Auto Workers Local 909 (General Motors Corp.-Powertrain)

National Labor Relations Board - Board Decisions

Jun 10, 1998

325 N.L.R.B. 859 (N.L.R.B. 1998)

859
325 NLRB No. 164
AUTO WORKERS LOCAL 909 (GENERAL MOTORS CORP.-POWERTRAIN)
1 On December 17, 1997, Administrative Law Judge Thomas R.
Wilks issued the attached decision. The General Counsel filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Local 909, International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL–CIO (General
Motors Corp.-Powertrain) and Edward F.
Billotti, Robert C. Chojnack, Annie P. Smith,
and Robert E. Strouse. Case 7–CB–10683
June 10, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
The issue presented for Board review is whether the
judge properly dismissed the allegation that the Re-
spondent violated Section 8(b)(1)(A) of the Act by its
unequal distributions to individual members of a lump
sum amount settling multiple grievances with General
Motors Corporation.1 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 as modified, and to adopt the
recommended Order.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. Respondent has violated Section 8(b)(1)(A) of
the Act by refusing to provide bargaining unit em-
ployee-grievants with their requested accounting of
why some grievants received no grievance settlement
payments and why there was a disparity in other griev-
ance settlement payments made on March 24, 1995,
pursuant to the January 10, 1995 multigrievance settle-
ment negotiated with the Employer.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 909, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO,
Warren, Michigan, its officers, agents, and representa-
tives, shall take the action set forth in the Order.
Dwight Kirksey, Esq., for the General Counsel.
Alan Benchick, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The origi-
nal unfair labor practice charge was filed against Local 909,
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America (UAW), AFL–CIO
(the Respondent), on September 22, 1995, by Edward F.
Billotti, Robert C. Chojnack, Annie P. Smith, and Robert E.
Strouse, individuals, and was amended on September 29,
1995. The original complaint was issued by the Regional Di-
rector on January 12, 1996, against the Respondent which al-
leged that the Respondent violated Section 8(b)(1)(A) of the
Act by failing to provide its members with a March 30,
1996, requested accounting of why certain of its members
did not share in the March 24, 1995, distribution of a lump
sum multiple grievance settlement negotiated by it with their
Employer, General Motors Corporation, at its Warren, Michi-
gan Powertrain facility (GMC). The Respondent filed its an-
swer on February 15, 1996, which denied the foregoing com-
plaint allegations.
On February 26, 1996, the Regional Director issued an
amended consolidated complaint against the Respondent and
GMC which consolidated this case with Case 7–CA–37719,
originally filed by individual employee Joseph Cox against
GMC. The new complaint additionally alleged that the lump
sum settlement of $500,000 for all outstanding grievances as
of January 10, 1995, was distributed in the individual pay-
checks of the Respondent’s members by GMC in disparate
amounts or no payment at all according to the determination
made by Respondent’s agent, shop committeeman Robert
Trice, and/or the Respondent’s shop committee ‘‘for reasons
and by criteria that are arbitrary, capricious and motivated by
bad faith.’’ Thus, it alleged the Respondent additionally vio-
lated Section 8(b)(1)(A) of the Act and GMC violated Sec-
tion 8(a)(1) and (3) of the Act by its complicity.
The complaint prayed for, inter alia, that the Respondent
disclose the requested distribution information and that the
Respondent and GMC ‘‘determine the payment and distribu-
tion of the lump sum grievance settlement moneys . . . to
bargaining unit employees based on criteria that is not arbi-
trary, capricious or motivated by bad faith.’’ It further prayed
that both the Respondent and GMC make whole the Charg-
ing Parties and other bargaining unit grievants for any mone-
tary loss caused by their unlawful conduct.
Timely answers were thereafter filed by the Respondent
and GMC.
The trial of the consolidated complaint opened before me
in Detroit, Michigan, on March 20, 1997. At the opening of
the trial, GMC agreed to a Board settlement, which I ap-
proved over the objections of Charging Party Cox after con-
sideration of his objections, on the grounds that GMC fully
remedied the allegation against it by agreeing that it and the
Respondent were jointly and severally liable for the agreed-
on total monetary loss claimed by the General Counsel, i.e.,
$15,306 owed to 47 identified employees, and that GMC
would pay 50 percent of this amount to those employees and
pay the Respondent’s share in the event that it defaults on
payment of a remedial Order that may issue against it as a
result of this litigation. There is no provision for reimburse-
ment to GMC if the General Counsel does not prevail against
the Respondent. The Charging Party insisted that GMC was
solely liable and should pay the entire amount. His position
was thus contrary to the General Counsel’s position as well
as legal precedent.
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860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent refused to join in the settlement despite the fact
that an opposing slate of officers and agents had subsequently ousted
those agents alleged to have violated the Act.
On approval of the settlement agreement, on the record, I
approved of the General Counsel’s motion to sever this case
from Case 7–CA–37719.1
During the trial, the parties were provided with reasonable
opportunity to adduce testimonial and documentary evidence
on behalf of their positions. The parties requested and I pro-
vided them with an opportunity to file written briefs which,
pursuant to extensions of time granted, were not filed and re-
ceived in Washington, D.C. until May 27, 1997. The exten-
sions of time caused no delay in this decision because of my
involvement with other higher priority litigation and a case
backlog caused by that litigation.
