Food & Commercial Workers Local 951

National Labor Relations Board - Administrative Judge Opinions

Aug 27, 2004

07-CB-013824 (N.L.R.B. Aug. 27, 2004)

JD–83–04
Kentwood, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

LOCAL No. 951, UNITED FOOD AND
COMMERCIAL WORKER INTERNATIONAL
UNION, AFL-CIO, CLC (Rite Aid Corporation)

and Case 7–CB–13824

MILDRED LEWIS, An Individual

Steven A. Carlson, Esq., for the General Counsel
Jonathan D. Karmel, Esq., for the Respondent

BENCH DECISION

Jane Vandeventer, Administrative Law Judge. This case was tried on August 3
and 4, 2004, in Grand Rapids, Michigan. On August 4, 2004, after hearing oral
arguments by counsel, I issued a Bench Decision pursuant to Section 102.35(a)(10) of
the National Labor Relations Board’s Rules and Regulations, setting forth findings of
fact and conclusions of law.

I certify the accuracy of the portion of the transcript, as corrected,1 pages 215 to
227, containing my Bench Decision, and I attach a copy of that portion of the transcript,
as corrected, as “Appendix A.”

If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 102.48 of the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.

Dated, Washington, D.C., August 27, 2004.

____________________
Jane Vandeventer
Administrative Law Judge

1 I have corrected the transcript containing my Bench Decision, and the corrections are
reflected in the attached Appendix B.
JD–83–04
Kentwood, MI

APPENDIX B

Page and Correct To
Line(s)

215:7 8(b)(1) 8(b)(1)(A)

215:15 finding findings

217:7 This In this

218:7 prescription prescriptions

218:20 go a go to a

220:4 meetings meeting

220:24 was were

223:3 ever every

223:14 imminently eminently

224:22 Union on Union, from

225:25 Delete “in which – a grievance”

226:12 terminative determinative

227:3 8(b)(1) 8(b)(1)(A)
JD–83–04
Kentwood, MI

APPENDIX A

DECISION
Statement of the Case
This case was tried on August 3 and 4, 2004 in Grand Rapids,
Michigan. The Complaint alleges that the Respondent violated Section
8(b)(1)(A) of the Act by failing to pursue to arbitration a grievance
filed by the Charging Party. The Respondent filed an Answer denying
the essential allegations in the Complaint. After the conclusion of
the evidence, the parties made oral arguments, which I have
considered.
Based on the testimony of the witnesses, including particularly
my observation of their demeanor while testifying, the documentary
evidence, and the entire record, I make the following findings of
fact.
Findings of Fact
I. Jurisdiction
Rite Aid Corporation, herein called Rite Aid or the Employer, is
a corporation with headquarters in Camp Hill, Pennsylvania. The
Employer has been engaged in the retail sale of pharmaceutical
products and other consumer goods at various facilities located within
the state of Michigan, including a facility located at 5995 Kalamazoo
Avenue, Kentwood, Michigan.
During a representative one-year period, the Employer derived
gross revenues in excess of $500,000.00 and purchased

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and received at its various facilities located within the state of
Michigan, including its Kalamazoo Avenue store, goods valued in excess
of $50,000.00 directly from points outside the state of Michigan.
Accordingly, I find, as Respondent admits, that the Employer is an
employer engaged in commerce within the meaning of Section 2(2),(6),
and (7) of the Act.
The Respondent Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Unfair Labor Practices
A. The Facts
Respondent represents some 30,000 employees, primarily employees
employed in retail stores, including grocery stores
and drug store chains such as the Employer. Its collective bargaining
agreement with the Employer includes a grievance and arbitration
procedure. The contract also provides that management retains the
right to make rules in the workplace and to discharge or discipline
employees for violation of those rules. There is also an agreement
that employees will be discharged only for just cause.
The Charging Party, Mildred Lewis, was employed by Rite
Aid as a Pharmacy Technician. At the time of her discharge on August
6th, 2002, she had worked for the Employer for 15 years. At that time,
she worked at a Rite Aid store located at 60th Avenue and Kalamazoo
Avenue, called by the Employer, Store 4242.
On the same day she was discharged, Lewis sought Respondent's
help. She called the Business Representative assigned to her store,
Matt Radke, and told him that she had been discharged, as well as some
of the facts surrounding the incident. Radke filed a grievance on

