Sheet Metal Workers' International Association, Local Union No 49, Afl-Cio (Aztech International, Ltd)

282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, Local Union No 49, AFL-CIO (Aztech Inter national, Ltd) and Pete Le'Mon Case 28-CB- 2479 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 4 1987 Administrative Law Judge James M Kennedy issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs 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 and to adopt the recommended Order We agree with the judge that the Respondent did not breach its duty of fair representation to the employees involved by failing to give timely 8(d)(3) notice to the Federal Mediation and Concil cation Service and any appropriate state agency or by encouraging employees to continue striking after October 2 1985 1 Like the judge, we find that the Respondents deficiencies in representing the employees amounted to no more than mere negli gence 2 The difference between the majority and dissent ing positions here is a narrow one Our dissenting colleague states a willingness to accept as simple negligence the Respondents failure to coordinate timing of the notice and commencement of the strike but would base a violation of the duty of fair representation on the Respondents conduct after October 2 Our difference then is limited to how we evaluate the Respondents conduct after October 2 By October 2 the Employer had delivered to the strikers letters stating that the strike was illegal because proper notice had not been given to the Federal Mediation and Conciliation Service and declaring that the strikers employment was termi nated and that they could apply for jobs as new employees 3 Some strikers asked the Respondent s business agents about the letter and the agents re plied that it was company rhetoric or a company ploy and urged the strikers to stick together In making this response without further investigat ing the situation or obtaining the advice of the Re spondent s attorneys the agents may have acted negligently but their conduct was not so lacking of a rational or logical basis as to be arbitrary In meeting the employees questions the agents assessed events from a practical point of view As they saw it loss of employment is a risk in any strike and employees best protection is to stick to gether They considered the Employers statement that the strikers employment was terminated as a tactical maneuver designed to break the strike The Board has recognized that employers use the tacti cal discharge as a method of dissuading employees from striking without intending to refuse to rein state employees when they request it Crookston Times Printing Co 125 NLRB 304 317 (1959) See also Woodlawn Hospital 233 NLRB 782 788 (1977) The agents were not lawyers and did not seem to understand the effect that the failure to give proper 8(d) notice had on the strikers status as em ployees 4 Nor did they appear to appreciate the distinction between terminating strikers employ ment and replacing strikers Misunderstanding of this critical distinction significant in labor law is not uncommon among employees their representa tives or management personnel See Eagle Com tronics 263 NLRB 515 (1982) L A Water Treat ment 286 NLRB 868 (1987) Dayton Food Fair Stores v NLRB 399 F 2d 153 (6th Cir 1968) Confronted with the Employers statement that the strikers employment was terminated the agents advised the employees to continue to act to gether in an effort to return all employees to their jobs and to obtain a bargaining agreement Within the limits of their competence and experience the agents judged economic pressure to be the most of fective strategy to deal with the situation We do not consider that judgment to be in reckless disre gard of the Union s statutory duties to unit employ ees 5 Indeed even if the agents had understood that the strikers lost status as employees of the Em ployer by operation of statute or had in fact been permanently discharged by the Employer, there ' Notice was received by the Federal Mediation and Conciliation Serv ice on September 17 1985 The strike commenced October 1 1985 All subsequent dates are in 1985 2 There is no showing that the Respondent was hostile toward the em ployees at Aztech or acted in bad faith in representing them In this regard we agree with the judge s rejection of the Charging Party s im plied bad faith argument based on the most favored nations clause 2 Among other things the letter stated If you wish to be considered for such employment please come in and fill out an application As with all new employees you will need to go through our normal pre employ ment interview physical and drug/alcohol screening 4 In part Sec 8(d) provides Any employee who engages in a strike within any notice period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dis pute for the purposes of sections 8 9 and 10 of this Act 5 We assume arguendo that a union that takes action in reckless dis regard of its statutory duties to unit employees violates its duty of fair representation 291 NLRB No 41 SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL) was little they could do to benefit the employees at that point The employees could only apply for jobs as new employees hope to meet the Employ er s interview requirements and see whether the Employer would reemploy them It was not unrea sonable for the agents to assume that collective action in seeking reemployment would be more of fective than individual action Moreover as the judge points out the employees were free to accept the Union s advice or the Em ployer s advice There is no evidence that the Re spondent by threat of fine or other retaliation co erced the employees to continue collective action The employees could have decided to abandon the strike or to apply individually for employment a