Office Employees Local 2

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1353 (N.L.R.B. 1984)

OFFICE EMPLOYEES LOCAL 2
Office and Professional Employees International
Union, Local No. 2, AFL-CIO and Janet Ei-
chelberger. Cases 36-CB-982
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 27 May 1983 Administrative Law Judge
Gordon J. Myatt issued the attached decision. The
Respondent filed exceptions and a supporting
brief. '
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that by failing to timely notify
the Charging Party, Janet Eichelberger, of its deci-
sion not to process her grievance the Respondent
breached its duty of fair representation and violat-
ed Section 8(b)(1)(A) of the Act. For the reasons
set forth below, we disagree.
I. FACTUAL BACKGROUND
The International Association of Machinists and
Aerospace Workers, Grand Lodge (the Machinists)
employed Janet Eichelberger as a secretary in the
Portland, Oregon regional office for approximately
4 years until her separation from employment 13
October 1981.2 At all relevant times, the Respond-
ent represented Eichelberger for purposes of col-
lective bargaining.
During the period at issue, the Respondent and
the Machinists were signatories to a nationwide
collective-bargaining agreement that covered office
clerical employees in the Machinists' regional of-
fices. The collective-bargaining agreement provid-
ed that either an individual employee or the Union
could file a grievance within 30 days of the event
giving rise to the grievance. The Portland regional
office, where Eichelberger was employed, had no
union representative present. Leo J. Sheridan, the
Respondent's president, located in Washington,
D.C., administered the contract for the Portland
regional office employees.
' On 18 November 1983 Office and Professional Employees Interna-
tional Union, AFL-CIO,CLC, filed a motion requesting permission to
submit an attached brief amicus curiae. The General Counsel opposes the
motion. Under all the circumstances, we deny the motion on the ground
that it was untimely filed.
2 All dates refer to 1981 unless otherwise noted.
268 NLRB No. 207
As part of her secretarial duties, Eichelberger at-
tended a Machinists conference in Seattle, Wash-
ington, from 7 October to 10 October. On 13 Octo-
ber Eichelberger reported to work and was called
into the office of Fred Waggoner, the assistant to
the vice president in charge of the Portland region-
al office. Waggoner told Eichelberger of her supe-
riors' dissatisfaction with her performance at the
Seattle conference because she "talked too much
about company expenses" and was "inebriated
about half the time." Eichelberger denied the alle-
gations. Waggoner requested her resignation. She
said, "Fine," and left Waggoner's office. Eichel-
berger typed a letter of resignation, delivered it to
Waggoner, turned in her keys, and left the office.
On 15 October Eichelberger telephoned Wag-
goner and requested a letter of recommendation.
She also asked for her vacation and severance pay.
Waggoner subsequently provided her with a letter
of recommendation. As for the vacation and sever-
ance pay, Waggoner wrote to Eugene Glover, the
Machinists' general secretary-treasurer, advising
Glover of Eichelberger's resignation and requesting
that she receive "everything she had coming." On
19 October Eichelberger wrote to Glover asking
for severance pay.
On 28 October Eichelberger telephoned Sheri-
dan's office in Washington, D.C. She spoke to a
secretary and asked how long she had to file a
grievance. The secretary told her she would check
and get back to her. Later that day, the secretary
called Eichelberger and told her the time limit was
30 days.
By letter dated 29 October, Glover replied to
Eichelberger's claim for severance pay. He stated
that severance pay was only provided for employ-
ees laid off for an indefinite time and, because
Eichelberger voluntarily terminated her employ-
ment, she was not entitled to severance pay.
On 30 October, before receiving Glover's 29 Oc-
tober letter, Eichelberger sent Sheridan a six-page
handwritten letter accompanied by several enclo-
sures. 3 Eichelberger set forth a series of complaints
and allegations regarding the treatment she re-
ceived as a secretary for the Machinists. The letter
began with a complaint about sexual harassment
that allegedly occurred 2-1/2 years earlier. Next,
Eichelberger discussed the hiring of another secre-
tary in November 1979 at a rate of pay equal to
hers, another secretary's pay raise, and the dis-
charge of a woman who purchased a foreign car.
Eichelberger then detailed additional instances of
I The enclosures were a letter to Sheridan, dated 25 April 1980, con-
cerning the hiring of a secretary at the same rate of pay as Eichelberger;
a note to Eichelberger dealing with the Seattle conference; Eichel-
berger's resignation; and the Machinists' letter of recommendation.
