General Truck Drivers Local 315

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 616 (N.L.R.B. 1975)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers, Warehousemen , Helpers and
Automotive Employees , Local 315 , International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America (Rhodes ,& Jamieson,
Ltd.) and Marilyn Holman . Case 20-CB-3125
April 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a charge duly filed on February 11, 1974, by
Marilyn Holman, an individual, against General Truck
Drivers, Warehousemen, Helpers and Automotive Em-
ployees, Local 315, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent, the General Coun-
sel'of the National Labor Relations Board, by its Re-
gional Director for Region 20, on June 21, 1974, issued
and served on the parties a complaint alleging that
Respondent had engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and Section
2(6) and (7) of the National Labor Relations Act, as
amended.
Between September 3 and September 18, 1974, the
parties executed a stipulation of facts, and jointly filed
with the National Labor Relations Board a motion to
transfer the instant proceeding to the Board in lieu of
all proceedings before an Administrative Law Judge,
and that the stipulation of facts and the exhibits at-
tached thereto constitute the entire record.
By order dated October 1, 1974, the Board granted
the motion and approved the stipulation of facts as part
of the record herein.' Thereafter, briefs were filed by
the General Counsel and by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
and the briefs, and makes the following:
FINDINGS OF FACT
I BUSINESS OF THE EMPLOYER
Rhodes & Jamieson, Ltd., herein called the Em-
ployer, is a California corporation engaged in the busi-
ness of manufacturing and distributing ready-mix con-
crete, with its principal place of business in Oakland,
California. During the last calendar year, the Employer
sold goods and services valued in excess of $50,000 to
firms which each sold and shipped goods valued in
excess of $50,000 directly to customers located outside
the State of California.
II THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III THE ALLEGED UNFAIR.LABOR PRACTICES
Respondent is the exclusive representative, for the
purpose of collective bargaining, of all truckdrivers em-
ployed at the Employer's plant in Concord, California,
which employees are covered by a collective-bargaining
agreement between three local unions, including Re-
spondent, and a multiemployer bargaining association
of which the Employer is a member. Ted Holman was
employed as a truckdriver at the Concord plant until
approximately October 31, 1973.
The multiemployer collective-bargaining agreement,
to which the Employer is a signatory, contains the
following provisions:
Where jobs or equipment are eliminated, senior
employees shall be reassigned by the employer to
another classification with full seniority rights
subject to employee qualifications. Local 315 re-
serves the right to apply this principal by in-
dividual employer.'
In October 1973 the Employer announced that effec-
tive October 31 the delivery service jobs held by Hol-
man and at least one other driver would be eliminated.
Respondent conducted an election among its member-
employees at the Concord plant in which the following
ballot was used:
Do you want the warehousemen, yard men, flat
rack and dump drivers to be re-assigned, with
their full seniroity, as ready-mix drivers?
Those voting cast 8 "yes" votes and 20 "no" votes.
Holman, who was a dump driver, received a separation
notice on October 31. Holman promptly wrote to the
Employer asserting his right to reassignment pursuant
to the contract provision, and to Respondent also as-
serting his right to reassignment under the contract,
and contesting the validity of the election. By letter
dated November 5, 1973, the Employer informed Re-
spondent that in accordance with the contract provi-
sion it found Holman to be qualified for reassignment,
with full seniority rights, as either a mixer or bulk
cement driver. Subject to Respondent's approval, pur-
suant to the sentence reserving to Respondent the right
to apply the reassignment principle, the Employer
1 While not included as an attachment to the stipulation of facts, the 2 Neither of the other two local unions which are parties to the agreement
complaint is before us and is part of the record. reserved such a right
217 NLRB No. 95
GENERAL TRUCK DRIVERS LOCAL 315
wrote that it intended to "integrate Mr. Holman, as
senior employee," into the bulk hauler classification.
Shortly thereafter, Respondent's business agent tele-
phoned the Employer and informed it that the member-
ship had voted against Holman's being reassigned and
that he could not be reassigned. By letter dated Novem-
ber 7, the Employer notified Holman that such a con-
versation had taken place that day and that conse-
quently it could not reassign him.
Holman then requested a hearing before Respon-
dent's executive board, questioning the legality and the
faixness of the election and its consequences for him.
The executive board, on December 3, decided that:
[B]ecause a vote was taken after the fact that an
operation was being eliminated and that a fair vote
could not be taken at this time, the Executive
Board upholds Brother Ted Holman's appeal.
Respondent's business agent promptly filed an ap-
peal to the Joint Council of Teamsters Local 7 from the
executive board's decision, and the Employer was in-
formed that it would not be permitted to reassign Hol-
man pending the outcome of the appeal. The Employer
acquiesced in this, but gave Holman a temporary job as
a washer-greaser. Holman held that job from approxi-
mately December 17, 1973, to January 10, 1974, when
he suffered an accident while at work which resulted in
his death. Thereafter, Respondent's business agent
withdrew his appeal, which had not yet been heard, and
Respondent dismissed Holman's claim as moot.
The General Counsel contends that Respondent
breached its duty to represent Holman fairly by deny-
ing him his rights under the contract pursuant to the
results of an unfair and invalid election, and by refusing
to allow him to be reassigned pending the appeal of the
executive board's decision in violation of Respondent's
own bylaws. We conclude that Respondent breached
its, duty with respect to Holman's contractual rights
and, as the remedy for such violation covers the, period
of the pendency of the appeal from the executive
board's decision, we find it unnecessary to pass on
whether an additional violation occurred then.
When a majority of this Board decided, in Miranda
Fuel Company, Inc., 140 NLRB 181 (1962), that a
union's breach of its duty of fair representation con-
stituted a violation of Section 8(b)(1)(A) and, under
certain circumstances, Section 8(b)(2) of the Act, it also
spelled out to some extent its understanding of that
duty. As the Supreme Court noted in Vaca v. Sipes 386
U.S. 171, 181 (1967), the Board had adopted and ap-
plied the doctrine of the duty of fair representation as
developed by the Federal courts. Pertinent to the in-
stant case, the Board adopted the concept, quoted from
617
an opinion of the United States Court of Appeals for
the District of Columbia Circuit, that the duty is "in a
sense fiduciary in nature."3
Whatever the precise outlines of this duty, a subject
of scholarly debate of long standing, its fiduciary na-
ture connotes some degree of affirmative responsibility
with regard to the allocation of benefits the union has
secured for the employees in a collective-bargaining
agreement.4 At least as to rights under an existing
agreement, the duty of fair representation is more than
an absence of bad faith or hostile motivation.' So
much is implicit in Miranda Fuel itself, where the
majority found a breach of the duty because the union
caused the forefeiture of an employee's seniority status,
to which he was entitled under the contract, and the
union's action was based on pressure asserted by other
employees to persuade it to do so.6 There was no find-
ing of hostility toward the employee affected, of bad
faith in the union's assertion of its erroneous contract
interpretation (although the facts might have justified
such a finding), or of any other unlawful motivation on
the part of the union. The union's violation consisted
simply, in the words of the Board majority, in violating
the employee's "right to fair and impartial treatment
from his statutory representative."'
Another way this elusive element of the duty of fair
representation has been authoritatively described is the
avoidance of arbitrary conduct! Here again, although
phrased in negative terms, the duty is to some extent
an affirmative one, for a common characteristic or arbi-
trariness is the absence of some ingredient in the deci-
sionmaking process. What that ingredient may be, in
the context of the duty of fair representation, has only
begun to be examined by the Federal courts. One signif-
icant statement describing the duty of unions not to be
arbitrary comes from the late Judge Sobeloff, writing
for the Fourth Circuit:
A union may refuse to process a grievance or han-
dle the grievance in a particular manner for a mul-
titude of reasons, but it may not do so without
3 Miranda Fuel Company, Inc, supra, at 189-190. The material quoted
by the Board speaks of the duty of "fair dealing," which duty the Board
thereby incorporated into the duty of fair representation. See also Thompson
v Brotherhood of Sleeping Car Porters, 316 F.2d 191, 201 (C A 4, 1963),
Bazartev. United Transportation Union, 429 F 2d 868, 871 (C A. 3, 1970),
Rosen, Fair Representation, Contract Breach and Fiduciary Obligations.:
Unions, Union Officials and the Worker in Collective Bargaining, 15 Hast-
ings L J. 391, 395-399 (1964); Feller, A General Theory of the Collective
Bargaining Agreement, 61 Calif L Rev 663, 805-807 (1973)
° We are not concerned with the standards of fairness to be applied with
regard to contract negotiations
5 See Retana v Apartment, Motel, Hotel and Elevator Operators Union,
Local No. 14, AFL-CIO, 453 F.2d 1018, 1023 (C-A. 9, 1972); Griffin v.
International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, 469 F.2d 181, 183 (C.A. 4, 1972)
6 140 NLRB at 188
7 Id.
8 Vaca v. Sipes, supra at 177.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason, merely at the whim of someone exercising
union authority.'
The prohibition of decisionmaking supported by no
reason , as well as decisionmaking for impermissible
reasons, is a modest enough beginning for us. Although
an employer may discharge an employee for no reason
at all without violating the Act, we held in Miranda
Fuel that unions have obligations to employees they
represent that employers do not. And if a duty to avoid
arbitrary conduct, as part of an affirmative, fiduciary
responsibility, means anything , it must mean at least
that there be a reason for action taken . Sometimes the
reason will be apparent , sometimes not. When it is not
the circumstances may be such that we will have no
choice but to deem the conduct arbitrary if the union
does not tell us what it is.
What Judge Sobeloff said about handling grievances
is equally applicable to the administration of collective-
bargaining agreements outside the grievance proce-
dures. In the instant case, like Miranda Fuel, the Union
acted affirmatively to deprive an employee of a claimed
contractual right which was recognized by the Em-
ployer . In such cases , although we may apply the same
standard of review, we do not have the problem of
determining whether the union acted within its wide
latitude of discretion in determining whether to com-
mit its limited resources to the pursuit of a grievance.
When Holman was laid off he had a right to reassign-
ment with full seniority to any other job classification
for which he was qualified, subject to the Union's
"right to apply this principal [sic] by individual em-
ployer." According to our dissenting colleague, this
reservation means that no employee had any reassign-
ment rights until the Union said so. The provision is on
its face somewhat ambiguous as to whether a qualified,
senior employee's reassignment right exists at least un-
til the Union decides to the contrary. We are persuaded
that it does by the positive language of the provision
exclusive of the reservation, by the fact that only one
of three unions signatory to the contract reserved the
right, and by the ambiguity of the reservation itself.
Thus, the first sentence of the provision states that
"senior employees shall be reassigned . . . subject to
employee qualifications" (emphasis supplied). The sec-
ond sentence , which potentially affects the reassign-
ment rights of only those employees represented by
Respondent Union, Local 315, appears to us to be no
9 Griffin v UAW, supra at 183 See also Truck Drivers and Helpers, Local
Union 568, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America [Red Ball Motor Freight,
Inc] v N.L.R.B., 379 F.2d 137, 142-143 (C A.D C., 1967); Feller, supra,
In. 3 at 702-703; Clark, The Duty of Fair Representation: A Theoretical
Structure, 51 Tex. L. Rev. 1119, 1129-34, 1139 (1973). We need not decide
here whether to adopt a fullblown requirement of "rational decisionmakmg"
as set forth by Ms. Clark Cf Steele v Louisville & Nashville Railroad Co,
323 U S. 192, 203 (1944)
more than a power vested in that Union to regulate the
manner in which the reassignment right shall be ad-
ministered . Disputes between an employer and any of
the unions over the application of the reassignment
right would presumably be subject to the grievance
procedures, but such disputes between an employer and
Local 315 might be resolved differently because of the
special reservation. The reserved right to apply "by
individual employer" is ambiguous , however, as to
what right Local 315 has, if any, beyond that of exercis-
ing selectivity to reflect different circumstances among
different employers whose employees it represents.
Surely the reservation does not so clearly imply the
necessity of union approval before any reassignment
rights accrue that it can be said that only the Union
grants such rights . Keeping in mind that the reserva-
tion applies only to one part of the three-union bargain-
ing unit to which the rest of the provisions applies, the
result of such an interpretation would be somewhat
similar to the spectacle of a tail wagging three dogs.
Still, we assume that the Union could, on some basis,
lawfully take the position and insist that a particular
employee, although qualified, should not have bump-
ing rights on certain jobs . The question is whether in
deciding to take the position it did vis-a-vis Holman's
bumping right it accorded him the "fair amd impartial
treatment" that Miranda Fueldictates it owed him. We
begin our exploration of this question with the knowl-
edge that the only authoritative ruling by the Union
itself, the decision of its -executive board, was that the
process by which the decision to oppose Holman was
reached was not fair. True, an appeal was taken and
then aborted. True, the executive board's decision, even
if regarded as final, does not constitute an admission
that the Union failed to afford Holman the standard of
fairness required by the Act. But what was the basis for
the position the Union took initially?
Someone apparently decided that the way the
Union's position on reassignment rights , following the
layoff, should be determined was to conduct a referen-
dum among the member-employees at the facility at
which the layoff occurred. As far as the record shows,
only dump truck drivers were included in the an-
nounced layoff. Yet the ballot, which was given to the
voters after the announcement of the layoff, asked the
voters whether they wanted "the warehousemen, yard
men, flat rack-and dump drivers to be re-assigned, with
their full seniority, as ready-mix drivers." The record
does not tell us on what information this characteri-
zation of the potential impact of the bumping right was
based. It appears to be grossly inaccurate as a descrip-
tion of the announced layoff and substantially incom-
plete as a description of the contractual bumping provi-
sion, omitting as it does the mutuality of the right. We
do not know what information the voters had available
GENERAL TRUCK DRIVERS LOCAL 315
to them with which to evaluate the accuracy of that
characterization of the bumping issue . We do not know
what opportunity was given to any of the interested
employees to make their cases before the
decisionmakers . 10 What is striking , however, is that
the vote was taken after the layoff was announced, and
whether or not the voters knew all the details of the
layoff each presumably knew whether his own job was
scheduled for elimination. Those not scheduled for lay-
off would naturally think twice before voting for bump-
ing rights just then. And most importantly, the voting
on this issue was limited to those , and only those, who
would be adversely affected by a vote to permit the
bumping . That is , the election itself was designed so
that it could express, not fairness , but only the conflict
of interest of each member of the electorate.ll
The duty of fair representation being an affirmative
duty, the obligations it encompasses cannot be avoided
by delegating the authority to make decisions. Here the
Union in effect delegated this authority to a group of
its members . It could not , however, abdicate the re-
sponsibility for fair treatment of the employees affected
by the decision . By selecting the method for determin-
ing its action the Union underwrote the fairness of the
method . As . the executive board recognized, the
method was not fair. We hold that it did not meet the
minimum statutory standard of fairness.
The only difference between this case and Miranda
Fuel is that here we assume that the Union could have,
consistent with the contract, applied it in such a way
as to defeat Holman 's bumping right. The violation
consists , however, in the lack of fairness in its decision-
making process . This distinguishes the instant case
from Miami Copper Company,'z where the Board
refused to find a violation because it found the union's
interpretation of the contract to be a reasonable one.
Implicit in Miranda Fuel is the idea that a union
breaches its fiduciary duty when it deprives some em-
ployees of their clear contractual rights because a
majority of its members want it to. In situations involv-
Io See International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers ofAmerica, Local No. 671 (Airborne Freight Corporation
of Delaware), 199 NLRB 994, 999 (1972); Price v International Brother-
hood of Teamsters, 457 F.2d 605, 611 (C.A. 3, 1972).
11 Sec . 13, par. (j), of the collective-bargaining agreement provides that,
if jobs are eliminated , senior employees shall be zeassigned by the employer
"to another classification" with full seniority rights There is no limit to the
classifications to which the reassignment may be made , so that all jobs
covered by the bargaining agreement were at risk in the reassignment of
Holman Though the ballot in the election which the Respondent conducted
listed only "ready-mix drivers " as the job category to which transfer was in
issue, Respondent after the election took the view that there would be no
retention of seniority " in any job reassignment," without limitation to reas-
signment as ready-mix drivers. Thus it seems plain to us, contrary to our
dissenting colleague, that all the jobs in the unit were at stake in the reassign-
ments, and that the potential adverse effects were not limited to ready-mix
drivers
12 United Steelworkers ofAmerica, AFL CIO, and its Local 4338 (Miami
Copper Company, Division of Tennessee Corporation), 190 NLRB 43 (1971)
619
ing precontract negotiations , where employee rights are
yet to be established , the,Board has nevertheless found
a violation of the union 's duty where its official took a
bargaining stance calculated to win political advantage
by pitting a majority group against a minority . 13 Nei-
ther of these theories would necessarily have been ap-
plicable had Respondent Union left to a majority vote,
prospectively, the decision as to whether the mutual
bumping rights provided in the contract should operate
in general." Once the die had been cast , however, it
was impermissible to allow the players to decide by
majority vote which was the losing number.
The duty of fair representation was conceived as a
protection for employees faced with the reduction of
their individual rights corresponding with the grant of
power to unions to act as their - exclusive collective-
bargaining representatives . Since its conception this
duty "has stood as a bulwark to prevent arbitrary union
conduct against individuals stripped of traditional
forms of redress by the provisions of federal labor
law."" Were it held powerless to protect the em-
ployee in this case , where the Union permitted, in the
exercise of its power, what would be only a slight exag-
geration to call a mockery of fair procedures, this bul-
wark will have proved to be as illusory as the Maginot
Line. We find that by the manner in which Respondent
Union undertook to prevent Holman from being reas-
signed it violated Section 8(b)(1)(A) of the Act.16
THE REMEDY
Having found that Respondent Union has engaged
in unfair labor practices we shall order it to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. We shall
order that Respondent make whole the estate of Ted
Holman for any loss of pay Holman may have suffered
by reason of its violation of the duty to fairly represent
him, by payment of a sum of money equal to what he
normally would have earned as wages had he been
permitted to be reassigned as a bulk hauler, from
November 7, 1973, to the date that he became in-
capacitated from employment , less his net earnings
13 Barton Brands, Ltd., 213 NLRB No. 71 (1974), Red Ball Motor
Freight, Inc., 157 NLRB 1237, 1244-45 (1966), enfd. 379 F.2d 137
(C.A.D.C ; 1967) Member Jenkins dissented in Barton Brands, on the
ground that the winning of political advantage was not shown to have been
the purpose of the union's or its agents ' conduct there.
14 See Clark, supra, to . 9 at 1131. Nor do we pass on the propriety of the
Union's apparent limiting of voting eligibility to members , where the rights
of nonmember employees , if any (there was no union-security agreement),
would be equally affected. Cf Airborne Freight Corp., supra, fn 10.
15 Vaca v Sipes, supra at 182
16 Although the General Counsel contends that this case is controlled by
Miranda Fuel, supra, where the Board found violations of Sec 8 (b)(1)(A)
and (2). he has not alleged here a violation of Sec 8 (b)(2) Since the remedy
we shall provide for the 8(b)(1)(A) violation includes all the affirmative
relief that would be appropriate for a violation of Sec 8 (b)(2), we shall limit
our findings and conclusions to the former
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during that period and by payment to his estate of any
welfare, pension, or other benefits to which he or his
estate would have become entitled had he been permit-
ted to be reassigned as a bulk hauler from November
7, 1973, with proper seniority. Backpay shall be com-
puted in the manner set forth in F W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest added thereto
in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, we make the follow-
ing:
CONCLUSIONS OF LAW
1. The Employer is an employer within the meaning
of Section,2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act and at all times
material herein has been the exclusive representative of
certain employees of the Employer for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
3. By, failing to represent Ted Holman in a fair and
impartial manner , Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, General Truck
Drivers, Warehousemen, Helpers and Automotive Em-
ployees, Local 315, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Concord, California, its officers, agents, and
representatives , shall:
1. Cease and desist from:
(a) Restraining or coercing unit employees in the
exercise of their rights guaranteed by Section 7 of the
Act by failing to represent them in a fair and impartial
manner.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole the estate of Ted Holman for any
loss of wages and any welfare, pension, or other benefits
incurred by the deceased as a result of Respondent's
failure to accord him the fair and impartial representa-
tion to which he was entitled , in the manner set forth
in the section of our Decision entitled "The Remedy."
- (b) Post at its business offices and meeting halls cop-
ies of the attached notice marked "Appendix."17 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by Re-
spondent's authorized, representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees and members are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Sign and mail to the Regional Director for Re-
gion 20 sufficient copies of said notice, on forms pro-
vided by him, for posting at the premises of Rhodes &
Jamieson , Ltd., if the latter is willing.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
MEMBER PENELLO, dissenting:
The first alleged breach of Respondent's duty of fair
representation is based on the premise that Holman
had a vested right in transferring the seniority he,had
accumulated in an eliminated job to any other job for
which he was qualified, and that Respondent took this
right away from him. The premise is ill-founded be-
cause the very provision that established a potential
right to transfer of seniority reserved the application of
any such right to Respondent. Although the stipulated
facts contain neither bargaining history nor any other
aid to interpreting this reservation, the General Coun-
sel in effect concedes that it gave Respondent the right
not only to apply but to withhold application of the
reassignment right of senior employees.18 The General
Counsel argues only that the right was in this instance
withheld in an arbitrary and unfair manner.
Therefore, no employee had any rights under the
contract provision until Respondent said he did.
Beyond that, an employee such as Holman might have
a basis for asserting a statutory right if Respondent had
previously applied the provision in a way that was arbi-
trarily inconsistent with withholding its benefits from
him, or had withheld them out of a hostile motivation.
In fact, however, there is no evidence of hostile motiva-
tion in the instant case, and Respondent had not had
occasion to apply the provision at all before this inci-
dent. Neither has the General Counsel presented us
with any other basis for concluding that Respondent's
action in relying on the wishes of its members who
17 In the event that 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."
18 The Employer, under no pressure from Respondent, also recognized
that any such reassignment was subject to Respondent's approval
GENERAL TRUCK DRIVERS LOCAL 315
worked for the Employer was arbitrary, or constituted
an abuse of the discretion given the Respondent by the
contract. Thus I can only conclude that Respondent
was acting out of a legitimate concern for the other unit
employees and that it did not breach its duty of fair
representation.
The majority has, in my opinion, substituted specula-
tion for proof that Holman was deprived of his right to
participate fully and fairly in the determination of the
issue. It has improperly shifted the burden to the Union
to prove that its procedures were fair, and has intruded
into the internal workings of the Union beyond the
point which wisdon and precedent would have dic-
tated. In United States Trucking Corporation," the
Board recognized that where a union exercises its dis-
cretion, in complete good faith and honesty of purpose,
to insist on a contract restricting the transfer of em-
ployees, it is only doing the job it is expected to do.
Naturally some employees will be helped and others
hurt by such a -policy, but the union, in deciding to
follow the wishes of the majority, is not necessarily
ignoring those of the minority. It is simply selecting one
solution over another. The failure of the union to make
a selection could mean less certainty and security for all
unit employees.
The situation is no different when it comes to apply-
ing; the provisions of an existing contract where, as
here, the discretion is specifically vested in the union.
Inaction by the Union would have amounted to taking
a position just as much as positive action did, and some
employees would have been dissatisfied with the re-
sults. In making its choice the Union devised the
method it deemed at the time to be the most appropri-
ate. While it might have been better to have decided the
issue before a layoff occurred, the Union did not violate
its duty by failing to do so. Then it did what it could
reasonably have considered the next best thing in the
circumstances. I fail to understand how submitting the
question to majority vote failed to satisfy the Union's
duty to act impartially on behalf of all the employees
it represents.
My colleagues in the majority do injustice to the
19 Armored Car Chauffeurs and Guards Local Union No. 820, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (United States Trucking Corporation), 145 NLRB 225 (1963).
621
record when they say that the voting was limited to
those who would be adversely affected by a vote to
permit the bumping. In fact, of all the job classifications
of the voters, only those in the classification of ready-
mix driver would have potentially been affected ad-
versely, according to the wording of the ballot,20 and
there is no evidence concerning the relative voting
strength of ready-mix drivers within the electorate.
Once again I think my colleagues have substituted
speculation for proof regarding the self-interest of each
voter.
I would dismiss the complaint.2t
20 The ballot read "Do you want the warehousemen, yard men, flat rack
and dump drivers to be reassigned, with their full seniority, as ready-mix
drivers?" In light of the actual proposition being voted on, it seems to me
quite beside the point that the contract provision speaks of seniority rights
in transfer "to another classification" or that the Union, after the election,
took the position that seniority could not be obtained "in any job reassign-
ment "
21 Although the majority opinion does not treat the matter, I would find
that the provision in the Union's constitution which, the General Counsel
asserts, required the Union to allow Holman to be reassigned pending the
appeal from the executive board's decision, is inapplicable to Holman's
situation, and cannot form the basis of the second alleged breach of the
Union's duty
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to represent unit employees in
a fair and impartial manner.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of their
rights guaranteed by Section 7 of the Act.
WE WILL make whole the estate of Ted Holman
for any loss of pay he suffered as a result of our
failing to represent him in a fair and impartial
manner.
GENERAL TRUCK DRIVERS,
WAREHOUSEMEN, HELPERS AND
AUTOMOTIVE EMPLOYEES, LOCAL
315, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA