Auto Workers Local 167 (General Motors Corp.)

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1167 (N.L.R.B. 1987)

AUTO WORKERS LOCAL 167 (GENERAL MOTORS CORP.) 1167
Local 167, International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America (General Motors Corp .) and Muriel
D. James . Case 7-CB-6834(2)
27 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 2 April 1987 Administrative Law Judge
Walter J. Alprin issued the attached decision.
The Respondent filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The complaint alleged that the Respondent vio-
lated Section 8(b)(1XA) when union bargaining
committee member Bruce Dale incorrectly advised
Charging Party Muriel James in September 1985
that she was not subject to the provisions of the
new local seniority agreement , which resulted in
James' losing approximately 4 months of seniority.
The complaint alleged further that James relied to
her detriment on the incorrect information provid-
ed to her by Dale. The judge found a violation.
We reverse.
On 10 October 1977 the Employer hired James
in a bargaining unit position. On 4 September 1984
James transferred to a nonsupervisory position that
was outside the bargaining unit. At the time of the
transfer, the governing collective-bargaining agree-
ment between the Employer and the Union provid-
ed that an employee would be credited with accu-
mulated unit seniority in such circumstances with-
out loss (slippage) of seniority.
On 16 October 1984 the; Employer and the
Union entered into a new collective-bargaining
agreement . The new agreement provided that "any
employee accepting a job outside the bargaining
unit (supervisory or nonsupervisory) will have
their seniority adjusted on a day-for-day basis,
upon the accumulation of one year." 1 The new
agreement also provided that "none of the provi-
sions of this agreement are retroactive and are ef-
' The provisions' seniority slippage as ,applied to supervisory positions
was later deleted because it conflicted with the national agreement be-
tween the Employer and the International Union
fective only on and after date of the signing of this
agreement."2
In July 1985 union alternate committeeperson
Vicki Urbanski informed James that James likely
would lose seniority after a year out of the bargain-
ing unit. James replied that she did not believe she
would lose seniority under the terms of the bar-
gaining agreement and that the Employer did not
believe so either. Urbanski disagreed and told
James that "you had better check it out."
Thereafter, James was told by both her current
supervisor and former supervisor that she would
not lose seniority if she remained out of the unit
for more than a year. According to James, within 2
weeks of her conversation with Urbanski, she en-
countered union district committeeman Bruce Dale
outside the plant manager 's office as she was on
her way to the cafeteria. James testified that after
exchanging pleasantries , she "asked him if I went
into that salaried job under the old agreement, did
I still fall within those provisions , and he said,
`Yes."' James could not recall anything else said in
the conversation on this matter. This is the full
extent of her testimony regarding the conversation
with Dale.3
Thereafter , James elected to remain in a nonbar-
gaining unit position . She returned to the unit on 2
January 1986. While still outside the unit, James
became aware that her seniority had been reduced
to reflect certain time she had worked outside the
bargaining unit . When James complained to her
local union representative about her reduction of
seniority , she was told that management had cor-
rectly reduced her seniority . James contacted Inter-
national Union Representative Jack Payne, who
was then occupied in negotiation of a bargaining
agreement elsewhere . Payne told James and an-
other employee with a similar complaint that he
could not be bothered with their complaints and
that if they wanted to go further, they could take
the matter to the membership or the International
union president.
James, however , convinced management to re-
store her original seniority date. Thereafter, on 19
February 1986, union committeeman Dale filed a
"policy grievance" demanding that all employees
2 The final agreement did not contain alternative language regarding
seniority "slippage" drafted by a subcommittee dealing with seniority.
