Local 485, Electrical Workers

National Labor Relations Board - Board Decisions

Jun 29, 1970

183 N.L.R.B. 1286 (N.L.R.B. 1970)

1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 485 , International Union of Electrical, Radio
& Machine Workers , AFL-CIO (Automotive Plat-
ing Corp .) and Opreas Barclay. Case
29-CB-147-3
June 29, 1970
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 9, 1968, the National Labor Relations
Board issued its Decision and Order' in this
proceeding in which it found that the Respondent
Union had violated Section 8(b)(1)(A) of the Act
by failing, as requested by Barclay, the Charging
Party, to press a grievance with the Company con-
cerning his discharge. In setting forth certain
remedial provisions, the Board additionally stated
that it would retain jurisdiction over this case in
order to reconsider the remedy and provide further
appropriate, affirmative remedial provisions should
those specified prove ineffective. On December 9,
1968, the General Counsel filed his motion to
reconsider remedial order in which he alleged that
the order had proved ineffective and in which he
requested the Board to consider "other and further
appropriate affirmative remedial provisions." No
responses were filed by any of the other parties
with respect to the General Counsel's motion.
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
powers in connection with this case to a three-
member panel.
In its Decision and Order, the Board ordered the
Respondent Union to request the Company "to
consider a grievance concerning the August 16,
1965, discharge of Opreas Barclay" and to take the
matter to arbitration if necessary to protect Bar-
clay's rights under the then applicable bargaining
agreement. The General Counsel's motion and sup-
porting documents show that though the Respond-
ent Union insists the Board's decision finding it to
have violated the Act is erroneous, it nevertheless
has requested the Company to consider a grievance
concerning Barclay's discharge and to take such
grievance to arbitration, and that the Company has
refused to do so. Thus no grievance has been
processed or is currently being considered concern-
ing the propriety of Barclay's discharge under the
then applicable bargaining agreement.
Insofar as the papers before us show, the Re-
spondent has taken no effective steps to fulfill its
obligation of fair representation so as to remedy its
unlawful conduct with respect to Barclay; such as,
for example, bringing a proceeding under Section
301 of the Act in order to obtain a determination of
the contractual propriety of Barclay's discharge. As
the Board found in its initial decision, it was the
Respondent's unlawful denial of fair representation
which created the indeterminate situation concern-
ing Barclay's status under the then applicable bar-
gaining agreement. Furthermore, as the Trial Ex-
aminer's analysis makes quite clear, the contractual
validity of Barclay's discharge was open to serious,
unresolved question, and in making the discharge
without first consulting the Union, the Employer
plainly disregarded clear-cut provisions of its con-
tract providing for such consultation. In these cir-
cumstances both the equities and the proper and ef-
fective realization of the statutory policy require
that the Respondent Union bear the burden of the
ambiguities which it by its illegal acts has created.2
Consequently, we shall order that it make Barclay
whole for any loss of earnings he may have
sustained as the result of his discharge on August
16, 1965, less his net interim earnings during such
period, in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, with in-
terest at 6 percent per annum on the amount of
such loss, from the time he requested the Union to
present a grievance on his behalf concerning that
discharge and until such time as the Respondent
fulfills its obligation of fair representation,3 or Bar-
clay obtains substantially equivalent employment,
whichever is sooner.
Our dissenting colleague, though noting his view
that it is appropriate to assess the Union for
backpay from the time the grievance could have
been processed to a conclusion, declines to do so in
this case. Instead, he would relegate Barclay to a
Section 301 suit against the Employer and Respond-
ent Union, assessing the Union the reasonable
costs of such an action. We regard this as peculiarly
inappropriate in this case in view of the collective-
bargaining agreement 's provision denying em-
ployees a right of action against the Employer for a
breach of contract and assigning such right of ac-
tion to the Union. Surely, a condition precedent to
the Union's exercise of such right is the exhaustion
of the contract's dispute settlement procedures, a
condition the Union has not fulfilled. Whatever the
legal effect of this section of the contract on a Sec-
tion 301 suit by Barclay may be, we regard it as
anomalous as well as inequitable to allow the Union
to escape the financial consequences of its dis-
criminatory refusal to process Barclay's grievance,
' 170 NLRB 1234
' Cloverleaf Cold Storage Co , 160 NLRB 1484, 1493, see also Port Drum
Company, 180 NLRB 590
' See Pinkerton 's National Detective Agency, Inc , 90 NLRB 205, 213
183 NLRB No. 131
LOCAL 485, ELECTRICAL WORKERS
by requiring Barclay at this late date to pursue an
avenue which the Respondent by agreement with
the Employer sought to deny him.
It is the rare employee who has the knowledge,
financial resources, and initiative to sue his own
employer for a breach of the collective-bargaining
agreement governing labor relations at his place of
work. Especially is this so when that agreement
seeks to repose his cause of action against his em-
ployer in his union representative, as is the case
here. In these circumstances, we believe it was in-
cumbent upon the Union either to use the
grievance procedures to protest Barclay's discharge
or to mount a suit against the Employer under sec-
tion 16 of the collective-bargaining agreement for
the Employer's breach of contract in discharging
Barclay without following the steps in the contract
for effectuating discharges. If such courses of ac-
tion are no longer available to the Union because of
its unlawful discriminatory refusal to represent Bar-
clay, the fault lies with the Union, not with Barclay.
Our colleague's decision to relegate Barclay to his
own suit against the Employer would not only fail
to provide Barclay with any redress against the
Union for its wrongful inaction, it would deny him
the protection and benefit of a provision negotiated
on behalf of him and other unit employees by his
representative. In short, our dissenting colleague
provides Barclay with no remedy at all; Barclay
would be no better off for having initiated this ac-
tion and seeing it brought to a successful conclu-
sion than if he had not invoked the Board's
processes. Such a denouement could scarcely be
described as an effectuation of the policies of the
Act.
ORDER
It is hereby ordered that our Order issued in this
proceeding on April 9, 1968, be, and it hereby is,
modified by adding the following as a new para-
graph 2(b), the present paragraphs 2(b) and 2(c)
being relettered respectively 2(c) and 2(d):
"(b) Make Opreas Barclay whole for any loss of
earnings he may have suffered as a result of his
discharge on August 16, 1965, less net interim
earnings, with interest at 6 percent per annum on
the amount of such loss, from the date Barclay
requested the Union to challenge the propriety of
that discharge under the then applicable bargaining
agreement until such time as the Union fulfills its
obligation to Barclay of fair representation, or Bar-
clay obtains substantially equivalent employment,
whichever is sooner."
IT IS FURTHER ORDERED that the Appendix to our
original Decision and Order be, and it hereby is,
1287
amended by adding as a fourth indented paragraph
the following:
WE WILL make Opreas Barclay whole for
any loss of earnings he may have suffered as a
result of his discharge on August 16, 1965.
and that such notice as amended be posted for 60
consecutive days from the day of posting.
Member McCulloch, dissenting:
I appreciate the logic which underlies the formu-
lation of the remedy in this case. It seems to me,
however, that the decision of the Supreme Court in
Vaca v. Sipes, 386 U.S. 171, precludes this Board
from assessing against the Respondent Union all of
the damages arising from the discharge of employee
Barclay. The proffered theory, that the remedy
given simply compensates Barclay for the damages
flowing from the breach of the Union's duty to
fairly represent Barclay, does not, in the light of
Vaca, withstand scrutiny.
In Vaca, the plaintiff had recovered damages
from a union in a Missouri court in an action based
on the union's alleged wrongful failure to process
the plaintiff's grievance over his allegedly improper
discharge by Swift & Company. The basic question
considered by the Supreme Court was whether the
state court's jurisdiction was preempted by Federal
law, under the doctrine of San Diego Building
Trades Council v. J. S. Garmon, 359 U.S. 236,
because the defendant union 's conduct was ar-
guably an unfair labor practice under the National
Labor Relations Act. The Court held that the state
court had properly taken jurisdiction over the
matter, giving a number of reasons why Garmon
was inapplicable to the situation.
In the course of its decision , the Court said
several things I think are apposite to the case at
hand. In declaring the right of an aggrieved em-
ployee to bring suit against his former employer for
damages arising out of his discharge , the Court
stated that in those suits where the union has sole
power under the contract to invoke the higher
stages of the grievance procedure , the employee
must first prove that the union wrongfully
prevented his grievance over the discharge from
being taken to arbitration . In such cases, joinder of
the union as a defendant will facilitate the latter
proof. Since such a joinder is proper , the Court
said , it would be senseless not to also permit, in the
same action , a determination of the union 's share of
the damages suffered by the employee. A contrary
rule, prohibiting the trial court from awarding
damages against the joined union which has been
found to have committed a breach of its duty of fair
representation, would mean either that the em-
ployer would be compelled to pay for the union's
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrong or that the injured employee would have to
go to two tribunals to repair a single injury. The
Court noted, without deciding, that a union's
breach of a fair representation duty might be an un-
fair labor practice under the National Labor Rela-
tions Act and that the Board might in the future, as
it had in the past , hear such complaints about
unions . But, stated the Court, to make the Board
the employee's only recourse against the union
would raise problems: "[T]he Board would be com-
pelled in many cases either to remedy injuries aris-
ing out of a breach of contract, a task which Con-
gress has not assigned to it, or to leave the in-
dividual employee without remedy for the union's
wrong ." ( Emphasis supplied .) Vaca v. Sipes, supra
at 187-188.
After finding that the state courts were not
preempted of employee suits against unions for
breach of the duty of fair representation, the Court
then examined the facts in the case and concluded,
contrary to the Missouri Supreme Court, that the
defendant union did not breach its duty of fair
representation. The Court went on to state that
there was still another "important reason" why the
Missouri court's judgment could not stand. After
noting that the amount of damages asked by the
plantiff was based on the breach of his employment
contract, the Court stated: "We hold that such
damages are not recoverable from the Union in the
circumstances of this case." The Court continued:
But the damages sought by [plaintiff] were
primarily those suffered because of the em-
ployer's alleged breach of contract....
A more difficult question is, what portion of
the employee's damages may be charged to the
union; in particular, may an award against a
union include, as it did here, damages at-
tributable solely to the employer's breach of
contract? We think not. Though the union has
violated a statutory duty in failing to press the
grievance, it is the employer's unrelated breach
of contract which triggered the controversy
and which caused this portion of the em-
ployee's damages . The employee should have
no difficulty recovering these damages from
the employer, who cannot, as we have ex-
plained, hide behind the union's wrongful
failure to act; in fact, the employer may be
(and probably should be) joined as a defendant
in the fair representation suit, as in Humphrey
v. Moore, supra. It could be a real hardship on
the union to pay these damages, even if the
union were given a right of indemnification
against the employer. With the employee as-
sured of direct recovery from the employer, we
see no merit in requiring the union to pay the
employer's share of the damages. [footnote
omitted]
The governing principle, then, is to appor-
tion liability between the employer and the
union according to the damage caused by the
fault of each. Thus, damages attributable solely
to the employer's breach of contract should
not be charged to the union, but increases if
any in those damages caused by the union's
refusal to process the grievance should not be
charged to the employer. In this case, even if
the Union had breached its duty, all or almost
all of [plaintiff's] damages would still be at-
tributable to his allegedly wrongful discharge
by Swfit. For these reasons, even if the Union
here had properly been found liable for a
breach of duty, it is clear that the damage
award was improper. (At 195, 196-198.)
Thus, the Court stated that it could not uphold a
judgment against the union measured by the
damages flowing from the breach of contract "even
if the union were given a right of indemnification
against the employer," for the reason that "all or
almost all of [plaintiff's] damages would still be at-
tributable to his allegedly wrongful discharge by
Swift." With all respect, I am not convinced that
most of the damages suffered by an employee who
has been wrongfully discharged by an employer,
and whose complaint about the discharge has been
wrongfully withheld from the grievance procedure
by a union, must necessarily be assessed against the
employer. A sound argument can be made, I think,
for allocating to the employer only those damages
attributable to a reasonable period of time in which
the grievance could have been processed to conclu-
sion-perhaps a matter of a few months at most-
and holding the union accountable for all damages
arising thereafter. However, even in Justice Fortas'
concurring opinion in Vaca, joined by Chief Justice
Warren and Justice Harlan, the following position is
taken, in apparent support of the majority opinion's
conception of the proper distribution of damages:
The Court holds-and I think correctly if the
issue is to be reached-that the union could
not be required to pay damages measured by
the breach of the employment contract,
because it was not the union but the employer
that breached the contract. (At 201. )
I thus feel constrained to believe that Vaca v.
Sipes forbids the action taken by the Board in this
case-the award of full damages against the
Respondent Union-at least in the present circum-
stances. Although the Board has no jurisdiction
here over the employer responsible for the
discharge, it does appear that another remedial al-
LOCAL 485, ELECTRICAL WORKERS
ternative is available by which the proper allocation
of damages between the employer and the union, as
prescribed by the Supreme Court, could be
achieved. The Board could order the Respondent
to furnish legal fees, in a reasonable amount, to
Barclay, the discriminatee, so that Barclay might
undertake a Section 301 action against the Em-
ployer and the Respondent. By this approach, the
court in which the action was tried could (1) de-
' The majority opinion suggests that the position here taken is "pecu-
liarly inappropriate " because of a provision in the collective-bargaining
agreement which exclusively authorizes the Respondent Union to bring ac-
tions against the Employer for breach of contract It is asserted that
"[s]urely, a condition precedent to the Union's exercise of such right is
the exhaustion of the contract's dispute settlement procedures, a condi-
tion which the Union has not fulfilled " I might note that my proposal is
that employee Barclay, not the Union, bung the action But I think that
still another quotation from Vaca adequately answers the argument
made by the majority
We think that another situation when the employee may seek judi-
cial enforcement of his contractual rights arises if, as is true here, the
union has sole power under the contract to invoke the higher stages of
the grievance procedure and if, as is alleged here , the employee -plain-
tiff has been prevented from exhausting his contractual remedies by
the union 's wrongful refusal to process the grievance It is true that the
employer in such a situation may have done nothing to prevent ex-
haustion of the exclusive contractual remedies to which he agreed in
1289
tide whether or not Barclay was unjustifiably
discharged, a matter upon which the Board has not
passed; and (2) apportion damages, if any, between
the Union and the Employer, as appears to be
required by Vaca v. Sipes, rather than have the en-
tire burden imposed upon the Union, as the Board's
remedy now dictates.' See Czosek v. O'Mara, 397
U.S. 25.
the collective bargaining agreement But the employer has committed
a wrongful discharge in breach of that agreement , a breach which
could be remedied through the grievance process to the employee-
plaintiff 's benefit were it not for the union's breach of its statutory duty
of fair representation to the employee To leave the employee remedi-
less in such circumstances would, in our opinion, be a great injustice
We cannot believe that Congress , in conferring upon employers and
unions the power to establish exclusive grievance procedures, in-
tended to confer upon unions such unlimited discretion to deprive in-
jured employees of all remedies for breach of contract Nor do we
think that Congress intended to shield employers from the natural con-
sequences of their breaches of bargaining agreements by wrongful
union conduct in the enforcement of such agreements
For these reasons, we think the wrongfully discharged employee
may bring an action against his employer in the face of a defense based
upon the failure to exhaust contractual remedies , provided the em-
ployee can prove that the union as bargaining agent breached its duty
of fair representation in its handling of the employee's grievance (At
185-186 , emphasis in original )