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged sexual harassment. Finally, the letter turned
to the subject of the Seattle conference in October
1981, recounted Eichelberger's resignation and
added complaints concerning her job description
and her having to receive collect calls from the
vice president's female friends. Eichelberger con-
cluded by listing her "grievances." 4 They were: (1)
sexual harassment; 5 (2) unequal treatment regard-
ing wage rates based on her seniority; (3) accusa-
tions concerning her honesty in handling union
funds; (4) intimidation and unfair tactics regarding
the request for a letter of resignation; and (5) the
failure to remit severance pay.
Sheridan received Eichelberger's letter and at-
tachments on 2 November. He read them several
times and concluded that there was no basis for a
grievance. In Sheridan's view, Eichelberger did not
challenge her termination or otherwise seek rein-
statement. Sheridan believed that Eichelberger's
resignation precluded her receipt of severance pay.
As for the other complaints in the letter, Sheridan
discerned no basis for a grievance.
In his testimony, Sheridan stated that, on the
basis of the papers submitted, he saw no reason to
engage in further investigation. He also admitted
that he failed to inform Eichelberger of the deci-
sion not to file a grievance. He testified that, al-
though he was aware that he should have sent
Eichelberger a reply, he simply did not do so be-
cause he was involved in various litigation on the
Respondent's behalf. The 30-day time period for a
grievance over Eichelberger's separation from em-
ployment expired on or about 13 November.
On 2 December, having received no reply to her
30 October letter, Eichelberger sent another letter
to Sheridan. In that letter, Eichelberger stated that
she believed two aspects of her case were closely
related, namely, her "forced" resignation and her
entitlement to severance pay. She added that, in
her view, her resignation was a constructive dis-
charge because she was given the impression that
she had no choice in the matter.
When Sheridan received the 2 December letter,
he submitted all of the correspondence to the Re-
spondent's attorney. After studying the matter, the
attorney informed Sheridan that he saw no basis
for a grievance.
On 25 January 1982 an attorney representing
Eichelberger sent another letter to Sheridan de-
manding action. The Respondent did not reply to
this letter.
4The letter stated that Eichelberger was treating the letter as the first
step in the grievance process.
6 At the end of the letter, Eichelberger wrote that the incidents of
sexual harassment were too numerous to mention and that Sheridan could
call her for additional details.
II. THE ADMINISTRATIVE LAW JUDGE'S
DECISION
Based on the foregoing facts, the judge conclud-
ed that the Respondent breached its duty of fair
representation and violated Section 8(b)(1)(A) of
the Act. The judge rejected the Respondent's as-
sertion that its conduct should be assessed in terms
of its overall handling of Eichelberger's request to
file a grievance. Instead, relying on the specific
terms of the complaint, the judge found that in-
quiry should be limited to the Respondent's failure
to notify Eichelberger in a timely manner of its de-
cision not to process a grievance. Within this limit-
ed framework, the judge found that, although
Sheridan was aware of the 30-day time limit on
grievances, he presented no logical explanation or
justification for his omission. Accordingly, the
judge found that the Respondent's inaction was ar-
bitrary and, therefore, violated the Act.
The judge's analysis is faulty in two related re-
spects. First, he improperly limited the appropriate
scope of inquiry. Secondly, although we agree
with the judge that Sheridan was negligent in fail-
ing to inform Eichelberger of his decision not to
file a grievance on her behalf, we conclude that
such negligence, when viewed in the totality of the
circumstances, is insufficient to constitute a breach
of the duty of fair representation.
III. THE APPROPRIATE SCOPE OF INQUIRY
In limiting his analysis to Sheridan's failure to
inform Eichelberger of his decision not to act, the
judge relied on a strict reading of the complaint.
While we agree that the complaint's literal terms
are limited to Sheridan's omission, the parties in
their opening statements outlined a much broader
framework for evaluating the Respondent's actions.
Thus, the General Counsel asserted that an essen-
tial factor was "what action the Respondent took
or did not take, and upon what this action was
based." The Respondent argued from the outset
that the central issue was whether the Respond-
ent's overall conduct in deciding not to process a
grievance on Eichelberger's behalf constituted a
failure to represent her fairly. Following their
opening statements, the parties presented testimony
and documentary evidence on all the circumstances
surrounding Eichelberger's submissions to the Re-
spondent and the Respondent's processing of her
submissions. Accordingly, the parties plainly litigat-
ed the instant case on a basis broader than the spe-
cifics of the complaint.
In addition, the applicable legal standard for de-
termining whether a union has breached its duty of
fair representation requires a wider scope of in-
1354
OFFICE EMPLOYEES LOCAL 2
quiry than that the judge applied here. While the
judge correctly noted that the appropriate standard
is set forth in Teamsters Local 692 (Great Western),
209 NLRB 446 (1974), he failed fully to incorpo-
rate the teaching of that case into his analysis.
In Great Western, an employee filed a claim pro-
testing his discharge. The respondent union filed a
grievance on his behalf. The grievance, however,
was time-barred under the applicable collective-
bargaining agreement. In a summary judgment pro-
ceeding before the Board, the General Counsel
argued that the union's action or inaction was arbi-
trary and, therefore, constituted a breach of the
union's duty of fair representation. The General
Counsel argued that the employee filed an admit-
tedly meritorious grievance, the union negligently
failed to process it in a timely manner, and the em-
ployee thereby lost all rights to avail himself of the
collective-bargaining agreement's grievance proce-
dure.
In its decision, the Board reviewed its own and
related court opinions and concluded that a union's
conduct must be arbitrary or based on consider-
ations that are "irrelevant, invidious, or unfair"
before a breach of the duty of fair representation
can be found. In this regard, the Board found that
"negligence," standing alone, does not constitute
arbitrary conduct. Rather, the General Counsel
must demonstrate that "something more than mere
negligence" occurred to justify a finding of arbi-
trariness and, therefore, a breach of a union's statu-
tory duty. 209 NLRB at 447-448. The Board then
applied the appropriate test to the facts before it
and concluded that, although the union was negli-
gent in failing to file a timely grievance, the requi-
site "something more" to justify finding a statutory
breach was not demonstrated, and the complaint
was dismissed.
In view of the requirement that the Board deter-
mine whether a union's conduct is "mere negli-
gence" or "something more," we must look
beyond the alleged act of negligence and examine
the totality of the circumstances. Accordingly, we
find that the judge erred in limiting his inquiry.
IV. ANALYSIS OF THE INSTANT CASE
Turning to the facts in the instant case, we agree
with the judge that Sheridan was negligent in fail-
ing to inform Eichelberger of the Respondent's de-
cision not to file a grievance on her behalf. Our
review of the entire record, however, fails to dis-
close circumstances that constitute the "something
more than mere negligence" necessary to convert
the negligent omission into a violation of the Act.
Our analysis begins with the fact that Eichel-
berger's 30 October submissions was a somewhat
discordant listing of alleged unfair treatment at the
hands of the Machinists. The bulk of her letter re-
lated events that occurred I to 2 years earlier.
Sheridan credibly testified that he reviewed the
letter in detail several times. He then determined,
probably correctly, that many of the complaints
did not constitute appropriate grievance matters.
As for the more recent events, Sheridan properly
noted that Eichelberger did not request reinstate-
ment or otherwise allege an unjust discharge.
Eichelberger's letter of resignation convinced
Sheridan of the futility of a grievance on the issu-
ance of severance pay. In short, it is plain that
Sheridan fully considered Eichelberger's claims.
While all may not agree with his substantive con-
clusions concerning the grievance potential of each
claim, his decisions clearly were not unreasonable;
they fell well within the Respondent's broad dis-
cretion to process requests to file grievances as it
deems appropriate. 7 In this respect, the Respondent
fulfilled its statutory duty.
The more troublesome fact, however, is that
Sheridan failed to inform Eichelberger of his deci-
sion. The issue here is whether under all the cir-
cumstances Sheridan's omission was simply negli-
gence or something more. The judge held that it
was something more, namely, arbitrary conduct. In
so concluding, he cited Sheridan's inability to pro-
vide a substantial justification for his inaction, his
knowledge of the 30-day time limit, and his finding
that Eichelberger lost her right to file a grievance.8
We do not agree.
Exactly when union conduct constitutes "some-
thing more than mere negligence" is not suscepti-
ble to precise definition. This is so because, as
noted above, the totality of circumstances in each
case must be examined and evaluated. Indeed, in
Great Western, where the Board set forth the ap-
propriate legal standard, it examined the facts of
the case by referring to examples where the requi-
site "something more" or "arbitrariness" was
present. Thus, where a union attempted to cause an
employee to forfeit his contract seniority first on a
groundless basis and then on a second basis in clear
conflict with the collective-bargaining agreement,
6 Although Eichelberger termed her letter the first step in the griev-
ance procedure, her letter cannot properly be termed a grievance. The
collective-bargaining agreement states that any grievance must be filed
with the aggrieved employee's immediate supervisor. Accordingly,
Eichelberger's letter is appropriately characterized as a request for the
Respondent to file a grievance on her behalf.
7 See, e.g., Steelworkers Local 7748 (Eaton Corp.), 246 NLRB 12 (1979).
The judge also cited Auto Workers Local 417 (Falcon Industries), 245
NLRB 527, 534 (1979), and Groves-Granite, 229 NLRB 56, 62-63 (1977).
These cases are discussed in fn. 12, below.
1355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board found a violation.9 Where the business
agent responsible for filing an employee's discharge
grievance refused even to discuss the matter with
the employer because the employee opposed him at
a union meeting, the Board found a failure to rep-
resent fairly. 10 Similarly, in subsequent decisions,
the Board found that hostility toward the grieving
employee," or a willful deception of the employ-
ee,'2 constitutes more than mere negligence. Con-
versely, when a union's conduct is limited to an act
or omission exhibiting a lack of sensitivity, the
Board has refused to find a violation.'s
In this context, the factors the judge cited simply
do not rise to the level of "something more than
mere negligence." Sheridan's inability to provide a
substantial justification for his failure to notify Ei-
chelberger means nothing more than that Sheridan
was negligent. With respect to Sheridan's knowl-
edge of the 30-day time limit, Eichelberger's own
testimony reveals that she, too, was aware of the
relevant time period. Despite this knowledge, she
took no action beyond her initial letter until well
after the grievance period expired. Only then did
she write a second letter to Sheridan. Eichel-
berger's inaction also bears on the third factor the
judge relied on, which was his conclusion that Ei-
chelberger lost her contractual rights because of
Sheridan's inaction. A careful analysis reveals that
this was not the case. The collective-bargaining
agreement clearly states that either the Respondent
or the aggrieved employee can file a grievance. Ei-
chelberger knew of the applicable time limitations,
yet she chose to take no action beyond asking the
Respondent to file a grievance for her. 1 4 While
Sheridan's omission is not to be condoned, it is also
inaccurate and unjust to conclude that this conduct
served completely to extinguish Eichelberger's
contractual rights. Eichelberger herself must bear
g Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d 172
(2d Cir. 1963).
10 Electrical Workers Local 485 (Automotive Plating), 170 NLRB 1234
(1968).
i Pacific Coast Utilities Service, 238 NLRB 599, 607 (1978).
La Auto Workers Local 417 (Falcon Industries), 245 NLRB 527, 535
(1979). This case, which the judge cited, involved elements of willful de-
ception, resentment of the employee by the union agent because the em-
ployee's friend had filed a racial discrimination charge, and other ele-
ments that distinguish it from the instant case. In Groves-Granite, 229
NLRB 56, 62-63 (1977), which the judge also cited, the union disparaged
the employee in discussions with the employer, harbored personal hostili-
ty against the grievant, and engaged in a willful deception of the employ-
ee. We plainly do not have such elements here.
13 Washington-Baltimore Newspaper Guild, Local 35, 239 NLRB 1321
(1979).
14 Before writing Sheridan, Eichelberger demonstrated that she was
willing and able to pursue claims on her own behalf. This is evidenced by
her requests to Waggoner and Glover for severance and vacation pay.
We also deem it significant that in Great Western the union's negligence
alone rendered the grievance untimely, yet no violation was found.
some portion of the responsibility for sleeping on
her rights. ' 5
We find that, although the Respondent was neg-
ligent in neglecting to inform Eichelberger of its
decision not to file a grievance, examination of the
totality of the circumstances of the case fails to
reveal the "something more than mere negligence"
necessary to constitute a violation of the Act. Ac-
cordingly, we will dismiss the complaint.
ORDER
The complaint is dismissed.
is Our analysis in this case should not be read as imposing a strict duty
on employees to pursue their own contractual rights with the skill and
assiduousness of a union representative or a labor relations attorney. Ob-
viously, unions exist in large part to advance the legitimate claims of indi-
vidual employees. We do believe, however, that where, as here, the rele-
vant contractual provisions are clear, and there is an avenue of redress
independent of the union, an employee cannot simply submit a claim to
the union, stand idly by while time limitations expire, and then claim
unfair representation when the union thoroughly evaluates the claim, but
finds it without merit.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon
a charge filed by Janet Eichelberger (hereafter called
Eichelberger) against Office and Professional Employees
International Union, Local No. 2, AFL-CIO (hereafter
called the Respondent Union), the Regional Director for
Region 19 issued a complaint and notice of hearing on
August 16, 1982. The complaint alleges that the Re-
spondent violated Section 8(b)(1)(A) of the National
Labor Relations Act, as amended, 29 U.S.C. § 151, et
seq. (hereafter called the Act). The Respondent filed an
answer in which it admitted certain allegations of the
complaint, denied others, and specifically denied commit-
ting any unfair labor practices.
A hearing was held in this matter in Portland, Oregon,
on March 17, 1983. All parties were represented by
counsel and afforded full opportunity to examine and
cross-examine witnesses and to present relevant and ma-
terial evidence on the issue involved. Briefs were submit-
ted by the parties and have been duly considered.
On the entire record in this case, including my obser-
vation of the witnesses while testifying, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The pleadings admit, and I find, that International As-
sociation of Machinists and Aerospace Workers, Grand
Lodge (hereafter called the Machinists) is an unincorpo-
rated association functioning as a labor organization. The
Machinists maintains a regional office in Portland,
Oregon, where it is engaged in the business of represent-
ing employees in bargaining with employers with respect
to wages, hours, and other terms and conditions of em-
1356
OFFICE EMPLOYEES LOCAL 2
ployment. At all times material herein, the Machinists
has been signatory to a collective-bargaining agreement,
nationwide in scope, with the Respondent Union cover-
ing, inter alia, the office clerical employees in its regional
offices throughout the United States and Canada. In the
course of its business operations during the past year, the
Machinists has collected dues and initiation fees in excess
of $50,000, and has remitted per capita taxes in excess of
$25,000 from its Portland, Oregon regional office to the
headquarters of the International Association of Machin-
ists and Aerospace Workers located outside the State of
Oregon. Based on the above, I find the Machinists is, and
has been at all times material herein, an employer within
the meaning of Section 2(2) engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ILABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Office and Profes-
sional Employees International Union, Local No. 2,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE Al.l EGED UNFAIR LABOR PRACTICE
A. Eichelberger's Employment with the Machinists
The record discloses that Eichelberger has been an
employer working at the Machinists' Northwest regional
office for over 4 years. At the time of the events herein,
she was the secretary to Stanley Jensen, the Machinists
vice president in charge of the regional office. Eichel-
berger became a member of the Respondent Union upon
commencement of her employment by the Machinists.
During the early part of October 1981,' the Machinists
held a staff conference in Seattle, Washington. The con-
ference began on October 7 and continued through Oc-
tober 10. Eichelberger was assigned to attend the confer-
ence and her duties included receiving registration fees
from the delegates, distributing packets of materials to
them, and performing whatever secretarial duties that
might be assigned.
On two occasions while attending the conference,
Eichelberger had lunch with two of the delegates, Dessie
Harrison and Michael Wolfe. Eichelberger testified that,
during one of these luncheon engagements, the three of
them discussed office expenditures and agreed that the
regional office was spending considerable money on ex-
penses. Eichelberger stated she had three glasses of
white wine during the course of her lunch. 2
Eichelberger left the conference during the morning of
October 10. The following Monday (October 12) was a
holiday and she reported to work on October 13. When
she arrived, she was called into Waggoner's office.
Eichelberger testified that Waggoner said, "Janet we
were very dissappointed in your performance at the staff
conference. You talked too much about company ex-
' Unless otherwise indicated, all dates herein refer to the year 1981
2 Eichelberger attended the conference banquet with Fred Waggoner,
assistant to Jensen, and his wife. She stated wine was also served with
that meal. Eichelberger's unrefuted testimony indicates that at no time
during the conference was she criticized about the performance of her
duties or accused of drinking too much wine.
penses. You were inebriated about half the time." Eichel-
berger responded that the accusations were not true.
Waggoner then told her, "We will have to ask for your
resignation." At that point, Eichelberger replied, "Fine."
She returned to her desk and typed up her resignation
(G.C. Exh. 3), which she gave to Waggoner along with
her office keys. Eichelberger then left the premises.3
On October 15, Eichelberger called Waggoner and re-
quested a letter of recommendation, which she subse-
quently received. (See G.C. Exh. 4.) In her conversation
with Waggoner, Eichelberger also asked for her vacation
and severance pay. Waggoner in turn sent a letter to
Eugene Glover, general secretary treasurer of the Ma-
chinists, on October 16 advising him of Eichelberger's
resignation and requesting that "everything she had
coming" be mailed directly to her (G.C. Exh. 5).
On October 19, Eichelberger wrote directly to Glover
specifically renewing her request for severance pay. She
noted that if her resignation had not been requested, she
"would still be employed by the I.A.M." (G.C. Exh. 6.)
Glover responded by a letter dated October 29. He in-
formed Eichelbeger that, since she voluntarily terminated
her employment with the Machinists, she was not enti-
tled to severance pay. He stated that "[u]nder the terms
of the contract [with the Respondent Union], severance
pay is paid only when an employee is laid off for an in-
definite period of time." (See G.C. Exh. 7.)
B. The Filing of the Grievance with the Respondent
Union
On October 30, but prior to receipt of Glover's letter,
Eichelberger wrote to Leo J. Sheridan, president of the
Respondent Union. She requested that the letter be con-
sidered "Step I of the grievance procedure." After set-
ting forth difficulties she had encountered during her em-
ployment by the Machinists, Eichelberger listed five
items that she was grieving.4 These items were:
(1) Sexual harassment.
(2) Unusual treatment regarding wage rates based
upon my seniority.
(3) Accusation regarding my honesty in handling
union funds.
(4) Intimidation and unfair tactics regarding re-
questing a letter of resignation.
(5) Employer's failure to remit severance pay.
Failing to receive a reply from the Respondent Union,
Eichelberger sent a second letter to Sheridan on Decem-
ber 2. In this letter Eichelberger pointed out "two as-
pects" of her grievance which she felt were closely relat-
ed. She stated them as follows:
3 Waggoner did not appear as a witness in these proceedings.
4 See G.C Exh 8. Attached to the grievance letter were copies of (I)
Eichelberger's letter of resignation; (2) the Machinists' letter of recom-
mendation; (3) Waggoner's letter to Glover; (4) Eichelberger's letter to
Glover: (5) a 1980 letter to Sheridan requesting information regarding se-
niority and wsage rates: and (6) a note from a secretary who attended the
conference in Seattle commending Eichelberger's "fine help."
1357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Namely, the intimidation by which I was fbrced to
submit a letter of resignation against my wishes and
desires, and the refusal to pay severance pay.
She further stated that, "In fact it was not a resignation
but a constructive discharge. I was, in fact, given the im-
pression that I had no choice in the matter."5
No one from the Respondent Union replied to either
of the letters written by Eichelberger. On January 25,
1982, counsel engaged by Eichelberger sent another
letter to Sheridan requesting a reply to Eichelberger's
grievance. The Respondent Union also failed to respond
to this letter.
C. Respondent Union's Attitude Regarding the
Grievance
Sheridan admitted receiving the October 30 letter and
its attachments from Eichelberger. He stated he read
them several times and concluded there was no basis for
filing a grievance. According to Sheridan, "it was a res-
ignation because the employee determined that perhaps
she wasn't happy there; that maybe it would be best to
go seek other employment." When questioned as to the
basis for his conclusions about Eichelberger's situation,
Sheridan stated, "Well, on reading the letter and looking
at the attachments, the letter of resignation, the letter of
recommendation, there is nothing in Mrs. Eichelberger's
letter to me saying I was fired for cause. I want my job
back. I want you to file a grievance that I was unjustly
discharged. I want to be reinstated." On cross-examina-
tion, however, Sheridan testified that he understood
"Mrs. Eichelberger was asking the local Union to file a
grievance to seek relief on each of those five items that
are listed in the letter." Sheridan further acknowledged
that he did not contact Eichelberger to ascertain addi-
tional facts about her complaints, nor did he contact the
Machinists to investigate any of the matters on her
behalf.
Upon receipt of the December 2 letter, Sheridan sub-
mitted all of the communications from Eichelberger to
the Respondent Union's attorney for a legal opinion. In a
letter dated January 5, 1982, the attorney advised that
the Machinists did not have grounds to discharge Eichel-
berger but that by resigning the employee removed all
basis for processing a grievance. (See G.C. Exh. l(e), at-
tachment A.)
Sheridan admitted that he failed to notify Eichelberger
of the Respondent Union's decision not to process her
grievance. This was true even though he was aware that
under the terms of the collective-bargaining agreement
Eichelberger could have filed the grievance individually
with the Machinists provided she did so within 30 days
of the occurrence which gave rise to the grievance.6
When questioned as to why he failed to respond to
Eichelberger's first grievance letter, Sheridan stated, "I
don't have any excuse for not, you know, responding to
the letter in terms of, you know, writing a letter back
and saying, you know, we don't have the basis to pursue
a grievance. We are not going to pursue the issue."
I See G.C. Exh. 9.
6 G.C Exh. 2, art. XXIV.
Concluding Findings
As the facts here are not in dispute, I find the basic
question to be decided is whether the Respondent
Union's failure to respond to Eichelberger's request to
process her grievance constitutes a breach of its duty of
fair representation. The Respondent Union argues, how-
ever, that the "inferential gravamen of the complaint" is
that it failed to file a grievance on Eichelberger's behalf
within the time limitations set forth in the collective-bar-
gaining agreement. I do not read the allegations of the
complaint in such a circumscribed fashion. Subpara-
graphs (b), (c), and (d) of paragraph 6 of the complaint
specifically allege that Eichelberger submitted her griev-
ances to the Respondent Union and received no re-
sponses. It is this conduct that is alleged to be a violation
of Section 8(b)(1)(A) of the Act and not, as Respondent
Union asserts, the failure to file a grievance on behalf of
Eichelberger. Thus, it is apparent that the core issue in
whether the Respondent Union by failing to timely
notify Eichelberger of its decision not to process her
grievance engaged in unlawful arbitrary conduct in
breach of its representation duty.
It is settled law that where a union has been granted
exclusive representative status, the grant of such author-
ity "includes a statutory obligation to service the inter-
ests of all members without hostility or discrimination
toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary conduct."
(Emphasis added.) Vaca v. Sipes, 386 U.S. 171, 176
(1967); Operating Engineers Local 324 (Michigan Chapter
AGC), 226 NLRB 587 (1976). It is equally settled that a
union has a wide range of discretion in determining how
and whether to handle employees grievances; provided
the exercise of such discretion is not based on discrimina-
tory, arbitrary, or bad-faith considerations. Groves-Gran-
ite, 229 NLRB 56, 62-63 (1977) (and the cases cited
therein).
Applying these principles to the facts of the instant
case, I find the Respondent Union's conduct does indeed
constitute a breach of its duty of fair representation. It is
undenied that, when Sheridan received Eichelberger's
letter on November 2, he understood that she was seek-
ing to grieve, among other things, her resignation which
she indicated was coerced, and the failure to be granted
severance pay. As the chief union representative in
charge of enforcing the terms of the collective-bargain-
ing agreement, he was also aware that Eichelberger's
right to grieve as an individual would be barred by the
agreement 30 days after the resignation she was contest-
ing. In spite of this knowledge, Sheridan made no effort
whatsoever to contact Eichelberger to advise her that
the Respondent would not process her grievance because
it was considered to lack merit; and thereby preserve her
right to submit the grievance directly to the Machinists
as an individual. Rather, he simply made a determination
that the grievance lacked merit and then did nothing.
It is of no consequence that the Respondent Union
considered Eichelberger's grievance unmeritorious and
decided not to process it. The vice in the Respondent
Union's conduct is that it failed to inform Eichelberger of
its decision, in a timely manner, so that her right to con-
1358
OFFICE EMPLOYEES LOCAL 2
tinue to pursue the matter under the terms of the collec-
tive-bargaining agreement would not have been fore-
closed.
The Respondent Union argues that its inaction was
simply due to "mere negligence" and, relying on Team-
sters Local 692 (Great Western Unifreight System), 7 asserts
that "something more" than negligent nonaction by a
union is required to establish a breach of the duty of fair
representation. Contrary to this contention, I find that
Local 692 does not apply to the circumstances found in
the instant case. There the conduct alleged to be unlaw-
ful was the failure to timely file a grievance. Here, how-
ever, by failing to advise Eichelberger that it was not
going to process her grievance, or to respond in any
fashion, the Respondent Union engaged in conduct
which was tantamount to purposely keeping the employ-
ee uninformed about the status of her grievance. The
detrimental effect of this inaction, or nonaction, is com-
pounded by the fact that it resulted in barring Eichel-
berger from exercising her right to press her grievance
individually under the terms of the contract.
In my judgment, such conduct on the part of the Re-
spondent Union exceeds mere negligence and, in view of
the total lack of a logical explanation or justification,
must be considered to be arbitrary in nature. Cf. Auto
Workers Local 417 (Falcon Industries), 245 NLRB 527,
534 (1980); Grove-Granite, supra. Accordingly, I find the
Respondent Union breached its duty of fair representa-
tion by failing to timely notify Eichelberger that it
would not process her grievance. By so doing, the Re-
spondent Union violated Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. International Association of Machinists and Aero-
space Workers, Grand Lodge, is an employer within the
meaning of Section 2(2) engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union, Office and Professional Em-
ployees International Union, Local No. 2, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By failing to timely notify Janet Eichelberger that it
would not process her grievance, the Respondent Union
has breached its duty of fair representation and thereby
has violated Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has commit-
ted an unfair labor practice, it shall be ordered to cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
In its opening statement the Respondent Union assert-
ed that, even if a violation were found, no monetary re-
sponsibility would attach unless it was established that
Eichelberger's grievance was in fact meritorious. Doubt
was expressed at the hearing that this view was a correct
7 209 NLRB 446 (1974)
statement of the law and subsequent research has con-
firmed this doubt.
Settled law holds that while it is not the function of
the Board to decide the merits of a grievance in deter-
mining whether there is a breach of the duty of fair rep-
resentation, "it must at least appear from the record that
the grievance is not clearly frivolous." Buffalo Newspaper
Guild Local 26, 220 NLRB 79 (1975); See also Service
Employees Local 579 (Convacare of Decatur), 229 NLRB
692 (1977). It is apparent from the record that if Eichel-
berger's resignation were coerced as she asserted, she
would have had a reasonable basis for contesting the
action; regardless of whether the outcome would have
been favorable to her. Thus, it is evident that Eichel-
berger's grievance was not "clearly frivolous" and this is
sufficient.
Furthermore, the Board does not make a backpay
award conditional on the merits of the grievance in-
volved. Any uncertainty as to the results of Eichel-
berger's grievance (had the Respondent Union timely in-
formed her that it would not process it and thereby af-
forded her an opportunity to do so individually) must be
considered the result of the Respondent Union's conduct.
In such circumstances, the Board has consistently re-
solved the question in favor of the discriminatee and
against the wrongdoer. Henry J. Kaiser Co., 259 NLRB 1
(1981). As the unlawful conduct found here was the fail-
ure of the Respondent Union to timely inform Eichel-
berger of its decision not to process her grievance, the
backpay shall start from the last day Eichelberger could
have individually filed her grievance pursuant to the
terms of the collective-bargaining agreement. Although
it appears that the grievance is now time barred under
the terms of the collective-bargaining agreement, the Re-
spondent Union may be able to prevail upon Machinists
to waive those time limits.
Accordingly, the Respondent Union shall be ordered
to make Janet Eichelberger whole for any loss of earn-
ings she may have suffered as a result of her resignation
from the Northwest Regional Office of International As-
sociation of Machinists and Aerospace Workers, Grand
Lodge from the date she could have last filed a griev-
ance regarding her resignation, November 12, 1981, until
the earlier of the following occurs: the Respondent
Union secures consdierations of her grievance by the
Machinists and thereafter pursues it in good faith and
with due dilegence, or Eichelberger is reinstated by the
Machinists, or she obtains substantially equivalent em-
ployment. Henry J. Kaiser Co., supra. Backpay shall be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as set
forth in Florida Steel Corp., 231 NLRB 651 (1977).8
Finally, since it is apparent that the Respondent Union
maintains its office and place of business in Washington,
D.C., it shall be ordered to mail copies of the notice at-
tached to this Decision to all employees and members in
the bargaining unit employed by International Associa-
tion of Machinists and Aerospace Workers, Grand
Lodge.
[Recommended Order omitted from publication.]
8 See generally Isis Plumbing Co. 138 NLRB 716 (1962).
1359