decision employees are customarily faced with during a strike They could have implemented their decision on their own initiative unrestricted by formalities within the Respondents control Indeed the record reveals that many employees did abandon the strike See Office Employees Local 2 (Janet Eichelberger) 268 NLRB 1353 (1984) enfd 765 F 2d 851 (9th Cir 1985) The representation that the Respondent provided the employees in this case may not meet the stand ards of competence and caution that the Board would like to see observed It does not however violate Section 8(b)(1)(A) A breach of the duty of fair representation occurs only when the represent ative s conduct is arbitrary discriminatory or in bad faith Vaca v Sipes 386 U S 171 190 (1967) We do not consider the conduct here to have been arbitrary and the Respondents deficiency in repre sentation is a matter for employees to consider in selecting and supporting their representative not a matter correctable under Section 8(b)(1)(A) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and dismisses the complaint CHAIRMAN STEPHENS dissenting The duty of fair representation issue posed in this case involves the arbitrariness prong of the three part standard formulated by the Supreme Court in Vaca v Sipes 386 U S 171 190 (1967) (breach occurs when a union s conduct toward a member of the collective bargaining unit is arbitrary dis criminatory or in bad faith ) There is no claim that the Union s actions here were discriminatory nor do I see this as a case involving bad faith Ar bitrariness has been the most difficult and vexing 283 of the duty of fair representation inquiries 1 I do not dispute the judge s reading of Board law as re quiring a showing of more than mere negligence to warrant a finding that a union has acted arbitrarily so as to breach its duty of fair representation in violation of Section 8(b)(1)(A) of the Act That is clearly the holding of cases that are still good law Teamsters Local 692 (Great Western Unifreight) 209 NLRB 446 447-448 (1974) Accord Rainey Secure ty Agency 274 NLRB 269 (1985) Teamsters Local 282 (Transit Mix Concrete Corp) 267 NLRB 1130 (1983) enfd 740 F 2d 141 (2d Cir 1984) There is not much guidance in our cases as to what that more necessarily consists of but it makes sense to me to hold a union guilty of breaching the duty when it has erred in failing to perform some minis terial or procedural act and with notice of that error and of the possibility that it may seriously injure rights of bargaining unit employees the union has persisted in a course of action or inaction that compounds the injury or makes it impossible to cure Such conduct goes beyond negligence to reckless disregard 2 In my view that occurred here by virtue of the union agents response to informa tion they had received by at least October 2 1985 the second day of the unlawful strike 3 I am willing to accept the proposition that a union s failure to coordinate the filing of an 8(d)(3) notice with the actual date on which the strike commences may constitute simple negligence not giving rise to an actionable breach of the duty of fair representation even when the error results in employees being made vulnerable to discharge through participation in an unlawful strike On the record here however I would find that the Union s business agents Gary Briggs and George Gilliland behaved in a manner that went beyond mere negligence to reckless disregard of the harm to the employees through actions that they took after they were put on notice of the clear possibili ty that the strike notice had not been timely given and that the Employer was taking action against the employees because of this ' See Robesky v Qantas Empire Airways 573 F 2d 1082 (9th Cir 1978) (Kennedy J concurring) (no adequate guidance in law of torts or Feder al common law of labor relations for construing this term) 2 A standard formulated by the Ninth Circuit regarding cases involving unions handling of grievances reflects similar considerations In a series of cases that circuit seems to have concluded that the negligent failure to perform a ministerial act amounts to arbitrariness in breach of the duty of fair representation when there is no judgment factor involved in decid ing whether to perform the act in question and no rational and proper basis for the union s conduct and the employee s right to pursue a claim representing a strong individual interest is completely extmgaished by the union s conduct Peterson v Kennedy 771 F 2d 1244 1254 (9th Or 1985) citing Dutrisac v Caterpillar Tractor Co 749 F 2d 1270 1274 (9th Cir 1983) and Eichelberger v NLRB 765 F 2d 851 855 (9th Cir 1985) 3 All dates are in 1985 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is undisputed that the strike notice was mailed to the Federal Mediation and Conciliation Service on September 17 1985 and that therefore the strike called by the Union on September 30 and commenced on October 1 was plainly unlawful be cause it occurred less than 30 days after notice was given to the FMCS The judge also found-and the finding is not disputed-that by October 2 Briggs and Gilliland knew that the Employer had sent letters to the strikers telling them that they were terminated because they were engaging in a strike that was unlawful because of failure to give timely notice to the FMCS The letter also in formed the strikers that employment applications were being accepted for their jobs and they could fill out applications for positions as new employees Briggs then called the law firm that represented the Union and after learning that the attorney re sponsible for sending out the notice was out of town he made no further effort to check out the timing of the notice Instead he encouraged em ployees to remain on strike mistakenly advising them-according to his own testimony-that