Based on the entire record, the briefs, and consideration of
the uncontroverted testimony of the General Counsel’s wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
At all material times, the Employer, General Motors Cor-
poration-Powertrain Division, a corporation with offices and
places of business in Detroit and Warren, Michigan, has been
engaged in the manufacturing and nonretail sale of motor ve-
hicles. During calendar year 1994, the Employer, in the
course and conduct of its business operations, sold and
shipped from its Warren, Michigan Powertrain facilities
goods and materials valued in excess of $50,000 directly to
points outside the State of Michigan.
It is admitted, and I find, that the Employer is now, and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
It is admitted, and I find, that the Respondent Union is
now, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
The Respondent is and, for some time, has been the des-
ignated exclusive bargaining agent for an appropriate unit of
full- and regular part-time production and maintenance em-
ployees employed by GMC at its Warren, Michigan
Powertrain facility whom it has represented under successive
collective-bargaining agreements.
Commencing on October 10, 1994, the Respondent and
the GMC plant management engaged in negotiations to re-
solve all outstanding individual and group grievances, includ-
ing, in part, those which alleged violation of the contractual
subcontracting, i.e., ‘‘outsourcing,’’ clause and loss of unit
work.
On January 10 and 11, Robert Trice, the chairman of the
Respondent’s bargaining committee, and Mark Johnson, the
personnel director of GMC in Warren, Michigan, signed an
agreement entitled ‘‘POWERTRAIN WARREN PLANT
JOINT STATEMENT OF SETTLEMENT AND COMMIT-
MENT.’’ Contained in this agreement was a provision that
stated in part:
In full and final settlement of open grievances during
these talks without prejudice to either party, back pay
will be $500,000.00 within 30 days of this settlement,
the Union will notify Management in writing who and
in what incremental amounts this money will be distrib-
uted.
This agreement served to resolve all outstanding grievances
that were outstanding as of January 10, 1995.
On March 24, 1995, this settlement was paid to approxi-
mately 1400 of the 2800 Local 909 members. This settlement
was reported by the Respondent to its members to be the
‘‘largest single award settlement in the 34 year history of the
Warren Plant.’’ Among grievances that were settled were so-
called skilled trades unit members’ ‘‘outsourcing’’ grievances
alleging a breach of the subcontracting clause of the contract.
On the distribution of the settlement money, i.e., ‘‘pay-
outs,’’ by inclusion in the employees’ paychecks distributed
on March 24, 1995, the employees compared paychecks with
one and another, and the record contains unobjected hearsay
testimony by the General Counsel’s witnesses, including the
Charging Parties, as to what other employees told them they
had or had not received in payroll money and the consequent
outrage expressed by those who received less than others or
nothing at all. However, certain paycheck stubs were admit-
ted into evidence without objection which demonstrate some
disparity as well as an alleged management generated printed
listing of all payout recipients and the amounts received by
each which also disclose a disparity of payout amounts from
less than $100 to several thousand dollars for all payout re-
cipients. The reputed management generated document does
not distinguish outsourcing grievance payouts from other
grievance payouts.
Charging Party Edward Billotti is employed in the unit as
a skilled trades tool cutter-grinder. He testified that he never
campaigned for or against Robert Trice, the bargaining unit
shop chairman, but that in some generalized, unspecified,
idle shop talk, he expressed a negative opinion of Trice dur-
ing the election campaign for officers. Billotti testified that
at some unspecified date before the 1995 collective-bargain-
ing agreement was settled, he and a group of coworkers
asked the Trice shop outsourcing committee appointees,
Terry Dodd and Gene Lemieux, to investigate what they con-
sidered were improper employer outsourcing and gave them
the serial numbers of suspect tools. Billotti testified that he
was one of a group of employees who filed a group griev-
ance concerning several issues. He could not recall if he had
filed any individual grievances. Billotti conceded that he did
not know if the tools he suspected of being outsourced for
service had in fact been outsourced. He was uncertain, but
he thought, there had been a specific written group grievance
on outsourcing covering cutter-grinders. He thinks he may
have signed it, ‘‘maybe.’’ He identified no specific grievance
by grievance number.;
Billotti testified that of 20 coworkers in his area, he re-
ceived $200 in payout money and from his observation of
three pay stubs, and what other employees told him, 17 re-
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861AUTO WORKERS LOCAL 909 (GENERAL MOTORS CORP.-POWERTRAIN)
2 Pay stubs in evidence show that at least two of Billotti’s cowork-
ers received $400 each in payout money. No pay stub identified the
grievance.
ceived $400 and 2 received $500.2 Billotti then confronted
a management representative who told him that Trice was re-
sponsible for determining the specific amounts each em-
ployee received and that GMC had no input into the calcula-
tion.
Billotti next confronted pipefitter Joseph Cox who held the
position of the Respondent’s day-shift skilled trades com-
mitteemen, i.e., the Respondent’s line level representative.