Union committeeman Bruce Dale was a member of the seniority subcom-
mittee . That language provided that "any employee accepting a job(s)
outside the bargaining unit and is assigned for a period of one-year will
have their seniority adjusted on a day for day basis . The adjustment will
be applicable to accumulated time in the non-bargain ng position(s). This
provision will be applicable to employees currently assigned to non-bar-
gaining positions on the effective date of this agreement."
s Dale testified that he had no recollection of a discussion with James
regarding her seniority but testified that he could not have given her the
advice that James claimed was given
286 NLRB No. 111
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
returning to the bargaining unit from nonsuperviso-
ry jobs "slip" seniority on a day-for-day basis as set
forth in the 1984 bargaining agreement . On 27 Feb-
ruary 1986 management agreed to adjust the se-
niority dates on nonsupervisory personnel on a
day-for-day basis upon the accumulation of 1 year
of nonbargaining unit service . As a result , James'
seniority was again reduced.
Based on the foregoing facts, the judge found
that the Respondent violated Section 8(b)(1)(A) by
failing in its duty fairly to represent employees.
The judge concluded that the Respondent arbitrar-
ily, discriminatorily, and in bad faith refused to
accept, file, and process a grievance on behalf of
James to reinstate her seniority . The judge rea-
soned that the 1984 agreement specifically rejected
the applicability of slippage to employees , such as
James, already transferred outside the bargaining
unit as of the effective date of the agreement; that
committeeman Dale correctly so advised James in
September 1985 ; and that Dale (and the Union), in
connection with the subsequent "policy grievance,"
arbitrarily and in bad faith pursued a different and
erroneous interpretation of the agreement . We dis-
agree and shall dismiss the complaint.
As an initial matter, we note that the judge's
finding of a violation in this case has, as its analyti-
cal underpinning , the notion that the 1984 bargain-
ing agreement, by its terms, does not permit a re-
duction in James' seniority . That notion, however,
was not an element of the General Counsel's theory
in support of the complaint . Indeed, it conflicts
with the complaint's theory , which is that the
terms of the 1984 agreement were, on their face,
open to more than one interpretation , that union
committeeman Dale incorrectly advised James in
September 1985 that her seniority could not be re-
duced under the terms of the 1984 agreement,
which advice she relied on to her detriment, and
that Dale knew in September 1985 that his advice
was contrary to the Union 's interpretation . Indeed,
consistent with the particulars of the complaint,
counsel for the General Counsel conceded, as re-
flected in his posthearing brief, that the wording of
the 1984 agreement has "at least three reasonable
interpretations ." One such interpretation is that se-
niority is reduced for employees that stay in a non-
unit position commencing 1 year after the effective
date of the 1984 agreement , without regard to
when the position was originally accepted. This in-
terpretation forms the basis for committeeman
Dale's "policy grievance" that was eventually ac-
cepted as the correct interpretation by manage-
ment.
In short , the judge erred in failing to recognize
teeman Dale rested on a reasonable interpretation
of the 1984 bargaining agreement . As a result, he
apparently ignored the complaint allegation that
Dale's advice in September 1985 was knowingly
contrary to the reasonable interpretation the Union
actually embraced , and substituted a theory direct-
ly at odds with the complaint . The issue , as alleged
and litigated , is whether the Union violated the
Act when union committeeman Dale gave James
bad advice , which she then relied on to her detri-
ment. Under the circumstances presented in this
case, we find that the Union did not violate the
Act.
It is well settled that a union must refrain from
purposely keeping unit employees uninformed or
misinformed concerning grievances or matters af-
fecting employment . Painters Local 1310 (Reliance
Electric), 270 NLRB 506 (1984). It is also well set-
tled, however , that mere negligent action or nonac-
tion alone does not constitute a breach of the duty
of fair representation violative of the Act. Team-
sters Local 692 (Great Western Unifreight System),
209 NLRB 446 (1974). Thus, a union does not vio-
late the Act simply by giving to an employee an
incorrect interpretation of the governing bargaining
agreement so long as it is not deliberately mislead-
ing or deliberately incorrect. Painters Local 1310,
supra.
In the instant case, the General Counsel relies on
a representation made by union committeeman
Dale in September 1985 interpreting the seniority
provisions of the collective-bargaining agreement,
as applied to employee James . The General Coun-
sel contends that because union committeeman
Dale actively participated on a seniority subcom-
mittee during the negotiation of the 1984 bargain-
ing agreement,4 Dale must have known the correct
interpretation of the agreement 's ambiguous lan-
guage as later asserted in the policy grievance of
February 1986 . It is contended, therefore, that Dale
must have known that the interpretation given to
James in September 1985 was in fact exactly oppo-
site of the Union 's actual interpretation.
Our review of the record convinces us that the
evidence is insufficient to establish that Dale delib-
erately misled or purposely gave bad advice to
James . As noted, the terms of the seniority provi-
sion at issue admittedly are ambiguous on their face
and open to more than one interpretation. In this
context, employee James asked committeeman
Dale, in an informal setting , a single question-"if I
went into that salaried job under the old agree-
ment, did I still fall within those provisions ." Noth-
ing in James' inquiry sets forth the precise details
that the "policy grievance" filed by union commit - 4 See fn 2, supra
AUTO WORKERS LOCAL 167 (GENERAL MOTORS CORP.) 1169
of her employment situation and, indeed, she made
no reference to seniority or to the reduction of se-
niority. Further, James' phrasing of the question in
terms of the "old agreement" rather than the appli-
cability, if at all, of the current agreement is con-
fusing; hence her inquiry was susceptible to being
misunderstood.
In these circumstances, we find that although
Dale perhaps was negligent in failing to secure ad-
ditional details before offering an answer to James'
question, there is insufficient evidence to establish
that he purposely misled James. Dale's expertise re-
garding the seniority terms of the agreement, by
virtue of his participation on the seniority subcom-
mittee, does not, standing alone, establish that he
deliberately gave bad advice. Rather, it appears
that his answer was far more likely the result of
confusion stemming from an ambiguous question
being asked in an informal setting regarding an in-
terpretation of an ambiguous contractual provi-
sion-a confusion that was furthered by the failure
of the participants to flesh out the details necessary
for either of them to accurately assess what the
other meant. In view of these ambiguities and the
reasonable contractual basis underlying Dale's sub-
sequent "policy grievance,"5 the circumstances do
not establish a course of conduct that is arbitrary,
discriminatory, or in bad faith.6 Accordingly, we
shall dismiss the complaint.
ORDER
The complaint is dismissed.
a In light of our conclusion to dismiss the complaint, we find it unnec-
essary to address the Respondent's contention that Dale did not, in any
event, act on behalf of the Respondent by filing the "policy grievance."
Further, as previously discussed , the judge 's findings regarding filing of
the grievance are erroneous insofar as they rest on the 1984 agreement's
possible applicability to employees such as James
6 Although his recommended Order contains no provisions directed at
the International Union, which was not a respondent in this proceeding,
the judge stated that International Representative Payne 's alleged refusal
to consider James ' complaint was arbitrary and discriminatory , and con-
stituted "another instance" of breaching the duty of fair representation
We disavow the judge 's comments in this regard.
Howard M. Dodd, Esq., for the General Counsel.
A. Robert Kleiner, Esq. (Kleiner and Fayette), of Grand
Rapids, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
charge here was filed by Muriel James, an individual, on
25 April 1986, and complaint thereon issued 31 July
1986. The issued involved is whether Local 167, Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (Respondent or
Union) engaged in an unfair labor practice by breaching
its duty of fair representation of James , a member, in vio-
lation of Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act). Hearings were held before me at
Grand Rapids , Michigan , on 5 February 1979. A brief
dated 11 March 1987 was filed on behalf of the General
Counsel.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
It is admitted and I find that the Union, with offices at
Wyoming, Michigan, is a labor organization within the
meaning of Section 2(5) of the Act, and that General
Motors Corporation, Rochester Products Division (Em-
ployer) is a Michigan corporation engaged in the manu-
facture, sale, and distribution of automobiles and related
products; has an office and facilities in Wyoming, Michi-
gan; and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Background
James was first employed by the Employer, in a bar-
gaining unit represented by the Union, on 10 October
1977 and became a member of the Union on completion
of her probationary period. On 4 September 1984 she ac-
cepted a transfer to a nonsupervisory salaried position
with the Employer, which position was not within the
represented unit . At that time the effective collective-
bargaining agreement permitted unit members to work
for the Employer outside the unit for any period of time
without loss (slippage) of seniority.
During negotiations between the Employer and the
Union for a collective-bargaining agreement to become
effective 16 October 1984, Bruce Dale, a district commit-
teeman and member of the Union's bargaining commit-
tee, and others, met on a subcommittee dealing with se-
niority. On 31 July 1984 this subcommittee reached ten-
tative agreement for the seniority proposal, providing in
part:
Any seniority employee who accepts a transfer and
is transferred from an occupational group in the
bargaining unit, but in Rochester Products Wyo-
ming Operations and is later transferred to an occu-
pational group in the bargaining unit shall be cred-
ited with his/her accumulated seniority, providing
their service has remained unbroken.
Any employee accepting a job(s) outside the bar-
gaining unit and is assigned for a period of one-year
will have their seniority adjusted on a day for day
basis. The adjustment will be applicable to accumu-
lated time in the non-bargaining position(s). This
provision will be applicable to employees currently as-
signed to non-bargaining positions on the effective date
of this agreement. [Emphasis added.]
a
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Note that this provision does not make clear when slip-
page is to start.
In the final agreement of 16 October 1984, there ap-
pears a Local seniority agreement , at paragraph XI,
"General Provisions." The following two subparagraphs
are as follows in pertinent part.
F. Any employee accepting a job outside the bar-
gaining unit (supervisory or non-supervisory) will
have their seniority adjusted on a day-for-day basis,
upon the accumulation of one year.
G. None of the provisions of this agreement are
retroactive and are effective only on and after date
of the signing of this agreement.
Note that the italicized portion of the committee recom-
mendation was deleted, and the nonretroactive portion,
subparagraph G, was added. Dale, however, testified
that prior to and on execution of the 1984 agreement he
understood that there would be day-for-day seniority
slippage for a unit employee transferred to a nonunit po-
sition after 1 year.
During July 1985, toward the end of her first year out-
side the unit, James was having lunch with a friend and
former fellow unit employee, Vickie Urbanski, who was
also union alternate committeewoman, when the conver-
sation turned to seniority issues. Urbanski told James that
if she remained outside the unit beyond a year her se-
niority would begin to slip. James said that she did not
believe the new 1984 provision would apply to her since
she transferred out of the unit before the 1984 agreement
took effect and the new agreement impliedly and specifi-
cally was not retroactive. Urbanski nevertheless advised
James to check further.
James then discussed the matter with her current su-
pervisor in the nonunit position, and with her prior su-
pervisor in the unit position, both of whom agreed that
she would not lose seniority if she remained out of the
unit for more than a year. Within the next 2 weeks she
also discussed the issue with Dale, the union district
committeeman.
This meeting with Dale was a chance encounter in the
hall at work. James and Dale, who had known each
other for about 8 years and who usually saw each other
at work about once a week, jokingly exchanged com-
ments regarding professional basketball teams. James tes-
tified, "And in the course of the conversation I asked
him if I went into that salaried job under the old agree-
ment, did I still fall within those provisions, and he said
`yes."' Dale testified that he had no specific recollection
of the encounter, but could not deny it took place. He
also had no recollection of such a discussion, but having
sat on the seniority committee he states that he could not
have made the statement described because he would
have believed it to be incorrect.
James was offered the opportunity to remain a nonsu-
pervisory and nonunit employee of the Employer and,
relying on her belief that she would continue accruing
seniority, she accepted it, remaining in that position after
her 1-year anniversary of 4 September 1985. For reasons
not here pertinent, she returned to the bargaining unit on
2 January 1986.
Shortly thereafter, James consulted the seniority roster
and noted that her seniority date had been changed from
10 November 1977 to 5 February 1978. She complained
to her union committeeman, who advised that manage-
ment had correctly exercised its right to reduce seniori-
ty. She asked if there were some other union representa-
tive to whom she could speak, and was referred to her
zone person, who that day was Urbanski. Urbanski also
advised James that management was within its rights in
reducing her seniority, although she could grieve the
amount of reduction. James asked what other relief there
might be, and was told that she could "go through
Union levels."'
In order to follow that advice, in September 1985
James and Al Papke, the only other employee apparently
in the same position as James, spoke to a district commit-
teeman , who told them they had no grounds for griev-
ing, but that they could take the matter to Local Presi-
dent Hilla. They did so, and he took the same position,
advising that if they wished to go further they could
speak to the International Union Representative Jack
Payne. They attempted for several days to contact
Payne, who apparently was occupied in negotiating an-
other contract. Whey they finally did so, Payne's re-
sponse was, "If you think I'm going to stop doing what
I'm doing to be bothered by your pennyante `blank',
you're wrong." He told them that if they wanted to go
further, they could either "take it to the membership, or
you can contact Owen Biever" (sic) obviously Owen
Bieber, the International's president). Neither James nor
Parke did either,2 although apparently both filed charges
with the Board.3
At some point in the interim, James spoke to the Em-
ployer's "human relations manager or personnel manag-
er," and her original seniority date of 10 November 1977
was reinstated. On 19 February 1986 Committeeman
Dale filed a "policy grievance," demanding that the Em-
ployer abide by section XI(f) of the local agreement
"and that all non-supervisory employees returning to the
bargaining unit from non-supervisory jobs slip seniority
as agreed to in 1984 Local Negotiations." The following
day the grievance was denied by the foreman in that
"Management has applied the provisions of paragraph 69
and Doc. 86 of the current National Agreement on a
consistent basis ." On 27 February 1986 the matter was
apparently settled between union and employer repre-
sentatives that "management will adjust the seniority
dates of non-supervisory personnel on a day for day basis
upon the accumulation of one year of non-bargaining
unit service" and thus "abide by Section XI(f) of the
local seniority agreement as it relates to non-
superviso-ry."
Apparently in preparation for this hearing, on 6 No-
vember 1986 committeeman Dale raised questions inter-
i At some later time management adjusted James' seniority date to 27
December 1977
2 James did attend a union meeting in which there was some discussion
of this situation , but as she did not ask for a membership vote it is not
relevant
3 Papke 's charge, for reasons not in the record, was apparently dis-
missed at the Regional level.
AUTO WORKERS LOCAL 167 (GENERAL MOTORS CORP.) 1171
nally with the Union, and on 7 November 1986 received
a transmittal slip from James Wagner, the Local 's Inter-
national representative , stating "At your request" and
noting "Per our telephone conversation, this is the only
paragraph that was changed and the change never in-
tended to apply to non-supervisory employees ." It was
attached to a page having the full language of section XI
of the local agreement , quoted above here in full, with
lines through the sentence reading "Any employee ac-
cepting a job outside the bargaining unit (supervisory or
non-supervisory) will have their seniority adjusted on a
day-for-day basis , upon the accumulation of the year." In
the margin next to this stricken portion are written the
words "Please note," followed by the typewritten words
"Not applicable, local parties will follow National
Agreement provisions. LEK, 11/9/84" and the handwrit-
ten initials LEK, apparently the Employer's labor repre-
sentative, Larry Knox , and JW, for J. W. Wagner of the
International Union.
The controlling provisions of the National Agreement
referred to,4 are paragraph 69 and document 86, both in
the record within the National Agreement. Without
quoting them both in full, suffice it to say that both pro-
visions relate to seniority of "Any employee who has
been transferred from a supervisory position to a job clas-
sification in the bargaining unit."' (Emphasis added.) In
addition, a letter from Employer Representative Knox to
Union Representative Wagner, dated 3 February 1987
and accepted and approved by Wagner on behalf of the
International the same day, specifically provides that "As
we discussed, supervisory employees who accept a job
outside of the bargaining unit are governed by the appli-
cable provisions of the GM-UAW National Agreement.
(Emphasis added.)
Discussion
The doctrine of union "fair representation" of mem-
bers is not specifically spelled out in the Act. Rather, it
has been inferred by the Board and the courts from the
special relationship between employees and their exclu-
sive bargaining representatives . This duty of fair repre-
sentation has been defined by Board and court decisions
as the right of employees "to be free from unfair or in-
vidious treatment by their bargaining agent ,"a such as
when a union 's "conduct toward a member is arbitrary,
discriminatory, or in bad faith."
It is, however, well recognized that mere negligence
alone is not, of itself, an arbitrary act.7 The circuit courts
perhaps phrased it best in noting that the duty of fair
representation "'is a legal term of art, incapable of pre-
cise definition,' and calls for an ad hoe review of each
factual situation."8
4 According to counsel for Respondent.
5 Miranda Fuel Co., 140 NLRB 181, 185 (1962), enf denied 326 F 2d
172 (2d Or. 1963).
Vaca v. Sipes, 386 U.S. 171, 190 (1967)
Office Employees Local 2, 268 NLRB 1353 (1984).
6 Smith V Hussman Refrigerator Co., 619 F.2d 1229, 1236 (6th Cir
1980), quoting Griffin v. Auto Workers, 149 F .2d 181 , 182 (4th Cir . 1973).
For the sake of transactional clarity, the foregoing
statement of facts was not fully chronological, as is nec-
essary here in order to reach conclusions. There now fol-
lows an ad hoc chronology of the pertinent facts.
1. On 31 July 1984: Dale's subcommittee on seniority
recommends slippage of seniority "applicable to employ-
ees currently assigned to non-bargaining positions on the
effective date of this agreement." Being in effect retroac-
tive, the provision had no nonretroactive clause.
2. On 4 September 1984: James transfers to nonunit
employment in a nonsupervisory position.
3. On 16 October 1984: New Local bargaining agree-
ment. Seniority slippage is retained, but not specifically
applicable to employees already transferred, and with a
specific nonretroactive provision.
4. July 1985: James' alleged conversation with Dale.
5. On 4 September 1985: James elects to continue non-
unit employment, allegedly on Dale's advice.
6. On 2 January 1986: James returns to unit and dis-
covers change in seniority date.
7. Date not reported: James complains to Employer
and has original seniority date reinstated.
8. On 19 February 1986: Dale files "policy grievance"
to require seniority slippage for James and another em-
ployee without naming them, pursuant to section XI(f) of
the local agreement. Rejected next day at local level.
Agreement on 27 February 1986 for slippage as per sec-
tion XI(f).
9. Date unreported: James and another employee speak
with International Representative Payne.
10. On 25 April 1986: James files unfair labor practice
charge with the Board.
11. On 6 November 1986: Dale makes telephone in-
quiry to International Representative Wagner regarding
seniority provisions of agreement.
It remains impossible to determine what Dale told
James during their meeting in July 1985. This was not a
formal employee-union contact, so Dale's failure to recall
the meeting is understandable . James impressed me as a
straightforward and articulate witness, and if she placed
her question to Dale I believe that it would have been
understood as pertaining to a unit employee already cur-
rently assigned to a nonsupervisory, nonunit employ-
ment. If Dale's response were based on his knowledge
gained from the subcommittee 's recommendation, even
though it was changed in the final agreement, he is cor-
rect that it would have to have been that slippage ap-
plied to employees already assigned, without any concept
of nonretroactivity. In view of the final wording of the
agreement, however, this would have been at least debat-
able if not flat incorrect. If Dale later learned of the
changes made in the final agreement, specifically reject-
ing the applicability of slippage to employees already
transferred and including a nonretroactive clause, such
advice by Dale would have been a clear breach of duty.
Dale, however, also impressed me as a straightforward
witness, and I find no reason to believe he would have
intentionally misadvised James at that time. A credibility
determination is, however, unnecessary, as I believe that
Dale would be no more than negligent whether he relied
on his understanding of the committee recommendation,
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or whether at that time he failed to verify the language
of the final agreement . The "meeting" was extremely in-
formal , at best, and under the circumstances Dale was
not being arbitrary or discriminatory , nor acting in bad
faith.
On the other hand, when Dale became aware that the
Employer had reinstated James ' original seniority date,
he filed what he termed a "policy grievance ." Though it
was not filed on behalf of specific employees , Dale knew
at the time that there were two employees , James and
Papke , who would be affected . James was not notified of
the grievance being filed or settled , and was not given an
opportunity to present or argue her almost unique situa-
tion . By this time , I find, Dale was either still operating
under his incorrect belief that the final agreement had in-
corporated the language of his subcommittee 's proposal,
providing for slippage for employees already transferred
on 16 October 1984 with no provision for nonretroacti-
vity, or was operating with the knowledge that the ret-
roactive provision had been specifically stricken and the
nonretroactive clause specifically included . If the former,
Dale's action went beyond simple negligence , and in fail-
ing to determine the text of the final agreement, or to
either state in full the circumstances involving James or
permitting her to do so for herself, was arbitrary and dis-
criminatory . If the latter , then Dale's actions were not in
good faith, in addition to being arbitrary and discrimina-
tory. Dale's later action, in November 1986, of contact-
ing the International representative for a copy of article
XI, as included in the final contract , would support an
assumption that in February of that year he took the
action of filing the grievance without being aware of the
precise terms of the agreement . In either case, his activi-
ty, vis-a-vis the "policy grievance," constituted a breach
of the duty of fair representation.9
James, with the other affected employee , also ap-
proached International Representative Payne . Although
one can understand his wishing not to be disconcerted
from an ongoing negotiation , Payne's refusal to consider
James' complaint was arbitrary and discriminatory, and
constituted another instance of breaching the duty of fair
representation.
James went no further in exhausting internal union
remedies . Counsel for Respondent Union intimated, with-
out citation , that there exists an entire body of circuit
court decisions on the issue of exhausting remedies, but it
appears to me that the issue arises , with certain limita-
tions, and has an effect only in proceedings before the
Federal district courts pursuant to Section 301 of the
Act, for violation of contract, and not in administrative
9 It has been said that it is not wrong to know , but that it is wrong not
to find out I believe that Dale's alleged advice to James, even if given
exactly as stated, would have been evidence that at the time Dale did
"not know" and was no more than negligent at worst By the time the
matter came to a head with Dale's filing the "policy grievance," howev-
er, he should have "found out" whether the contract was nonretroactive
Not having done so Dale was "wrong" and the Union 's obligation to
James was not fulfilled
proceedings brought before the National Labor Relations
Board for unfair labor practices pursuant to Section
8(b)(1)(A) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON
COMMERCE
Respondent Union's activities as set forth above, oc-
curring in connection with the operations of the Union
and of the Employer, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent Union has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
It is recognized that a violation of Section 8(b)(2) is
not alleged. There is no way to know whether, had
James been permitted to grieve her reduction in seniori-
ty, her later employment status would have changed.
Equity, however, demands that if such were the case,
Respondent must make James whole for any loss of earn-
ings and other benefits, computed on a quarterly basis
less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest there-
on to be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977).10
Counsel for the General Counsel has requested a visi-
tatorial clause. I find no basis for granting such addition-
al remedy.
CONCLUSIONS OF LAW
1. The Employer, General Motors, Rochester Prod-
ucts Division is, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 167, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America is, and at all times material has been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By failing in its duty to fairly represent employees
by arbitrarily, discriminatorily, and in bad faith refusing
to accept, file, and process to conclusion a grievance on
behalf of Muriel James requesting that the Employer re-
instate her seniority, Respondent has engaged in an
unfair labor practice in violation of Section 8(b)(1)(A) of
the Act.
4. The unfair labor practice described immediately
above affects commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
10 See generally Isis Plumbing Co., 138 NLRB 716 (1962).