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Lewis' behalf the same day.
In this initial phone conversation and in other conversations
with Lewis, Radke learned the facts that she knew. Previously, Lewis
had had a few disagreements with her immediate supervisor, the
Pharmacy Manager. She had also had chest pains which prompted her to
seek medical assistance. Her doctor had prescribed a medicine called
Naprosyn for her stress induced pains. The prescription the doctor
had given her had been filled and was at that time in the store's
basket of prescriptions which were ready to be picked up. Lewis had
not yet paid for the medication or picked it up.
Lewis told Radke that a day or so before her discharge, she had
become upset while at work and felt the need of her medication. Lewis
found her prescription in the ready basket, took out a couple of
pills, and replaced the remainder of the medicine in the ready basket.
A day or two later, on August 6th, Lewis was challenged by the
Employer's security personnel who told her she had been seen taking
the medication out of the ready basket and that a video tape of the
incident existed. Lewis admitted taking two pills and gave the
Employer a written statement to that effect. She was then discharged
for theft of product.
Lewis told Radke these things and also told him that at the
Employer's Michigan Avenue store, where she had worked before going to
Store 4242, the Pharmacy Manager there had
permitted employees to take a dose of medication from their own
prescriptions if they didn't have money to pay for the prescription,
and they could then pay for it on their next payday. She gave him the
Pharmacy Manager's name, which was Joe Bristol, as well as the name

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of another witness.
Radke testified that he had difficulty contacting Bristol despite
repeated calls and asked Lewis to call Bristol and request him to
accept a call from Radke. Shortly after this, Radke succeeded in
reaching Bristol.
At the time of his phone call to Bristol, Bristol was not
employed by Rite Aid. Radke testified that Bristol confirmed that he
had allowed Lewis to take medicine she had not yet purchased and added
that certain customers were also treated this way. Radke testified
that he asked Bristol if he would give a written statement or go to a
grievance meeting to tell these facts, but that Bristol refused to
do either one. According to Radke, Bristol refused to allow Radke to
tape the phone conversation either.
Joe Bristol also testified that he told Radke about his
permission to Lewis to take medicine out of a prescription

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before paying for it. He testified that he also allowed Medicaid
customers to take medicine before paying for it. In his testimony,
Bristol said he did not recall anything else about the phone
conversation. Bristol has since returned to work at the Michigan
Avenue Rite Aid Store as a Pharmacist and testified that the practice
he described still goes on at that store.
I find that there is no real conflict in the testimony of Radke
and Bristol. Bristol did not deny refusing to give a written
statement or appear at a grievance meeting. He simply didn't recall
anything about it.
To the extent that there is any conflict between the testimony of
Radke and Bristol, I credit Radke. He testified clearly and
forthrightly. He demonstrated a good memory of the events even though
he had no notes to rely upon. Bristol, on the other hand, was vague
in his testimony and his demeanor, remembered things incompletely, and
overall showed a poor memory for the events.
Radke discussed Lewis' grievance with his supervisors, Phyllis
Smith and Dawn Kulesza, and his fellow Business Representatives and
followed up on other avenues of investigation. He talked with four
other employees at Store 4242 and with the store manager there. From
them he learned that the custom described by Bristol was not followed
at Store 4242 and that employees there were not permitted to take

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medication before paying for their prescriptions.
Radke talked on the phone with the Employer's Human Relations
Representative and set up a meeting for the final grievance meeting
short of arbitration. It is undisputed that the Employer maintained a
written rule citing acts of dishonesty and theft as causes for
discipline or discharge.
Another written policy of the Employer states, "Taking
merchandise without paying for it for yourself or others is illegal
and grounds for discharge and prosecution."
The final grievance meeting with the Employer was held on October
2nd, 2002. Radke, Lewis, and another of Respondent's Business
Representatives attended, as well as several Employer representatives.
The Employer presented its position and facts, and Respondent did
the same.
The Employer rejected the notion that Lewis or any employee had
legitimate permission to take medication before paying for the
prescription and specifically stated that any such permission would
not in any case extend to a different store with a different manager.
The Employer's presentation alerted the Respondent to several things
the Employer intended to use to support its position and to undermine
the Union's claim of a limited exception for Ms. Lewis such as the
Employer's assertion that more than one or two doses of the medication
in question were missing and that Lewis' prescription was older than
just a few days at the time of her discharge and should have been paid
for by then even under the Union's claim of permission.
Before ending the meeting, the two Business Representatives
checked with Lewis and then added in the meeting -- added to their

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presentation the items she wished them to add.
Later that day, after the meeting was over, Radke was informed by
the Employer's representative that the grievance was being denied by
the Employer. Radke talked the Lewis grievance over with his
supervisor and other Business Representatives. With them, Radke
reviewed the things that had been found so far during the
investigation and added the Company's position as revealed to him in
the meeting earlier that day and the Company's assertions that they
had made in the grievance meeting.
Another factor that was discussed was the great difficulty in
winning any discharge grievance where theft was the reason for the
discharge. It was the consensus of the Business Representatives and
the supervisor that Respondent would be unable to win this grievance
in arbitration. Radke, therefore, decided not to pursue the grievance
to arbitration. He informed Lewis of this by letter.
Lewis appealed the decision. Her appeal to the Respondent's
Executive Board Appeals Committee was heard on January 15, 2003.
Lewis presented her appeal, and a union

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official presented the Union's reasons for its decision. The Appeals
Committee, composed of rank and file members who had been elected to
the Union's Executive Board, voted to deny Lewis' appeal.
B. Positions of the Parties
The General Counsel relies upon the pattern of conduct cases
which hold that a union may violate its duty of fair representation by
conduct which is so unreasonable, perfunctory, and/or irrational as
to amount to arbitrary conduct. In support of this theory, the
General Counsel argues Respondent violated the duty of fair
representation because Radke concealed or misrepresented the
willingness of a witness, Bristol, to assist the grievance
investigation and presentation.
The General Counsel's theory of the case does not allege that
Respondent violated its duty of fair representation by refusing to
process and arbitrate Lewis' grievance because of discriminatory
reasons such as non-membership in Respondent, internal political
opposition, race or sex discrimination, or other such invidious forms
of discrimination.
Respondent argues it has not violated the duty of fair
representation implied in Section 8(b)(1)(A) because it made a good
faith decision based on reasons grounded in the collective bargaining
agreement not to arbitrate Lewis' grievance, and its actions and
investigation were well within the wide range of

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The duty of fair representation is a judicially created doctrine which assumes that a
union which has the status of exclusive representative of a group of employees owes those
employees a duty to represent them fairly. The first Board case which so held was

reasonableness granted to unions in the discharge of their
representative duties. Respondent contends the Union is not required
to arbitrate every grievance even if meritorious. Respondent asserts
there was no showing of bad faith or discrimination on its part, and
further argues Lewis' grievance was clearly non-meritorious.
C. Discussion and Analysis
1. The Duty of Fair Representation
Miranda Fuel
Co., 140 NLRB 181 (1962). While this sounds a
simple and eminently reasonable proposition, it has been the subject of countless refinements in
cases decided by the Board and the federal courts. The duty applies to a union's conduct in the area
of collective negotiations, grievance handling, including settlement and arbitration, and fiscal
management, among others. See, e.g. Air Line Pilots Assn. V. O'Neill, 499 U.S. 65, 67 (1991);
Teamsters Local 814 (Beth Israel Medical), 281 NLRB 1130, 1146- 47 (1986); Teamsters Local 101
(Allied Signal), 308 NLRB 140, 143 (1992); and Furniture Workers Local 76B (Office Furniture), 290
NLRB 51, 62-63 (1988).
The degree of rigor assigned to the duty must take into

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account the Union's duty to represent the entire bargaining unit as well as individuals. It has been
recognized that in order to perform its representative functions effectively, a union must be allowed a
wide range of reasonableness in its conduct and decision-making.
5

Ford Motor Co. v. Huffman, 345
U.S. 330, 338 (1953).
With specific reference to grievance handling, the standard of conduct is that of a good
faith evaluation of the grievance and a rational reason for the decision. Pacific Maritime Assn., 321
NLRB 822, 823-24 (1996); and Teamsters Local 337 (Swift-Eckrich), 307 NLRB 437, 438, 440
(1992).
Some cases in which a Union first undertakes to process a
grievance and later drops it or decides not to arbitrate the
grievance, in those cases the merits of the grievance are not the
issue, assuming the grievance is more than frivolous. Instead, the
finding of a violation turns on whether the union's disposition of
the grievance was perfunctory or motivated by ill will or other
invidious considerations. Glass Bottle Blowers Local 106 (Owens-
Illinois), 240 NLRB 324 (1979).
In assessing the conduct of the Respondent in handling this
grievance, the proper focus is the total conduct of the Union, from
its dealings with the grievant, to its investigation, to its dealings
with the Employer, to its decisions, and its decision-making
procedures. Here, Respondent promptly filed a grievance, investigated
the facts by talking to the grievant,

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by talking to the principal witness relied on by the grievant, by
talking with other potential witnesses who might have knowledge, by
discussing the grievance with the Company in a timely manner, by
discussing the grievance among the Business Representatives and
supervisors, and by presenting its best case to the Company.
When the Company denied the grievance, Respondent then decided,
based on all the evidence it could present favoring the grievant and
all the factors favoring the Employer's case, that it was unlikely to
prevail in arbitration and so would not arbitrate the grievance. An
Appeals Committee ratified this decision of the Business
Representative.
The Respondent reasoned that the Employer could present evidence
that it had a clear written rule which the grievant admitted
violating. The Union could attempt to show that the grievant believed
that there was an exception or that she had permission to violate this
rule, but the Respondent also knew that the Employer could show that
this permission or exception, even if shown, differed in time and
differed in the store location, and was under a different supervisor
than the current store that the discharge occurred in. In addition,
the Union would be unable to show that the exception or permission was
known to or sanctioned by the Company other than at the Michigan
Avenue store. In addition, the Respondent had never won a grievance
arbitration in which

theft was the reason for the discharge of the grievant.
I find that the Respondent's handling of the grievance was well
within the wide range of reasonableness that the Supreme Court has set

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as a standard. There is in this record no evidence of Bristol's
willingness to assist the investigation any farther than by talking
on the phone with a Business Representative. There is in this record
no evidence of any concealment of Bristol's alleged willingness to
assist the investigation by Radke.
Finally, there is no showing that this single factor had any
weight at all in the Union's decision, much less determinative weight.
I find that the General Counsel's emphasis on this single fact in the
whole totality of the grievance handling is misplaced. Furthermore, a
union is entitled to weigh the likelihood of success on the merits of
a grievance while deciding whether or not to take the grievance to
arbitration.
Accordingly, and based on all the foregoing and the evidence in
the case, I will recommend to the Board that the Complaint be
dismissed in its entirety.
Conclusions of Law
1. Respondent, Local 951, United Food and Commercial Workers
International Union, AFL-CIO-CIC, is a labor organization within the
meaning of 2(5) of the Act. 2. Rite Aid
Corporation is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
3. Respondent has not violated Section 8(b)(1)(A) of the Act as
alleged.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Complaint is dismissed in its entirety.

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APPENDIX A

DECISION
Statement of the Case
This case was tried on August 3 and 4, 2004 in Grand Rapids,
Michigan. The Complaint alleges that the Respondent violated Section
8(b)(1)(A) of the Act by failing to pursue to arbitration a grievance
filed by the Charging Party. The Respondent filed an Answer denying
the essential allegations in the Complaint. After the conclusion of
the evidence, the parties made oral arguments, which I have
considered.
Based on the testimony of the witnesses, including particularly
my observation of their demeanor while testifying, the documentary
evidence, and the entire record, I make the following findings of
fact.
Findings of Fact
I. Jurisdiction
Rite Aid Corporation, herein called Rite Aid or the Employer, is
a corporation with headquarters in Camp Hill, Pennsylvania. The
Employer has been engaged in the retail sale of pharmaceutical
products and other consumer goods at various facilities located within
the state of Michigan, including a facility located at 5995 Kalamazoo
Avenue, Kentwood, Michigan.
During a representative one-year period, the Employer derived
gross revenues in excess of $500,000.00 and purchased

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35

40

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and received at its various facilities located within the state of
Michigan, including its Kalamazoo Avenue store, goods valued in excess
of $50,000.00 directly from points outside the state of Michigan.
Accordingly, I find, as Respondent admits, that the Employer is an
employer engaged in commerce within the meaning of Section 2(2),(6),
and (7) of the Act.
The Respondent Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. Unfair Labor Practices
A. The Facts
Respondent represents some 30,000 employees, primarily employees
employed in retail stores, including grocery stores
and drug store chains such as the Employer. Its collective bargaining
agreement with the Employer includes a grievance and arbitration
procedure. The contract also provides that management retains the
right to make rules in the workplace and to discharge or discipline
employees for violation of those rules. There is also an agreement
that employees will be discharged only for just cause.
The Charging Party, Mildred Lewis, was employed by Rite
Aid as a Pharmacy Technician. At the time of her discharge on August
6th, 2002, she had worked for the Employer for 15 years. At that time,
she worked at a Rite Aid store located at 60th Avenue and Kalamazoo
Avenue, called by the Employer, Store 4242.
On the same day she was discharged, Lewis sought Respondent's
help. She called the Business Representative assigned to her store,
Matt Radke, and told him that she had been discharged, as well as some
of the facts surrounding the incident. Radke filed a grievance on

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30

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Lewis' behalf the same day.
In this initial phone conversation and in other conversations
with Lewis, Radke learned the facts that she knew. Previously, Lewis
had had a few disagreements with her immediate supervisor, the
Pharmacy Manager. She had also had chest pains which prompted her to
seek medical assistance. Her doctor had prescribed a medicine called
Naprosyn for her stress induced pains. The prescription the doctor
had given her had been filled and was at that time in the store's
basket of prescriptions which were ready to be picked up. Lewis had
not yet paid for the medication or picked it up.
Lewis told Radke that a day or so before her discharge, she had
become upset while at work and felt the need of her medication. Lewis
found her prescription in the ready basket, took out a couple of
pills, and replaced the remainder of the medicine in the ready basket.
A day or two later, on August 6th, Lewis was challenged by the
Employer's security personnel who told her she had been seen taking
the medication out of the ready basket and that a video tape of the
incident existed. Lewis admitted taking two pills and gave the
Employer a written statement to that effect. She was then discharged
for theft of product.
Lewis told Radke these things and also told him that at the
Employer's Michigan Avenue store, where she had worked before going to
Store 4242, the Pharmacy Manager there had
permitted employees to take a dose of medication from their own
prescriptions if they didn't have money to pay for the prescription,
and they could then pay for it on their next payday. She gave him the
Pharmacy Manager's name, which was Joe Bristol, as well as the name

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of another witness.
Radke testified that he had difficulty contacting Bristol despite
repeated calls and asked Lewis to call Bristol and request him to
accept a call from Radke. Shortly after this, Radke succeeded in
reaching Bristol.
At the time of his phone call to Bristol, Bristol was not
employed by Rite Aid. Radke testified that Bristol confirmed that he
had allowed Lewis to take medicine she had not yet purchased and added
that certain customers were also treated this way. Radke testified
that he asked Bristol if he would give a written statement or go to a
grievance meeting to tell these facts, but that Bristol refused to
do either one. According to Radke, Bristol refused to allow Radke to
tape the phone conversation either.
Joe Bristol also testified that he told Radke about his
permission to Lewis to take medicine out of a prescription

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before paying for it. He testified that he also allowed Medicaid
customers to take medicine before paying for it. In his testimony,
Bristol said he did not recall anything else about the phone
conversation. Bristol has since returned to work at the Michigan
Avenue Rite Aid Store as a Pharmacist and testified that the practice
he described still goes on at that store.
I find that there is no real conflict in the testimony of Radke
and Bristol. Bristol did not deny refusing to give a written
statement or appear at a grievance meeting. He simply didn't recall
anything about it.
To the extent that there is any conflict between the testimony of
Radke and Bristol, I credit Radke. He testified clearly and
forthrightly. He demonstrated a good memory of the events even though
he had no notes to rely upon. Bristol, on the other hand, was vague
in his testimony and his demeanor, remembered things incompletely, and
overall showed a poor memory for the events.
Radke discussed Lewis' grievance with his supervisors, Phyllis
Smith and Dawn Kulesza, and his fellow Business Representatives and
followed up on other avenues of investigation. He talked with four
other employees at Store 4242 and with the store manager there. From
them he learned that the custom described by Bristol was not followed
at Store 4242 and that employees there were not permitted to take

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25

30

35

40

45

50
21
medication before paying for their prescriptions.
Radke talked on the phone with the Employer's Human Relations
Representative and set up a meeting for the final grievance meeting
short of arbitration. It is undisputed that the Employer maintained a
written rule citing acts of dishonesty and theft as causes for
discipline or discharge.
Another written policy of the Employer states, "Taking
merchandise without paying for it for yourself or others is illegal
and grounds for discharge and prosecution."
The final grievance meeting with the Employer was held on October
2nd, 2002. Radke, Lewis, and another of Respondent's Business
Representatives attended, as well as several Employer representatives.
The Employer presented its position and facts, and Respondent did
the same.
The Employer rejected the notion that Lewis or any employee had
legitimate permission to take medication before paying for the
prescription and specifically stated that any such permission would
not in any case extend to a different store with a different manager.
The Employer's presentation alerted the Respondent to several things
the Employer intended to use to support its position and to undermine
the Union's claim of a limited exception for Ms. Lewis such as the
Employer's assertion that more than one or two doses of the medication
in question were missing and that Lewis' prescription was older than
just a few days at the time of her discharge and should have been paid
for by then even under the Union's claim of permission.
Before ending the meeting, the two Business Representatives
checked with Lewis and then added in the meeting -- added to their

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40

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50
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presentation the items she wished them to add.
Later that day, after the meeting was over, Radke was informed by
the Employer's representative that the grievance was being denied by
the Employer. Radke talked the Lewis grievance over with his
supervisor and other Business Representatives. With them, Radke
reviewed the things that had been found so far during the
investigation and added the Company's position as revealed to him in
the meeting earlier that day and the Company's assertions that they
had made in the grievance meeting.
Another factor that was discussed was the great difficulty in
winning any discharge grievance where theft was the reason for the
discharge. It was the consensus of the Business Representatives and
the supervisor that Respondent would be unable to win this grievance
in arbitration. Radke, therefore, decided not to pursue the grievance
to arbitration. He informed Lewis of this by letter.
Lewis appealed the decision. Her appeal to the Respondent's
Executive Board Appeals Committee was heard on January 15, 2003.
Lewis presented her appeal, and a union

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official presented the Union's reasons for its decision. The Appeals
Committee, composed of rank and file members who had been elected to
the Union's Executive Board, voted to deny Lewis' appeal.
B. Positions of the Parties
The General Counsel relies upon the pattern of conduct cases
which hold that a union may violate its duty of fair representation by
conduct which is so unreasonable, perfunctory, and/or irrational as
to amount to arbitrary conduct. In support of this theory, the
General Counsel argues Respondent violated the duty of fair
representation because Radke concealed or misrepresented the
willingness of a witness, Bristol, to assist the grievance
investigation and presentation.
The General Counsel's theory of the case does not allege that
Respondent violated its duty of fair representation by refusing to
process and arbitrate Lewis' grievance because of discriminatory
reasons such as non-membership in Respondent, internal political
opposition, race or sex discrimination, or other such invidious forms
of discrimination.
Respondent argues it has not violated the duty of fair
representation implied in Section 8(b)(1)(A) because it made a good
faith decision based on reasons grounded in the collective bargaining
agreement not to arbitrate Lewis' grievance, and its actions and
investigation were well within the wide range of

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35

40

45

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15

20

25
The duty of fair representation is a judicially created doctrine which assumes that a
union which has the status of exclusive representative of a group of employees owes those
employees a duty to represent them fairly. The first Board case which so held was

reasonableness granted to unions in the discharge of their
representative duties. Respondent contends the Union is not required
to arbitrate every grievance even if meritorious. Respondent asserts
there was no showing of bad faith or discrimination on its part, and
further argues Lewis' grievance was clearly non-meritorious.
C. Discussion and Analysis
1. The Duty of Fair Representation
Miranda Fuel
Co., 140 NLRB 181 (1962). While this sounds a
simple and eminently reasonable proposition, it has been the subject of countless refinements in
cases decided by the Board and the federal courts. The duty applies to a union's conduct in the area
of collective negotiations, grievance handling, including settlement and arbitration, and fiscal
management, among others. See, e.g. Air Line Pilots Assn. V. O'Neill, 499 U.S. 65, 67 (1991);
Teamsters Local 814 (Beth Israel Medical), 281 NLRB 1130, 1146- 47 (1986); Teamsters Local 101
(Allied Signal), 308 NLRB 140, 143 (1992); and Furniture Workers Local 76B (Office Furniture), 290
NLRB 51, 62-63 (1988).
The degree of rigor assigned to the duty must take into

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account the Union's duty to represent the entire bargaining unit as well as individuals. It has been
recognized that in order to perform its representative functions effectively, a union must be allowed a
wide range of reasonableness in its conduct and decision-making.
5

Ford Motor Co. v. Huffman, 345
U.S. 330, 338 (1953).
With specific reference to grievance handling, the standard of conduct is that of a good
faith evaluation of the grievance and a rational reason for the decision. Pacific Maritime Assn., 321
NLRB 822, 823-24 (1996); and Teamsters Local 337 (Swift-Eckrich), 307 NLRB 437, 438, 440
(1992).
Some cases in which a Union first undertakes to process a
grievance and later drops it or decides not to arbitrate the
grievance, in those cases the merits of the grievance are not the
issue, assuming the grievance is more than frivolous. Instead, the
finding of a violation turns on whether the union's disposition of
the grievance was perfunctory or motivated by ill will or other
invidious considerations. Glass Bottle Blowers Local 106 (Owens-
Illinois), 240 NLRB 324 (1979).
In assessing the conduct of the Respondent in handling this
grievance, the proper focus is the total conduct of the Union, from
its dealings with the grievant, to its investigation, to its dealings
with the Employer, to its decisions, and its decision-making
procedures. Here, Respondent promptly filed a grievance, investigated
the facts by talking to the grievant,

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by talking to the principal witness relied on by the grievant, by
talking with other potential witnesses who might have knowledge, by
discussing the grievance with the Company in a timely manner, by
discussing the grievance among the Business Representatives and
supervisors, and by presenting its best case to the Company.
When the Company denied the grievance, Respondent then decided,
based on all the evidence it could present favoring the grievant and
all the factors favoring the Employer's case, that it was unlikely to
prevail in arbitration and so would not arbitrate the grievance. An
Appeals Committee ratified this decision of the Business
Representative.
The Respondent reasoned that the Employer could present evidence
that it had a clear written rule which the grievant admitted
violating. The Union could attempt to show that the grievant believed
that there was an exception or that she had permission to violate this
rule, but the Respondent also knew that the Employer could show that
this permission or exception, even if shown, differed in time and
differed in the store location, and was under a different supervisor
than the current store that the discharge occurred in. In addition,
the Union would be unable to show that the exception or permission was
known to or sanctioned by the Company other than at the Michigan
Avenue store. In addition, the Respondent had never won a grievance
arbitration in which

theft was the reason for the discharge of the grievant.
I find that the Respondent's handling of the grievance was well
within the wide range of reasonableness that the Supreme Court has set

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as a standard. There is in this record no evidence of Bristol's
willingness to assist the investigation any farther than by talking
on the phone with a Business Representative. There is in this record
no evidence of any concealment of Bristol's alleged willingness to
assist the investigation by Radke.
Finally, there is no showing that this single factor had any
weight at all in the Union's decision, much less determinative weight.
I find that the General Counsel's emphasis on this single fact in the
whole totality of the grievance handling is misplaced. Furthermore, a
union is entitled to weigh the likelihood of success on the merits of
a grievance while deciding whether or not to take the grievance to
arbitration.
Accordingly, and based on all the foregoing and the evidence in
the case, I will recommend to the Board that the Complaint be
dismissed in its entirety.
Conclusions of Law
1. Respondent, Local 951, United Food and Commercial Workers
International Union, AFL-CIO-CIC, is a labor organization within the
meaning of 2(5) of the Act. 2. Rite Aid
Corporation is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
3. Respondent has not violated Section 8(b)(1)(A) of the Act as
alleged.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Complaint is dismissed in its entirety.

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