there was really no distinction between replacement and discharge and that they should just hang together Union Agent Gilliland admitted that he had been in the dark about the legality of the strike but nonetheless admitted telling employees who asked about their termination letters that this was just some of the Company s rhetoric 4 Because I would find a breach of the duty of fair representation as of October 2 when Briggs and Gilliland affirmatively misled inquiring employees about the status of their strike I would issue a cease and desist order and would also hold the Union liable for any losses suffered from employ ees delay until October 7 in offering to return 5 4 While I recognize that Briggs and Gilliland are not lawyers and I therefore would not find a breach of the duty of fair representation simply on the basis of their inability to give correct legal advice I find a breach of the duty here because they falsely gave the impression that they knew there was no difference between replacement and discharge and that the Employers claim that the stoke was unlawful was just rhetoric This would be a different case if the employees had been told that the union agents did not know whether there was any truth to the Employer s claims concerning the strike s legality but that they advised staying out on strike as a tactical matter It is not clear when strikers were rehired although the record shows that at least one of them was not hired back until December 20 In com pliance it could be determined on what dates the Employers hired re placements and thus what effect the delay in offering to return likely had on the strikers ability to return to work Lewis S Harris Esq for the General Counsel Gerald R Bloomfield Esq (Kool Kool Bloomfield & Hollis) Albuquerque New Mexico for the Respond ent Dan A McKinnon III Esq (Marron McKinnon & Ewing) Albuquerque New Mexico for the Charging Party DECISION JAMES M KENNEDY Administrative Law Judge This case was tried before me in Albuquerque New Mexico on October 21 19861 The complaint is based on a charge filed by Pete Le Mon an individual on October 28 1985 2 The complaint alleges that Sheet Metal Work ers International Association Local Union No 49 AFL-CIO (Respondent) has engaged in certain viola tions of Section 8(b)(1)(A) of the National Labor Rela tions Act (the Act) Issue i The principal issue is whether Respondent breached its duty of fair representation under Section 8(b)(1)(A) when it failed to give the Federal Mediation and Concil ration Service 30 days notice of the existence of a labor dispute thereby subjecting the employees it represented to loss of employee status as defined by Section 2(3) of the Act More specifically the case presents the question of whether Respondent is financially liable for wages lost by those employees when Aztech International Ltd dis charged them for striking when Respondent failed to meet the notice filing requirement of Section 8(d)(3) of the Act All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs All parties have filed briefs and they have been carefully considered Based on the entire record as well as my ob servation of the witnesses and their demeanor I make the following FINDINGS OF FACT I INTERSTATE COMMERCE Respondent admits the Employer Aztech Internation al Ltd is a New Mexico corporation headquartered in Albuquerque where it manufactures and markets heating panels and evaporative cooler units It further admits that during the 12 month period preceding the issuance of the complaint Aztech in the course of its business op erations sold goods valued in excess of $50 000 which were transported directly to customers located outside New Mexico It further admits that Aztech is an employ er engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION Respondent admits it is a labor organization within the meaning of Section 2(5) of the Act Although no party has filed a motion to correct the transcript any reviewer of the transcript should be wary for it contains numerous errors omissions and misidentifications By way of illustration the cap Lion appearing in the transcript volume is incorrect labeling Charging Party Pete Le Mon as Respondent and Respondent Sheet Metal Work ers Local 49 as the Charging Party It also omits entirely the appearance of Harris counsel for the General Counsel and misidentifies the Charg mg Party s attorney McKinnon as representing Respondent Likewise it lists Respondents attorney Bloomfield as representing the Charging Party 2 All dates are 1985 unless otherwise noted SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL) 285 III THE ALLEGED UNFAIR LABOR PRACTICES Fortunately given the sometimes inaccurate nature of the transcript the facts in this case are not in significant dispute Respondent has represented Aztech s production employees for at least 15 years through a series of collec tive bargaining contracts The most recent agreement ex pired on September 30 Efforts to negotiate a successor agreement had begun several months before but by Sep tember 30 a new one had not been reached Earlier September 11 Respondent s attorney Bloom field had sent a notice of the existence of a labor dispute to the Regional Office of the Federal Mediation and Conciliation Service in San Francisco That letter was not received by the Service until September 17 only 13 days before the contract was to expire Section 8(d)(3) of the Act requires that such a notifica tion be within 30 days of the termination or modification of the contract in question Section 8(d) further says in the event that any employee engages in a strike within any notice period specified in Section 8(d) he or she shall lose status as an employee for the purpose of ob taming protection under Sections 8 9 and 10 of the Act 3 The credible evidence demonstrates that neither Gary Briggs Respondents business manager nor George Jeep Gilliland its business representative was actually aware of the tardy notice As early as April Business Representative Gilliland began holding monthly meetings with the Aztech em ployees first to learn what the employees wanted in the new contract and later to inform them of the progress of negotiations On July 30 60 days before the contract was to expire Gilliland both to test the employees resolve and to send a signal of solidarity to the Employer con ducted a vote to give the Union authority to strike in the event that became necessary Gilliland recalls that those employees who voted voted unanimously to authorize a strike He says there were two or three abstentions An additional meeting was held in August and two in September as the contract expiration date approached The first was on September 26 and the last on September In pertinent part Sec 8(d) of the Act reads as follows For the purposes of this section to bargain collectively is the per formance of the mutual obligation of the employer and the represent ative of the employees to meet at reasonable times and confer in good faith with respect to wages hours and other terms and condi tions of employment or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party but such obligation does not compel either party to agree to a pro posal or require the making of a concession Provided That where there is in effect a collective bargaining contract covering employees in an industry affecting commerce the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract unless the party desiring such termination or modification- (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute Any employee who engages in a strike within any notice period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute for the pur poses of sections 8 9 and 10 of this Act as amended but such loss of status for such employee shall terminate if and when he is reem ployed by such employer 30 The September 30 meeting was in essence a split meeting designed to accommodate the employees on the two shifts Based on an amalgamation of the testimony it appears that at the September 30 meetings Briggs presented the Company s last contract offer He said he was displeased with it in several respects First it did not contain a ban on subcontracting and in his opinion permitted the Em ployer to subcontract unit work even to the extent of getting rid of all unit employees while still claiming that company products were union made Second it con tamed a random drug testing clause Third the wage offer was inadequate containing no increases and only an opportunity for a bonus at the end of the first year He told the employees that for the past 15 years or so he had heard their complaints about wages and about the manner in which the Company had treated them He also told them that they could accept the offer but if they did he did not want to hear any further complaints about inadequate contract protection He also told them if they rejected the contract their other choice was to strike It does not appear that he offered them the middle ground of not striking but continuing to negotiate In his judgment such a middle ground would have been im practical given the status of the negotiations Briggs told the employees that if they struck there were some risks involved These included being replaced or being fired At least one employee asked Briggs if he would sign the contract as it had been proposed According to the employees testimony Briggs equivocated finally saying he could not live with a contract like the one the Em ployer was offering As a result of Briggs answer some employees testified that Briggs was exhorting them to strike Indeed it appears that some picket signs had al ready been made Even so I am not convinced that Briggs was making any special effort to exhort them to strike though it is clear that he disliked the Company s proposal In any event the employees were asked to vote to accept or reject the contract proposed by the Employer At each meeting the secret ballot showed that the em ployees voted to reject it As a result in the early morn ing hours of Tuesday October 1 Respondent established a picket line at Aztech s premises The strike lasted until the morning of Monday Octo ber 7 It fell apart when the Employer discharged all the strikers simultaneously filing 8(b)(3) charges against Re spondent for having failed to comply with the 8(d)(3) notice requirements set forth in footnote 3 above On October 1 the Employer had handdelivered and/or mailed discharge letters to each of the striking employ ees In the letter Aztech s president Bennett King stated The strike in which you are participating is an ille gal one because the Union failed to give proper notice to the Federal Mediation and Conciliation Service of the existence of a labor dispute so that the FMCS might have an opportunity to help us find solutions to the collective bargaining impasse Because of this failure by the union employees en gaged in the strike are not protected by the Nation 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD al Labor Relations Act against firing This letter will serve as formal notice of your termination of employment by Aztech International Ltd effective immediately Also on October 1 the Employer filed its 8(b)(3) charge against the Union On October 4 the Regional Office of the Board issued a complaint against the Union alleging that the strike was unlawful 4 The following day an article in the Albuquerque Journal newspaper noted the issuance of the complaint together with a quotation from the NLRB Albuquerque resident officer asserting that the picketing was illegal The Employers president King took several of the strikers including the Charging Party to his office where he reported the issuance of the complaint to them and showed them the newspaper article Before the newspaper article appeared Briggs and Gil Bland had told those strikers who had asked about the assertions King had made in the discharge letter that they regarded Kings letter as a company tactic saying the Company was playing with their heads They urged the strikers to remain together if they intended to win the strike After the newspaper article appeared Briggs and Gilliland continued to say the same thing It should be observed here that although by October 2 Briggs and Gilliland were aware of the Company s con tention that the strike was illegal they did not believe it Both Briggs and Gilliland believed that at worst if the FMCS notice had not been given the strike was unpro tected Thus they surmised the worst that could happen was a court could enjoin the picketing If that happened they reasoned the court could probably not make them go back to work The discharges which were by then a fait accompli did not particularly concern them because as Briggs had told the employees before employers often attempt to win strikes by replacing the strikers To Briggs that is exactly what was happening here Briggs testified that when he learned of the Company s contention that the notices had not been filed he had at tempted to reach Attorney Bloomfield but could not do so as he was out of town Briggs spoke to another indi vidual at Bloomfield s law firm but it is not clear wheth er he learned of the late filing with the FMCS He testi fled he did not know if he had ever actually seen the letter that had been sent to the FMCS saying that was within the province of the Union s lawyers Based on Briggs testimony I conclude that during the course of the strike because of Bloomfield s absence he was unable to find out whether the FMCS letter had been timely sent Despite his inability to find out from the law firm what had actually happened Briggs thinking as a tradi tional union official would decided to tough it out He believed that whether the strike was legal or not as long as the strikers could maintain solidarity there was a rea sonably good chance that they could put enough eco nomic pressure on the Company to prevail Although the testimony is a little vague as to time and place it appears 4 See Fort Smith Chair Co 143 NLRB 514 518-519 (1963) that remarks of that nature were made to strikers Le Mon Limon Padilla and Tucker Nonetheless on the morning of October 7 it became apparent that most of the strikers were abandoning the strike When Briggs saw that he told the remaining strikers that the strike had been lost and that they should go back to work so as not to be left alone The record is not clear on how many employees Aztech rehired or what the rate of rehire was Some who had not been replaced were rehired immediately others were hired later All were rehired as new employ ees Subsequently the employees upset over the Union s handling of the strike filed a decertification petition under Section 9(c) of the Act seeking an election to oust the Union as their representative On receipt of the de certification petition Respondent disclaimed interest in representing Aztech s production and maintenance em ployees IV ANALYSIS AND CONCLUSIONS The General Counsel asserts that Respondents failure to file timely the 30 day notice of labor dispute with the FMCS as required by Section 8(d) followed by a strike within the 30 day period was a breach of a union duty and said to be fiduciary which in turn amounts to a breach of the duty of fair representation and therefore an unfair labor practice within the meaning of Section 8(b)(1)(A) Respondent argues that the evidence shows only that it committed an error of negligent omission and that under the fair representation doctrine an act of neg ligence does not breach that duty The threshold ques tion is What is the appropriate level of care which Re spondent must exercise to avoid liability under the doc trine? Is Respondent a fiduciary thereby raising the level of care that must be taken by 9(a) representative or is Respondent something less than a fiduciary owing no duty other than one of fair play? In the seminal case of Steele v Louisville & Nashville Railroad Co 323 US 192 202 (1944) the Supreme Court in articulating the fair representation doctrine de scribed the nature of a union s relationship to the individ uals it represents as the exclusive statutory representa tive We think that the Railway Labor Act imposes upon the statutory representative of a craft at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution im poses upon a legislature to give equal protection to the interests of those for whom it legislates Con gress has seen fit to clothe the bargaining represent ative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents Similarly the Board has held that a union does not stand in a fiduciary relationship to the employees it represents It has said instead that the relationship is analogous to that between the legislator and constituent Service Em ployees Local 579 (Beverly Manor Convalescent Center) 229 NLRB 692 fn 2 (1977) It appears therefore that Re SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL) spondent s duty to the Aztech employees here was not a fiduciary one for the Supreme Court and the Board have both held that the relationship requires only that the statutory representative provide equal protection to the employees it represents This is not to say that the statutory representative cannot make reasonable choices in carrying out its function even though those choices may have incidental negative effects on some of its con stituents Steele supra at 203 cf Ford Motor Corp v Huffman 345 US 330 (1953) In Steele the Court went on to say that although a union s duty to the employees it represents is comparable to the duties of a legislative body nonetheless the statu tory grant of the exclusive right to represent the employ ees impose[s] on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts without hostile discrimination against them Steele supra at 202-203 The duty of fair representation was not initially con sidered by the Board to be an unfair labor practice but in Miranda Fuel Co 140 NLRB 181 (1962) enf denied 326 F 2d 172 (2d Cir 1963) the Board concluded that the fair representation doctrine was subsumed under Sec tion 8(b)(1)(A) of the Act There it stated5 [W]e are of the opinion that Section 7 [of the Act] thus gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment This right of employees is a statutory limitation on statutory bargaining representatives and we conclude that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations when acting in a statutory representative capacity from taking action against any employee upon consider ations or classifications which are irrelevant invidi ous or unfair Although the Second Circuit would not enforce the Board s theory that a failure to meet the duty of fair rep resentation was an unfair labor practice within the mean ing of Section 8(b)(1)(A) the Supreme Court disagreed in Vaca v Sipes 386 U S 171 (1967) After reaching that conclusion the Court stated A breach of the statutory duty of fair representation occurs only when a union s conduct toward a member of the collective bargaining unit is arbitrary discriminatory or in bad faith See Humphrey v Moore [375 U S 335 (1964)] Ford Motor Co v Huffman supra (Vaca v Sipes supra at 190 ) The Court noting that the Vaca case arose in a context involving the manner in which a union processed the plaintiffs grievance added that it accepted the proposi tion that a union may not arbitrarily ignore rrentonous grievance or process it in a perfunctory fashion As a result of Vaca the duty of fair representation is now often described as one in which a union may not act arbitrarily invidiously irrelevantly unfairly or perfunc tonly in carrying out its representational duties The Vaca Court even recognized that those phrases had 5 140 NLRB at 185 287 become cause for debate regarding the scope of their meaning It had hoped to be able to provide clarity with respect to defining those phrases Despite that effort the duty itself remains somewhat murky depending on the fact pattern being presented The Board has generally held that duty of fair representation is not breached when the union is forgetful commits an inadvertent error or is negligent Operating Engineers Local 18 (Ohio Pipeline Construction Co) 144 NLRB 1365 (1963) Team sters Local 692 (Great Western Unifreight System) 209 NLRB 446 (1974) Yet the courts have had some difficulty in determin ing the breach of the duty when errors omissions and negligence caused results that severely damaged an em ployee s rights privileges or status For example the Ninth Circuit in Dutrisac v Caterpillar Tractor 749 F 2d 1270 (9th Cir 1983) was faced with a situation in which a union missed a deadline for filing a grievance The court found that meeting a deadline for the filing of a grievance was simply a ministerial act and easy to carry out It appeared to recognize that the failure to file was simply an act of negligence but observed that the gnev ant s interests which were at stake were strong and that the union s omission totally extinguished the grievant s right to pursue his case In that circumstance the court held that it was a breach of the duty of fair representa tion to fail to complete the ministerial act of filing a grievance in a timely way Despite some language of the majority claiming that it was not finding a breach of the duty for simple negligence Judge Norris disagreed in his concurring opinion Given the facts of the case it ap pears to me that Judge Norris is correct in his assessment that the court relied on simple negligence to find a breach of the duty 6 Nonetheless the Ninth Circuit s analysis has some analytical impact here It is quite true that meeting a filing deadline is a ministerial act that can be easily met It is equally true that a missed deadline can quite often result in great harm to an individual s rights or status Indeed it can be reasonably argued that the deadline that Respondent missed here is no different from the deadline that was missed in Dutrisac Yet can it be said in either case that the failure to file was arbitrary discriminatory invidious irrelevant or perfunctory? It is hard to characterize forgetfulness or mistake as any of those although the Dutrisac court appears to have done so Earlier the Ninth Circuit had stated in Robesky v Qantas Empire Airways supra at 1092 in a grievance han dling context that the union s failure to disclose fully the conditions of a settlement proposal even though uninten tional had nonetheless been so reckless that the union could not be shielded from liability under the fair repre sentation doctrine It said the omission was so egre gious so far short of minimum standards of fairness to the employee and so unrelated to legitimate union inter ests as to be arbitrary citing Ruzicka v General Motors 523 F 2d 306 (6th Cir 1975) Ruzicka was another case in which the union failed timely to file a grievance and 6 Judge Norris was relying on comments made by Judge Anthony M Kennedy in Robesky v Qunntas Empire Airways 573 F 2d 1082 (9th Cir 1978) 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD held that the failure amounted to arbitrary and perfunc tory handling of the grievance sufficient to invoke the doctrine Despite its language in Ruzicka the Sixth Circuit has recently begun to reanalyze the utility of the Vaca and Miranda Fuel tests finding them to be unclear See NLRB v Teamsters Local 299 782 F 2d 46 (6th Cir 1986) That case has some striking similarities to the case before me and is one in which the Board found a viola tion Indeed the General Counsel argues that the under lying Board case Teamsters Local 299 (McLean Trucking Co) 270 NLRB 1250 (1984) controls here even though the Sixth Circuit denied enforcement At the risk of overdistilling the facts McLean involved a company whose collective bargaining contract contained a modi feed no strike clause When a dispute arose regarding the layoff of a small group of employees the union demand ed over the protest of the company to hold a meeting on the company premises during worktime The employ er asserted to the union officials that the meeting was a breach of the no strike clause and that the employees could be disciplined The union nonetheless conducted the meeting never telling the employees that the compa ny regarded it as an illegal work stoppage or that the company could discipline them The employer on pursu ing the matter determined that the meeting was not an exception to the no strike clause and subsequently disci planed the employees in accordance with the terms set forth in the contract The Board held the union in McLean breached the duty of fair representation when it encouraged the em ployees to stop work in violation of the no strike clause and when it exposed them to discipline a risk it had failed to explain The Board held that the unions claim that the work stoppage was only a meeting was not a good faith position and that the union had deliberately misled the employees regarding the consequences of their action It held that the employees had the right to expect that the union would not encourage them to vio late the contract in a way that would expose them to a loss of income or even of employment Specifically it relied on both Miranda and Vaca in reaching its conclu sion that the Union s contract was arbitrary 270 NLRB 1250 1252 The Sixth Circuit however regarded the Board s de cision as an assertion that the duty of fair representation imposes an affirmative obligation on a union to inform its members of possible disciplinary consequences for participating in at least some forms of union activity It then said that after careful review of the case law it be lieved that there was no support for interpreting the duty of fair representation to encompass the fact pattern before it It noted that both Yaca and Ruzicka involved the arbitrary handling of an individuals grievance It ob served that even though the individuals in those cases had not been discriminated against in the classic sense and even if the Union had not acted in bad faith the grievants were alleging treatment disparate from other members The court stated that the Board s position with respect to the application of the Vaca logic was com pletely out of context The court stated in McLean supra at 51-52 would require us to extend the duty [of fair representation] to cover a situation involving a work stoppage rather than collective bargaining or grievance processing and where a member or group was not singled out for different treatment In other words the duty would be expanded to in elude an undefined fiduciary duty which a union owes to its unit as a whole Such a duty could impose on a union an obligation to authorize a strike or any number of other affirmative actions We decline to extend the duty so far since we be lieve the duty of fair representation was never in tended to be catch all for undesirable union activ ity We conclude as a matter of law that the duty of fair representation is implicated only when an mdi vidual or group is treated differently by a union- either through discriminatory bad faith or arbitrary conduct-than another individual group or the col lective Since such differential treatment was not al leged in this case we find that the Board was incor rect as a matter of law to find a violation of the duty of fair representation We therefore decline to consider the Miranda Fuel question and cannot grant enforcement on this basis Thus both the Ninth and the Sixth Circuits have ques tioned the utility of the Miranda and Yaca language and have now come down on different sides of the issue The Ninth Circuit is willing to say that negligence in some circumstances is a perfunctory act the Sixth Circuit has said that even a deliberate apparently reckless act re sulting in the destruction or impairment of employee rights or status is not a breach of the duty so long as the employee is not treated differently from others and even then only if the union s conduct is discriminatory arbi trary or in bad faith The foregoing discussion does not resolve the specific fact pattern before me However I advert to it with the specific purpose of observing that fair representation cases of the kind presented here are not straightforward Indeed both courts have strongly suggested that the Mi randa and Vaca language is not of bright line assistance in determining this kind of case The Sixth Circuit in McLean even goes so far as to say that language arising from grievance handling cases with respect to what a union must do to inform its members of the conse quences of their acts in other fact patterns is inappropn ate The Board of course had held the opposite In the instant case the Union did not inform the Aztech employees that the 8(d) notice to the FMCS had not been timely filed principally because its officials did not know it I should observe here that there is a signifi cant factual difference between Respondents omission here and the Teamsters omission in McLean In McLean the union knew it was risking a breach of the no strike clause Indeed as the meeting began the employer in formed the union that it was breaching that section of the contract Aztech s King did not make a similar warn ing and I credit the Union s evidence that it took several SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL) days to find out what had actually happened regarding the FMCS filing In the meantime of course the Em ployer had already taken the disciplinary act that Section 8(d) permitted it to take It can clearly be said that the Teamsters act in McLean was taken knowingly and with reckless disregard for employee rights The same cannot be said of Respondent s omission Thus the Board s deci sion in McLean is factually distinguishable from the case presented here even without regard to the Sixth Cir curt s decision to deny enforcement I must disagree therefore with the General Counsel who urges that the Board s decision in McLean controls Instead it seems to me that the General Counsel has not shown that the Unions failure to file the FMCS notice was anything other than an act of negligence mis take or inadvertence Under Board law as set forth in Operating Engineers Local 18 (Ohio Pipeline Construction Co) supra and Teamsters Local 692 (Great Western Uni freight System) supra no breach of the duty can be made out The only two theories I can see that would require a finding of a violation is either an adoption of the Gen eral Counsels fiduciary duty theory or the Ninth Cir curt s analysis regarding a failure to perform a ministerial act The fiduciary theory would of course impose a higher duty of care on the union than is normally seen in fair representation cases I think it is fair to conclude that if the Union s duty is that of a fiduciary it failed to meet it However I have already noted that the fiduciary duty does not exist here 7 Moreover the Board has not ac cepted the Ninth Circuits approach here In fact the Board has held it is not every act of disparate treatment or negligent conduct which is proscribed by Section 8(b)(1)(A) but only those which [have been] motivated by hostile invidious irrelevant or unfair consider ations Steelworkers Local 2869 (Kaiser Steel Corp) 239 NLRB 982 (1978) Thus while we may be offended by Respondents failure to file the FMCS notice and its con sequent negative impact on the employment status of the individuals Respondent represented it appears that under current Board law the Respondent did not breach the duty of fair representation when it called the strike 8 7 The Board has imposed a fiduciary obligation on unions in the en forcement of union security clauses See Conductron Corp 183 NLRB 419 429 (1970) Machinists Lodge 946 (Aerojet General Corp) 186 NLRB 561 562 (1970) and cases cited in fn 1 Boilermakers Local 732 (Triple A Machine Shop) 239 NLRB 504 (1978) 8 The Charging Party has observed that Respondent was subject to a most favored nations clause in a contract with an El Paso Texas firm He argues that Respondent could not politically accept a lower rate in Albuquerque without risking wage cuts at the larger El Paso company He says it follows therefore that Respondent specially exhorted Az tech s employees to strike to obtain the El Paso rate Whether the em ployees won or lost he argues the Respondent was acting improperly If the employees succeeded Aztech already financially precarious would be rendered uncompetitive and forced out of business If they failed and the strike was lost Respondent would not be obligated to sign a new contract Either way the El Paso contract would not be jeopardized I do not accept the premise Respondent had a specific purpose in Al buquerque to obtain a new contract with Aztech El Paso is 270 miles 289 Moreover as it breached no duty of fair representation at the time of the calling of the strike and as the em ployees were discharged almost instantly thereafter it was faced with a fait accompli The employees were free to either accept the Unions advice or the Employer s advice and to make their own decisions thereafter Briggs and Gilliland s statements to employees after the strike was underway that to win the strike they had to stick together was only the ordinary encouragement of a union official to maintain solidarity during a labor dis pute Such statements do not amount to any special en couragement to continue to strike in the face of an un reasonable risk Therefore I cannot find a violation based on the General Counsels second theory either that a breach of the duty occurs when the Union fails to tell its employees to go back to work Indeed it seems to me that the Aztech employees took the steps that one would expect them to take against a union that failed adequately to represent their interests They fired the Union as their representative when they filed their decertification petition and induced the dis claimer of representation That is certainly the most ap propriate means of punishing a representative that has made such a horrendous error Based on the foregoing findings of fact and the record as a whole I issue the following CONCLUSIONS OF LAW 1 Aztech International Ltd is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Respondent Sheet Metal Workers International As sociation Local 49 AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has engaged in no violations of the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed9 ORDER The complaint is dismissed in its entirety distant and probably not much of a consideration to the Union as it sought a new contract in Albuquerque More significant is the observa tion that even if Respondent was concerned with the most favored na tions clause in El Paso it did not need to file a late notice with the FMCS to create a dispute justifying the abandonment of the Aztech em ployees to save the El Paso contract Any strike would have accom plished that Therefore I do not regard the El Paso most favored nations clause to be a legitimate consideration here The Charging Party s posi Lion regarding it is illogical 9 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses