Mine Workers District 5 (Pennsylvania Mines)

National Labor Relations Board - Board Decisions

May 30, 1995

317 N.L.R.B. 663 (N.L.R.B. 1995)

663
317 NLRB No. 98
MINE WORKERS DISTRICT 5 (PENNSYLVANIA MINES)
1 All dates are in 1992 unless otherwise noted.
2 Local 1378, fearing that the arbitrator would find that its own
grievance was untimely, had Charging Party Elwood Selapack file
another grievance, on August 28, raising the same issue as a pre-
caution against such a finding. The logic behind Respondent Local’s
thinking on the timeliness issue is unknown. In any event, the arbi-
trator considered the initial grievance on the merits and the parties
settled Selapack’s grievance when the Employer paid the award
which the arbitrator had provided.
3 The Supreme Court, while approvingly citing Miranda, supra,
stated in Vaca v. Sipes, 386 U.S. 171, 177 (1967), that a union’s
duty of fair representation ‘‘includes a statutory obligation to serve
the interest of all members without hostility or discrimination toward
any, to exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct.’’
4 NLRB v. American Postal Workers (Postal Service), 618 F.2d
1249 (8th Cir. 1980).
5 Ford Motor Co v. Huffman, 345 U.S. 330, 338 (1953).
United Mine Workers of America, District 5, and
its Local 1378, AFL–CIO (Pennsylvania Mines
Corporation) and Elwood Selapack. Case 6–
CB–8906
May 30, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On February 14, 1994, Administrative Law Judge
Bernard Ries issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondents, United Mine
Workers of America, District 5, and its Local 1378,
AFL–CIO, did not, as alleged, violate Section
8(b)(1)(A) of the Act by retaining the proceeds of an
arbitration award in Local 1378’s treasury rather than
distributing these funds to unit employees. While not-
ing that it ‘‘may have been shortsighted on the [Re-
spondents’] part’’ to let the Local keep the money, the
judge concluded that ‘‘it scarcely makes the decision
to turn the funds over to the Union treasury ‘irra-
tional.’’’ (Footnote omitted.) For the reasons stated
below, we reverse the judge and find that the Respond-
ents’ conduct in failing and refusing to distribute the
moneys awarded was arbitrary and unreasonable and in
violation of Section 8(b)(1)(A) of the Act.
The evidence shows that Respondent Local 1378
represented employees at the Employer’s Tunnelton
mine in Indiana County, Pennsylvania. In June 1992,1
the Employer laid off approximately 140 employees
pending the sale of the Tunnelton mine, leaving only
1 unit employee on the job. On July 7, the Union filed
a grievance alleging that the Employer’s supervisors
had been performing unit work and seeking a make
whole remedy. The grievance went to arbitration on
September 9.2 Following a hearing, the arbitrator
issued his decision on November 30, directing that the
Employer pay ‘‘mine inspector, lampman, and me-
chanic for all hours they would have worked during
period mine was idled.’’ The arbitrator did not specify
the individuals who were entitled to backpay, but rath-
er, ‘‘[p]ursuant to a stipulation of the parties,’’ he re-
tained jurisdiction over ‘‘the calculation of backpay
and identification of the proper individuals to receive
pay’’ if either party so requested in writing within 60
days.
In early December, Kenneth Horcicak, an executive
board member for District 5, sent the Employer a letter
in which he requested that the Employer pay the arbi-
tration award of $6121.09 directly to Local 1378. The
Employer then mailed the Respondents a check for the
proper amount which Respondent Local deposited in
its account based on advice given to Respondent Dis-
trict by Mine Workers International. The Respondents
did not disburse any of these funds to the unit employ-
ees.
During Respondent Local’s monthly meeting in Jan-
uary 1993, Charging Party Selapack complained about
Respondent Local’s failure to distribute the money to
the unit employees. Respondent Local’s officials re-
jected Selapack’s argument on the ground that ‘‘it
would be too difficult to figure out who would get the
money.’’ Selapack subsequently filed the instant
charge on February 24, 1993.
In Miranda Fuel Co., 140 NLRB 181, 185 (1962),
the Board held that Section 8(b)(1)(A) of the Act
‘‘prohibits labor organizations, when acting in a statu-
tory capacity, from taking [union] action against any
employee upon considerations or classifications which
are irrelevant, invidious, or unfair.’’ Thus, the duty of
fair representation gives employees the right under
Section 7 to be represented without arbitrary, irrele-
vant, or invidious discrimination by their exclusive
bargaining representative.3 A labor organization’s arbi-
trary conduct alone may be sufficient to constitute a
violation of its duty of fair representation.4 Even with-
out any hostile motive of discrimination and in com-
plete good faith, a labor organization may pursue a
course of action that is so unreasonable and arbitrary
as to constitute a breach of its duty of fair representa-
tion. In evaluating, however, whether such conduct is
so arbitrary as to breach this duty of fair representa-
tion, unions have been afforded a ‘‘wide range of rea-
sonableness’’ so long as they exercise their discretion
in good faith.5
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See Cleveland v. Porco Co., 38 F.3d 289 (7th Cir. 1994).
7 Nida v. Plant Protection Assn., 7 F.3d 522 (6th Cir. 1993).
8 To the extent that grievances often involve claims of losses to
unspecified employees, it is important that unions not be tempted to
pursue these grievances as a source of revenue, as would be the case
were we to allow the appropriation of backpay awards to general
union funds.
9 The Respondents’ assertion of this defense highlights the arbi-
trariness of the Respondents’ actions. The persons whom the Re-
spondents purportedly now seek not to offend were the Employer’s
laid-off employees in three identified classifications, each of whom
might be able to claim some basis for receiving a portion of the arbi-
trator’s monetary award. The Respondents’ treatment of those em-
ployees resulted in no employee receiving any portion of the mone-
tary award, while the Respondents, which have never claimed an in-
jury entitling it to any portion of the monetary award, now retains
the entire proceeds of the award.
10 Although the judge speculated that any further proceeding be-
fore the arbitrator would have diminished the arbitration award pro-
ceeds, there is no record evidence to support this conclusion and the
Respondents themselves never raised this argument.
Applying these principles to the present case, we
find that the Respondents breached their duty of fair
representation owed to the unit employees by their
conduct here. We note that the Respondents initiated
the grievance contesting the use of supervisors to per-
form certain unit work and then solicited a grievance
from Charging Party Selapack alleging the same con-
tractual violations. The Respondents, by filing these
grievances, were effectively arguing that, if the Em-
ployer had honored the terms of the collective-bargain-
ing agreement, the Employer would have recalled addi-
tional employees to perform the work which super-
visors had done. Yet, after prevailing on their own
grievance in arbitration, the Respondents chose to re-
tain the moneys awarded by the arbitrator in Respond-
ent Local’s general treasury rather than distribute the
money to unit employees in a manner consistent with
the arbitrator’s award.
We find that where, as here, a union pursues a
grievance on behalf of unit employees and receives
funds either through settlement or an arbitration award
to be paid to these employees, the union usually has
an obligation to distribute such funds to unit employ-
ees. In so concluding, we stress that the arbitrator’s
award was quite clear in directing the Employer to pay
employees in three particular job classifications who
might have been called to work if the Employer had
not breached the collective-bargaining agreement.
Thus, this is not a case in which the arbitrator’s award
was ambiguous so that the Union could exercise some
discretion in the final resolution of the grievance.6 It
also is not a situation in which there were clear possi-
bilities of loss on one category of claim that would
have warranted settling for an amount based on the
other provable claim.7 Here, the Respondents cir-
cumvented the arbitrator’s award by claiming the pro-
ceeds for Respondent Local’s treasury and thus acted
in derogation of their duty of fair representation by
acting arbitrarily and unreasonably. We, therefore, con-
clude that, by failing to distribute the moneys that the
Employer paid them, the Respondents violated Section
8(b)(1)(A) of the Act.
Based on testimony by Respondent District 5’s ex-
ecutive board member, Kenneth Horcicak, the Re-
spondents have argued that division of the arbitration
award would have been completely ‘‘speculative’’ in
that ‘‘it would have been impossible to say during that
time period who would and who would not have ac-
cepted recall, because there was no obligation for them
to do so.’’ We reject the Respondents’ premise here
that such uncertainty in being able to identify with pre-
cision the individuals affected by the Employer’s con-
duct afforded the Respondents an opportunity to appro-
priate these moneys to its general fund.8 In finding no
merit to this argument, we emphasize that the Re-
spondents have identified no risks of reduction of the
total recovery that might have resulted from their at-
tempting to identify the specific employees who had
lost wages by virtue of the contract breach. Further-
more, although some degree of informed speculation
may have been required in order to determine proper
beneficiaries of the arbitrator’s award, the Respondents
certainly knew which employees were working imme-
diately before the layoffs in those job classifications
involved in the arbitration. The Respondents also
knew, by the time the arbitration award issued, which
of the affected employees had accepted recall to those
classifications when the new owner, having purchased
the site from the Employer, reopened the mine in Sep-
tember 1992. Thus, the Respondents had available to
them criteria to assist them in determining those unit
employees who should have received the proceeds of
the arbitrator’s award.
Moreover, the Respondents could have more gen-
erally distributed the funds among the unit employees,
exercising their discretion in a manner free of ‘‘hostile,
invidious, irrelevant, or unfair considerations.’’ See
Steelworkers Local 2869 (Kaiser Steel Corp.), 239
NLRB 982 (1978). As the Board implicitly held in
Teamsters Local 101 (Allied Signal Corp.), 308 NLRB
140 (1992), a union has wide latitude in determining
the manner in which to distribute the proceeds of a fa-
vorable arbitration award. Here, if the Respondents, as
claimed, had legitimately feared offending those unit
members who would not have been recipients of the
award proceeds,9 the Respondents could have resub-
mitted the matter to the arbitrator who had retained ju-
risdiction over the matter to resolve precisely this issue
on request of either party.10 Yet, the Respondents
manifestly avoided all reasonable means for distribut-
ing the proceeds among unit employees and, instead,
acted unreasonably by depositing the funds in Re-
spondent Local’s treasury. This interfered with the unit
665MINE WORKERS DISTRICT 5 (PENNSYLVANIA MINES)
11 The General Counsel does not request that this case be resub-
mitted to the arbitrator for this determination and we shall not order
it, particularly given the passage of time since the arbitrator’s deci-
sion issued.
12 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.’’
employees’ Section 7 rights. For these reasons, we find
that the Respondents have not raised a valid defense
in their claim that they kept the proceeds of the arbi-
tration award because they could not determine which
unit employees should receive them.
We, therefore, conclude that the Respondents vio-
lated Section 8(b)(1)(A) by failing and refusing to dis-
tribute the funds the arbitrator awarded. Although a
union normally can exercise wide discretion in the
handling of grievances filed under the collective-bar-
gaining agreement, we find that the Respondents
crossed the line of rationality and acted to the det-
riment of unit members for reasons that are so arbi-
trary as to breach their duty of fair representation to
the affected unit employees.
CONCLUSIONS OF LAW
1. Respondent Unions, United Mine Workers of
America, District 5, and its Local 1378, AFL–CIO, are
labor organizations within the meaning of Section 2(5)
of the Act.
2. Pennsylvania Mines Corporation is an employer
within the meaning of Section 2(2) of the Act and at
all times material here has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By failing and refusing to distribute the proceeds
of the arbitration award resulting from its grievance
over supervisors performing unit work to the unit em-
ployees, the Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of
the Act.
4. The Respondents’ unfair labor practices affect
commence within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondents have violated
Section 8(b)(1)(A) of the Act, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. We shall
also order that the Respondents make whole the unit
employees, with interest, for any losses they suffered
by reason of the Respondents’ failure and refusal to
distribute the proceeds of the arbitration award that re-
sulted from their grievance over the Employer’s use of
supervisors to perform unit work while the employees
were on layoff status, in a manner consistent with this
decision.11 Interest shall be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondents, United Mine Workers of America, Dis-
trict 5, and its Local 1378, AFL–CIO, Indiana County,
Pennsylvania, their officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Failing and refusing to distribute the proceeds of
the arbitration award resulting from their grievance
over supervisors performing unit work to the unit em-
ployees.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole unit employees, with interest, for
any losses they suffered by reason of the Respondents’
failure and refusal to distribute the proceeds of the ar-
bitration award that resulted from their grievance over
the Employer’s use of supervisors to perform unit
work while the unit employees were on layoff status,
in the manner set forth in the remedy.
(b) Post at their business offices and all other places
where notices to members are posted copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER TRUESDALE, dissenting.
Contrary to my colleagues, I would not find that the
Respondents violated Section 8(b)(1)(A) of the Act by
retaining the proceeds of the arbitration award in Local
1378’s general treasury. Thus, I agree with the judge
that the Respondents’ decision was within the wide
range of discretion afforded to unions by the Supreme
Court in Ford Motor Co. v. Huffman, 345 U.S. 330,
338 (1953).
The facts here show that during June 1992 the Em-
ployer laid off all but one unit employee from its Mar-
ion Mine #33 and then used statutory supervisors to
perform unit work. On learning that the Employer had
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Teamsters Local 860 (The Emporium), 236 NLRB 844 fn. 2
(1978).
2 Steelworkers Local 2869 (Kaiser Steel Corp.), 239 NLRB 982
(1978).
3 See Teamsters Local 692 (Great Western Unifreight System), 209
NLRB 446, 447–448 (1974).
4 Teamsters Local 355 (Monarch Institutional Foods), 229 NLRB
1319, 1321 (1977).
5 Vaca v. Sipes, 386 U.S. 171, 190 (1967).
6 See Steelworkers Local 2869 (Kaiser Steel Corp.), supra at fn.
2.
7 See Teamsters Local 101 (Allied Signal Corp.), 308 NLRB 140
(1992), where the Board found that the union had not acted arbitrar-
ily by distributing a portion of the arbitration proceeds to a classi-
fication of employees who were not the subject of the underlying
grievance.
breached their collective-bargaining agreement, the Re-
spondents filed a grievance which was pursued to arbi-
tration. The arbitrator found for the Respondents and
awarded them $6,121.09. Pursuant to agreement with
the Employer, the Employer paid the Respondents the
amounts owed. The Respondents deposited the sums in
Local 1378’s treasury rather than attempting to identify
the unit employees who were adversely affected by the
Employer’s contractual breach.
A union has an obligation under the Act to represent
fairly all the employees in the bargaining unit, and that
obligation extends to the union’s actions in the han-
dling of grievances.1 As the Supreme Court empha-
sized, however, in Ford Motor Co. v. Huffman, supra,
‘‘[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 discre-
tion.’’ Thus, the Board has held that ‘‘it is not every
act of disparate treatment or negligent conduct which
is proscribed by Section 8(b)(1)(A), but only those
which, because motivated by hostile, invidious, irrele-
vant, or unfair considerations, may be characterized as
‘arbitrary conduct.’ [Footnotes omitted.]’’2 Although a
union’s duty to the unit employees is not fulfilled by
mere arbitrary action, the Board has held that it is not
breached by tactical considerations or mere negligent
action or nonaction.3 The Board also does not require
that ‘‘every possible option be exercised’’ or that a
grievance be handled ‘‘in a perfect manner.’’4
In explaining their failure to distribute the proceeds
of the arbitration award, the Respondents stated that
they could perceive no objective basis for identifying
the proper recipients. There were several factors
present here, as the Respondents pointed out at the
hearing, that would have complicated any attempt to
make this determination. Because any recalls the Em-
ployer made following the June 1992 layoffs were
likely to be for temporary jobs, the Respondents and
the Employer agreed to waive the contractual provision
that employees who declined recall offers would lose
their position on the recall list. The Respondents ar-
gued that in this situation, where employees had no
obligation to accept recall, they could not determine
which employees would have returned to work if the
Employer had complied with the contract and used
unit employees, instead of supervisors, to perform the
work. Furthermore, under the Respondents’ collective-
bargaining agreement, employees on layoff status from
other mines that the Employer operated also had recall
rights to Marion Mine #33. For these reasons, the Re-
spondents concluded, as their mine chairman stated,
that ‘‘it would be too difficult to figure out who would
get the money.’’
The evidence shows that the Respondents vigorously
pursued the grievance they filed and won it. Since it
was impossible to determine precisely which employ-
ees suffered losses in pay or the amount of such
losses, the Respondents made an administrative deci-
sion to retain the funds awarded them. While the judg-
ment that the Respondents exercised may not meet the
optimal standards of competence and diligence that the
Board would like to see observed by unions acting as
exclusive bargaining representatives, I would not find
that this decision violated the Act. As stated, a breach
of the duty of fair representation occurs only when the
union’s conduct is ‘‘arbitrary, discriminatory, or in bad
faith.’’5 Even my colleagues do not contend that the
choice the Respondents made in keeping the moneys
was motivated by hostile or unfair considerations. As
to the issue of arbitrariness, I conclude that the Re-
spondents acted in good faith and that, as the judge
noted,’’ While [the disposition of the award] may have
been shortsighted on the part of Respondent, it scarce-
ly makes the decision to turn the funds over to the
Union treasury ‘irrational.’’’ Therefore, I would not
find that the conduct of the Respondents in this case
breached their duty of fair representation in violation
of Section 8(b)(1)(A).6 Unions are afforded ‘‘a wide
range of reasonableness’’ in serving the unit employ-
ees under Huffman, supra, and only those actions
deemed to be so far outside that ‘‘wide range of rea-
sonableness’’ can be deemed ‘‘irrational’’ and hence
arbitrary under Air Line Pilots Assn. International v.
O’Neill, 499 U.S. 65, 67 (1991).7 Measured against
that standard, the Respondents’ actions cannot be con-
sidered to have violated their duty of fair representa-
tion. Accordingly, I would dismiss the instant com-
plaint.
667MINE WORKERS DISTRICT 5 (PENNSYLVANIA MINES)
1 Certain errors in the transcript have been noted and corrected.
2 The caption was amended in accordance with the unopposed mo-
tion of the General Counsel filed subsequent to the hearing.
3 All dates hereafter refer to 1992.
4 Also, on August 28, at the instigation of the Respondent, laid-
off employee Elwood Selapack, the Charging Party here, signed an
individual grievance written by the Respondent, evidently animated
by some obscure motion of circumventing a claim of untimeliness
as to the first grievance. Selapack’s grievance stated that since June
26, management had not scheduled a ‘‘union fireboss,’’ contrary to
the alleged principle that ‘‘if a union man is underground working,
a union fireboss will also [sic].’’ A ‘‘fireboss’’ is also referred to
as a ‘‘mine examiner’’ and an ‘‘inspector.’’ The mine committee
asked that Selapack be made whole. Selapack’s grievance was de-
nied by the Company and was then set aside by the parties. District
Representative Kenneth Horcicak testified that the Union’s purpose
was to perhaps use the Selapack grievance as a ‘‘second bite at the
apple’’ in case it lost the arbitrated grievance.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to distribute the pro-
ceeds of the arbitration award resulting from our griev-
ance over supervisors performing unit work to the unit
employees.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole the unit employees, with in-
terest, for any losses they suffered by reason of our
failure and refusal to distribute the proceeds of the ar-
bitration award that resulted from our grievance over
the Employer’s use of supervisors to perform unit
work while the unit employees were on layoff status.
UNITED MINE WORKERS OF AMERICA,
DISTRICT 5, AND ITS LOCAL 1378,
AFL–CIO
Patricia J. Scott, Esq., for the General Counsel.
Kenneth Horcicak and Jimmy Smith, of Belle Vernon, Penn-
sylvania, for the Respondents.
DECISION
BERNARD RIES, Administrative Law Judge. This case was
tried in Pittsburgh, Pennsylvania, on October 22, 1993. The
complaint alleges that the Respondent violated Section
8(b)(1)(A) of the Act since on or about November 20, 1992,
by refusing to pay to Charging Party ‘‘Selapack and other af-
fected employee members backpay awarded to them by an
arbitrator and instead insisted that the backpay award be re-
tained in the treasury of Respondent Local Union 1378.’’
The answer denies the material allegations of the complaint;
the Respondent Unions, however, agree that they are labor
organizations within the meaning of the Act and that there
is a sufficient basis here for assertion of jurisdiction by the
Board.
Briefs were received from the General Counsel and the
Respondents on November 29, 1993. After due consideration
of the briefs and the entire record, I make the following
I. FINDINGS OF FACT1
Respondent Local 1378, a subdivision of Respondent Dis-
trict 5 (the Respondent or the Union), has represented the
employers of Tunnelton Mining Company (owned by Penn-
sylvania Mines Corporation)2 for collective-bargaining pur-
poses for an uncertain period of time. In June 1992,3 the
Company laid off approximately 140 employees pending the
sale of its mine, leaving only 1 individual rank-and-filer still
employed. During the layoff, the Company used supervisors
to perform classified work such as mine inspection, electrical
inspection, and mechanical. On July 7, the Union filed a
grievance (naming ‘‘E.T. Al on behalf of Local’’ as the
‘‘grievants’’) asserting that supervisors had been performing
classified work and asking for a make-whole remedy. The
Company denied the grievance and, on September 9, the case
went to arbitration.4
There is no need to analyze the extremely complex 13-
page decision issued by the arbitrator on November 30. It is
sufficient to say that he concluded that, in accordance with
specific findings made in the arbitration award, the Employer
should pay ‘‘mine inspector, lampman, and mechanic for all
hours they would have worked during period mine was
idled.’’ The arbitrator did not, however, specify the individ-
uals who were entitled to backpay, that issue not having been
litigated in the arbitration proceeding. Rather, ‘‘[p]ursuant to
a stipulation of the parties,’’ he retained jurisdiction over
‘‘the calculation of backpay and identification of the proper
individuals to receive pay’’ if either party so requested in
writing within 60 days.
In early December, District 5 Executive Board Member
Kenneth Horcicak wrote to a representative of Pennsylvania
Mines Corporation, recapitulating their conversation of the
preceding day regarding the number of hours to be com-
pensated pursuant to the arbitration award. In closing,
Horcicak stated:
Finally, the Arbitrator has at this point left the issue
of pay in our hands. As you know the grievances were
filed et al and signed by Local Union No. 1378 presi-
dent. I believe that the proper party to the award is
therefore Local Union No. 1378. Precedent in Arbitra-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I draw heavily in this section from the cases usefully collected
and analyzed in P. Hardin, The Developing Labor Law, Ch. 26, pp.
1442–1455 (3d ed. 1992), First Supplement pp. 288–289.
tion relative to this issue has already been established
and a copy of one such case is enclosed for your re-
view. If we can agree on the above instead of speculat-
ing as to who may have returned[,] it is probably in
Pennsylvania Mines Corporation’s and the Union’s best
interest. I say this because of Pennsylvania Mines Cor-
poration’s position through the recalls that if employees
did not desire to return to work they were not denied
panel because of the temporary nature, and if you will
recall that indeed did happen. For us to speculate as
[sic] this time on who may or may not have chosen to
work is inappropriate.
The Company agreed and in December sent the Union a
check for $6121.09, which was deposited in the Local’s ac-
count, on the basis of advice given to the District by the
International that such a disposition would be appropriate. A
‘‘Settlement Statement’’ entry made on Selapack’s separate
grievance on an undisclosed date reads, ‘‘Settled as per
P.M.C. & Tunnelton Mining Co. & the Union, remittance
made to L.U. [Local Union] base [sic] on ET, AL griev-
ance.’’
At the hearing, when asked about the meaning of the mys-
tifying final three sentences of his December letter quoted
above, Horcicak offered an equally opaque (to this layman)
explanation, involving agreements made by the Company and
the Union during the mine closure, which concluded with
Horcicak’s opinion that ‘‘it would have been impossible to
say during that time period who would and who would not
have accepted recall, because there was no obligation for
them to do so.’’ Horcicak also testified that in their discus-
sions, the Respondent and the Company ‘‘felt it was com-
plete speculation to say who would or wouldn’t have re-
turned to work, and we subsequently decided that since the
arbitrator left it to us whether to refer it back to him or not,
okay, that wasn’t an order to refer it back to him, and we
did what was in the best interests of the local at that point
in time.’’
After Selapack heard from Local President Don Lorelli
that the Local had received a check from the Company and
had been told by the District to deposit it in the Local’s gen-
eral fund, he attended the Local’s January 1933 monthly
meeting. At that meeting, the disposition of the arbitration
award was discussed, and Mine Committee Chairman
Markovitch stated that ‘‘it would be too difficult to figure
out who would get the money.’’ Selapack questioned this as-
sertion, saying that allocation would be ‘‘easy to do.’’ At no
point in the instant hearing, however, was Selapack asked to
explain his conception of an ‘‘easy’’ appropriate and legiti-
mate basis for distributing the award.
II. THE GOVERNING PRINCIPLES5
Section 8(b)(1)(A) now clearly incorporates the ‘‘duty of
fair representation’’ owed by a union to the employees on
whose behalf it speaks and acts. See Steele v. Louisville &
Nashville R.R. Co., 323 U.S. 192 (1944); Ford Motor Co. v.
Huffmann, 345 U.S. 330 (1953); Miranda Fuel Co., 140
NLRB 181 (1962), enf. denied 326 F.2d 172 (2d Cir. 1963);
Vaca v. Sipes, 386 U.S. 171, 177–178 (1967). In the leading
case of Vaca v. Sipes, supra, the duty was not—as it could
not be—given detailed expression. The Supreme Court, in-
stead, painted with a broad brush (386 U.S. at 190, 191):
A breach of the statutory duty of fair representation oc-
curs only when a union’s conduct toward a member of
the collective bargaining unit is arbitrary, discrimina-
tory, or in bad faith. There has been considerable de-
bate over the extent of this duty in the context of a
union’s enforcement of the grievance and arbitration
procedures in a collective bargaining agreement. . . .
[W]e accept the proposition that a union may not arbi-
trarily ignore a meritorious grievance or process it in
perfunctory fashion.
The type of unfair representational treatment may take
many forms, ranging from a refusal to provide referral infor-
mation to an employee, Service Employees Local 9
(Blumenfeld Enterprises), 290 NLRB 1 (1988), to a failure
or refusal to process a grievance. The reason for the union’s
default, too, may vary. Action taken or not taken because of
a grievant’s intraunion (or other) politics, personal hostility,
or racial discrimination could violate the statute. But so
could the same action or inaction if attended by no animating
force, but merely in consequence of culpable disregard (‘‘ar-
bitrary,’’ perhaps, or ‘‘perfunctory,’’ or ‘‘grossly neg-
ligent’’—the Board, it should be noted, holds that ‘‘some-
thing more than mere negligence’’ is required, Rainey Secu-
rity Agency, 274 NLRB 269, 270 (1985)). When there is no
showing of bad faith or reckless disregard, but, rather, the
union makes a conscious decision which adversely affects
some members of the unit, Ford Motor Co. v. Huffman,
supra at 338, adjures us that the union must be accorded a
‘‘wide range of reasonableness.’’
Although the Supreme Court has seemed to shift emphasis
over the years in reformulating the elusive standard for as-
sessing the duty, see Transit Union v. Lockridge, 403 U.S.
274, 301 (1971) (must be ‘‘substantial evidence of discrimi-
nation that is intentional, severe and unrelated to legitimate
union objectives’’), Hines v. Anchor Motor Freight, 424 U.S.
554, 571 (1976) (requires ‘‘more than demonstrating mere
errors in judgment’’), the Court’s most recent comprehensive
pronouncement on the subject adopted an approach which
confirms Ford Motor Co. v. Huffman, supra, and gives it an
extremely broad reading. In Air Line Pilots v. O’Neill, 499
U.S. 65, 67 (1991), the Court stated:
We hold that the rule announced in Vaca v. Sipes —
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, including con-
tract negotiation. We further hold that a union’s actions
are arbitrary only if, in light of the factual and legal
landscape at the time of the union’s actions, the union’s
behavior is so far outside a ‘‘wide range of reasonable-
ness,’’ Ford Motor Co. v. Huffman . . . as to be irra-
tional.
Thus, in a situation—as here—in which a union’s conduct is
not shown to be ‘‘discriminatory’’ or in ‘‘bad faith,’’ the Re-
spondent can be found to have failed to provide proper rep-
resentation only if its behavior ‘‘is so far outside ‘a wide
669MINE WORKERS DISTRICT 5 (PENNSYLVANIA MINES)
6 I further note that the issue might have been complicated still
more by the fact, conceded by Selapack at the hearing, that the con-
tract did not allow retention of classification in a layoff situation.
While Selapack also referred to hearing of an agreement between
one of the companies involved and the Union that all the laid-off
employees would go back to work ‘‘under our classification,’’ that
would not necessarily apply to the interim situation which the arbi-
tration addressed.
7 Although there is no indication that the Board has abandoned the
Associated Transport doctrine, it seems somewhat uncomfortable
with the principle; see HLJ Management Group, supra at fn. 3, and
Service Employees Local 579 (Convacare of Decatur), 229 NLRB
692 fn. 2 (1977), where the Board stated that the duty to, act as an
‘‘advocate’’ in an arbitral setting does not obtain in prearbitral griev-
ance meetings.
It is not easy to understand the difference between the two situa-
tions. The Court of Appeals for the Seventh Circuit, in enforcing As-
sociated Transport, supra, relied on ‘‘venerable tort law that purport-
ing to take action where duty is nonexistent creates in itself certain
duties.’’ But that rule is founded in the possibility that voluntary
intervention may have the effect of discouraging other volunteers
and assistance, thus imposing a responsibility on the first intervenor.
Restatement, Second, Torts § 323 Comment: c. pp. 137–138. In the
case of an arbitral procedure in which the union exclusively controls
the reference of grievances to arbitration, however, the union’s deci-
sion to arbitrate cannot have the effect of seducing the grievant to
refuse or abandon other sources of assistance, because there are no
other sources. Hence, there does not appear to be any reason for im-
posing a higher standard on the union once the grievance has been
referred to arbitration than at earlier stages of the process.
range of reasonableness’ . . . as to be irrational.’’ Applying
O’Neill, supra, see Ackley v. Teamsters Local 337, 948 F.2d
267 (6th Cir. 1991); Alier v. Tuscan Dairy Farms, 979 F.2d
946 (2d Cir. 1992).
The complaint states that the gravamen of the allegation
in this case is that Respondent violated the Act by having
‘‘refused to pay to Selapack and other affected employee
members backpay awarded to them by an arbitrator and in-
stead insisted that the backpay award be retained in the treas-
ury of Respondent Local Union 1378.’’ At the hearing, coun-
sel for the General Counsel offered a somewhat different for-
mulation of the cause of action: ‘‘[W]hether the Union’s fail-
ure to resubmit the case to an arbitrator for an identification
of who that person is, or persons are [who are entitled to
backpay] is a violation of the National Labor Relations Act’’;
‘‘The theory of the General Counsel is that the arbitrator spe-
cifically retained jurisdiction, that the Union could have in-
voked, should have invoked, and was legally obligated to in-
voke, because of the very purpose Mr. Horcicak says that he
cannot specifically identify an appropriate classified mine ex-
aminer, mechanic, or lampman to distribute the award to.’’
As earlier shown, the arbitrator did not mandate that the
issue of allocation be decided by him, although he agreed to
accede to the stipulation of the parties that either could, with-
in 60 days of the award, ask him to render such a decision.
I am unable to conclude, furthermore, that, had the Respond-
ent made such a request, there is any evidence at all that the
arbitrator could have done much better than arrive at some
purely discretionary standard for distributing the $6000. For
example, Selapack conceded that there were three ‘‘classi-
fied’’ mine examiners when the mine closed, and also there
were ‘‘ones ahead of me in seniority’’ who were ‘‘qualified
to do mine examining.’’ He also ‘‘suppose[d]’’ that certain
other mines, which employed mine examiners and (I think)
mechanics, had ‘‘panel rights into Tunnelton,’’ which, as I
understand the record, would have given other laid-off em-
ployees of the Company some rights to be considered for re-
call. Horcicak seemed credible in testifying that division of
the award would have been completely ‘‘speculative’’ be-
cause the Company and the Local ‘‘had agreed to waive
some contractual obligations or mandatory obligations of em-
ployees.’’ Selapack, the only other witness, offered no expla-
nation of why he thought it would be ‘‘easy’’ to distribute
the money in some logical way.6
Although the General Counsel seems to be arguing that
the failure to exercise the option of returning to the arbitrator
for a compliance decision was a per se violation of the Act,
I find nothing ‘‘irrational’’ about the Respondent’s failure to
do so. The record appears to support the Respondent’s con-
tention that the arbitrator would have been forced to make
subjective judgments, applying whatever standards he might
personally have evolved. In addition, I am uncertain about
the manner in which a supplementary proceeding would have
been conducted. The Respondent states that it could perceive
no objective theory for awarding the funds, and therefore
would presumably have made no presentation to the arbitra-
tor. I assume, furthermore, that the Company (which had
sold the mine) very likely had no interest in how the money
was divided. This would have left the arbitrator in the un-
usual position of searching out whatever evidence might be
relevant, in the hope of unearthing some useful standard, in-
stead of occupying the normal role of having advocates
present evidence to him. Such an unstructured proceeding
would certainly have taken a substantial bite out of the
$6000 award in order to pay for the arbitrator’s additional
fee.
The principal argument advanced on brief by the General
Counsel is based on a line of cases in which the Board has
held that once a union undertakes to present a grievance to
an arbitral forum, it is obliged to act as the employee’s ‘‘ad-
vocate,’’ and present the grievance in the light most favor-
able to the grievant. See Teamsters Local 705 (Associated
Transport), 209 NLRB 292 (1974), petition for review de-
nied 532 F.2d 1169 (7th Cir. 1976); Hotel & Restaurant Em-
ployees Local 64 (HLJ Management Group), 278 NLRB 773
fn. 3 (1986). These cases do not seem to be apposite here.
Unlike Associated Transport, supra, where the union stated
before the grievance committee that the grievance was un-
meritorious, the Respondent here vigorously pursued and
won its grievance on behalf of unnamed employees. It seems
obvious that only after reflecting on the disposition of the
award did the Union conclude that no sensible formula for
disbursing the proceeds could be concocted. While that may
have been shortsighted on the part of the Respondent, it
scarcely makes the decision to turn the funds over to the
Union treasury ‘‘irrational.’’7
The General Counsel goes on to argue:
Thus, it is respectfully submitted that the standard of
care required of the Respondent Unions in this case,
where they accepted and processed a grievance on be-
half of the Union’s members and where they ‘‘settled’’
the ‘‘Selapack grievance’’ upon the results of the arbi-
tration, is greater than the standard of care applied in
the prearbitral stages of the grievance procedure. Spe-
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I note that counsel for the General Counsel argues that retention
of the $6000 ‘‘would presumably benefit the whole of the local
membership but not necessarily the whole of the unit.’’ The key
words here are ‘‘not necessarily’’; counsel may be correct, but there
is no evidence either way.
I also should acknowledge the General Counsel’s contention that
since the arbitration award only intended to benefit certain classifica-
tions, the deposit of the funds in the Local’s treasury is inconsistent
with that intent. This seems quite likely (although not impossible—
the Local conceivably could apply the money so as to only improve
the lot of the named classifications). Nonetheless, since the record
indicates that it was not unreasonable for Respondent to determine
that there was no objective basis for concluding which of the em-
ployees in each classification would have received the assignments,
the Respondent’s decision to bring an end to the matter was not un-
warranted.
cifically, insofar as the arbitrator issued an award of
backpay to be paid to certain classified employees and
the Respondent Unions received the moneys awarded
pursuant to such an award, the standard of care which
should be applied is the standard of care expected of
a trustee of funds.
The preceding analysis presents two difficulties. One is
factual: the Respondent did not ‘‘accept’’ the grievance
which was processed; the grievance was, rather, initiated by
the Respondent. The second is more substantive.
Echoing earlier cases, the O’Neill, supra, Court stated that,
indeed, ‘‘[t]he duty of fair representation is thus akin to the
duty owed by other fiduciaries to their beneficiaries.’’ It
went on to describe this duty as the obligation to represent
employees ‘‘adequately as well as honestly and in good
faith.’’ But the standard of representing ‘‘adequately’’ must
be viewed in the light of the ‘‘irrationality’’ criterion also
laid down in O’Neill. And even assuming that the Respond-
ent Unions should be considered ‘‘fiduciaries’’ with respect
to the $6000 award, can it be said that any trust relationship
was violated in view of the facts that (1) the arbitrator did
not require, but offered only a voluntary opportunity (pursu-
ant to a stipulation of the parties) to return to him for a sup-
plemental decision; (2) the Respondent clearly acted in good
faith, and with no demonstrable negligence, in concluding
that there was no reasonable basis for dividing the funds
among the unit employees; and (3) the only positive evidence
of record bolsters the Respondent’s conclusion that, in order
to award the money to individuals, the arbitrator would have
had to invent his own standard (which might lead to more
intra-union disruption than the resolution chosen by the
Union).
The foregoing analysis leads me to conclude that Respond-
ent’s decision not to seek a supplemental order from the arbi-
trator was within the ‘‘wide range of reasonableness’’ af-
forded by, Huffman, supra, and was plainly not ‘‘irrational,’’
O’Neill, supra. I therefore recommend that the complaint be
dismissed.8
CONCLUSIONS OF LAW
1. The Respondents, United Mine Workers of America,
District 5, and its Local 1378, AFL–CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. It is appropriate for the Board to assert jurisdiction over
the issues raised in this proceeding.
3. The Respondents did not violate the Act as alleged in
the complaint.
ORDER
[Recommended Order for dismissal omitted from publica-
tion.]