Local 186, Et Al., Teamsters

LOCAL 186, ET AL., TEAMSTERS 35 Local Unions Nos. 186, 381, 396, 467, 542, 572, 871, 898, 952 and 982, affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and Frank Matula, Secretary-Treasurer, Local Union 396, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (United Parcel Service) and Russell H. Breton. Case 31-CB-949 August 29, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 22, 1973, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' finding that Respondents Local Union 396 and Frank Matula had engaged in and were engaging in certain unfair labor practices in vio- lation of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, including, inter alia, re- fusing to process a grievance filed against the Com- pany by nine of its feeder drivers. The Board further ordered that Respondents cease and desist therefrom and take certain affirmative action to remedy the un- fair labor practices, including specifically that Re- spondents proceed promptly to arbitration with the Company with respect to the grievance and "permit [the grievants] to have their own counsel at the arbi- tration proceeding, the reasonable costs of legal fees therefor to be paid by Respondent Local Union 396 only." Thereafter, on January 22, 1975, the United States Court of Appeals for the Ninth Circuit enforced the Board's Order in all respects with the exception of the above-quoted provision, and remanded the mat- ter to the Board for further findings.2 In so doing, the court stated, in relevant part: Our inquiry, however, does not end with our conclusion that the order compelling the Union to pay counsel fees was within the zone of dis- cretion committed to the Board. The particular order must be scrutinized to enable us to decide whether, in the circumstances of this case, the Board abused its discretion. The aggrieved em- ployees are entitled to the kind of representation that they would have had in processing their grievances but for the Union's unfair labor prac- tices. Would they have been represented by a lawyer, a paraprofessional, or both? If they '203 NLRB 799. 2509 F .2d 1075 would not have been represented by a lawyer, is there some other circumstance that sustains the Board's order compelling the payment of attor- neys' fees as opposed to fees for a paraprofes- sional? Would it be feasible and in the interest of all concerned to award payment of fees for a single attorney or single paraprofessional to rep- resent all of the aggrieved employees if their grievances are identical? The record before us does not disclose what the facts are that bear on these questions, nor does it otherwise enable us to determine the rationale of the Board in issu- ing the challenged order. A limited remand to the Board will afford it "the opportunity, through additional evidence or findings, to re- frame its order better to effectuate that [national labor] policy" ... 3 Subsequently, on March 8, 1975, Respondents pe- titioned the Supreme Court of the United States for certiorari and, on May 19, 1975, the Supreme Court denied Respondents' petition. Thereafter, on May 29, 1975, the Board issued a notice to the parties re- questing that they file statements of position with re- spect to the matters raised by the court's remand. The Charging Party, the General Counsel, and Re- spondents have filed responses thereto. 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. Upon consideration of the issues raised by the court's remand, and in light of the entire record in this proceeding including the parties' statements of position, we make the following findings: The record discloses that there exist questions of fact, including the interpretation of the same provi- sions of the collective-bargaining agreement, which are common to all nine grievants; that all the griev- ants joined in filing a single grievance under that contract; and that one grievant, on behalf of himself and the other grievants, filed the unfair labor prac- tice charges herein. It is thus clear that all the griev- ants share an identity of interests and have pursued those interests on a joint basis in the past. In these circumstances, we find that it will best effectuate the purposes of the Act to provide for a single repre- sentative for all nine grievants at the arbitration proceeding. We further find that grievants are entitled to select an attorney, rather than a paraprofessional, as their representative in that proceeding. In this regard, it is evident from an examination of the facts as de- scribed in our previous Decision that the issues to be ' id at 1079 220 NLRB No. 3 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determined in the arbitration proceeding involve par- ticularly complex matters of contract interpretation. Respondents in their statement of position make the assertion, which no party disputes, that Respondent Local Union 396 has a practice of utilizing one of its business agents, i.e., a paraprofessional , to process grievances in arbitration proceedings arising under the contract. From this premise, Respondents con- tend that, consistent with a motion of "equal repre- sentation," the grievants are entitled only to the type of representation that they would have been afforded but for Respondents' unfair labor practices and that, therefore, the Board should provide that the griev- ants be represented by a paraprofessional rather than an attorney. We disagree. The business agents of Respondent Local Union 396, by virtue of their experience in administering the contract here in dispute, possess a particular exper- tise with respect to matters arising thereunder and, in usual circumstances, presumably would represent the employees' interests in such matters in a competent and vigorous manner. However, we have previously found, and the court has agreed, that the grievants are entitled to independent representation at the ar- bitration proceeding because of Respondents' dis- crimination against them . Notwithstanding the possi- bility that the services of an independent paraprofessional might be available to the grievants, we are unwilling to assume that paraprofessionals who are not affiliated or otherwise associated with Respondents possess an expertise with respect to the instant contract comparable to that of business agents of Respondent Local Union 396. In these cir- cumstances, we conclude that an order requiring Re- spondents to permit the grievants to have a single attorney of their own choosing as their representative at the arbitration proceeding and requiring Respon- dent Local Union 396 to pay the reasonable costs of legal fees therefor is necessary to ensure that the grievants are afforded the independent and adequate representation to which they are entitled. We, there- fore, shall amend our previous Order in this proceed- ing to conform herewith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby affirms its Order issued in this proceeding on May 22, 1973, as amended below: 1. Substitute the following for paragraph 2(b): "(b) Permit the above-named feeder drivers to have a single attorney of their own choosing as their representative at the arbitration proceeding, the rea- sonable costs of legal fees therefor to be paid by Re- spondent Local Union 396 only." 2. Substitute the attached notice for the original notice. CHAIRMAN MURPHY , concurring: Ordinarily I would not find that individual griev- ants should be permitted to retain counsel of their own choosing to act as their representative in an ar- bitration proceeding with the union required to pay reasonable costs thereof . Cf. Acuff, et al. v. United Papermakers and Paperworkers, AFL-CIO, 404 F.2d 169 (C.A. 5, 1968), cert. denied 394 U.S. 987 ( 1969). However, under the facts of this case and at this stage of the proceeding, I agree with the Decision and Order of my colleagues herein. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing that we violated Federal law by refus- ing to represent bargaining unit employees and by refusing to process their grievances because they were not members of Local 396 and because they threatened to file and did file a charge with the Na- tional Labor Relations Board: WE WILL NOT fail or refuse to process any employee's grievance because of his nonmem- bership in Local 396 or because he takes his problem to the National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce any employee in the exercise of Section 7 rights guaranteed him by the Na- tional Labor Relations Act. WE WILL proceed promptly to arbitration on the grievance filed March 6, 1972, by William R. Cady, William Page, John Wetzel, Eddie Harri- son, Dick Jacobs, Dan Dwyer, Russell Breton, Eugene Saddler, and Howard Swain. WE WILL permit the above-named feeder driv- ers to have a single attorney of their own choos- ing as their representative at the arbitration pro- ceeding, the reasonable costs of legal fees therefor to be paid by Respondent Local Union 396 only. All employees in any bargaining unit represented by this Union are by law entitled to and will receive from this Union nondiscriminatory representation in the processing of their grievances and otherwise. LOCAL UNION No. 396, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA