case , by linking the alleged unlawful conduct to the test provided in Section 8(b)(1)(A) rather than the less precise test suggested by the Miranda rule. The latter test, in my opinion, is confusing and may , as I believe it did in Miranda, lead to an incorrect result. It seems to me that the literal language of the statute , though less sparkling, is sufficient to determine whether or not a breach of representational duty has occurred . For the inherent ambiguity of terms such as "irrelevant," "unfair," and "invidious" cannot be helpful in deciding what the law permits and what it forbids. Gross misconduct of a union in refusing to process an employee's grievance need not, if the evidence is otherwise adequate, be characterized by inflammatory words to warrant a finding by the Board that the union has engaged in restraint and coercion of an employee in violation of the Act. In sum , I do not find it necessary to distinguish the Miranda case from the instant case . In my opinion, the critical question before us is whether or not the Union restrained and coerced the Charging Party in the exercise of his Section 7 rights by failing to process his grievance in a timely manner. Believing, as I do, that a union should be permitted some leeway in the performance of its representational duties, I conclude that the Union 's negligence, without more, does not require the intervention of the Board into this intraunion matter.