General Truck Drivers Local 315

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Truck Drivers, Warehousemen , Helpers and Automotive Employees, Local 315, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America (Rhodes ,& Jamieson, Ltd.) and Marilyn Holman. Case 20-CB-3125 April 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge duly filed on February 11, 1974, by Marilyn Holman, an individual, against General Truck Drivers, Warehousemen, Helpers and Automotive Em- ployees, Local 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent, the General Coun- sel'of the National Labor Relations Board, by its Re- gional Director for Region 20, on June 21, 1974, issued and served on the parties a complaint alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Between September 3 and September 18, 1974, the parties executed a stipulation of facts, and jointly filed with the National Labor Relations Board a motion to transfer the instant proceeding to the Board in lieu of all proceedings before an Administrative Law Judge, and that the stipulation of facts and the exhibits at- tached thereto constitute the entire record. By order dated October 1, 1974, the Board granted the motion and approved the stipulation of facts as part of the record herein.' Thereafter, briefs were filed by the General Counsel and by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record herein and the briefs, and makes the following: FINDINGS OF FACT I BUSINESS OF THE EMPLOYER Rhodes & Jamieson, Ltd., herein called the Em- ployer, is a California corporation engaged in the busi- ness of manufacturing and distributing ready-mix con- crete, with its principal place of business in Oakland, California. During the last calendar year, the Employer sold goods and services valued in excess of $50,000 to firms which each sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California. II THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR.LABOR PRACTICES Respondent is the exclusive representative, for the purpose of collective bargaining, of all truckdrivers em- ployed at the Employer's plant in Concord, California, which employees are covered by a collective-bargaining agreement between three local unions, including Re- spondent, and a multiemployer bargaining association of which the Employer is a member. Ted Holman was employed as a truckdriver at the Concord plant until approximately October 31, 1973. The multiemployer collective-bargaining agreement, to which the Employer is a signatory, contains the following provisions: Where jobs or equipment are eliminated, senior employees shall be reassigned by the employer to another classification with full seniority rights subject to employee qualifications. Local 315 re- serves the right to apply this principal by in- dividual employer.' In October 1973 the Employer announced that effec- tive October 31 the delivery service jobs held by Hol- man and at least one other driver would be eliminated. Respondent conducted an election among its member- employees at the Concord plant in which the following ballot was used: Do you want the warehousemen, yard men, flat rack and dump drivers to be re-assigned, with their full seniroity, as ready-mix drivers? Those voting cast 8 "yes" votes and 20 "no" votes. Holman, who was a dump driver, received a separation notice on October 31. Holman promptly wrote to the Employer asserting his right to reassignment pursuant to the contract provision, and to Respondent also as- serting his right to reassignment under the contract, and contesting the validity of the election. By letter dated November 5, 1973, the Employer informed Re- spondent that in accordance with the contract provi- sion it found Holman to be qualified for reassignment, with full seniority rights, as either a mixer or bulk cement driver. Subject to Respondent's approval, pur- suant to the sentence reserving to Respondent the right to apply the reassignment principle, the Employer 1 While not included as an attachment to the stipulation of facts, the 2 Neither of the other two local unions which are parties to the agreement complaint is before us and is part of the record. reserved such a right 217 NLRB No. 95 GENERAL TRUCK DRIVERS LOCAL 315 wrote that it intended to "integrate Mr. Holman, as senior employee," into the bulk hauler classification. Shortly thereafter, Respondent's business agent tele- phoned the Employer and informed it that the member- ship had voted against Holman's being reassigned and that he could not be reassigned. By letter dated Novem- ber 7, the Employer notified Holman that such a con- versation had taken place that day and that conse- quently it could not reassign him. Holman then requested a hearing before Respon- dent's executive board, questioning the legality and the faixness of the election and its consequences for him. The executive board, on December 3, decided that: [B]ecause a vote was taken after the fact that an operation was being eliminated and that a fair vote could not be taken at this time, the Executive Board upholds Brother Ted Holman's appeal. Respondent's business agent promptly filed an ap- peal to the Joint Council of Teamsters Local 7 from the executive board's decision, and the Employer was in- formed that it would not be permitted to reassign Hol- man pending the outcome of the appeal. The Employer acquiesced in this, but gave Holman a temporary job as a washer-greaser. Holman held that job from approxi- mately December 17, 1973, to January 10, 1974, when he suffered an accident while at work which resulted in his death. Thereafter, Respondent's business agent withdrew his appeal, which had not yet been heard, and Respondent dismissed Holman's claim as moot. The General Counsel contends that Respondent breached its duty to represent Holman fairly by deny- ing him his rights under the contract pursuant to the results of an unfair and invalid election, and by refusing to allow him to be reassigned pending the appeal of the executive board's decision in violation of Respondent's own bylaws. We conclude that Respondent breached its, duty with respect to Holman's contractual rights and, as the remedy for such violation covers the, period of the pendency of the appeal from the executive board's decision, we find it unnecessary to pass on whether an additional violation occurred then. When a majority of this Board decided, in Miranda Fuel Company, Inc., 140 NLRB 181 (1962), that a union's breach of its duty of fair representation con- stituted a violation of Section 8(b)(1)(A) and, under certain circumstances, Section 8(b)(2) of the Act, it also spelled out to some extent its understanding of that duty. As the Supreme Court noted in Vaca v. Sipes 386 U.S. 171, 181 (1967), the Board had adopted and ap- plied the doctrine of the duty of fair representation as developed by the Federal courts. Pertinent to the in- stant case, the Board adopted the concept, quoted from 617 an opinion of the United States Court of Appeals for the District of Columbia Circuit, that the duty is "in a sense fiduciary in nature."3 Whatever the precise outlines of this duty, a subject of scholarly debate of long standing, its fiduciary na- ture connotes some degree of affirmative responsibility with regard to the allocation of benefits the union has secured for the employees in a collective-bargaining agreement.4 At least as to rights under an existing agreement, the duty of fair representation is more than an absence of bad faith or hostile motivation.' So much is implicit in Miranda Fuel itself, where the majority found a breach of the duty because the union caused the forefeiture of an employee's seniority status, to which he was entitled under the contract, and the union's action was based on pressure asserted by other employees to persuade it to do so.6 There was no find- ing of hostility toward the employee affected, of bad faith in the union's assertion of its erroneous contract interpretation (although the facts might have justified such a finding), or of any other unlawful motivation on the part of the union. The union's violation consisted simply, in the words of the Board majority, in violating the employee's "right to fair and impartial treatment from his statutory representative."' Another way this elusive element of the duty of fair representation has been authoritatively described is the avoidance of arbitrary conduct! Here again, although phrased in negative terms, the duty is to some extent an affirmative one, for a common characteristic or arbi- trariness is the absence of some ingredient in the deci- sionmaking process. What that ingredient may be, in the context of the duty of fair representation, has only begun to be examined by the Federal courts. One signif- icant statement describing the duty of unions not to be arbitrary comes from the late Judge Sobeloff, writing for the Fourth Circuit: A union may refuse to process a grievance or han- dle the grievance in a particular manner for a mul- titude of reasons, but it may not do so without 3 Miranda Fuel Company, Inc, supra, at 189-190. The material quoted by the Board speaks of the duty of "fair dealing," which duty the Board thereby incorporated into the duty of fair representation. See also Thompson v Brotherhood of Sleeping Car Porters, 316 F.2d 191, 201 (C A 4, 1963), Bazartev. United Transportation Union, 429 F 2d 868, 871 (C A. 3, 1970), Rosen, Fair Representation, Contract Breach and Fiduciary Obligations.: Unions, Union Officials and the Worker in Collective Bargaining, 15 Hast- ings L J. 391, 395-399 (1964); Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif L Rev 663, 805-807 (1973) ° We are not concerned with the standards of fairness to be applied with regard to contract negotiations 5 See Retana v Apartment, Motel, Hotel and Elevator Operators Union, Local No. 14, AFL-CIO, 453 F.2d 1018, 1023 (C-A. 9, 1972); Griffin v. International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, 469 F.2d 181, 183 (C.A. 4, 1972) 6 140 NLRB at 188 7 Id. 8 Vaca v. Sipes, supra at 177. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason, merely at the whim of someone exercising union authority.' The prohibition of decisionmaking supported by no reason, as well as decisionmaking for impermissible reasons, is a modest enough beginning for us. Although an employer may discharge an employee for no reason at all without violating the Act, we held in Miranda Fuel that unions have obligations to employees they represent that employers do not. And if a duty to avoid arbitrary conduct, as part of an affirmative, fiduciary responsibility, means anything, it must mean at least that there be a reason for action taken . Sometimes the reason will be apparent, sometimes not. When it is not the circumstances may be such that we will have no choice but to deem the conduct arbitrary if the union does not tell us what it is. What Judge Sobeloff said about handling grievances is equally applicable to the administration of collective- bargaining agreements outside the grievance proce- dures. In the instant case, like Miranda Fuel, the Union acted affirmatively to deprive an employee of a claimed contractual right which was recognized by the Em- ployer. In such cases, although we may apply the same standard of review, we do not have the problem of determining whether the union acted within its wide latitude of discretion in determining whether to com- mit its limited resources to the pursuit of a grievance. When Holman was laid off he had a right to reassign- ment with full seniority to any other job classification for which he was qualified, subject to the Union's "right to apply this principal [sic] by individual em- ployer." According to our dissenting colleague, this reservation means that no employee had any reassign- ment rights until the Union said so. The provision is on its face somewhat ambiguous as to whether a qualified, senior employee's reassignment right exists at least un- til the Union decides to the contrary. We are persuaded that it does by the positive language of the provision exclusive of the reservation, by the fact that only one of three unions signatory to the contract reserved the right, and by the ambiguity of the reservation itself. Thus, the first sentence of the provision states that "senior employees shall be reassigned . . . subject to employee qualifications" (emphasis supplied). The sec- ond sentence, which potentially affects the reassign- ment rights of only those employees represented by Respondent Union, Local 315, appears to us to be no 9 Griffin v UAW, supra at 183 See also Truck Drivers and Helpers, Local Union 568, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America [Red Ball Motor Freight, Inc] v N.L.R.B., 379 F.2d 137, 142-143 (C A.D C., 1967); Feller, supra, In. 3 at 702-703; Clark, The Duty of Fair Representation: A Theoretical Structure, 51 Tex. L. Rev. 1119, 1129-34, 1139 (1973). We need not decide here whether to adopt a fullblown requirement of "rational decisionmakmg" as set forth by Ms. Clark Cf Steele v Louisville & Nashville Railroad Co, 323 U S. 192, 203 (1944) more than a power vested in that Union to regulate the manner in which the reassignment right shall be ad- ministered. Disputes between an employer and any of the unions over the application of the reassignment right would presumably be subject to the grievance procedures, but such disputes between an employer and Local 315 might be resolved differently because of the special reservation. The reserved right to apply "by individual employer" is ambiguous, however, as to what right Local 315 has, if any, beyond that of exercis- ing selectivity to reflect different circumstances among different employers whose employees it represents. Surely the reservation does not so clearly imply the necessity of union approval before any reassignment rights accrue that it can be said that only the Union grants such rights . Keeping in mind that the reserva- tion applies only to one part of the three-union bargain- ing unit to which the rest of the provisions applies, the result of such an interpretation would be somewhat similar to the spectacle of a tail wagging three dogs. Still, we assume that the Union could, on some basis, lawfully take the position and insist that a particular employee, although qualified, should not have bump- ing rights on certain jobs . The question is whether in deciding to take the position it did vis-a-vis Holman's bumping right it accorded him the "fair amd impartial treatment" that Miranda Fueldictates it owed him. We begin our exploration of this question with the knowl- edge that the only authoritative ruling by the Union itself, the decision of its -executive board, was that the process by which the decision to oppose Holman was reached was not fair. True, an appeal was taken and then aborted. True, the executive board's decision, even if regarded as final, does not constitute an admission that the Union failed to afford Holman the standard of fairness required by the Act. But what was the basis for the position the Union took initially? Someone apparently decided that the way the Union's position on reassignment rights, following the layoff, should be determined was to conduct a referen- dum among the member-employees at the facility at which the layoff occurred. As far as the record shows, only dump truck drivers were included in the an- nounced layoff. Yet the ballot, which was given to the voters after the announcement of the layoff, asked the voters whether they wanted "the warehousemen, yard men, flat rack-and dump drivers to be re-assigned, with their full seniority, as ready-mix drivers." The record does not tell us on what information this characteri- zation of the potential impact of the bumping right was based. It appears to be grossly inaccurate as a descrip- tion of the announced layoff and substantially incom- plete as a description of the contractual bumping provi- sion, omitting as it does the mutuality of the right. We do not know what information the voters had available GENERAL TRUCK DRIVERS LOCAL 315 to them with which to evaluate the accuracy of that characterization of the bumping issue . We do not know what opportunity was given to any of the interested employees to make their cases before the decisionmakers . 10 What is striking, however, is that the vote was taken after the layoff was announced, and whether or not the voters knew all the details of the layoff each presumably knew whether his own job was scheduled for elimination. Those not scheduled for lay- off would naturally think twice before voting for bump- ing rights just then. And most importantly, the voting on this issue was limited to those , and only those, who would be adversely affected by a vote to permit the bumping. That is, the election itself was designed so that it could express, not fairness, but only the conflict of interest of each member of the electorate.ll The duty of fair representation being an affirmative duty, the obligations it encompasses cannot be avoided by delegating the authority to make decisions. Here the Union in effect delegated this authority to a group of its members. It could not, however, abdicate the re- sponsibility for fair treatment of the employees affected by the decision. By selecting the method for determin- ing its action the Union underwrote the fairness of the method. As . the executive board recognized, the method was not fair. We hold that it did not meet the minimum statutory standard of fairness. The only difference between this case and Miranda Fuelis that here we assume that the Union could have, consistent with the contract, applied it in such a way as to defeat Holman's bumping right. The violation consists, however, in the lack of fairness in its decision- making process. This distinguishes the instant case from Miami Copper Company,'z where the Board refused to find a violation because it found the union's interpretation of the contract to be a reasonable one. Implicit in Miranda Fuel is the idea that a union breaches its fiduciary duty when it deprives some em- ployees of their clear contractual rights because a majority of its members want it to. In situations involv- Io See International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers ofAmerica, Local No. 671 (Airborne Freight Corporation of Delaware), 199 NLRB 994, 999 (1972); Price v International Brother- hood of Teamsters, 457 F.2d 605, 611 (C.A. 3, 1972). 11 Sec. 13, par. (j), of the collective-bargaining agreement provides that, if jobs are eliminated, senior employees shall be zeassigned by the employer "to another classification" with full seniority rights There is no limit to the classifications to which the reassignment may be made, so that all jobs covered by the bargaining agreement were at risk in the reassignment of Holman Though the ballot in the election which the Respondent conducted listed only "ready-mix drivers" as the job category to which transfer was in issue, Respondent after the election took the view that there would be no retention of seniority "in any job reassignment," without limitation to reas- signment as ready-mix drivers. Thus it seems plain to us, contrary to our dissenting colleague, that all the jobs in the unit were at stake in the reassign- ments, and that the potential adverse effects were not limited to ready-mix drivers 12 United Steelworkers ofAmerica, AFL CIO, and its Local 4338 (Miami Copper Company, Division of Tennessee Corporation), 190 NLRB 43 (1971) 619 ing precontract negotiations , where employee rights are yet to be established, the,Board has nevertheless found a violation of the union's duty where its official took a bargaining stance calculated to win political advantage by pitting a majority group against a minority. 13 Nei- ther of these theories would necessarily have been ap- plicable had Respondent Union left to a majority vote, prospectively, the decision as to whether the mutual bumping rights provided in the contract should operate in general." Once the die had been cast , however, it was impermissible to allow the players to decide by majority vote which was the losing number. The duty of fair representation was conceived as a protection for employees faced with the reduction of their individual rights corresponding with the grant of power to unions to act as their - exclusive collective- bargaining representatives. Since its conception this duty "has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law."" Were it held powerless to protect the em- ployee in this case, where the Union permitted, in the exercise of its power, what would be only a slight exag- geration to call a mockery of fair procedures, this bul- wark will have proved to be as illusory as the Maginot Line. We find that by the manner in which Respondent Union undertook to prevent Holman from being reas- signed it violated Section 8(b)(1)(A) of the Act.16 THE REMEDY Having found that Respondent Union has engaged in unfair labor practices we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We shall order that Respondent make whole the estate of Ted Holman for any loss of pay Holman may have suffered by reason of its violation of the duty to fairly represent him, by payment of a sum of money equal to what he normally would have earned as wages had he been permitted to be reassigned as a bulk hauler, from November 7, 1973, to the date that he became in- capacitated from employment, less his net earnings 13 Barton Brands, Ltd., 213 NLRB No. 71 (1974), Red Ball Motor Freight, Inc., 157 NLRB 1237, 1244-45 (1966), enfd. 379 F.2d 137 (C.A.D.C ; 1967) Member Jenkins dissented in Barton Brands, on the ground that the winning of political advantage was not shown to have been the purpose of the union's or its agents' conduct there. 14 See Clark, supra, to. 9 at 1131. Nor do we pass on the propriety of the Union's apparent limiting of voting eligibility to members, where the rights of nonmember employees, if any (there was no union-security agreement), would be equally affected. Cf Airborne Freight Corp., supra, fn 10. 15 Vaca v Sipes, supra at 182 16 Although the General Counsel contends that this case is controlled by Miranda Fuel, supra, where the Board found violations of Sec 8 (b)(1)(A) and (2). he has not alleged here a violation of Sec 8 (b)(2) Since the remedy we shall provide for the 8(b)(1)(A) violation includes all the affirmative relief that would be appropriate for a violation of Sec 8 (b)(2), we shall limit our findings and conclusions to the former 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during that period and by payment to his estate of any welfare, pension, or other benefits to which he or his estate would have become entitled had he been permit- ted to be reassigned as a bulk hauler from November 7, 1973, with proper seniority. Backpay shall be com- puted in the manner set forth in F W. Woolworth Com- pany, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, we make the follow- ing: CONCLUSIONS OF LAW 1. The Employer is an employer within the meaning of Section,2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act and at all times material herein has been the exclusive representative of certain employees of the Employer for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By, failing to represent Ted Holman in a fair and impartial manner, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, General Truck Drivers, Warehousemen, Helpers and Automotive Em- ployees, Local 315, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Concord, California, its officers, agents, and representatives , shall: 1. Cease and desist from: (a) Restraining or coercing unit employees in the exercise of their rights guaranteed by Section 7 of the Act by failing to represent them in a fair and impartial manner. (b) In any like or related manner restraining or co- ercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole the estate of Ted Holman for any loss of wages and any welfare, pension, or other benefits incurred by the deceased as a result of Respondent's failure to accord him the fair and impartial representa- tion to which he was entitled, in the manner set forth in the section of our Decision entitled "The Remedy." - (b) Post at its business offices and meeting halls cop- ies of the attached notice marked "Appendix."17 Cop- ies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Re- spondent's authorized, representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees and members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail to the Regional Director for Re- gion 20 sufficient copies of said notice, on forms pro- vided by him, for posting at the premises of Rhodes & Jamieson, Ltd., if the latter is willing. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER PENELLO, dissenting: The first alleged breach of Respondent's duty of fair representation is based on the premise that Holman had a vested right in transferring the seniority he,had accumulated in an eliminated job to any other job for which he was qualified, and that Respondent took this right away from him. The premise is ill-founded be- cause the very provision that established a potential right to transfer of seniority reserved the application of any such right to Respondent. Although the stipulated facts contain neither bargaining history nor any other aid to interpreting this reservation, the General Coun- sel in effect concedes that it gave Respondent the right not only to apply but to withhold application of the reassignment right of senior employees.18 The General Counsel argues only that the right was in this instance withheld in an arbitrary and unfair manner. Therefore, no employee had any rights under the contract provision until Respondent said he did. Beyond that, an employee such as Holman might have a basis for asserting a statutory right if Respondent had previously applied the provision in a way that was arbi- trarily inconsistent with withholding its benefits from him, or had withheld them out of a hostile motivation. In fact, however, there is no evidence of hostile motiva- tion in the instant case, and Respondent had not had occasion to apply the provision at all before this inci- dent. Neither has the General Counsel presented us with any other basis for concluding that Respondent's action in relying on the wishes of its members who 17 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United states Court of Appeals Enforcing an Order of the National Labor Relations Board." 18 The Employer, under no pressure from Respondent, also recognized that any such reassignment was subject to Respondent's approval GENERAL TRUCK DRIVERS LOCAL 315 worked for the Employer was arbitrary, or constituted an abuse of the discretion given the Respondent by the contract. Thus I can only conclude that Respondent was acting out of a legitimate concern for the other unit employees and that it did not breach its duty of fair representation. The majority has, in my opinion, substituted specula- tion for proof that Holman was deprived of his right to participate fully and fairly in the determination of the issue. It has improperly shifted the burden to the Union to prove that its procedures were fair, and has intruded into the internal workings of the Union beyond the point which wisdon and precedent would have dic- tated. In United States Trucking Corporation," the Board recognized that where a union exercises its dis- cretion, in complete good faith and honesty of purpose, to insist on a contract restricting the transfer of em- ployees, it is only doing the job it is expected to do. Naturally some employees will be helped and others hurt by such a -policy, but the union, in deciding to follow the wishes of the majority, is not necessarily ignoring those of the minority. It is simply selecting one solution over another. The failure of the union to make a selection could mean less certainty and security for all unit employees. The situation is no different when it comes to apply- ing; the provisions of an existing contract where, as here, the discretion is specifically vested in the union. Inaction by the Union would have amounted to taking a position just as much as positive action did, and some employees would have been dissatisfied with the re- sults. In making its choice the Union devised the method it deemed at the time to be the most appropri- ate. While it might have been better to have decided the issue before a layoff occurred, the Union did not violate its duty by failing to do so. Then it did what it could reasonably have considered the next best thing in the circumstances. I fail to understand how submitting the question to majority vote failed to satisfy the Union's duty to act impartially on behalf of all the employees it represents. My colleagues in the majority do injustice to the 19 Armored Car Chauffeurs and Guards Local Union No. 820, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (United States Trucking Corporation), 145 NLRB 225 (1963). 621 record when they say that the voting was limited to those who would be adversely affected by a vote to permit the bumping. In fact, of all the job classifications of the voters, only those in the classification of ready- mix driver would have potentially been affected ad- versely, according to the wording of the ballot,20 and there is no evidence concerning the relative voting strength of ready-mix drivers within the electorate. Once again I think my colleagues have substituted speculation for proof regarding the self-interest of each voter. I would dismiss the complaint.2t 20 The ballot read "Do you want the warehousemen, yard men, flat rack and dump drivers to be reassigned, with their full seniority, as ready-mix drivers?" In light of the actual proposition being voted on, it seems to me quite beside the point that the contract provision speaks of seniority rights in transfer "to another classification" or that the Union, after the election, took the position that seniority could not be obtained "in any job reassign- ment " 21 Although the majority opinion does not treat the matter, I would find that the provision in the Union's constitution which, the General Counsel asserts, required the Union to allow Holman to be reassigned pending the appeal from the executive board's decision, is inapplicable to Holman's situation, and cannot form the basis of the second alleged breach of the Union's duty APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to represent unit employees in a fair and impartial manner. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL make whole the estate of Ted Holman for any loss of pay he suffered as a result of our failing to represent him in a fair and impartial manner. GENERAL TRUCK DRIVERS, WAREHOUSEMEN, HELPERS AND AUTOMOTIVE EMPLOYEES, LOCAL 315, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA