AMALGAMATED TRANSIT UNION LOCAL 1498 (Jefferson Partners L.P.)

AMALGAMATED TRANSIT UNION LOCAL 1498 777 360 NLRB No. 96 Amalgamated Transit Union Local No. 1498 (Jeffer- son Partners L.P.) and Raymond Jones. Case 18–CB–086687 April 30, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MISCIMARRA On April 4, 2013, Administrative Law Judge Ira San- dron issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed cross-exceptions and a supporting brief,1 and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings,2 findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent, Amalgamated Transit Union Local No. 1498, violated its duty of fair representation by (1) failing to timely request arbitration of the Charging Party’s grievance, resulting in the forfei- ture of his arbitral claim; and (2) thereafter erroneously informing the Charging Party that the grievance was scheduled for arbitration. We reverse. Facts The Respondent, a labor organization, represents a 95 member bargaining unit of the Employer’s busdrivers and maintenance employees, who were covered by a collective-bargaining agreement effective from March 1, 2009, to February 29, 2012. On July 23, 2010, Charging Party Raymond Jones, a bargaining unit employee, filed a grievance protesting the Employer’s failure to award him a “C mechanic” position that he had bid on pursuant to the agreement’s job bidding procedure. The Respond- 1 On May 24, 2013, the General Counsel filed a Motion to Strike the Respondent’s Cross-Exceptions and Supporting Brief. On June 4, 2013, the Respondent filed a motion to withdraw its original electroni- cally filed brief and replace it with a different document, on the ground that the Respondent had inadvertently transmitted the wrong attach- ment. On June 7, 2013, the General Counsel filed an opposition. Be- cause the Board’s Associate Executive Secretary granted the Respond- ent’s motion to withdraw its original brief on November 8, 2013, we need not pass on the General Counsel’s motion to strike. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. ent’s president, Richard Davis, encouraged Jones to file the grievance, suggested appropriate language, spoke to management officials on Jones’ behalf, and made multi- ple information requests to the Employer concerning Jones’ failed bid. After the Employer denied the griev- ance, Davis continued to vigorously represent Jones, appealing the denial of the grievance and citing in his appeal letter several contract provisions that he asserted the Employer had violated in failing to award Jones the position.3 The parties’ agreement requires that a party seeking arbitration must, within 30 days following receipt of the Employer’s denial of a grievance appeal, notify the Fed- eral Mediation and Conciliation Service (FMCS) and request a list of arbitrators. The contract specifies that, absent the parties’ agreement to the contrary, failure to comply with the 30-day time limit results in the forfei- ture of the claim. In the present case, the Employer de- nied the appeal on or about September 5. By letter dated September 23, the Respondent informed the Employer that the Union would take the grievance to arbitration. In particular, the Respondent informed the Employer, truth- fully, that it had directed its attorney, Weston Moore, to file the necessary paperwork with the FMCS.4 The 30-day period for filing with the FMCS ended Oc- tober 5. By letter dated October 7 but not mailed until October 25, the Employer informed the Respondent that the 30-day period had ended on October 5 but that the Employer had heard nothing from the FMCS. The letter went on to state that if the Employer did not receive the arbitrator list “ASAP,” it would consider the grievance forfeited. Upon receiving this letter, Davis promptly telephoned Moore to confirm that Moore had, in fact, arranged for Jones’ arbitration. Moore erroneously advised Davis that he had.5 Moore thought that he had arranged with the Employer’s counsel to use an arbitration list that had been requested for another grievance that was no longer going forward, as they had done on occasion previously, and therefore that he was not required to file the request with the FCMS. But because Moore had not made such 3 Davis, who has no staff to assist him in union matters, personally undertook all of these actions. In addition to serving as the Respond- ent’s president, Davis works full time as an interstate busdriver for the Employer. 4 The Respondent’s practice was that Moore, its longtime counsel, would file the Respondent’s arbitration requests with the FMCS. There are no exceptions to the judge’s finding that Moore is an agent of the Respondent. 5 On October 28, immediately prior to Davis’ receipt of the Em- ployer’s letter, Davis and Moore had met for a full-day’s audit of the Respondent’s outstanding grievances and arbitrations. Both Davis and Moore left the audit with the understanding, albeit mistaken, that Moore had properly arranged for the arbitration of Jones’s grievance. 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an arrangement with the Employer’s counsel nor contact- ed the FMCS, the Respondent did not satisfy its contrac- tual obligation, and Jones’ claim was forfeited. Approx- imately 2 years elapsed between the Respondent’s initial failure to request an arbitrator list in October 2010 and its ultimate discovery of the mistake and notice to Jones.6 During that time, on various occasions, the Respondent informed Jones that his arbitration was pending. Discussion A union breaches its duty of fair representation, and thereby violates Section 8(b)(1)(A) of the Act, by engag- ing in conduct concerning a bargaining unit employee that is arbitrary, discriminatory, or in bad faith. See Va- ca v. Sipes, 386 U.S. 171, 190 (1967). In the instant case, the General Counsel asserts that the Respondent’s conduct was “arbitrary,” and therefore unlawful.7 A un- ion’s actions are considered arbitrary only if the union has acted “so far outside ‘a wide range of reasonable- ness’ as to be irrational.” See Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). Mere negligence is not sufficient to establish arbitrary conduct. See, e.g., Pacific Maritime Assn., 321 NLRB 822, 823 (1996); Office Employees Local 2, 268 NLRB 1353, 1355 (1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985). Accordingly, a union that negligent- ly misses a filing deadline for an arbitration, even if it results in the matter being time barred, does not violate its duty of fair representation. Something more than in- eptitude or mismanagement is required. See Rainey Se- curity Agency, 274 NLRB 269, 270 (1985); Service Em- ployees Local 579 (Beverly Manor Convalescent Cen- ter), 229 NLRB 692, 695 (1977); Truck Drivers Local 692 (Great Western Unifreight System), 209 NLRB 446, 447–448 (1974). 8 6 The parties often took a long period of time to schedule an arbitra- tion. A 2-year wait was not unprecedented. 7 We reject at the outset the Respondent’s argument that the judge erred in granting the General Counsel’s motion, made during the hear- ing, to amend the complaint to allege that the Respondent engaged in arbitrary, and therefore unlawful, conduct; the complaint had originally alleged only a deliberate violation of the duty of fair representation. The General Counsel was unaware of the Respondent’s litigation posi- tion—that Davis acted in good faith based on Moore’s mistake—until Davis testified at the hearing, and the issue of arbitrary conduct was fully litigated from that point forward. See CAB Associates, 340 NLRB 1391, 1397–1398 (2003) (judge granted General Counsel’s midhearing motion to amend complaint); Board Rules and Regulations, Sec. 102.17 (judge may grant motions to amend “upon such terms as may be deemed just”). 8 See Maritime Union District 1 (Mormac Marine Transport), 312 NLRB 944 (1993) (violation found where union did not even begin to investigate claimed grievance for 9 months after its filing yet assured the claimant that the grievance was being handled); Massachusetts Laborers District Council (Manganaro Masonry Co.), 230 NLRB 640 We do not doubt that the Respondent, via its attorney and agent Moore, acted negligently in failing to timely secure an arbitration for Jones, resulting in the forfeiture of his claim. Our review of the entire record, however, fails to disclose the “something more than mere negli- gence,” Office Employees Local 2, 268 NLRB at 1355, necessary to establish a violation of the Act. Respondent’s president, Davis, and Moore, its long- time counsel, twice conferred to verify the timely status of Jones’ arbitration, once before and once after receipt of the Employer’s reminder letter. These efforts included an audit, conducted on the Respondent’s own initiative, of all pending grievances and arbitrations followed by their prompt additional inquiry after receipt of the re- minder letter. Neither Davis nor Moore evaded the Re- spondent’s responsibility to timely arrange for Jones’ arbitration; rather, Moore failed to act in a manner con- sistent with the Respondent’s contractual obligations but believed that he had. “[I]nadvertent error is not the type of conduct that the principles of [fair representation] were intended to reach.” Truck Drivers Local 692, 209 NLRB at 448, quoting Operating Engineers Local 18 (Ohio Pipe Line Construction Co.), 144 NLRB 1365, 1368 (1963). Our conclusion is supported by all the attendant cir- cumstances here. From the outset, Davis zealously pur- sued the grievance on Jones’ behalf, and there is no alle- gation that the Respondent was remiss in any manner in its handling of Jones’ grievance prior to seeking arbitra- tion. Nor is there any evidence or allegation of animus or discriminatory conduct whatsoever toward Jones by the Respondent. In sum, because the Respondent neither ignored Jones’ grievance nor processed it in a perfunctory manner, but simply failed through negligence to timely file for arbi- tration, the evidence does not establish that the Respond- ent acted arbitrarily. See Vaca v. Sipes, 386 U.S. at 191.9 Accordingly, and applying settled precedent, we find that the Respondent’s failure to meet the filing deadline did (1977) (violation found where union failed to take any action to process a grievance asserting wrongful termination, even though the claimant’s conduct that caused the termination was taken at the insistence of the union and with the assurance that the union would take care of him); Service Employees Local 579, 229 NLRB at 695–696 (violation found where union failed to investigate or in any way question the validity of the employer’s asserted reason for the discharge of the claimant and cut off further consideration of the grievance). 9 In finding a violation, the judge cited only one fair representation case, Electrical Workers Local 48 (Oregon-Columbia Chapter of NECA), 342 NLRB 101 (2004), reconsideration granted in part 344 NLRB 829 (2005). That case involved a union’s deliberate and repeat- ed disregard of its hiring hall rules. The present case, in sharp contrast, involves only a single inadvertent error. AMALGAMATED TRANSIT UNION LOCAL 1498 779 not amount to a violation of its duty of fair representa- tion.10 Remaining for consideration is the separate complaint allegation that the Respondent acted arbitrarily by mis- leading Jones regarding the status of his arbitration. Based on credibility determinations, however, the judge found that neither Davis nor Moore ever deliberately misrepresented to Jones that an FMCS panel was proper- ly arranged, but, instead, that they operated at all times under the good faith but mistaken belief that Moore had properly scheduled the arbitration. The Respondent’s initial mistake—one of mere negligence—was not trans- formed into something more by their subsequent con- duct.11 The passage of time before the Respondent learned of its mistake and so advised Jones, although regrettable, did not render the Respondent’s conduct ar- bitrary.12 ORDER The complaint is dismissed. MEMBER MISCIMARRA, dissenting. My colleagues and I agree on nearly everything in this case except the outcome. The issue here is whether the judge properly found that the Respondent, Amalgamated Transit Union Local No. 1498 (Local 1498), violated its duty of fair representation based on its failure to request arbitration and erroneously advising the grievant (Charg- ing Party Raymond Jones) that his grievance was sched- uled for arbitration. The law sets a high threshold for duty-of-fair-representation claims. As my colleagues correctly observe, it takes more than mere negligence to establish “arbitrary” union conduct under the Vaca v. 10 In light of this finding, we find it unnecessary to pass on the Gen- eral Counsel’s exception to the judge’s treatment of remedial issues. 11 Compare Maritime Union District 1, 312 NLRB at 944 (violation stemmed from union assuring claimant for 9 months that grievance would be handled, while in fact the union took no action), and Auto Workers Local 417 (Falcon Industries), 245 NLRB 527, 535 (1980) (violation where union willfully misinformed claimant that grievance “was expected to go to arbitration—assertions for which there was no basis whatever”) with Operating Engineers Local 18, 144 NLRB at 1368 (no violation where union’s conduct was based on its “honest belief”). 12 Our dissenting colleague views the Respondent’s conduct as a whole and finds that the course of conduct amounts to gross negligence. But, as our colleague agrees, missing the initial filing deadline was simply inadvertent error. The Respondent’s subsequent failure to real- ize its mistake did not elevate its conduct to the level of gross negli- gence. Our colleague’s reliance on the Respondent’s failure to seek arbitra- tion when the mistake was discovered is misplaced. Neither the Gen- eral Counsel nor the Charging Party argues that the Respondent should have done so. In any event, it is purely speculative whether, as our colleague suggests, the Employer would have been required to arbitrate its timeliness defense and whether the Union could also have presented evidence regarding the merits of Jones’ claims. Sipes standard.1 A single missed deadline in processing a grievance does not constitute a breach of the fair- representation duty.2 And there clearly are good policy reasons for the high threshold that applies to fair repre- sentation claims: grievance arbitration involves complex considerations, and union representation requires many subjective decisions that often require substantial discre- tion and independent judgment by union representatives. Vaca v. Sipes, 386 U.S. at 190–193 (identifying many reasons that a breach of the statutory duty of fair repre- sentation occurs “only when a union’s conduct . . . is arbitrary, discriminatory, or in bad faith”). I dissent in this case because, as the judge found, the facts reveal that Local 1498’s agents—even though well- intentioned—engaged in an initial failure to request arbi- tration of the Jones’ grievance, which was compounded by repeated failures to undertake any reasonable steps to confirm that arbitration was being pursued, where recur- ring inquiries clearly warranted some further action by the Union. Consistent with the judge’s findings, and based on the specific record evidence presented here, I believe the record establishes that the Union’s grievance processing degraded to the level of becoming “perfuncto- ry” under Vaca v. Sipes, which warrants a conclusion that the Union breached its duty of fair representation.3 I would affirm the judge’s finding that the Respondent Union breached its duty of fair representation and thus violated Section 8(b)(1)(A) of the Act based on gross negligence in the mishandling of Charging Party Ray- mond Jones’ grievance.4 1 Office Employees Local 2, 268 NLRB 1353, 1355 (1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985). Under Vaca v. Sipes, 386 U.S. 171, 190 (1967), a breach of the duty of fair representation occurs when a union’s conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith. 2 Truck Drivers Local 692 (Great Western), 209 NLRB 446, 447– 448 (1974). 3 Vaca v. Sipes, supra at 191, 194. 4 Where a union breaches its duty of fair representation by failing to process a grievance properly, the grievant is entitled to a recovery only if the General Counsel shows that the grievant would have prevailed had the grievance been processed properly. Iron Workers Local 377 (Alamillo Steel Corp.), 326 NLRB 375, 377 fn. 10 (1998). Although the Union breached its duty to Jones, I agree with the judge that the record fails to establish that the Charging Party would have prevailed on the merits of his grievance. Jones grieved his nonselection for a “C mechanic” position on the basis that he was the most senior employee bidding for it. The collective-bargaining agreement provides that sen- iority is controlling if an employee “is deemed qualified by the shop foreman” (emphasis added), and the foreman in the instant case did not deem Jones qualified. Jones also contended that the Employer had a binding past practice of choosing the senior bidder. But the collective- bargaining agreement sets an especially high bar for “past practice” claims, stating that a past practice must be “unequivocal,” “clearly enunciated,” and proven “beyond a reasonable doubt.” Also, the agreement states that “numerous arbitrations” (which are not part of the 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The record contradicts the majority’s finding that the Union’s mishandling of Jones’ grievance was merely negligent or, in their words, involved “only a single in- advertent error.” As noted below, union representatives engaged in multiple cumulative lapses. I agree that, if viewed singly, no one failure by the Union here would constitute a breach. Viewed together, the Union’s fail- ures at Jones’ expense, unfortunately, clearly constitute more than mere negligence. Lapse No. 1. To move Jones’ grievance to arbitration, the Union was required, under the collective-bargaining agreement (CBA), to request an arbitral panel from the Federal Mediation and Conciliation Service (FMCS) within 30 days of receiving the employer’s final denial of Jones’ grievance. Union President and Business Agent Richard Davis relied on the Union’s longtime counsel, Weston Moore, to request the arbitration panel.5 Moore did not submit a request by the 30-day deadline, October 5, 2010. Lapse No. 2. On October 28, 2010, Davis and Moore held an all day audit of the Union’s outstanding griev- ances, during which they failed to discover that an arbi- tration panel had not been requested for the Jones griev- ance. Lapse No. 3. In a letter dated October 7, 2010, but marked as sent on October 25 (and apparently received after the October 28 audit), the Employer notified the Union that it had not received a panel for Jones’ griev- ance. The letter waived the Union’s previous failures, but cautioned that the Employer would consider Jones’s grievance forfeit if the Union did not request an FMCS panel “ASAP.” The Union conceded that it received this “last chance” reminder. This letter reasonably placed Davis and Moore on notice that they needed to do some- thing more than rely on the two steps previously taken (both of which, as noted above, were deficient). Howev- er, Davis and Moore took no action other than to rely on the prior referral of the grievance to Moore (who was to have requested an arbitration panel, but did not) and their prior audit (which should have revealed that arbitration had never been requested). Moreover, the letter clearly apprised Davis and Moore of precisely the type of poten- tial problem that ultimately emerged (i.e., that an arbitra- tion panel had never been requested); it stated there was a limited window for curative action (i.e., that an arbitra- record) address what is required for a past practice to be “enunciated” and “unequivocal.” Notwithstanding the judge’s error in finding that in 2010, a mechanic position went to the less senior bidder, I agree with his finding that Jones would not have prevailed in arbitration based on the “past practice” theory that was the basis for his grievance. 5 There are no exceptions to the judge’s finding that Moore was an agent of the Union. tion panel could belatedly be requested); and it identified the negative outcome that ended up adversely affecting the grievant based on the Union’s failure to take any re- sponsive action (i.e., the Company would regard an arbi- tration request as untimely). Lapse No. 4. By February 2011, the Union’s failures to request FMCS panels for pending grievances had be- come sufficiently common that the Employer started using a standard template letter to remind the Union of its obligation in this regard. Whenever the Union noti- fied the Employer that it was taking a grievance to arbi- tration, the Employer sent Davis a letter explaining the FMCS notification procedure and stating that “mere submission to your attorney is not the same as submitting [the panel request] to the FMCS” (emphasis added). After receiving these form letters underlining for the Un- ion its subpar record on securing FMCS panels—on top of the fact that the Employer’s previous communication specifically concerning Jones’ arbitration was that the Union had not requested a panel—Davis did not take any further action to confirm that an FMCS panel had been requested regarding the Jones grievance. Lapse No. 5. In November 2011, a manager informed Jones that his grievance was not scheduled for arbitration because the Union had not obtained a panel. When Jones asked Davis about this, Davis advised Jones that his grievance was going to arbitration. The judge credited Jones’s testimony that Davis never informed Jones that there was any problem regarding the arbitration of his pending grievance. Lapse No. 6. In May 2012, Moore began to suspect that he had not ordered a panel for Jones because there was no record of his having done so in Jones’ file. Moore filed the instant charge in August 2012. Two additional months elapsed before Davis and Moore per- formed another all day audit on October 26, 2012, which revealed that Moore had not requested an FMCS panel for Jones’ arbitration. Lapse No. 7. Under federal law, disputes about the appropriateness of arbitration are subdivided into two well-known categories that involve “procedural arbitra- bility” and “substantive arbitrability,” respectively.6 The Union’s failure to make a timely request for an arbitra- tion panel regarding Jones grievance involves a question about “procedural arbitrability.” Under the Supreme 6 See, e.g., John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 555–559 (1964) (describing difference between “procedural” and “sub- stantive” arbitrability). See generally the “Steelworkers Trilogy” cases: Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). AMALGAMATED TRANSIT UNION LOCAL 1498 781 Court decision in John Wiley & Sons, Inc. v. Livingston,7 disputes over “procedural arbitrability” must be submit- ted to arbitration for resolution. Thus, even in October 2012, the Union could have attempted to pursue the Jones grievance to arbitration, where an arbitrator would have addressed the Employer’s procedural defense that the Union’s arbitration request was untimely. Many ar- bitrators have rejected timeliness arguments on a variety of grounds (for example, where evidence existed that the CBA’s procedural requirements had not consistently been enforced, where equitable considerations militated against strict adherence to the CBA’s procedural re- quirements, or where the arbitrator’s resolution of the merits made it unnecessary to address timeliness issues).8 In any event, if the Union had pursued arbitration as late as October 2012 (when its second audit finally revealed that an arbitration panel had never been requested regard- ing the Jones grievance), the Employer would likely still have been required to arbitrate its timeliness defense, and it is possible—perhaps probable—that the Union could also have presented evidence regarding the merits of Jones’s claims.9 Jones will never know, because there is no evidence that the Union tried to pursue arbitration, even belatedly, after its earlier lapses were uncovered. A union is entitled to “a wide range of reasonableness” in carrying out its representative duties,10 but this stand- ard still requires “reasonableness.” Substantial evidence supports the judge’s conclusion that the Union’s actions were “unconscionable and far outside the pale of reason- able.” Therefore, I agree with the judge’s determination, and I would affirm the judge’s 8(b)(1)(A) findings. 7 Supra fn. 6. 8 See, e.g., CBS, Inc., 75 LA 789 (Roberts, 1980) (declining to dis- miss grievance where time limits not consistently enforced); Hughes Aircraft Co., 89 LA 205, 207–208 (Richman, 1987) (recognizing equi- table tolling of time limits); Food & Commercial Workers Local 227, 104 LA 1152, 1155 (Frockt, 1995) (arbitral law favors resolution on substantive merits). See generally Alan Miles Ruben, ed., Elkouri & Elkouri, How Arbitration Works 219–227, 273–276 (6th ed. 2003) (discussing variety of timeliness issues and their resolution regarding grievance-filing and appeals to arbitration); Schoonhoven, ed., Fair- weather’s Practice and Procedure in Labor Arbitration 133–138 (4th ed. 1999) (discussing cases in which arbitrators may be reluctant to bar grievances for untimely processing). 9 See, e.g., Elkouri & Elkouri, supra at 287–289 fn. 8, which de- scribes the extent to which arbitrators consider evidence regarding timeliness and the merits at the same time: “Sometimes arbitrability is the sole question before the arbitrator, but probably more often the arbitrator is called on to rule on both the preliminary issue of arbitrabil- ity and, if the dispute is found to be arbitrable, also on the merits. . . . Even without [a] contractual provision . . . the arbitrator might require a party (against its wishes) to proceed to the merits before the ruling is made on arbitrability.” 10 Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). Chinyere C. Ohaeri and Nichole L. Burgess-Peel, Esqs., for the Acting General Counsel. Weston R. Moore, Esq. (Moore Law Center), for the Respond- ent. DECISION STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. This case arises out of a September 28, 2012 complaint and notice of hearing that stems from an unfair labor practice (ULP) charge that Raymond Jones, an individual, filed on August 6, 2012, against Amalgamated Transit Union Local No. 1498 (ATU, the Union, or the Respondent). I held a trial in Minneapolis, Minnesota, on February 13 and 14, 2013, at which I afforded the parties full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence. Jefferson Partners L.P. (JP or the Company) chose not to participate in the proceedings. Issues Did the Union breach its duty of fair representation, and thereby violate Section 8(b)(1)(A) of the Act, by: (a) Failing to timely request an arbitration panel from the Federal Mediation and Conciliation Service (FMCS), as per the terms of its collective-bargaining agreement with JP, for the grievance that maintenance department employee Jones filed on July 23, 2010,1 regarding JP’s failure to accept his bid to be- come a C Mechanic.2 (b) Misleading Jones, from about August through the sum- mer of 2012, into believing that his grievance was still sched- uled for arbitration? If the Union breached its duty of fair representation, has the Acting General Counsel (the General Counsel) sustained its evidentiary burden of showing the probability that the griev- ance would have been successful on the merits, and established that that the Union should be held liable for a provisional make- whole remedial formula? The parties agreed that I should make this determination. See Iron Workers Local 377 (Alamillo Steel Corp.), 326 NLRB 375 (1998). Witnesses and Credibility Testifying for the General Counsel were Jones, B mechanic John Moore (Moore), and Sam Howell, who has served in vari- ous management or supervisory positions with JP since October 2007. Howell has never exercised supervisory authority over the maintenance department, where Jones was employed from March 2003 until his termination on May 12, 2012.3 Howell’s testimony related primarily to the contractual grievance- arbitration procedure and his communications thereon with Union President Richard Davis, not with the underlying cir- cumstances of the grievance itself. Davis and ATU’s attorney, Weston Moore (Attorney Moore), testified on ATU’s behalf. The General Counsel contends (GC Br. at 30–31) that I should 1 All dates are in 2010, unless otherwise indicated. 2 The General Counsel avers that the Union acted arbitrarily, not necessarily discriminatorily or in bad faith. Tr. 314. 3 The termination had nothing to do with the instant grievance, and the parties agreed that it is not germane to this proceeding. 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD treat Attorney Moore as an agent of Respondent even though he is not named in the complaint. His and Davis’ testimony leave no doubt that he was an agent, and I so find. Howell appeared candid, he answered questions directly and with specificity, his testimony on direct and cross-examination was consistent, and I did not detect any suggestions that he was trying to skew his testimony for either the General Counsel or the Respondent. Inasmuch as he was the most credible witness, I credit him where his testimony diverged from that of Davis, Jones, and Moore. Other than the caveats described below, Moore and Davis appeared generally credible and to offer can- did testimony. Preliminarily, I note that nothing in the collective-bargaining agreement or elsewhere in the record reflects that the bidding process was any different for A and B mechanics than it was for C mechanics, and it is therefore appropriate to consider evidence relating to the selection of A and B mechanics. In- deed, the General Counsel offered General Counsel’s Exhibit 22, which pertained to the selection of a B mechanic. General Counsel’s Exhibit 22 is a December 23 memoran- dum that then Vice President Robert Doherty sent to Shop Maintenance Manager Ted Fritsch and Howell regarding a conversation that he had with Davis about the shop tire position that had become open, and for which two employees, Moore and Quinton Moore, had bid. Based on Moore’s testimony, this had to be the B mechanic position for which he successfully bid and currently encumbers, even though he gave a later date. The memorandum reflects that Quinton Moore was more senior but that Moore had more experience. The memorandum also indicates that seniority was not nec- essarily the paramount consideration, at least from manage- ment’s viewpoint. Thus, Doherty had asked Davis, “[D]o we go off experience first or seniority?” to which Davis replied that if both had experience, no matter how much, seniority always takes precedence. In his memorandum, Doherty ex- pressed reservations about Davis’ stance. Moreover, Moore was ultimately selected for the position—even though he had less seniority than Quinton Moore. These actions of manage- ment undermine the testimony of Davis, Jones, and Moore that seniority has always necessarily been the governing criterion in determining which competing bidder gets a mechanic position. In crediting the statements made in the memorandum, I take into account that it was admitted without objection; that both Doherty and Davis were agents of their respective principals; and that Davis did not testify about the conversation referenced in the memorandum and, ergo, did not dispute any of the state- ments therein attributed to him and Doherty. Cf. Daikichi Corp., 335 NLRB 622, 622 (2001); Colorflo Decorator Prod- ucts, 228 NLRB 408, 410 (1977), enfd. mem. 583 F.2d 1289 (9th Cir. 1978). Further, Davis, Jones, and Moore testified that, other than the situation in this case, positions were always filled through the internal bidding system (semiannual or when vacancies oc- curred), and never by hiring outside applicants. That testimony was implicitly contradicted by Howell’s testimony, in connec- tion with General Counsel’s Exhibit 20 (the advertisement for the C mechanic position on which Jones bid), that it has “been our practice to post” advertisements for positions on line or in the newspaper.4 Moreover, Moore testified that, at some later point, an individual with the first name of Chris was hired from outside the Company to be an A mechanic.5 The above considerations aside, Jones was not a generally reliable witness. First and foremost, he was contradictory on a number of significant matters. Second, his testimony about his meeting with Howell on November 11, 2011, was inconsistent with Howell’s account. Third, Jones often couched his answers with “might have” or other qualifiers indicative of lack of cer- tainty. Fourth, and related thereto, Jones frequently appeared to be trying to answer questions in the best light in his favor rather than in a direct, straightforward manner. Jones first testified that the date of July 28 in management’s response to his grievance was written by Fritsch but, later, that he was the one who wrote it in.6 He testified that at the time that he filed the grievance (July 23), he did not know that a new employee had been selected to fill the position for which he had bid,7 but the final schedule showing that he did not get the posi- tion was posted on July 18. Jones’ testimony was also confusing and contradictory, both on direct examination and cross-examination, as to when he first complained to Davis about the bidding process in July vis- à-vis when Fritsch asked him to fill out an application and when he filed the grievance.8 For example, Jones testified that after he notified Davis on about July 23 that he had filed the grievance, Davis replied that the Union would take it to arbitra- tion if Davis did not get the position9—even though this had been announced on July 18. Jones’ testimony about what occurred when he went to see Howell on November 11, 2011, about the status of his griev- ance, did not jibe with Howell’s account. Thus, Jones testified that he “figured” the matter was going to arbitration after the computer screen that Howell accessed showed “arbitration,” and Howell told him that “[i]t’s going to arbitration.”10 How- ell, on the other hand, testified that the screen showed that the Company had received no panel pick, that he told this to Jones, and that Jones was “a little incredulous” and indicated that he had filed or would file a complaint about the way ATU handled his grievance.11 Howell was a more credible witness, and I credit his account over Jones’. When Jones was asked how many conversations he had with Davis on the status of his grievance between January 2011 and May 2012, Jones first said “several,” then “at least two or three times a month,” and, finally, “four or five times a month.”12 I do note that Davis did not testify about his postgrievance conversations with Jones and, hence, did not deny what Jones 4 Tr. 213. 5 Tr. 76. 6 Tr. 168–169, 275. The General Counsel represented that after Fritsch denied the grievance, Howell later had him add the date. This does not cure the inconsistencies in Jones’ testimony. 7 Tr. 128. See GC Exh. 5. 8 See Tr. 122, et. Seq.; Tr. 170, et. seq. 9 Tr. 132. 10 Tr. 156–157. See also Tr. 195 (viewing the screen “satisfied” him that the arbitration process was still going on). 11 Tr. 258–260. See also Tr. 242–243. 12 Tr. 144–145. AMALGAMATED TRANSIT UNION LOCAL 1498 783 testified Davis told him therein. Cf. Daikichi Corp., above; Colorflo Decorator Products, above. Jones’ testimony on this matter was also consistent with what Davis testified was his misunderstanding of the arbitration posture of the grievance. Accordingly, I credit this aspect of Jones’ testimony. I cite the well-established trial precept that witnesses may be found par- tially credible. Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). In this regard, the trier of fact must consider the plau- sibility of a witness’ testimony and appropriately weigh it with the evidence as a whole. Golden Hours Convalescent Hospi- tals, 182 NLRB 796, 797–799 (1970). Facts I find the following facts in this case, based on the entire record, including testimony, observations of witness demeanor, and my credibility findings; documents; stipulations; and the thoughtful posttrial brief that the General Counsel filed. Alt- hough the Respondent’s counsel was granted an extension of time to file a brief, he failed to do so. At the outset, I emphasize that the absence of the Company as a formal participant in the trial, and the lack of testimony by any maintenance department management/supervisors, has resulted in an evidentiary void in terms of deciding whether the grievance probably would have been found meritorious had the Union taken it to arbitration. All I have before me are fairly summary written statements from Doherty and Fritsch when they responded to the grievance and/or to the Union’s related information requests. Thus, we do not know the precise reasons why management determined that applications were necessary for the C mechanic position in July, why they deemed Jones and the two other coach servicers who bid on the C mechanic position unqualified to perform the work, how often positions were posted to nonemployees, whether other positions in the maintenance department have been filled by outside candidates, and perhaps other relevant facts and circumstances. I further note that the record is devoid of any evidence of ar- bitrators’ decisions construing or weighing the contractual pro- visions that ATU and JP cited in support of their respective positions on the grievance. JP, a limited partnership with a headquarters office and place of business in Minneapolis, Minnesota (the facility), and with various branch locations in several States in the Midwest and Southwest, is engaged in the interstate and intrastate bus trans- portation of passengers. In the calendar year ending December 31, 2011, JP derived gross revenues in excess of $250,000 for the transportation of passengers from within Minnesota directly to points outside of the state, thus establishing the Board’s stat- utory jurisdiction. At all times material, ATU has been the exclusive collective- bargaining representative of a unit of employees as described in article 3, recognition, of the most recent collective-bargaining agreement between JP and ATU, effective by its terms from March 1, 2009, to February 29, 2012,13 and extended by mutual 13 GC Exh. 2. agreement into 2013 and until negotiation of a successive con- tract. The unit consists of up to about 95 employees at the various locations where the Company conducts business, including drivers and maintenance department employees. The latter includes, A mechanic (the highest classification), B mechanic, C mechanic aka tire maintenance, coach servicer, and detailer.14 On average, there are about seven A mechanics, two B mechan- ics, one C mechanic at a time, and about 10–15 coach servicers at the facility. Relevant Provisions in the Collective-Bargaining Agreement Central to this proceeding are the contract’s bidding and grievance-arbitration provisions. There are two kinds of bid- ding for maintenance department positions: for particular va- cancies or new positions, and for all positions on a semiannual basis. Article 48, provides, inter alia, that when new vacancies oc- cur or are created, employees be notified by bulletin board, system wide, no longer than 5 days after the position is vacant and shall remain posted for 5 continuous days. Particularly pivotal to this case, the article goes on to state, “Employees bidding for such positions, upon being deemed qualified by the shop foreman, will be selected on the basis of seniority.” Fur- ther, if the shop foreman, after a probationary period not ex- ceeding 20 days, finds the employee incapable of holding the position, the employee shall revert to his former position. Article 48.1 sets out the semiannual bid procedure for all jobs in the maintenance department, to be effective the first Saturday on or after January 15 and July 15 of each year. Bids shall be posted for at least 5-calendar days and closed at 12:01 p.m. on the fifth day preceding the effective date of the bid. This provision does not expressly refer to seniority or a proba- tionary period, but the practice has been similar to that for va- cancy bids. For the semiannual bids, two sheets are posted, listing posi- tions and shifts: one for mechanics, and the other for coach servicer positions. Employees can bid on more than one posi- tion or shift, on one or both sheets, designating their choices in order of preference. It appears, contrary to Jones’ testimony (at Tr. 113), that employees wishing to stay in their current posi- tions still enter their names. Turning to the grievance procedure, article 42.4 sets out the steps for cases not dealing with discipline, which includes the instant matter. There is no contention that the Union’s was remiss in its handling of Jones’ grievance prior to the final step, arbitration. The arbitration provision is article 43, which provides, in rel- evant part, that: (1) The aggrieved party files for arbitration by notify- ing FMCS and the Company within 30 days following re- ceipt of the Company’s decision on a grievance appeal. (2) The party requesting arbitration shall request that FMCS submit a list of seven arbitrators to the Company and to the Union, from which one shall be selected as the arbitrator. 14 Id. at 37. 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (3) Within 10 work days following receipt of the list of arbitrators, the Union and Company representatives shall alternately strike one name until one name remains and will the arbitrator. (4) The arbitration shall be conducted as soon as pos- sible. The article is silent on who bears the burden of proof at an arbi- tration proceeding. It concludes with paragraph 43.7, time limits, stating: It is agreed that either party hereto failing to comply with the time limits outlined in [the grievance and arbitration proce- dures] shall forfeit its case, unless the parties agree in writing to extend or waive the time limits . . . . In addition to citing article 48 in support of the grievance, the Union cited article 45.7 (an employee who bids and quali- fies for a higher-pay classification position shall receive the higher pay upon completion of a 20-day probationary period) and 56 (incorporating working practices that are not specified in the agreement). In opposition to the grievance, management also cited article 48, as well as article 7.1, the management- rights clause (providing, inter alia, that the right to promote is the sole responsibility of the Company). Article 56 states that working practices exist that are not specified in the contract and that, if proven, they are binding upon the parties. The party asserting a past practice needs to prove beyond a reasonable doubt: (1) that the practice be unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertain- able over a reasonable period of time as a fixed and established practice accepted by both parties. Jones’ Bid for C Mechanic Jones was a coach servicer at the facility at all times, from about March 2003 until May 19, 2012, when he was terminat- ed,. A coach servicer maintains the interior and exterior clean- liness of the buses, maintains fuel levels, and parks the buses in the lot outside of the wash bay. The position requires a certain amount of physical exertion. Jones became a union member when he became full time after his first year of employment. On July 7, management posted the semiannual bid sheet for mechanics15 on a bulletin board in the breakroom. It included all positions, including a C mechanic. The C mechanic mounts and dismounts tires, determines which ones cannot be repaired, polishes and cleans tires, and makes certain that there is suffi- cient stack for the next shift.16 The position, which requires a great deal of lifting and bending, and take considerable energy, is more physically demanding that the coach servicer position. Jones and other coach servicers had occasion to assist Moore move or lift bus tires. Jones was the most senior of the three coach servicers who bid for the C mechanic position. Moore, the incumbent, did not, since he was voluntarily returning to a coach servicer posi- tion. The bid sheet stated that bids closed on July 14 at 12 o’clock and that selections would be effective on July 18. 15 GC Exh. 4. 16 See GC Exh. 3, an accurate job description. Tr. 84 (Moore). Fritsch, the new shop maintenance manager, asked Jones on about July 15 to fill out an application for the position.17 He also had the other two applicants fill out applications. On its face, the application form appears to be for new hires. I credit Jones and Moore that they were unaware of any other occasions when management asked employees who bid on a higher-level position to complete such an application. I further find, taking into account their testimony and Davis’, but noting Moore’s selection in 2010, that seniority was usually, but not always, the deciding criterion in determining which bidder was selected. I also credit Jones’ and Moore’s uncontroverted tes- timony that coach servicers bidding into the C mechanic posi- tion have usually received a week of training from someone already encumbering that position, and that no one has “failed” and lost the new position, although on at least one occasion, an employee voluntarily relinquished it while still in the training period. As previously noted, Moore received a week of train- ing when he went into the B mechanic position. Fritsch told Jones that he wanted to get someone who had the most experience and that he was pressed for time in filling the position. He confirmed that he was looking for outside appli- cants. Immediately after their conversation, Jones went to see Vice President Dougherty, who was also a new manager. Jones told him that having an employee fill out an application for a bid position was unusual and that normally an employee was chosen solely by seniority and then trained once in the position. Doherty said that he stood by what Fritsch was doing. On about July 16, the Company advertised for a “qualified mechanic” to work in the tire shop.18 Howell testified that it was generated by the Company’s human resources department and that he saw it posted at bulletin boards at the facility. Alt- hough he could not say whether it was also posted on line or in the newspaper, he testified, “I know that’s been our practice to do so.”19 Moore did see it posted on line on an employment website. On at least one other occasion, the Company has hired an individual outside of the Company to fill a mechanic posi- tion (mechanic A) rather than “promoting” from within. On July 18, the Company posted the new list of employees’ positions.20 For the C mechanic position, Moore’s name was given, with the explanation that “John would have to wait till we would get someone trained in the tire shop.”21 An outside candidate, Mike Masanz, was hired for the C me- chanic position. He started on August 9 and received a week of training from Moore, who then went into the coach servicer position for which he had bid. As noted earlier, Jones’ testimony was confusing and contra- dictory as when he first called Davis vis-à-vis when he filed his grievance on July 23, and whether he knew at the time that he filed the grievance that he had not been given the position. In any event, Davis encouraged him to file a grievance and sug- 17 GC Exh. 17. 18 GC Exh. 20. 19 Tr. 213. 20 GC Exh. 5. 21 See also GC Exh. 6, showing that Moore put in for a coach ser- vicer position and received it, with the notation, “John won the bid but he will need to stay in the tire shop until we get a replacement.” AMALGAMATED TRANSIT UNION LOCAL 1498 785 gested what language he use, and on July 23, he did so.22 It stated: I want to be placed in which position I picked for as my num- ber one choice for tire maintenance because I shouldn’t have to do the application process. I should be trained into the po- sition. Thus, the focus of the grievance was on his having to fill out an application, but by that time, management had already an- nounced (on July 18) that he had not received the position. On July 28, Fritsch, on the bottom portion of the grievance, wrote “denied based on article 48 in the contract.” The Union’s Handling of Jones’ Grievance 1. The Union’s communications with Jones Jones likely exaggerated the number of subsequent conversa- tions he had with Davis about the status of the grievance, and his testimony about the specific words Davis used was not al- ways clear. Nevertheless, the latter did not testify thereon or dispute Jones’ account, which comported with what Davis testi- fied was his understanding. Accordingly, I find that Davis told Jones (incorrectly) that the grievance was going to arbitration, even after Jones’ termination in May 2012, or close to 2 years after Jones did not get the position. I also credit Jones’ testi- mony that Davis never told him at any time that there was a problem with the grievance proceeding to arbitration. Jones never had any conversations with Attorney Moore. I find, based on Howell’s credited version, that on November 11, 2011, when Jones came to see him about the status of the grievance, Jones became upset when Howell told him in so many words that the grievance was not scheduled for arbitra- tion because the Union had failed to provide the Company with a panel. However, inasmuch as Davis thereafter told Jones the contrary, I conclude that Jones’ charge of August 12, 2012, was not barred by Section 10(b) of the Act. 2. The Union’s communications with management In late July or early August, after the grievance was filed, Davis called Doherty. Doherty said that he did not have the time to train Jones and was going to hire outside help. Davis unsuccessfully tried to get him to change his mind. By letter of August 8 to Doherty, Davis filed an appeal of Fritsch’s denial of the grievance, citing articles 48, 45.7, and 56 of the collective-bargaining agreement (described earlier) and requesting that Jones be awarded the C mechanic position ret- roactively to July 17.23 Doherty responded by letter of August 17, stating that the Company stood by Fritsch’s decision, based on Jones’ “previ- ous work history and experience” and “on the amount of time needed to train a new person in the position vacated by another union employee.”24 Doherty pointed out that both articles 45.7 and 48 referred to “qualified” candidates. By letter of August 27 to Doherty, Davis made an infor- mation request for information relating to the outside person who had filled the position and, since Doherty had cited Jones’ 22 GC Exh. 7. 23 GC Exh. 8. 24 GC Exh. 9. work history, for all information that the Company had used to deny Jones’ bid.25 By letter of September 23 to Howell, Davis notified the Company that the Union was submitting the grievance to arbi- tration and that he had requested that Attorney Moore request a panel of arbitrators from FMCS.26 At all times material, How- ell has been the management representative who monitors and keeps a log of the Company’s handling of grievances and arbi- trations. General Counsel’s Exhibit 19 is a printout of his log for the instant grievance. He is also the management official to whom FMCS emails a panel list after the Union has requested such. Howell responded by letter of October 7 (not mailed until October 25), acknowledging receipt of the September 23 let- ter.27 He pointed out that article 43.1 gave the Union 30 days from the date of the receipt of the Company’s decision to file for arbitration by notifying FMCS, which would submit the panel to the Company; however, those 30 days had expired on October 5, and Howell had still not received such notification. He went on to state that if the Company did not receive the panel as soon as possible, it would consider the grievance for- feited as per article 43.7. Howell testified without controver- sion that the Union “frequently” failed to timely submit a panel request to FMCS.28 David replied to Howell by letter of November 4, stating that, by letter dated September 23, he had sent in a request to Attorney Moore to request a panel from FMCS.29 Doherty, by letter of November 17, responded to Davis’ in- formation requests.30 He explained that it was not until after management took the semiannual bid down did they know that there would be an opening in the C mechanic position (when Moore did not bid for it). Upon knowing of the opening, man- agement asked the three coach servicers who had bid for it to fill out applications and be interviewed, and concluded that none of them had any experience with tire services, the mini- mum requirement for the job. Because Moore was going to start school within several weeks and would then not be able to work in that position, and with safety being the Company’s first priority, management decided to advertise for an external can- didate with the minimum experience and knowledge. Masanz had the necessary background and experience and was hired on August 9. Doherty emphasized that safety was the Company’s top priority and that article 7.1 gave the Company the sole right to promote. As far as Jones’ previous work history and experi- ence, Doherty stated that Jones did not have any previous work history as a tire mechanic or any other relevant experience. Davis testified that Doherty called him in December to ex- plain why management had made the decision to hire an out- side employee, but Davis’ description of what Doherty said strongly suggests that the conversation occurred before Doherty’s November 17 letter. In any event, Doherty gave the 25 GC Exh. 10. He repeated the requests by letters of September 23 and November 5. GC Exhs. 12, 15. 26 GC Exh. 11. 27 GC Exh. 13. 28 Tr. 224. 29 GC Exh. 14. 30 GC Exh. 16. 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD same reasons for why Jones was not given the position: (1) Jones was not qualified; and (2) the Company had no time to train anyone. Starting in February 2011, because of the Union’s pattern in not timely requesting FMCS panels, Howell sent a standard template letter to Davis when the latter notified him that a grievance was being submitted to arbitration. It described the FMCS notification procedure and stated, “Please note that the mere submission to your attorney is not the same as submitting it to the FMCS.”31 It is undisputed that the Union never requested a panel from the FMCS for Jones’ grievance. 3. The Union’s internal processes and deliberations Davis, who works out of JP’s Kansas City, Missouri facility, has served as the Union’s president since January 1994, and as a full-time interstate driver for JP and its predecessors since May 1965. He is responsible for handling grievances (averag- ing 35 yearly) and complaints from members in the various JP locations, and managing the Union’s financial affairs, including filing taxes. Davis conducts union business out of an office at his Joplin, Missouri residence. For this, the Union pays him $110 monthly. He receives no other compensation from the Union. Davis must clock off to conduct union business and thus has to do such on his own time. He has no staff to assist him. In 2010, he was a long-distance driver and also spent about 3 hours daily on union business. During the past 5 years, the Union ordered 26 arbitration panels. Not all of the subject grievances went to hearing, be- cause of settlement, the union executive board’s decision not to proceed, the affected employee’s choice not to go forward, or JP’s forfeiture of the grievance by not timely responding. Scheduling an arbitration hearing is often a lengthy process, largely due to difficulties in getting everyone available. Thus, in some cases, a hearing has been held 2 years after the griev- ance was filed. Davis and Attorney Moore met all day on about October 28 regarding 16–18 grievances, including Jones’, and other mat- ters. They discussed and ordered arbitration panels for some of the grievances, and Davis believed at the end of the meeting that they had one for Jones’ grievance. In late October early November, Davis called Attorney Moore to confirm that a panel had been ordered for Jones’ grievance. Attorney Moore said yes, that he had ordered a panel. Almost 2 years later, in mid- or late October 2012, Attorney Moore conducted an audit of the status of all FMCS requests over the past 5 years, matching requests with client names. Some panels had employees’ names on them, but many others did not (e.g., “mileage grievance” or “tire shop job”). His audit showed which grievances had panels, which were left open for panels, which had been settled, which the employee had with- drawn, and which the Company had forfeited. During the course of the audit, Attorney Moore could not find Jones’ name among the panels that the Union had ordered. He informed Davis of this when they met on about October 26 in another all- 31 See GC Exh. 21. day session. He also told Davis that he had been speaking with an attorney of the Company about whether one of the several panels that had been ordered but no longer needed could be used for Jones’ grievance. This never came to fruition. Attorney Moore testified that he did not that the Union was missing a panel for Jones until the October 2012 audit, although he “had a suspicion in May because there wasn’t one in his file.”32 Analysis and Conclusions Did the Union Breach its Duty of Fair Representation? 1. In failing to timely request an FMCS panel In Vaca v. Sipes, 386 U.S. 171, 190 (1967), the Supreme Court held that a union breaches its duty of fair representation by conduct toward a member of the collective-bargaining unit that is “arbitrary, discriminatory, or in bad faith.” The General Counsel relies primarily on the “arbitrary” criterion. Indeed, there is no evidence that the Union had any animus toward Jones for any reason or that Davis or Attorney Moore acted in bad faith in failing to comply with the agreement’s arbitration provision deadline for requesting an FMCS panel. Rather, the issue here is whether the Union’s admitted negligence rose to a sufficient level of egregiousness to constitute “arbitrary.” As the Board held in Teamsters Local 896 (Anheuser- Busch), 280 NLRB 565, 574 (1986): Section 8(b)(1)(A) does not proscribe every act of disparate treatment or negligent conduct, but only those which, because motivated by hostile, invidious, irrelevant, or unfair consid- erations, may be characterized as “arbitrary, discriminatory or bad faith conduct.” [Footnote omitted.] The Board further elucidated this standard in Pacific Mari- time Assn., 321 NLRB 822, 823 (1996), stating that “[S]omething more than mere negligence or the exercise of poor judgment must be shown in order to support a finding of arbitrary conduct,” citing Teamsters Local 337 (Swift-Eckrich), 307 NLRB 437, 439 (1992). See also Rainey Security Agency, 274 NLRB 269, 270 (1985). The union’s conduct may be “far from model” and yet not so egregious as to find a violation. Diversified Contract Services, 292 NLRB 603, 605 (1989). To be found arbitrary, the conduct must be “so far outside a ‘wide range of reasonableness’ as to be irrational.” Gaston v. Team- sters Local 600, 614 F.3d 774, 778 (8th Cir. 2010) (citations omitted); see also Airline Pilots v. O’Neill, 499 U.S. 65, 76 (1991); Mine Workers District 65, 317 NLRB 663, 663–664 (1995). “Exactly when a union’s conduct constitutes ‘something more than mere negligence’ is not susceptible to precise defini- tion . . . . [T]he totality of circumstances in a case must be ex- plored and examined.” Office Employees Local 2, 268 NLRB 1353, 1355 (1984), affd. sub nom. 765 F.2d 851 (9th Cir. 1985); see also Maritime Union District 1 (Marmarc Marine Transportation), 312 NLRB 944, 947–948 (1993). Clearly, between Davis and Attorney Moore, Jones’ griev- ance inadvertently fell through the cracks as a result of an utter- 32 Tr. 348; see also Tr. 351–352. AMALGAMATED TRANSIT UNION LOCAL 1498 787 ly chaotic and disorganized system of monitoring arbitrations, and of Davis’ wrongful assumption that Attorney Moore had requested an FMCS panel. This could be characterized as mere negligence at the outset. However, Howell’s October 7 letter stated that he had not re- ceived timely notification that a panel had been requested for Jones’ grievance and, starting in February 2011, Howell sent Davis reminders that Davis’ requests to Attorney Moore to obtain an FMCS panel were not tantamount to requests for a panel from FMCS. Those communications certainly would have put a reasonable person on notice of a potentially fatal impediment to pursuing Jones’ grievance to arbitration, and triggered the duty on Davis’ part to further inquire of Attorney Moore the status of the grievance. I further note that Attorney Moore had “suspicions” in May 2012 that no panel had been requested for Jones yet did not conduct an audit until October 2012, after which he so advised Davis. In sum, some delay in the Union’s determination that no FMCS panel was requested could be excused, but over 2 years was unconscionable and far outside the pale of reasonable, even taking into account that Davis ran a one-person operation on the Union’s behalf and had to conduct union business on his own time. I note that there is no way to ever know whether, had the Un- ion in fact scheduled Jones’ grievance for arbitration, the out- come might have made a difference as far as Jones’ May 2012 termination. Accordingly, I conclude that the Union’s conduct amounted to “reckless disregard” for ensuring that it properly handled the grievance, thereby going beyond mere negligence and crossing into the nature of “gross negligence” falling under the penum- bra of arbitrary. Cf. Electrical Workers Local 48 (Oregon- Columbia Chapter of NECA), 342 NLRB 101, 108 (2004) (Reckless disregard for deviations from a union’s hiring hall rules held to be gross negligence.). Therefore, I further con- clude that, by arbitrarily failing to timely request an FMCS panel under the terms of the collective-bargaining agreement, and causing Jones’ grievance to lose by default, the Union vio- lated its duty of fair representation under Section 8(b)(1)(A) of the Act. 2. In intentionally or arbitrarily misleading Jones. Crediting Davis and Attorney Moore, I conclude that neither one of them deliberately misrepresented to Jones that an FMCS panel had been selected for his grievance and that it would be going forward to arbitration. On the contrary, Davis was under the good faith but mistaken belief that Attorney Moore had made the necessary arrangements for an FMCS panel. For the reasons stated above for finding the Union’s conduct arbitrary, I further conclude that the Union arbitrarily misled Jones into believing that his grievance was still scheduled for arbitration and thereby breached its duty of fair representation under Section 8(b)(1)(A) of the Act. Has the General Counsel Shown that the Grievance Would Have Prevailed? In Rubber Workers Local 250 (Mack-Wayne Closures), 290 NLRB 817 (1988), the Board ordered a union that breached its duty of fair representation by arbitrarily refusing to process a grievance to, inter alia, make the employee whole for any loss of pay he may have suffered for that breach of duty in the event that the union could not pursue the remaining stages of the grievance procedure for any procedural or substantive reason (a provisional make-whole order). The General Counsel correctly points out in its brief (at 30 et seq.) that the Respondent failed to offer evidence to show that Jones’ grievance would have been unsuccessful. This is not surprising since nothing in the record (including GC Exh. 22) suggests that Davis did not genuinely believe that the grievance had merit. Regardless, the initial burden of evidence is on the General Counsel to show the likelihood of its success. The Board, in Mack-Wayne Closures, above, held that a pro- visional make-whole remedy was appropriate upon the General Counsel’s showing that the grievance was not “clearly frivo- lous,” with the burden on the respondent to counter with proof that the grievance affirmatively lacked merit. Id. at 818–819. However, the Board imposed a heightened evidentiary bur- den on the General Counsel in Iron Workers Local 377 (Alamil- lo Steel Corp.), 326 NLRB 375 (1998), the case that now con- trols. Thus, to establish that a union should be required to compensate a grievant for the losses suffered as a consequence of the union’s mishandling of the grievance: “[T]he General Counsel must . . . show that the grievance was one presenting a claim on which the grievant would have prevailed if the griev- ance had been properly processed by the union.” Id. at 377. The evidentiary standard is by a preponderance of the evidence. Id. at 381 fn. 10. The Board further stated that in determining whether the General Counsel has met that burden, the standard that an arbitrator would have applied pursuant to the contractual grievance-arbitration procedure will be taken into account. However, the collective-bargaining agreement is silent on this matter, and I have no such information before me. Determining the probability of success of Jones’ grievance is also made more difficult by (1) my not having evidence of any prior arbitration awards involving the contractual provisions at issue, especially any construction of the language in article 48 that “Employees bidding for such positions, upon being deemed qualified by the shop foreman, will be selected on the basis of seniority” (emphasis added), or of the management- rights clause in article 7.1; (2) my not having a full and com- plete account of why management decided that neither Jones nor the other two coach servicers who bid for the C mechanic position were not qualified; (3) my not knowing how often JP advertised for, and selected, outside employee over current maintenance department employees who bid for jobs. I take into account that management went outside of the unit to select an A mechanic on at least one occasion (Moore’s tes- timony); that Moore was given the B mechanic position in 2010 over a more senior employees because he had more experience (GC Exh. 22), reflecting a disagreement between management and the Union over the role of seniority; and that management has solicited online and by newspaper to fill other vacant posi- tions (Howell’s testimony). These factors might have seriously weakened the Union’s contention that JP was obliged to place Jones in the C mechanic position. I must also consider the flaws in Jones’ credibility in his testimony before me, although I cite this only as supplemental, not primary, consideration in making my determination. 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, the Union has relied on past practice to argue that Jones should have been awarded the C mechanic position solely because of his seniority and that the Company should not have gone outside the unit to fill the position. However, the contract requires the party asserting a past practice to prove its existence beyond a reasonable doubt, a standard that the Union has not met in this case. In all of these circumstances, I cannot find that the General Counsel has met its burden of showing by a preponderance of evidence that the Union would have been successful had it taken Jones’ grievance to an arbitration hearing. On the contra- ry, I have no idea how an arbitrator would have ruled. Accord- ingly, I conclude that a provisional make-whole remedy is not appropriate. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(b)(1)(A) of the Act: (1) arbitrarily failing to timely request an FMCS panel, pursuant to the terms of the collective-bargaining agreement, for Jones’ grievance; and (2) arbitrarily misleading Jones into believing that his grievance was still in the arbitra- tion process. REMEDY Because I have found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. For the reasons stated above, I will not recommend a conditional make-whole reme- dy. [Recommended order omitted from publication.]