Service Employees Local 3036 (Linden Maintenance)

SERVICE EMPLOYEES LOCAL 3036 (LINDEN MAINTENANCE) Local 3036, New York City Taxi Drivers Union, SEIU, AFL-CIO (Linden Maintenance Corp.) and Milford Moorer. Case 29-CB-5252 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 12 June 1984 Administrative Law Judge El- eanor MacDonald issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.' The judge found that the charge in this case was not timely filed pursuant to Section 10(b) of the National Labor Relations Act. She further found that, even if not barred by Section 10(b), the Gen- eral Counsel failed to prove a violation of Section 8(b)(1)(A) of the Act. The General Counsel excepts to these findings. She argues that the Union's fail- ure to respond to Moorer's telephone calls did not satisfy the notice requirements of Section 10(b) and that the Union's failure to process Moorer's griev- ance to arbitration, without explanation, after it promised to do so violates Section 8(b)(1)(A) of the Act. We find merit to the General Counsel's excep- tions and, for the reasons set forth below, we re- verse. The facts, as found by the judge, are as follows. Moorer had been employed as a mechanic by Linden Maintenance, the Employer, for over 20 years. At all times relevant to these proceedings, Moorer was covered by a collective-bargaining agreement between the Employer and Local 3036, New York City Taxi Drivers Union, SEIU, AFL- CIO. In October 1981, he was the victim of a mug- ging attack. Following hospitalization and a period of recovery, he sought reinstatement with the Em- ployer on two occasions, in January and February ' The General Counsel filed a motion to remand the case to the judge for reopening the record for receipt of additional documentary evidence Thereafter, the Respondent filed a reply in opposition to the General Counsel's motion to remand for reopening the record After careful con- sideration, we deny the General Counsel's motion to remand for reopen- ing, as the proffered evidence, even if accepted, would not affect the result reached herein and therefore does not warrant remand to the judge 995 1982. On both occasions, Moorer was not reinstat- ed. Moorer thereafter sought the assistance of the Union. In March 1982, he went to the Union's office with his friend Richardson and saw Execu- tive Council Member Atkins and Secretary Wil- liams. They referred him to Executive Council Member and Acting Vice President Pack, who told Moorer that the Union would take the case to arbi- tration. Pack referred Moorer to Recording Secre- tary Rosenthal. Rosenthal examined Moorer's med- ical notes and took a statement from him. After his visit to the Union's office, Moorer received a letter from the Union instructing him to be examined by a union doctor. Two or three weeks after his visit to the union doctor, Moorer called Pack and told him he had a slip to go back to work. Pack told Moorer that "it was already going through arbitra- tion." Moorer called the Union two or three times thereafter and left messages for Pack and Rosen- thal. Not receiving any response, he inquired of Atkins, Williams, and Shop Chairman Jenkins a number of times in the summer of 1982 and was told that they would speak to Pack, that they would check into the matter, that Moorer should check with Pack, and that Pack would take care of it, although arbitration cases take a long time. Jen- kins and Atkins also informed Moorer that Linden Maintenance had offered him a part-time job but that the Union had turned this down on Moorer's behalf. In March 1983, Moorer returned to the Union's office with Richardson. They spoke to Atkins and Williams, who directed them to Pack. Pack was not there, however, and the two men saw Rosen- thal. Moorer told Rosenthal he was there to see about the grievance. Rosenthal said, "I see that it looks like they neglected it, so I'll take care of it." When Moorer still did not hear from the Union, he filed the instant charge on 4 April 1983. The judge found that the charge in this case was not timely filed pursuant to Section 10(b) of the Act because the events complained of otcurred more than 6 months prior to the filing of the charge and that these events gave Moorer clear and unequivocal constructive notice of the Union's failure to act. In this regard, the judge found that, although Moorer was told that arbitrations take time, the Union's failure to respond to his calls through the whole summer of 1982 should have alerted Moorer that something was wrong. We dis- agree with this finding. As noted by the judge, it is well established that Section 10(b) is tolled until the Charging Party has either actual or constructive notice of the alleged 280 NLRB No. 115 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice.2 The Board has ruled that this "notice, whether actual or constructive, must be clear and unequivocal, and that the burden of showing such notice is on the party raising the af- firmative defense of Section 10(b)."3 In the instant case, the judge relied, inter alia, on Moorer's testi- mony that the Union failed to return his phone calls during the summer of 1982 as showing that Moorer knew or should have known that his griev- ance was not being pursued. In our view, this evi- dence is insufficient to meet the Respondent's burden, particularly where, as here, Moorer was receiving contemporaneous assurances through conversations with Jenkins, Atkins, and Williams that the grievance "would take a good while," and that the "Union would take care of it, but it would take time." Thus, we conclude that the record does not sup- port a finding that Moorer had clear and unequivo- cal notice, actual or constructive, of the Union's in- action more than 6 months before he filed the unfair labor practice charge. To the contrary, it was not until March 1983, when Moorer went down to the Union's office, that he was clearly in- formed by Rosenthal that his grievance had been forgotten and abandoned. Therefore, we find that the instant charge was timely filed. On the merits, the judge found that the General Counsel did not show the Union failed in its duty to represent Moorer fairly. For this finding, she relied on Office Employees Local 2, 268 NLRB 1353 (1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985) (hereinafter OPEIU Local 2), in which the Board held that there had been no breach of the duty of fair representation where the union involved failed to inform the potential griev- ant of its decision not to process her grievance. Contrary to the judge, we find OPEIU Local 2, supra, to be distinguishable from the instant situa- tion and conclude that the Respondent breached its duty of fair representation by abandoning Moorer's grievance. A labor union owes a duty of fair representation to all the employees it represents. See Vaca v. Sipes, 386 U.S. 171 (1967). A union breaches this duty when its conduct toward a member of the bargain- ing unit is arbitrary, discriminatory, or in bad faith. Id. at 190. Although a union may not ignore a mer- itorious grievance or process it in a perfunctory fashion, a union is afforded broad discretion in de- ciding which grievances to pursue and the manner in which to handle them.4 Mere negligence is in- 2 Pinter Bros., 263 NLRB 723, 739 (1982) 3 Strick Corp., 241 NLRB 210 fn 1 (1979) 4 Id at 191 -192, Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974) sufficient to establish a breach of the duty of fair representation.5 In this case the record reveals that Pack told Moorer in March 1982 that the Union would take his grievance to arbitration. Pack thereafter told Moorer that his case was already going through ar- bitration, and other union officials reassured Moorer that the Union would take care of the grievance but it would take time. Once the Re- spondent agreed to process Moorer's grievance, it was obligated to handle the grievance in accord- ance with the standards imposed by its duty of fair representation. As the Board explained in Glass Bottle Blowers Local 106 (Owens-Illinois), 240 NLRB 324 (1979): Where, as here, a union undertakes to process a grievance but decides to abandon the griev- ance short of arbitration, the finding of a viola- tion turns not on the merit of the grievance but rather on whether the union's disposition of the grievance was perfunctory or motivated by ill will or other invidious considerations. The record does not reveal any evidence of union hostility or animus toward Moorer. The issue, therefore, is whether the Respondent's ac- tions constituted arbitrary conduct or perfunctory treatment of Moorer's grievance. The record is clear that the Respondent failed to process the grievance at all. Despite reassuring Moorer that his grievance was being taken care of and rejecting the Employer's offer of part-time employment for Moorer during the summer of 1982, the Union at some point thereafter simply abandoned the griev- ance and failed to notify Moorer of this action. The Union did not present any evidence that it aban- doned the grievance because it lacked merit or the proceeding seemed unlikely to succeed. Nor does the record suggest any other explanation for the Union's abandonment of the grievance. Finding a union's conduct to be arbitrary and in violation of Section 8(b)(1)(A), the Board stated in Teamsters Local 315 (Rhodes & Jamieson), 217 NLRB 616, 618 (1975): [I]f 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. 5 See, e g, Plumbers Local 195 (Stone & Webster), 240 NLRB 504, 508 (1979) i SERVICE EMPLOYEES LOCAL 3036 (LINDEN MAINTENANCE) The Respondent abandoned Moorer's grievance but has not offered any explanation for its actions. It has not presented any evidence of the exercise of discretion in abandoning the grievance. Under these circumstances, the Respondent's actions toward Moorer constituted more than mere negli- gence. Rather, the Respondent's continued nonac- tion, despite statements to the contrary, amounted to a willful failure to pursue the grievance, and was therefore perfunctory.6 In reaching a different conclusion, the judge relied on OPEIU Local 2, supra, and Teamsters Local 692 (Great Western Unifreight), 209 NLRB 446 (1974). We find the judge's reliance on these cases to be misplaced. Unlike the present situation, the union in OPEIU Local 2 considered an employ- ee's complaints and made a decision that they lacked merit. Teamsters Local 692, supra, is also distinguishable, for in that case, unlike here, the union never specifically committed itself to process the grievance to arbitration. For the foregoing reasons, we conclude that the Respondent violated Section 8(b)(1)(A) of the Act by failing to represent Milford Moorer fairly with regard to his grievance against the Employer. REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. We shall order that the Respondent request the Em- ployer, Linden Maintenance Corp., to reinstate Milford Moorer. If Linden refuses, the Union shall promptly pursue the remaining stages of the griev- ance procedure, including arbitration, in good faith with all due diligence. We shall also order that Moorer be permitted to be represented by his own counsel at the remaining stages of the grievance procedure and at the arbitration proceeding and that the Union pay the reasonable legal fees of such counsel. The Board recognizes that, as a result of the Respondent's misconduct in handling Moorer's grievance, the Respondent may be unable to obtain an arbitrator's resolution of his grievance.7 The ab- sence of such a determination by arbitration, how- ever, can hardly deprive Moorer of his statutory right to have his grievance fairly processed because it was the Respondent's, not Moorer's, wrongful conduct which caused this result. Faced with such a situation the Board will resolve the uncertainty in See Auto Workers Local 417 (Falcon Industries), 245 NLRB 527, 535 (1979) 7 The record is unclear whether this grievance may still be processed Although the Respondent's collective-bargaining agreement with the Em- ployer contains time limitations, the Respondent never raised these time limitations with Moorer as an obstacle to arbitration 997 favor of the injured employee and not the wrong- doer because as we recently stated in Rubber Workers Local 250 (Mack-Wayne Closures), 279 NLRB 1074 (1986): This uncertainty, however, derives in large measure from the Respondent's breach of its duty to provide fair representation, which pre- vented resolution of the grievance in the first instance. In the absence of evidence warrant- ing a finding that the grievance lacks merit, and in order to restore the status quo existing before the Respondent Union violated the Act by precluding the grievance's proper resolu- tion, we resolve any uncertainty in favor of the victim and against the wrongdoer. Such a remedy in cases where there has been a breach of the duty of fair representation is consistent with fundamental equitable principles, and with longstanding Board precedent. See Graphic Communications Local 4 (San Francis- co Newspaper), 272 NLRB 899 (1984). The Board in Mack-Wayne Closures then entered an order and remedy as set out in San Francisco Newspaper, supra.8 Accordingly, in the event the grievance cannot be pursued for any reason, we shall order the Respondent to make the above- named individual whole for any loss of pay he may have suffered by reason of the Respondent's viola- tion of the duty to represent him fairly with regard to his grievance, by payment of a sum of money equal to what he normally would have earned as wages had he been permitted to be reinstated as a mechanic from the date Moorer first sought the as- sistance of the Union until Moorer is reinstated by the Employer or obtains other substantially equiva- lent employment. Backpay shall be computed in ac- cordance with the formula set forth in F W. Wool- worth Co., 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). 9 In that case, the Board commented at In 7 on certain circuit court authority not enforcing Board remedial orders which provided, as in the present case, a conditional backpay award should the grievance proce- dure no longer be available to the wronged party in such instances In particular the Board noted that the court in NLRB v. Electrical Workers IUE Local 485, 454 F 2d 17 (2d Cir 1972), thought "it premature to deal with" this problem. The court made this statement on the basis of the hypothesis that "[u]ntil some tribunal determines the validity of the dis- charge, any assessment of back pay might well be regarded as speculative and punitive " Id at 22-24 Although this statement provides no definite guidance on how the court would resolve this issue should the grievance procedure no longer prove to be available, the Board in San Francisco Newspaper responded to the court's statement by emphasizing that, "since we have reached a final determination that the Union breached its duty of fair representation, we find nothing speculative or inconsistent with the above-discussed principles of equity, in assigning the Union with backpay liability should it be unable now to pursue the remaining stages of the grievance " Id at 901 fn 7 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Local 3036, New York City Taxi Drivers Union, SEIU, AFL-CIO, New York, New York, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act by failing or refusing to fairly represent any employee represented by it or by processing any employee's grievance in an arbitrary or perfuncto- ry manner. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Request Linden Maintenance Corp. to rein- state Milford Moorer to his former position of em- ployment and, if it refuses to do so, promptly pursue the remaining stages of the grievance proce- dure, including arbitration, in good faith with all due diligence. (b) Permit Milford Moorer to be represented by his own counsel at the remaining stages of the grievance procedure and at the arbitration proceed- ing, and pay the reasonable legal fees of such coun- sel. (c) In the event that it is not possible to pursue the remaining stages of the grievance procedure, resulting in the inability to resolve the grievance of Milford Moorer on the merits, make Moorer whole for any loss of pay he may have suffered as a result of its unlawful conduct in processing his grievance in an arbitrary or perfunctory manner, by payment to him of the amount to be computed in the manner set forth in the remedy section of this deci- sion. (d) Post at its business office, and at all other places where notices to members are customarily posted, copies of the attached notice marked "Ap- pendix."g Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. 9 If 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 Nation- al 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 " (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS , concurring in part and dissent- ing in part. I agree the Respondent breached its duty of fair representation in handling employee Milford Moorer's grievance, but I do not agree fully with the remedy provided. Absent evidence that Moorer's grievance is meritorious, the backpay award is speculative and unwarranted for the rea- sons stated in my dissenting opinion in Rubber Workers Local 250 (Mack- Wayne Closures), 279 NLRB 1074 (1986). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail or refuse to fairly represent any employee represented by us and WE WILL NOT arbitrarily or perfunctorily process any employee's grievance. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL request the Employer, Linden Mainte- nance Corp., to reinstate Milford Moorer to his former position of employment and, if it refuses to do so, WE WILL promptly pursue the remaining stages of the grievance procedure, including arbi- tration, in good faith with all due diligence. WE WILL permit Milford Moorer to be repre- sented by his own counsel at the remaining stages of the grievance. procedure and at the arbitration proceeding, and WE WILL pay the reasonable legal fees of such counsel. In the event that it is not possible to pursue the remaining stages of the grievance procedure, WE WILL make Milford Moorer whole, with interest, for any loss of pay he may have suffered as a result of our unlawful conduct in processing his griev- ance. LOCAL 3036, NEW YORK CITY TAXI DRIVERS UNION, SEIU, AFL-CIO Kathleen M. Troy, Esq., for the General Counsel. David Stolow, Esq. (Donald F. Menagh, PC), of New York, New York, for the Respondent. SERVICE EMPLOYEES LOCAL 3036 (LINDEN MAINTENANCE) 999 DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in Brooklyn, New York, on February 2, 1984. The complaint which issued on May 31, 1983, alleges that Respondent, in violation of Section 8(b)(1)(A) of the Act, failed to process to arbitration a grievance filed by Milford Moorer despite its promise that it would take the grievance to arbitration. Respond- ent denies the material allegations of the complaint. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by Respondent on March 26, 1984, I make the following FINDINGS OF FACT 1. JURISDICTION Linden Maintenance Corp., a New York corporation engaged in providing taxicab and related services, annu- ally derives gross income in excess of $500,000 and pur- chases goods and materials in excess of $50,000 indirectly in interstate commerce. The parties agree and I find that Linden Maintenance Corp. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent Union is a labor or- ganization within the meaning of Section 2(5) of the Act. Ii. ALLEGED UNFAIR LABOR PRACTICES A. Testimony of Milford Moorer Milford Moorer, a mechanic, had been employed by Linden Maintenance for over 20 years when he was the victim of a mugging attack in October 1981. Following hospitalization and a period of recovery, he sought rein- statement at work in January 1982 and showed a doc- tor's note to Murray Rosensweig, his boss. The note, dated January 14, 1982, stated that Moorer could return to work January 25, 1982, and that he should be on light duty for 2 months. Moorer was not reinstated. In Febru- ary 1982, Moorer returned to see Rosensweig with a doctor's note dated February 24, 1982. After giving a brief description of Moorer's injuries, the note stated, "will return work 3/1/82." It said nothing about light duty. A gain, Moorer was not reinstated. Moorer testified that each time he sought reinstatement at Linden Mainte- nance, Rosensweig told him there was no work for him. On each of these occasions, Moorer observed a full crew of mechanics working; all the men in the crew had less seniority than Moorer. i After failing in his second attempt to obtain reinstate- ment, Moorer sought the assistance of his Union. Moorer stated that both Earnest Atkins and George Jenkins were shop stewards for the Union.2 On direct i It is undisputed that Moorer is an excellent mechanic , he had been a working foreman at Linden 2 The evidence shows that Atkins had been shop chairman for Linden The relevant union officials were George Jenkins, shop chairman, Ear- nest Atkins, executive council member, Sid Pack, executive council member, Mike Rosenthal, recording secretary, Howard Williams, secre- tary, Richard Rogers Sr, vice president examination, Moorer testified that in March 1982 he went to the union office with his friend Ellis Richardson and saw Atkins and Williams. They referred him to Sid Pack who told Moorer that the Union would take the case to arbitration. Pack referred Moorer to Rosenthal; the latter examined Moorer's medical notes and took a statement from him. Moorer testified that after his visit to the union office, the Union sent him a slip instructing him to be examined by a union doctor. Moorer went to the doctor named in the note and the latter told Moorer that he would notify the Union of his findings. The doctor retained the slip sent by the Union. Moorer could not recall the doctor's name or address. However, he was sure the note he had received said that he was to see a "Union doctor." Two or three weeks after his visit to the union doctor, Moorer called Pack and told him he had a slip to go back to work. Pack said that " it was al- ready going through arbitration." After this conversation, Moorer called the Union again two or three times in the summer of 1982. He called and left messages for Pack and Rosenthal but he was not able to get through to them. They did not return his calls even though he left his name and telephone number. During the summer of 1982 Moorer saw Atkins at Linden Maintenance and at a boatyard where both Moorer and Atkins spent some time. The first time, Moorer had stopped by Linden Maintenance to see if he could get work and he met Atkins there. Moorer told Atkins he had not heard about the arbitration case. Atkins told Moorer he would "look at it for you" and that Moorer would have to see Pack, although Atkins would talk to Pack about it. Later that summer, Moorer saw Atkins and Williams at the boatyard and told them he was not getting a response to his grievance. Williams said Pack would take care of it. During the summer of 1982, Moorer also spoke to Jenkins " quite a few times" about his grievance, and Jenkins said that "it would take a good while . . . and the Union would take care of it." Jenkins and Atkins informed Moorer that Linden Main- tenance had offered him a part-time job but that they had turned this down on Moorer's behalf. In March 1983 Moorer returned to the union office with Richardson. They spoke to Atkins and Williams who directed them to Pack; however, Pack was not there and the two men saw Rosenthal. Moorer told Rosenthal he was there to see about the grievance the Union was supposed to file for him. Rosenthal said, "I see that it looks like they neglected it, so I'll take care of it." After this, Moorer still did not hear from the Union; he filed a charge with the Labor Board on April 4, 1983. On cross-examination, Moorer testified that when he first spoke to Atkins about getting back to work, the two were at Linden Maintenance. Rosensweig was there and said he might have some work in a few weeks. The second time Moorer saw Atkins was at the boatyard. Moorer could not recall when this meeting occurred. Moorer testified that he spoke to Jenkins at the boatyard in the winter of 1982, and Jenkins told him that if he was having trouble getting his job back, he should see the Union. After Moorer saw Rosensweig the second time, he went to the union office. Moorer first saw Atkins 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who told him that he was now with the pension fund. They discussed Moorer's inability to regain his job and Moorer said he would retire. Atkins said he would take Moorer's case to arbitration. That same day, Moorer saw Williams in his office and Williams told him to see Pack. Moorer told Pack he had almost 21 years' seniority and that Linden Maintenance should have found a job for him.3 Pack said if the Employer did not do anything about getting Moorer a job, "I'll have to take it to arbi- tration." Pack sent Moorer to Rosenthal, and Moorer showed the latter his medical notes and explained that he had a lot of seniority and wanted his job back. Rosenthal said, "[T]hey would send it to arbitration." He did not ask Moorer to sign anything. Following this day spent at the Union, Moorer called the Union several times and asked for Pack, but he was never in. Moorer left his name and telephone number. Moorer could not recall exactly when he made these calls; they were in the summer of 1982 and in March 1983. Moorer was not home every day; he sometimes went fishing. He acknowledged that he goes to the boat- yard almost every day for 1 or 2 hours. On cross-examination, Moorer acknowledged that not Williams nor Jenkins nor Atkins ever told him that they were familiar with the status of his grievance. They all said he would have to see Sid Pack. They did say, how- ever, that the "Union would take care of it, but it would take time." B. Testimony of Ellis Richardson Ellis Richardson worked for the Employer until 1973. He is an old friend of Moorer's of some 40 years' stand- ing. In January 1982 Richardson called Williams at the Union and asked for help in getting Moorer reinstated. Williams said that they would have to see Pack because he was the one who took care of grievances and rein- statement claims. As a result, Richardson and Moorer went to the union office in February or March 1982 and spoke to Atkins and Williams. They eventually saw Sid Pack.4 Moorer told Pack about his injury, showed Pack his medical slips, and asked about getting his job back. Pack said that "this was definitely a case of arbitration" and he called Rosenthal in to the office. After some dis- cussion, Rosenthal agreed it was a case for arbitration. Pack and Rosenthal also said they would speak to Ro- sensweig. After this meeting, Richardson ran into Shop Chair- man Jenkins at the boatyard a number of times. Jenkins told him that arbitration cases take a lot of time. Rich- ardson and Moorer returned to the union office in Feb- ruary or March 1983 to see Sid Pack but Pack was not in the office, and instead they saw Rosenthal. Moorer ex- plained that he wanted to find out about his arbitration. Rosenthal had some papers before him which he looked through, and then Rosenthal said, "I can see where Mr. Pack had not followed through on this proceeding as he ' Also present in the room was Rogers, who was sitting and counting some money • Richard Rogers was present in the room but they did not speak to him should have, and I'm going to have to look into this, now, myself." Rosenthal said he could not say whether he would be able to obtain Moorer's reinstatement. Richardson was present at the boatyard on several oc- casions in the summer of 1982 when Moorer asked Atkins and Jenkins about his case. They replied that the case was in arbitration and that it would take some time. Both men said they would check on the case and let Moorer know, but they were never able to give any defi- nite information. C. Testimony of Sid Pack Sid Pack was an executive council member of the Union in March 1982, and he served as acting vice presi- dent of the Union. He was responsible for rendering service to members, including handling grievances. Pack stated that the union grievance procedure requires that the shop chairman handle a problem when he learns of it. This is step one of the grievance procedure. At step two the vice presidents of the Union get involved in dis- cussions with management. At step three Rosenthal de- termines whether the grievance has merit and warrants an arbitration proceeding, usually in consultation with counsel for the Union. Pack testified that in November 1983 there was a union election: Vice President Rogers was not reelected and he left the Union. His files cannot be found in the union office and it is assumed that Rogers destroyed them or took them with him. Pack testified that Moorer's file disappeared with Rogers. A search of the union office has not turned up any file relating to Moorer's grievance. Pack testified that he knew Moorer but that he had never met Richardson. Pack recalled that on one occa- sion Moorer was in the office speaking to his "partner" Richard Rogers. 5 Pack was in the same room; he was sure Richardson was not there. Pack did not recall what was said; he recalled that Moorer spoke to Rogers and that Rogers was taking notes. Pack was busy with other matters. After Pack returned from his May 1982 vacation, Rogers told him about Moorer's problem. Pack suggest- ed setting up a meeting at Linden with Rosensweig, Moorer, and Jenkins. Pack and Rogers attended the meeting in June 1982 but for some reason unknown to Pack, Moorer was not there. Rosensweig said he had not reinstated Moorer because he believed Moorer was not recovered sufficiently to perform his duties. Rosensweig offered to give Moorer $150 per month to supplement his income, and Rogers tried to convince Rosensweig to agree that Moorer should submit to a medical examina- tion by "a neutral doctor." Pack did not know if Moorer was sent to a doctor; in fact, he did not know "half the things" Rogers did. Pack did not notify Moorer of Ro- sensweig's offer to give him $150 per month. D. Rebuttal Testimony On the General Counsel's rebuttal, both Moorer and Richardson testified that they had indeed met with Pack s Pack called Rogers his partner because they worked together SERVICE EMPLOYEES LOCAL 3036 (LINDEN MAINTENANCE) at the union office in March 1982 and although Rogers was present in the room, he said little or nothing during the meeting. Richardson remembered Pack from the Union's organizational campaign when Pack had made speeches on behalf of the Union. E. Testimony of Mike Rosenthal Mike Rosenthal, recording secretary of the Union, tes- tified that the shop chairman and vice president must thoroughly investigate employee grievances before bringing the records to Rosenthal for investigation. If a particular grievance has merit, Rosenthal writes a formal grievance and asks the grievant to sign it. Rosenthal could not recall meeting Moorer in March 1982. He was certain that Moorer never signed a formal grievance form against Linden Maintenance. Rosenthal did not know of any union doctor to whom Moorer might have been sent; the Union has no such doctor to whom it reg- ularly refers questions of fitness to perform work. The Union presented no testimony about Rosenthal's March 1983 meeting with Moorer and Richardson. F. The Contract The applicable collective-bargaining agreement pro- vides that a party has 14 days to file a written grievance which must either be resolved or a Borough conference held within 96 hours of the filing. If the conference does not resolve the matter, a party has the right to file for arbitration within 96 hours. There is no suggestion in this case that Moorer could have filed a request for arbitra- tion without the consent of the Union. G. Positions of the Parties The General Counsel contends that a violation has been made out based on the teaching of the Supreme Court in Vaca v. Sipes, 386 U.S. 171 (1967), that "a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion." As to the perfunctory nature of the Union's conduct, the General Counsel relies on Union of Security Personnel (St. John's Hospital), 267 NLRB No. 155 (Aug. 26, 1983) (not reported in Board volumes), and cases cited therein. The General Counsel urges that all of the union officials named in the complaint were agents of the Union, and cites Novelty Workers Local 300 (Cosmetic Components), 257 NLRB 1335 (1981); Electrical Workers IBEW Local 453 (Nation- al Electrical Contractors), 258 NLRB 1427 (1981); Car- penters Local 1780, 244 NLRB 277, 279 fn. 6 (1979); El- dorado Mfg. Corp., 249 NLRB 646, 648 fn. 1 (1980); Teamsters Local 70 (Lucky Stores), 226 NLRB 205, 209- 221 (1976) The Union contends that the charge was not timely filed pursuant to Section 10(b) of the Act in that the events complained of occurred prior to October 4, 1982, and were of such a nature as to give notice to Moorer that his right to fair representation might have been vio- lated. The Union also attacks the credibility of the Gen- eral Counsel's witnesses. 1001 H. Discussion and Conclusions In making findings of credibility it is often distressing to find that two diametrically opposed versions of an event are being offered, under oath, and that one of these stories must be a fabrication. Happily, that is not the case here. All the witnesses in this matter were decent and well meaning, and I am convinced that they testified to the best of their ability. Moorer was occasionally con- fused as to dates, but he gave a generally consistent ac- count of his efforts to obtain reinstatement. Richardson was more exactly accurate; his testimony, given with forthright candor and a guileless demeanor, was consist- ent with Moorer's account and I find that it was reliable. Both Pack and Rosenthal testified as well as they could given their total lack of files with which to refresh their recollection. However, I am convinced that the account given by Pack and Rosenthal is not as accurate as that given by Moorer and Richardson. I believe Pack and Rosenthal no longer recollect the events of 1982. It is not reasonable to suppose that Pack and Rosenthal would accurately recall one case out of many where the relevant events took place years before their testimony was given, whereas for Moorer and Richardson the events were of great significance and involved a central event in the life of one of the men-his attempt to regain a job he had held for 21 years. Thus, I find that in March 1982, after talking about his failure to obtain reinstatement with Shop Chairman Jen- kins and former Shop Chairman and Executive Council Member Atkins, Moorer went to the union office and told his problem to Atkins, Secretary Williams, Pack, and Rosenthal. Both Pack and Rosenthal handle griev- ances above the shop level. I find that Rosenthal exam- ined Moorer's medical notes and took a statement from him. I further find that after his visit, Moorer went to a union doctor at the Union's request.' I find that 2 or 3 weeks after his visit to the doctor in April 1982, Moorer called Pack and was assured by the latter that "it was al- ready going through arbitration."v I find that Moorer called the Union several times thereafter and left mes- sages for Pack and Rosenthal. Not receiving any re- sponse, he inquired of Atkins, Jenkins, and Williams a number of times in the summer of 1982, and he was told, variously, that they would speak to Pack, that they would check into the matter, that Moorer should check with Pack, and that Pack would take care of it although arbitration cases take a long time. I find that there is no proof that Moorer continued to seek information about his problem after the summer of 1982, that is early Sep- tember 1982. I find that in March 1983, Moorer returned to the union office where he saw Rosenthal who looked e Pack readily acknowledged that he did not know half of what his partner Rogers did, I surmise that Rogers was working on Moorer' s case, that he sent Moorer to the doctor and then removed Moorer's file when he left the Union in 1983 after having run with the losing side in the union election Moreover, Pack's recollection that Rogers asked Rosens- weig to agree to Moorer's examination by a neutral doctor lends cre- dence to Moorer's contention that he was sent to such a doctor. This is entirely consistent with the probability that Rogers was han- dling Moorer's case Moorer's contact had been with Pack, a man both he and Richardson knew, and Moorer would naturally call Pack to check on his case 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into some papers and said to Moorer, "they neglected it" and that he would take care of Moorer's case himself. I find it significant that Rosenthal did not deny Moorer's testimony about this meeting. Respondent argues that Moorer knew or should have known by the summer of 1982 that his grievance was not being pursued. The situation in the summer of 1982 was that Moorer was not getting any responses from Pack and Rosenthal, the two men whom he knew to be responsible for pursu- ing a case to arbitration. He was told by Jenkins, Wil- liams, and Atkins that arbitrations take time; however, the two men who were in charge of the matter did not answer his phone calls. None of the men Moorer actual- ly questioned ever purported to give him any informa- tion about the case. During the fall and winter of 1982, Moorer made no attempt at all to press his claim and heard nothing at all from the Union about it. The question is whether the lack of response from the Union constituted clear and unequivocal actual or con- structive notice of the fact that the Union was not pursu- ing the grievance. Pinter Bros., 263 NLRB 723, 739 (1982). Moorer had last spoken to Pack in April 1982; his fail- ure to receive responses to his phone calls could not con- stitute actual notice of the Union's failure to act. I find, however, that Moorer had clear and unequivocal con- structive notice of the Union's failure to act. His last communication with Pack or Rosenthal was in the early spring of 1982, a few weeks after his meeting at the union office that March. At that time Pack said the matter was going to arbitration. After that Pack did not return any of his phone calls and Moorer heard nothing from the Union. Even Atkins, Jenkins, and Williams who said they would look into the matter never gave Moorer one iota of information in response to his queries. Addi- tionally, they told Moorer that Pack was handling the matter and that he should call Pack. Moorer could thus not have been misled into thinking that his friends at the boatyard were involved in the arbitration. Although Moorer was told that arbitrations take time, the Union's failure to respond to his calls through the whole summer of 1982 should have alerted Moorer that something was wrong. The 10(b) period herein began to run on October 4, 1982. I find that Moorer reasonably should have known before that time that the Union was not pursuing his grievance. Instead, Moorer waited until March 1983 to pursue the matter. Even if I did not find that this matter is barred by Sec- tion 10(b), I would find that the General Counsel has not shown that the Union failed in its duty to represent Moorer fairly. In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court defined the standard of fair representation as an absence of conduct that is "arbitrary, discriminatory or in bad faith." Within this standard, the Court included "arbitrarily" processing a grievance or processing it in "perfunctory fashion." The Board has recently discussed the duty of fair representation as it relates to the process- ing of grievances in Office Employees Local 2, 268 NLRB 1353 (1984). That case reaffirmed the standard set forth in Teamsters Local 622 (Great Western), 209 NLRB 446, 448 (1974), in which the Board emphasized that a union's negligence cannot be equated with arbitrary conduct: "something more" is required than "negligent action or nonaction." This "something more" than negligence alone is to be found where a union acts out of motives of hostility to the potential grievant and subjects him to unfair, irrelevant and invidious action. In Office Employ- ees Local 2, supra, the Union failed to inform the poten- tial grievant of its decision not to process her grievance. The Board held that although the Union was indeed neg- ligent, there was no proof of anything more and the complaint was dismissed. In the instant case, there has been no evidence present- ed to show that the Union was hostile to Moorer or that it failed to process his grievance due to unfair or invidi- ous reasons. The record strongly suggests negligence by various union officials, but under the Board's standards, this is not enough. Thus, I cannot find a violation of the Act based on the facts before me. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 3036 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Local 3036 did not violate the Act as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.]