Billotti complained to Cox of the alleged disparity. Cox
promised to investigate. Billotti asked Dodd to explain the
disparate payout. He said he would not. Billotti again on the
same day, confronted Trice and demanded an explanation as
to why Billotti received a $200 payout when others received
$400. Trice told him to complain to Cox because Billotti was
only due $200, according to a written grievance signed by
Cox. Thereupon, Billotti complained to Cox who denied hav-
ing submitted anything to Trice that limited Billotti’s $200
payout. Despite his requests for an explanation of the dispar-
ity in payout, he never received one from either Trice or any
committee person. Billotti unsuccessfully attempted to get an
explanation in a telephone conversation with an International
Union representative.
Charging Party Robert C. Chojnack was employed as one
of 100 skilled trades machine repairers at the Mound Road
plant. He testified that in 1994 he filed some individual safe-
ty grievances and signed a ‘‘lot’’ of group grievances which
were pending as of the January 1995 settlement. He testified
that he received no payout money on March 24, 1995. It is
his hearsay testimony that 50 other machinists received from
$200 to $300 in payout money for unspecified grievances.
He assumed it was for an outsourcing grievance, based on
hearsay within the unit.
On the payout day, Chojnack asked Cox for an expla-
nation. Cox said he did not have one and later told him that
Trice refused to give him an answer. A few weeks later,
Chojnack confronted the Respondent’s then-president, Leon-
ard Stephens, in the plant and complained to him that he did
not share in the outsourcing grievance settlement payout for-
mulation. Stephens told Chojnack that even he, Stephens,
could not get an explanation from Trice as to the payout dis-
parity and that Trice refused to give him a list of the payout
distributees and amounts they had received.
Charging Party Robert E. Strouse is employed as a day-
shift, skilled trades diemaker within the unit. He testified that
he had filed grievances in 1993 and 1994 that were pending
as of January 10, 1995. In addition to these undescribed
grievances, he claimed that he was part of an unidentified
group who filed outsourcing grievances in 1994 and an indi-
vidual grievance over a one-half-day plant shutdown. Strouse
received $84 in the March 24 payout distribution. According
to his hearsay testimony, the 33 other day-shift diemakers
who received a payout averaged about $320 each in payout
money received. One of them, Jack Gordon, claimed to
Strouse that he received $320 despite having filed no griev-
ances at all. Another, Gene Cancilla, did not receive any
payout.
Strouse confronted Dodd the same day and demanded an
explanation. Dodd told him that he should be happy with
having received anything at all. Strouse testified that he had
been a political supporter of Trice during the prior election
campaign. On March 24, he confronted Trice and asked for
an explanation for the disparity in payout distribution. Trice
blamed the disparity on shop committeeman Cox, who he
claimed failed to do his homework and ‘‘dropped the ball.’’
Strouse then confronted Cox who accused Trice of lying.
Strouse was about to confront Trice again when he observed
a group of five diemakers approaching the two of them. The
diemakers also demanded an explanation for the payout dis-
parity. Trice again blamed Cox for ‘‘not doing his home-
work.’’ Trice explained to them that Cox had not forwarded
the names of employees due monetary grievance awards and
Cox had not given him anything on which to base the pay-
outs for those who did not receive outsourcing payouts. Cox
denied this to Strouse. Trice said that there was no more
money and they would get no more money. Strouse testified
that he thereafter received no other explanation. Strouse testi-
fied that he does not claim to have been subjected to any
kind of political retaliation, and that one of his coworker die-
makers who received $300 in payout money was a political
opponent of Trice.
Strouse assumed that the $84 he received was for the shut-
down grievances, but no one ever explained that to him. The
pay stubs did not specify the grievance number for the pay-
out money received.
Charging Party David Brophy was employed in the unit
during the 1993–1995 period as 1 of 80 millwrights. He tes-
tified that he had filed a ‘‘lot’’ of outsourcing grievances in-
dividually and some as part of a group for certain rack de-
struction work 2 years earlier that were outstanding as of
January 10, 1995. He did not specify the grievance number.
Brophy was issued a $249 payout on March 24. It is his
hearsay testimony that ‘‘quite a few’’ millwrights received
$400 payouts, two or three received $249, and one received
$69, pursuant to some kind of list shown to him by Cox.
When he and another employee asked Cox to explain and
Cox could not, they confronted Trice and asked why they
were not paid $400 for the group grievance payout as identi-
fied by Cox. Trice said he did not know the answer but that
Brophy should be happy with what he received. Brophy re-
torted that he should receive payout money for his individual
grievances and also payout money for group grievances
which are unrelated to the individual grievance, and the latter
of which should be divided equally. Trice told him that he
did the best he could and that if Brophy did not like it, he
should appeal to the International Union. Brophy never re-
ceived any other explanation. Brophy was not certain for
what grievance he received $249.
Charging Party Annie P. Smith is employed in the unit as
a production relief worker. She had filed grievances in 1994
through her committee person, Frank Warren. She testified
that at least 10 of these grievances were for over a variety
of issues, including seniority violation, misuse of relief work-
ers, reduction of relief employees on the line, and improper
transferring of relief workers. All these were pending as of
January 1995. None were identified by grievance number.
She received no grievance payout money on March 24, 1995.
It is her testimony that she observed the paychecks of other
relief workers, of whom one received $500, three received
nothing, and one received $300. She received nothing. Smith
immediately confronted Warren and asked him to explain the
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862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disparity in payout distribution. He told her that he did ‘‘not
want to get into it.’’ She insisted. He responded that none
of her or her group’s grievances resulted in any monetary
payout. She accused Warren of being politically motivated
because he had vocally opposed Trice and Warren and sup-
ported the opposition candidate during the internal union
election campaign. She gave no specifics as to her activities,
i.e., when, where, who was present, the extent of her con-
duct, and whether it was known to the Respondent.
Subsequently, at a group meeting of unit members con-
ducted by the Respondent, she asked Trice to explain the dis-
crepancy and why she received no monetary payout, and
why the payout distribution had not been posted as it had in
the past, i.e., by computer printout sheet public posting. Trice
asked her if she had talked to her committee person. She said
she had, but that now she was asking Trice. Trice responded
that it was his prerogative and his business and none of hers.
She testified that she then created a ‘‘big stink’’ at the meet-
ing and was again recognized by Trice. She asked if his ‘‘fa-
vorites’’ received payouts. He replied that it was not nec-
essarily ‘‘that way.’’
Subsequently, in May 1995, at another meeting, Smith
again confronted Trice and asked him for a list of grievance
payment distribution which disclosed who was paid which
money, and what criteria Trice used for the distribution.
Trice told her that it was none of her business. On the next
day in the plant, she repeated her questions to Trice. He re-
sponded with a question: ‘‘How are you and your committee-
man getting along?’’ She answered ‘‘not too well.’’ He then
said, ‘‘then that’s your problem.’’ Trice answered that he had
distributed the payout money pursuant to a list submitted by
the committeeman and walked away laughing. She received
no other explanation.
In cross-examination, Smith could not identify any of her
grievances by number. She did not know what particular
grievance resulted in the $500 payout. She conceded that
other relief persons had written grievances to which she was
not a party and that the $500 payout may have been for such
grievance. She admitted that she was not sure which griev-
ance filed by her warranted any monetary relief, but that
both monetary and nonmonetary grievances (i.e., policy
grievances) were involved and her committeeman told her
that she was not involved in a monetary relief grievance. She
admitted that many of the alleged improper assignments may
not have resulted in any loss of pay. She could not specify
any specific grievance she filed which involved a monetary
upgrade payout.
Joseph Cox is employed in the unit as a day-shift, skilled
trades pipefitter. At the times material, he held the position
of skilled trades committeeman, i.e., the line level union rep-
resentative. The next level of representation is the shop com-
mittee for which, at the time of trial, Cox had succeeded
Robert Trice. The shop committee is involved in overall
plant problems and grievances through the second-step griev-
ances procedure. The third step involves the shop committee
chairman and, with respect to outsourcing grievances as de-
fined by the contract, a union subcommittee.
Cox testified that historically, the monetary outcome of
skilled trades outsourcing grievances was divided among the
skilled trades employees involved. He testified that 60 such
outsourcing grievances filed by him remained pending as of
January 10, 1995, but he identified none by identification
number. Cox had not been informed by Trice as to who or
how the distribution of the March 24, 1995 distribution pay-
out was determined in advance. He had not been informed
nor consulted as to how his outsourcing grievances had been
resolved. He testified that in the past distributions, the shop
committee informed the Employer as to the distribution of
grievance payouts and both parties consulted on the payout.
Cox testified that on March 24, he had received com-
plaints from skilled trades employees about the lack of any
payout receipt and/or the disparity of the amounts which his-
torically had been equally divided for outsourcing grievances.
Cox interrogated GMC plant labor relations agents who told
him that there were some problems and he should confront
Trice. Cox testified that he was shocked because the shop
chairman had no authority to ‘‘cut a check.’’ Cox had re-
ceived reports that unit members who had not filed any
grievance received $400 in payout and that a grievance-filer
received $45. He did not identify the grievances. There are
310 skilled tradesmen on the first shift, inclusive of die-
makers, toolmakers, machinists, millwrights, pipefitters, elec-
tricians, tool cutter-grinders, and others. Based on Cox’s
hearsay testimony, there was a wide disparity of payouts to
those skilled trades persons. Cox testified that the ‘‘favorite
sons’’ of Trice received higher payouts. He concluded that
cronyism was the only explanation: e.g., Lemieux, a Trice
appointee, received $2400; Terry Dodd, a Trice appointee,
received $23,000 in payout although he had filed no griev-
ance through Cox, whereas Cox received only $300; Charles
Cook, another Trice appointee, received over $4000. On Fri-
day, March 24, Cox asked for but received no explanation
for the disparity from shop committeeman McCoy. Cox spent
the entire day ‘‘fielding questions’’ from his skilled trades
constituency. On Monday, March 27, a group of unit mem-
bers reported to Cox that Trice had accused Cox of not doing
his ‘‘homework’’ and thus causing the disparate payout. Cox
told them that they all should have received an equal share
for an outsourcing grievance payout. Cox and the group of
skilled trades employees then proceeded to confront Trice in
the plant office. Trice was present with his outsourcing com-
mittee members Dodd and Lemieux. The employees asked
Trice to explain the disparate payout. Trice answered that
those who had received no payout were probably ‘‘not part
of the’’ grievance. The employees insisted that according to
past practice, they felt that they should share equally in the
payout. Trice then blamed Cox for not doing his ‘‘paper
work.’’ Cox said it was not true and that there was no reason
why all those employees ought not share equally in the pay-
out for outsourcing grievances. Some employees demanded
immediate money. Trice said that the money was gone and
that if they did not like it, they should ‘‘appeal it,’’ that it
was ‘‘too bad.’’ Some millwrights present protested that
there was no reason for their payout exclusion. Trice offered
to step outside and settle the issue in a fist fight.
Also, on that Monday, Cox and Billotti met Trice in the
plant labor relations department. Cox accused Trice of being
a liar. Trice said that if no grievance had been submitted,
then a unit member was not entitled to a payout. Cox re-
peated his previous argument and demanded to see docu-
mentation disclosing the amount of payout received by each
recipient. Trice repeated his explanation and said that the
payout money was now gone and he refused to disclose the
requested information, saying that if they did not like it, they
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863AUTO WORKERS LOCAL 909 (GENERAL MOTORS CORP.-POWERTRAIN)
could appeal. Cox asked for information about the die-
makers’ payout distribution for whom Cox had received re-
ports of disparate payouts.
Cox also represented about 30 pipefitters from whom he
testified he had filed some outsourcing grievances, unidenti-
fied by number, involving the outsourcing of pipe cleaning
of valve connections to ‘‘ABCOR.’’ Cox testified that ac-
cording to hearsay reports to him, none had received any
payout. Cox asked Respondent Representative Gary McCoy,
district shop committeeman, and Pete Belanski, committee-
man at large, to explain the nonpayout to the pipefitters but
they gave him no answers. Of the pipefitters, Alan Benchick
(now the Respondent’s president) and Frank Hammer, the
previous chairman, had been characterized by Cox as Trice’s
internal union political enemies, as were five other pipe-
fitters. Cox described himself as having ‘‘supported’’ Trice’s
opposition ‘‘openly and vocally.’’ No details of his and the
others’ ‘‘opposition’’ were given.
Cox helped draft a printed questionnaire form for unit
members to sign which contained their responses regarding
their payout complaints and what they claimed was due to
them and collected ‘‘hundreds’’ of completed forms. He and
former chairman, now pipefitter, Frank Hammer, analyzed
the results and formulated an appeal for about 56 members.
In cross-examination, Cox explained that although he
played no role in the grievance settlement negotiations, he
had submitted to the shop committee, pursuant to its request,
copies of all grievances in his possession with his own rec-
ommendations as to individual grievances and what he
thought would be fair payouts for each grievant. With respect
to most political activism, Cox described it as constituting
mere sporadic statements in shop talk which did not include
voting at meetings or leafletting. He was unable to point to
any single act as political activism. He admitted that not all
unit members who did not receive a grievance payout were
political opponents of Trice. Cox conceded that to this day
he has no idea as to the cause of the disparity and whether
it was in fact intentional, procedural, managerial, or finan-
cial. With respect to the pipefitters, he conceded that Ed
Malepa and David McClaren received individual grievance
payouts despite their opposition to Trice voiced at union
meetings. To the date of trial, Cox never received an expla-
nation from Trice or any other shop committee member for
the disparity in grievance payouts except for that proffered
by Trice described above.
Frank Hammer testified that he had lost the local union
presidency in the 1993 election as an adversary of Trice, and
that although he had filed ‘‘a couple’’ of unidentified griev-
ances pending on January 10, 1995, he had received no mon-
etary payout. He testified that a ‘‘good number’’ of pipe-
fitters had been ‘‘allied’’ with him in the 1993 election, but
he conceded that, indeed, some had been allied with Trice
and some pipefitters who received no outsource grievance
payout were Trice’s allies.
Hammer helped formulate an appeal based on various
hearsay reports, including the questionnaire described by
Cox. The results of approximately 45 of these forms were
tabulated and put in the form of a letter dated May 10, 1995,
and sent to the Local 909 executive board. This letter cited
examples of alleged disparity in the settlement awards and
requested that the ‘‘Local 909 Executive Board immediately
direct Chairman of the Shop Committee, Robert Trice to pro-
vide a full and detailed accounting of how the recent lump-
sum grievance was disbursed, and who was specifically re-
sponsible.’’ This letter was signed by Hammer and three of
the Charging Parties, Annie Smith, Robert Strouse, Edward
Billotti, and three other unit members. It alleged discrimina-
tion against Trice’s critics, Hammer, Cox, and David
McClaren.
The minutes of a special Local Union executive board
meeting on May 17, 1995, reveal that, inter alia, it voted to
direct the shop committee to submit to the membership ‘‘a
detailed report’’ as to how the grievance settlement payout
was distributed and to make a ‘‘detailed’’ response to the
May 10 letter.
A general membership meeting was held by the Respond-
ent on May 21, 1995. The May 17 minutes were adopted by
vote except for the requested accounting of the shop commit-
tee. At the meeting, Trice proclaimed that he did not have
to discuss the settlement of individual employee grievances
according to some kind of alleged communication by the Re-
gional Director for Region 7 of the Board, apparently involv-
ing some other case. The letter was never introduced into
evidence. Billotti and other members asked for an expla-
nation for the disparity in grievance settlement payouts, but
Trice refused, saying ‘‘it is none of your business.’’ Ham-
mer, who was not recognized, shouted from the floor a de-
mand for an accounting but received no answer. Frank War-
ren, a Trice appointee, announced that he had received a pay-
out through error and he had returned it. According to the
purported management-generated document identified by
Hammer and introduced into evidence without objection,
Warren had received $1184. Trice appointee Dodd received
$2383; Lemieux received $2382; and Trice himself received
$4296. However, of about 1350 recipients, about 46 unit
members each received $1000 or more. Four of those re-
ceived over $4000. Several varied from $2000 to $3000. One
received $35,000. There is insufficient evidence to identify
most of those members or any but a few of them as political
supporters of Trice or that their monetary payouts were not
the result of individual grievances unrelated to the
outsourcing grievances, which the Charging Parties claim
should have been equally divided.
Subsequently, a written appeal of the membership vote for
rejection of the accounting direction was filed by a letter
signed by Hammer, three Charging Parties, and others. The
appeal was denied by the International Union which found
that the payouts were issued for a wide variety of grievances
consistent with the work and workers involved. It further
found that with respect to outsourcing grievance payouts dis-
parity for skilled tradesmen, there were different amounts of
lost work involved. However, the International Union did
recommend that the Respondent ‘‘permit individuals to have
access to the settlement document affecting their cases.’’
There has been no such compliance.
B. Analysis
In the Board’s decision of California Saw & Knife Works,
320 NLRB 224, 228–230 (1995), the Board reviewed the
evolution of the concept of a union’s duty to employees
whom it represents, noting in part as follows:
The [Supreme] Court explained in Ford Motor Co. v.
Huffman, 345 U.S. 330 (1953), that a union’s duty of
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864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fair representation under the NLRA arises from the
grant under Section 9(a) of the Act of the union’s ex-
clusive power to represent all employees in a particular
bargaining unit. The Court declared
[t]hat the authority of bargaining representatives . . .
is not absolute is recognized in Steel [supra], in con-
nection with comparable provisions of the Railway
Labor Act. Their statutory obligation to represent all
members of an appropriate unit requires them to
make an honest effort to serve the interests of all of
those members, without hostility to any.
Id. at 337. The Court concluded, however, that the
union in Huffman had not breached its duty by agreeing
to credit new hires for previous military service when
determining seniority, recognizing that inevitable dif-
ferences will arise as to the manner in which the terms
of a negotiated agreement will affect individual em-
ployees, and acknowledging the public policy favoring
seniority preference for military service. The Court ex-
plained that ‘‘[a] wide range of reasonableness must be
allowed a statutory bargaining representative in serving
the unit it represents, subject always to complete good
faith and honesty of purpose in the exercise of its dis-
cretion.’’ Id. at 338.
Subsequently, the Board embraced the doctrine and
held that a breach of a union’s duty of fair representa-
tion constitutes an unfair labor practice. In Miranda
Fuel Co., the Board majority held that Section 7 ‘‘gives
employees the right to be free from unfair or irrelevant
or invidious treatment by their exclusive bargaining
agent in matters affecting their employment.’’ Id. at
185. The Board majority concluded ‘‘that Section
8(b)(1)(A) of the Act accordingly prohibits labor orga-
nizations, when acting in a statutory representative ca-
pacity, from taking action against employee upon con-
siderations or classifications which are irrelevant, invid-
ious, or unfair.’’ Id. The Board has had occasion to
apply the duty of fair representation in a wide variety
of contexts. ‘‘A cursory review of Board volumes fol-
lowing Miranda Fuel discloses numerous cases in
which the Board has found the duty of fair representa-
tion breached where the union’s conduct was motivated
by an employee’s lack of union membership, strifes re-
sulting from intraunion politics, and racial or gender
considerations.’’ Postal Service, 272 NLRB 93, 104
(1984).
In Vaca v. Sipes, 386 U.S. 171 (1967), the Court re-
viewed its development of the duty of fair representa-
tion and specifically defined the doctrine. ‘‘A breach of
the statutory duty of fair representation occurs only
when a union’s conduct toward a member of the collec-
tive-bargaining unit is arbitrary, discriminatory, or in
bad faith.’’ Id. at 190. The Court stressed that the doc-
trine granting employees redress in the courts against
their bargaining agent serves ‘‘as a bulwark to present
arbitrary union conduct against individuals stripped of
traditional forms of redress by the provisions of federal
labor law.’’ Id. at 182. The Court nevertheless found in
Vaca that the union had not breached its duty to a
wrongfully discharged employee by failing to take his
grievance to arbitration, because the union had vigor-
ously pursued the grievance before ultimately conclud-
ing that arbitration would be fruitless.
The Court further made clear in Vaca, and has con-
tinued to emphasize, that the duty of fair representation
extends to a wide variety of circumstances. Id. at 177.
Under the doctrine, a union must represent fairly the in-
terests of all bargaining-unit members during the nego-
tiation, administration, and enforcement of collective-
bargaining agreements.’’ Electrical Workers v. Foust,
442 U.S. 42, 47 (1979); Beck, 487 U.S. at 743. Given
the wide variety of circumstances in which fair rep-
resentation principles are apposite, the applicable stand-
ards often elude consistent articulation. Indeed, the Su-
preme Court itself has acknowledged that ‘‘there is ad-
mittedly some variation in the way in which [its] opin-
ions have described the unions’ duty of fair
representation[.]’’ Air Line Pilots v. O’Neill, 499 U.S.
65, 76 (1991). The Court accordingly granted certiorari
in O’Neill to clarify the standard that governs a claim
that a union has breached its duty of fair representation
with respect to contract negotiation. The Court an-
nounced:
We hold that the rule announced in Vaca v. Sipes,
386 U.S. 171, 190 (1967)—that a union breaches its
duty of fair representation if its actions are either
‘‘arbitrary, discriminatory, or in bad faith’’ applies to
all union activity . . . .
499 U.S. at 67 (emphasis added).
The O’Neill Court further stressed that the tripartite
Vaca standard applies to contract negotiation, adminis-
tration, an enforcement, as well as to when a union is
acting in its representative capacity in operating a hir-
ing hall. Id. at 77.34
34 The Board and the courts have accordingly applied the duty of
fair representation as refined in O’Neill, supra, to a variety of cir-
cumstances. See, e.g., Teamsters Local 101 (Allied Signal), 308 NLRB
140 (1992) (union did not violate duty of fair representation in devising
method for distributing proceeds from arbitral award); Lewis v. Tuscan
Dairy Farms, 25 F.3d 1138 (2d Cir. 1994) (union violated duty of fair
representation by negotiating secret agreement with employer, conceal-
ing the agreement from unit employees, and failing to follow usual ar-
bitration procedures); Souter v. International Union (UAWA), 993 F.2d
595 (7th Cir. 1993) (duty of fair representation applied in context of
grievance processing); and Electronic Workers v. NLRB, 41 F.3d 1532,
1537 (D.C. Cir. 1994) (union did not violate duty of fair representation
by maintaining a union-security agreement requiring bargaining unit
employees to become and remain members of the union in good stand-
ing).
With respect to a union’s breach of its representational
duty involving the distribution of an arbitral award, the Gen-
eral Counsel cites Teamsters Local 101 (Allied Signal),
supra, and Mine Workers Local 1378 (Pennsylvania Mines
Corp.), 317 NLRB 663 (1995).
In the latter case, the Board found that a union’s agent
‘‘acted in derogation of their duty of fair representation by
acting arbitrarily and unreasonably’’ when they retained the
entire arbitral award for the union and made no effort to de-
termine the identify of employees entitled to a distribution.
In the former case, the Board adopted the administrative law
judge’s decision in finding that the General Counsel did not
establish ‘‘that the Respondent was motivated by animus
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865AUTO WORKERS LOCAL 909 (GENERAL MOTORS CORP.-POWERTRAIN)
when it decided to include [certain employees] in the [griev-
ance] settlement [distribution].’’ Allied Signal, supra. The
judge therein had reviewed the rationale of the O’Neill and
Vaca decisions, supra. He further noted:
The fact that the negotiating process leads to a decision
which does to meet everyone’s perception of fairness is
not itself offensive to his standard. Strick Corp., 241
NLRB 210 (1979); Steelworkers Local 2869 (Kaiser
Steel Corp.), 239 NLRB 982 (1978); Humphrey v.
Moore, 375 U.S. 335 (1964). ‘‘[M]ere negligence
would not state a claim for breach of the duty . . . .’’
Steelworkers v. Rawson, 495 U.S. 362 (1990).
He proceeded to evaluate whether the union’s conduct of in-
cluding a certain classification group in the arbitral award
distribution was proven to be ‘‘unfair, arbitrary, capricious,
and invidious.’’ He evaluated the facts and found no evi-
dence the grievance/arbitration process or subsequent nego-
tiations made it unreasonable to include all employees in the
distribution. He thereupon evaluated the issue of invidious
motivation and found that the General Counsel failed to sus-
tain his burden of proof of a ‘‘preponderance of evidence,’’
Allied Signal, supra at 146–150.
In Letter Carriers Branch 6070, 316 NLRB 235, 236
(1995), in a settlement of a grievance, an employer agreed
with a union to distribute the award only to 12 most ad-
versely affected employees. It was alleged that the union’s
conduct was arbitrary. The judge, whose decision was adopt-
ed by the Board, noted that ‘‘mere negligence does not con-
stitute a breach of the duty of fair representation,’’ and he
cited Rawson, 495 U.S. at 376, and Le ‘Mon v. NLRB, 952
F.2d 1203, 1205 (10th Cir. 1991). He found insufficient evi-
dence of unreasonableness and animus, and he concluded
that even if the union’s selection process resulted in someone
else less deserving sharing the award, ‘‘the lack of perfection
in the selection process is well within the latitude and margin
for honest error the Union has under the law.’’
It is the General Counsel’s burden ‘‘to establish unlawful
conduct by something more than suspicion.’’ Laborers Local
423A, 313 NLRB 807, 812 (1994). Operating Engineers
Local 137 (Various Employers), 317 NLRB 909, 917 (1995).
In job referral hiring hall cases, however, a ‘‘high standard
of fair dealing is imposed upon a union.’’ California Saw &
Knife Workers, supra at 328–330. In such cases, the Board
applies the burden of proof as set forth in Wright Line, 251
NLRB 1083 (1980), but the General Counsel even there must
show that a union has in fact acted adversely to an alleged
discriminatee, beyond a mere showing of suspicion. Operat-
ing Engineers Local 137, supra at 923.
With respect to nondisclosure of requested information to
its constituency, a union may also act in a manner which
breaches its representational duties. A refusal to provide job
referral information in the operation of an exclusive hiring
hall may be unlawful. Teamsters Local 282, 280 NLRB 733
(1986). Similarly, a union may breach its representational du-
ties by failing to disclose requested information regarding the
status of an employee grievance. Union of Security Personnel
of Hospitals, 267 NLRB 974, 980 (1983), and by also refus-
ing to supply copies of the grievance to the employee. Letter
Carriers Branch 529, 319 NLRB 879, 880 (1995).
Conclusions
The evidence adduced by the General Counsel consists
largely of an anecdotal, conclusionary, and hearsay nature.
The chief question as to the disparity of distribution issues
is whether the General Counsel has established sufficient
probative evidence to constitute a prima facie case or wheth-
er he has merely demonstrated grounds for suspicion of mis-
conduct beyond mere negligence. With respect to the invidi-
ous motivation issue, i.e., intraunion political favoritism, the
evidence fails to demonstrate a consistent pattern of discrimi-
nation. With respect to the nonconformance with alleged past
practice and arbitrary or unreasonable disparity allegation,
the evidence reveals grounds for suspicion. However, I can-
not determine from the state of the record evidence whether
in fact there had been such general divergence regarding
outsourcing grievances and, if there was, whether it was due
to arbitrary or unreasonable criteria, rather than mere neg-
ligence. The lack of specific grievance identification descrip-
tion, whom it covered, and how it was resolved impedes a
meaningful evaluation of just what occurred. I conclude that
it was incumbent on the General Counsel to demonstrate
more than the mere existence of a disparate distribution of
a small faction of a huge grievance settlement covering
group and individual grievances, and the Respondent’s
agent’s refusal to give individual members a specific ac-
counting.
With respect to the allegation concerning the Respondent’s
refusal to account to its members for the disparity in griev-
ance settlement money distribution, I conclude that it is meri-
torious. I find that the Respondent has a duty and an obliga-
tion to inform its members of the status of their grievances
inclusive of an accounting of the distribution of grievance
settlement moneys, particularly in the context of such a mas-
sive group and individual grievances settlement. By failing to
give such accounting, the Respondent violated Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. As found above, General Motors Corporation-
Powertrain Division is an employer engaged in commerce
within the meaning of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(b)(3)(A) of the
Act by refusing to provide bargaining unit employee griev-
ances with their requested accounting of why some grievants
received no grievance settlement payments and why there
was a disparity in other grievance settlement payments made
on March 24, 1995, pursuant to the January 10, 1995 multi-
grievance settlement negotiated with the Employer.
4. The unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
necessary to effectuate the policies of the Act. I recommend
that the Respondent provide to its bargaining unit employee
grievants their requested accounting of grievance settlement
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866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
payments made on March 24, 1995, pursuant to the January
10, 1995 multigrievance settlement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Local 909, International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL–CIO, Warren Michigan, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to provide bargaining unit grievants with their
requested accounting of why some grievants received no
grievance settlement payments and why there was a disparity
in other grievance settlement payments made on March 24,
1995, pursuant to the January 10, 1995 multigrievance settle-
ment negotiated with General Motors Corporation-Powertrain
Division.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately provide to all individual bargaining unit
grievants who had requested, an accounting of why some
grievances received no settlement payments and why there
was a disparity of other grievance settlement payments made
on March 24, 1995, pursuant to the multigrievance settlement
with General Motors Corporation-Powertrain Division.
(b) Within 14 days after service by the Region, post at its
union office in Warren, Michigan, copies of the attached no-
tice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to members are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by General Motors Corporation-
Powertrain Division, if willing, at all places where notices to
employees are customarily posted.
(d) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to provide bargaining unit grievants
with their requested accounting of why some grievants re-
ceived no grievance settlement payments and why there was
a disparity in other grievance settlement payments made on
March 24, 1995, pursuant to the January 10, 1995 multi-
grievance settlement negotiated with General Motors Cor-
poration-Powertrain Division.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
WE WILL immediately provide to all individual bargaining
unit grievants who had requested an accounting of why some
grievances received no settlement payments and why there
was a disparity of other grievance settlement payments made
on March 24, 1995, pursuant to the multigrievance settlement
with General Motors Corporation-Powertrain Division.
LOCAL 909, INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA
(UAW), AFL–CIO
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