Retail Clerks Union Local 324, United Food and Commercial Workers International Union, AFL-CIO-CLC (Fed Mart Stores, Inc.)

National Labor Relations Board - Board Decisions

May 27, 1982

261 N.L.R.B. 1086 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Union Local 324, United Food and
Commercial Workers International Union,
AFL-CIO-CLC (Fed Mart Stores, Inc.) and
Bessie L. Holt. Case 21-CB-7043
May 27, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1980, Administrative Law
Judge James S. Jenson issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and each party filed a brief in opposition to
the other's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Producrts.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 In the "Discussion" section of his I)ecision, the Administrative Law
Judge incorrectly referred to Sec. 8(a)(l) of the Act rather than Sec
8(b)(1)(A). We therefore correct this inadvertent error
We agree with the Administrative Lasw Judge that Respondent violat-
ed Sec. 8(b)(1)(A) of the Act by misinforming employee Holt about the
manner in which it would process her grievance oin and after August 27,
1979, and by proceeding to process that grievance in a perfunctory
manner. Contrary to our dissenting colleague, we find from credited tes-
timony that Holt and Respondent's agents, Guntlon and Steele, all clearly
understood on August 27 that Respondent had agreed to seek reinstate-
ment and backpay for Holt, in addition to sick pay and vacation pay
Then, without justification, Respondent told the Employer only 2 days
later that Respondent would not "push" for Holt's reinstatement. Re-
spondent never took any affirmative steps to, secure either reinstatement
or backpay for Holt, and it informed her in unconditional terms on Sep-
tember 15, 1979, that her grievance file was closed i(olt did rnot file all
unfair labor practice charge until after receipt of this information
Under these circumstances, there is no factual basis for the dissent's
suggestion that Respondent's conduct was consistent with a plan to seek
sick and vacation pay first, then to pursue Blolt's reinstatement and back-
pay claim We also reject the dissent's contention that Respondent's con-
duct fell within the purview of permissible discretion in grievance han-
dling or entailed mere negligence Having agreed to resume processing
Holt's grievance, Respondent engaged in unlawful arbitrary conduct by
failing to meet its representative duty not to purposely misinform Holt
about the manner in which the grievance would be handled See local
417. International Union, United Automobile, Aerospace and .gricultural
Implement Workers of America (UAW) (Falcon Industries, Inc), 245
NLRB 527, 534 (1980); Groves-Granite, a Joint Venture, 229 NLRB 56, 63
(1977). Furthermore, although Respondent could legitimately have exer-
cised a wide range of discretion in deciding how to handle Holt's griev-
ance, it specifically committed itself to seeking the full remedy of rein-
statement and backpay. Respondent again engaged in unlawful arbitrary
conduct by failing to pursue its commitment in more than a perfunctory
manner. Glass Bottle Blowers Association of the United States and Canada.
AFL-CIO, Local No. 106 (Owens-Illinois, Inc.), 240 NLRB 324, 325
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Retail Clerks
Union Local 324, United Food and Commercial
Workers International Union, AFL-CIO-CLC,
Buena Park, California, its officers, agents, and rep-
resentatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make Bessie L. Holt whole, with interest,
for any loss of pay she may have suffered by
reason of her failure to work for Fed Mart Stores,
Inc., between April 6, 1979, and the date on which
she secures substantially equivalent employment, all
to be computed in the manner set forth in the sec-
tion of the Administrative Law Judge's Decision
entitled 'The Remedy."' 4
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER FANNING, dissenting:
The complaint alleges a failure to process the
grievance of employee Holt "since on or about
August 27, 1979." This grievance was filed on
April 11. As the Administrative Law Judge noted,
Respondent's handling of the matter before August
27 is not attacked.
(1979); lruck Drivers. Oil Drivers and Filing Station and Platform Workers
Local No. 705, International BrotherhoMd of leamsters. Chauffc'urs, Ware-
housemen and Ilelpers of Amerria (4ssociated Transport, Inc .) 209 NLRB
292 (1974).
:* The General Counsel excepts to the Admiinistrative Law Judge's rec-
ommended Order that backpay date from August 29, 1979, the date Re-
splxndent's representative, Gunton, informed a representative of Fed Mart
that Respondent was not going to seek to have Holt reinstated The Gen-
eral Counsel contends that backpay should date from April 6, 1979, the
date that Holt was terminated by Fed Mart. We find merit in this excep-
tion. In determining the extent of Respondent's financial liability, it is
well established that Respondent must bear the burden of any uncertainty
which is the direct product of its misinforming Holt concerning the
manner in which it would process her grievance and processing that
grievance in an apathetic, perfunctory, and arbitrary manner. According-
ly, we shall presume for purpsoses of computing Holt's backpay that she
would have been entitled to full backpay beginning from the date of her
discharge if Respondent had pursued Holt's grievance with due diligence
See, e.g., Massachuselts Laborers' District Council of the Laborers' Interna-
tional Union of North 4merica (Manganaro Masonry Co. Inc.), 230 NLRB
h40 (1977), Service Elmplovees International Union, Local ic.l'o 579, AFL-
I 10 (Convacare of Decatur d/h/a Beverly Manor Convalescent Center. el
aL/) 229 NI.RB 692 (1977).
In addition. we note the Administrative Law Judge's inadvertent omis-
sion from the recommended noitice ( of a promise by Respondent to refrain
in the future from restraining or coercing employees in the exercise of
their Sec 7 rights We shall include such promissory language in the at-
tached substitute notice
4 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (198)), Member Jenkins would award interest on the backpay
due based on the formula set forth therein
261 NLRB No. 156
1086
RETAIL CLERKS UNION LOCAL 324
On August 22 Holt was acquitted of petty theft
charged by Fed Mart, her employer. She advised
the Union of this by phone and a meeting was set
up for discussion on August 27 concerning the
action to be taken.
Holt had been a cashier in Fed Mart's store
#220. The alleged theft occurred on April 6 and
involved leaving the store with groceries for which
Holt had not paid. The existing bargaining contract
included a grievance and arbitration procedure.
Holt wrote out her own grievance, characterizing
the incident as a mistake and requesting the busi-
ness representative "to investigate and reinstate me
with all back wages."5
The Union prosecuted the grievance vigorously
until it closed her case on June 15. Steele testified
that he took the latter step because Holt had in the
meantime suggested that she would settle for the
vacation pay and sick pay due her on termination if
Fed Mart would treat the matter as a voluntary
quit. Steel tried that approach but Fed Mart re-
fused. Holt's reason for that approach was that she
"had never been in trouble with the law" and
wanted nothing on her record. Steele rechecked
with Holt in June about the matter and learned
that she was still of the same mind. He concluded
that it would not be possible to win an arbitration
on that basis, and therefore wrote to her on June
15 closing her case. 6
Upon receipt of this letter Holt called Steele.
She understood from the conversation that the file
was not closed finally and that "they would see
what they could do" after she went to court.
Concerning the post-acquittal phone conversa-
tion with Steele, Holt's version was that she "now
wanted her sick pay and vacation pay and every-
thing she was entitled to." Asked if she wanted re-
instatement, she replied "not really" but that she
felt that she had to get it to clear the record and to
look for another job. According to her testimony,
Steele called her back the same day and set up the
August 27 appointment.
Steele's version of the August telephone conver-
sation was that Holt "wanted her moneys due her,
her vacation and sick pay" and that she expressed
doubt whether she wished to go back to her job.
Holt, Steele, and Gunton met in the latter's
office on August 27. Holt's version of this discus-
sion was that Steele asked if she had made up her
a Holt had apparently been selected as a union steward. The field di-
rector of the Union testified that he may have seen her at a shop stew-
ards' seminar in March 1979. Holt at one point in her testimony said that
she "was going to be" a shop steward and had met Steele, the business
representative of the Union
I This letter stated that the Union had been unable to resolve the
grievance with the Employer and in accord with the bylaws was closing
the file. The final paragraph said, "If I may be of assistance to you in the
future, please do not hesitate to contact me."
mind what she wanted, to which she replied, "Yes,
I want everything now. I want my job back, my
sick pay, my vacation pay and my back pay." Also,
according to Holt, she recounted at that time the
testimony of Fed Mart's security officer at her
trial, to the effect that she was entitled to her job
back if she was not guilty. At that point Gunton
allegedly proposed that he would get the sick pay
and vacation pay first, and then he would go after
her reinstatement and backpay, a strategy to which
Holt said she agreed because it would avoid the
vacation and sick pay being held up if the case
went to arbitration.7
Steele, in his version of the August 27 meeting,
recalled no mention by Holt of "wanting to go
back to work" for Fed Mart. He did recall Holt's
comment as to what Fed Mart's security officer
said about getting her job back and backpay. Gun-
ton's version was that Holt asked them to pick up
the money due her, that he made several calls to
Fed Mart for that purpose, and that Holt called
him almost daily concerning the matter. His answer
was "no" when asked if she wanted backpay and
reinstatement.
The release prepared by Fed Mart, in considera-
tion of $955.72, covered all claims arising out of
Holt's "wage claim and termination." Holt signed
this on September 11, after adding in her own writ-
ing the words "The above in regards to vacation
and sick pay only." Neither Steele nor Gunton was
present at the time, but the latter's secretary appar-
ently spoke with Union President Sperry before
authorizing Holt to make the addition to the re-
lease. The wording had been suggested to Holt by
a lawyer whom she called from Gunton's office.
The Administrative Law Judge resolved the con-
flicts in testimony in favor of the Charging Party
and concluded that Respondent acted in an "apa-
thetic, perfunctory and arbitrary manner" in viola-
tion of its duty of fair representation. In my view
the facts do not justify that conclusion. As I ana-
lyze this case there was at most a misunderstanding
as to what Holt wanted after her acquittal other
than a lump sum payment for vacation and sick
pay. Lind of Fed Mart testified that Gunton, in re-
questing the vacation and sick pay, said "they were
not going to push to have Bessie rehired." This
was a statement calculated to get Holt a lump sum
payment without further delay, as she obviously
desired. The statement was also consistent with a
plan to seek vacation and sick pay primarily, and
7 Arbitration would appear to have been time barred at that time
However, the Administrative Law Judge found (ALD, "Discussing,"
par. 6) that the actions of the parties after June 15 indicated that the
grievance was still alive and that Fed Mart was proceeding on the as-
sumption that arbitration had been requested
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do so without definitively foreclosing further
action. Holt in her testimony admitted that she un-
derstood that such benefits were due only upon ter-
mination, but saw no inconsistency in immediately
thereafter seeking reinstatement.
In San Francisco Web Pressmen and Platemakers'
Union No. 4 affiliated with the International Printing
and Graphic Communications Union of North Amer-
ica (San Francisco Newspaper Printing Company,
Inc., d/b/a San Francisco Newspaper Agency), 249
NLRB 88 (1980), the Board indicated quite clearly
that it did not wish to be in the position of second-
guessing a union's assessment of the merits of a
grievance, emphasizing the fact that-as here-the
union did not act through hostile motivation or
harbor any animus. I would note that Holt's pri-
mary objective after her acquittal was promptly
achieved by the Union. Barely a week passed
before Holt filed the charge on September 19.8 It
would be unreasonable on these facts to character-
ize the Union's handling of the matter as negligent,
but in that area also the Board has said that it
"do[es] not equate mere negligence with irrelevant,
invidious, or unfair considerations." General Truck
Drivers, Chauffeurs and Helpers Union, Local No.
692, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (Great
Western Unifreight System), 209 NLRB 446, 447-
448 (1974). In my concurrence in the latter case I
said:
I am of the view that a union should be ac-
corded a reasonable amount of discretion in
the exercise of its representative function. [209
NLRB at 449.]
On this record I cannot agree with my col-
leagues that the Union "specifically committed
itself" to seeking the full remedy of reinstatement
and backpay. Holt had clearly agreed with the
Union that getting the vacation and sick pay was
important to her and should come first. The
Union's next step was to request just that, and
advise Respondent that it would not "push for"
Holt's reinstatement, as the Administrative Law
Judge recited in sec. B, par. 9, of his Decision.
Having secured a type of payment applicable only
when an employee was being terminated, Holt
waited only a few days before urging the Union to
seek reinstatement and backpay as well. Even
though Holt admitted at the hearing that she un-
derstood the distinction between the two, it ap-
pears that, at the time she filed the 8(b)(l)(A)
charge for arbitrary failure to process a grievance
8 On September 24, after the filing of the charge here, a letter was ad-
dressed to the Union by an attorney for Holt. It enclosed "documenta-
tion" from the criminal file and requested the Union to seek reinstatement
and backpay.
concerning her discharge, she was oblivious to the
inherent inconsistency in her position. In my view
my colleagues are ignoring the time frame here and
the patent unreasonableness of expecting the Union
immediately to pursue reinstatement-with or with-
out backpay. This is not a case of keeping the
charging party uninformed, or misinformed, as in
Local 417, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UA W) (Falcon Industries, Inc.), 245
NLRB 527 (1980); nor one of a bargaining agent's
being influenced by considerations that were arbi-
trary, or actually in bad faith, as in Groves-Granite,
a Joint Venture, 229 NLRB 56 (1977); nor one
where the union reportedly stated that the employ-
ee did not have a valid grievance as in Associated
Transport, Inc., 209 NLRB 292 (1974). It is also not
a case where the union performed in a perfunctory
manner, a proposition for which Truck Drivers, Oil
Drivers and Filling Station and Platform Workers
Local No. 705, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (Associated Transport, Inc.), 209 NLRB 292
(1974), is cited.
Whether the Union here had a firm intention to
secure reinstatement and backpay for Holt, as well
as the vacation and sick pay it secured for her as
"terminated," is, I believe, not significant. A union
is entitled to exercise its discretion in processing
grievances for the unit as a whole. This includes
assessing the action urged by one employee in the
context of future actions anticipated for other em-
ployees. It is a grave mistake, I believe, to hold a
union responsible for failure to proceed with an
action on behalf of an employee that, at the time,
has no chance of success and would tend only to
make more difficult the future processing of griev-
ances on behalf of the unit.
I would dismiss the complaint here.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a heraing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, in certain ways. We have been ordered
to post this notice. We intend to carry out the
Order of the Board and abide by the following:
1088
RETAIL CLERKS UNION L.OCAL 324
WE WII.L NOT fail to process your griev-
ances to conclusion for no reason or for arbi-
trary or invidious reasons.
WE WIL L NOT deliberately misinform you
about the manner in which we will process
your grievances.
WE WII L NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WILL make Bessie L. Holt whole, with
interest, for the wages she lost because of our
failure to fully process her grievance.
RETAIL CLERKS UNION LOCAl 324,
UNITED FOOl) AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
AFL-CIO-CLC
DECISION
STATEMENT OF THE CASE
JAMFIS S. JENSON, Administrative Law Judge: This
case was heard by me in Los Angeles, California, on
April 24, 1980, based on a complaint issued on Nove-
meber 7, 1979,' pursuant to a charge filed on September
19. The complaint alleges that, since on or about August
27, the Respondent arbitrarily failed to process a griev-
ance concerning the discharge of Bessie L. Holt, thereby
failing "to represent Holt for reasons which are unfair,
arbitrary, invidious, and a breach of the fiduciary duty
owed the employees whom it represents," in violation of
Section 8(b)(l)(A) of the National Labor Relations Act,
as amended. In addition to denying the commission of an
unfair labor practice, the Respondent alleges as affirma-
tive defenses that the complaint fails to state a violation
of the Act; the Charging Party failed to exhaust her in-
ternal union remedies after the Respondent closed her
grievance on or about June 15; and the Board "is with-
out authority and/or jurisdiction to award backpay
against a labor organization in a breach of the duty of
fair representation case." All parties were afforded full
opportunity to appear, to introduce evidence, and to ex-
amine and cross-examine witnesses. Briefs were filed by
both the General Counsel and the Respondent and have
been carefully considered.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, and
having considered the post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDIICTION
Fed Mart Stores, Inc., a California corporation, is en-
gaged in the retail sale of goods through a chain of
stores in California, including a facility in Anaheim, Cali-
fornia. Its annual gross sales exceeds $500,000 and its
annual purchases of goods and products which it re-
' All dates herein are in 1979 unless otherwise stated.
ceives directly from suppliers located outside California
exceeds $50,000. The parties stipulated, and it is found,
that Fed Mart Stores, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOI.VEI)
The Respondent admits, and it is found, that the Re-
spondent is a labor organization within the meaning of
Section 2(5) of the Act.
ill. IHE ALI.IEGEI) UNFAIR LABOR PRACTICES
A. The Setting
Bessie Lee Holt commenced working as a cashier for
Fed Mart in its Anaheim store in February 1972. At all
material times, the Respondent and Fed Mart had been
parties to a collective-bargaining agreement covering a
unit which includes the cashiers which contains a griev-
ance and abritration procedure. The record shows that
Holt has filed three grievances under the contract, the
first in July 1975 concerning her termination for "over-
ages and shortages" in her cash register, and which re-
sulted in her reinstatement with backpay following arbi-
tration in December 1976. She filed a second grievance
after her reinstatement, apparently alleging that manage-
ment was harassing her with respect to her days off.
Holt was advised that the Employer could dictate days
off and the Union could not do anything about it. Noth-
ing came of the grievance. The third grievance, which
was filed on April 11, gave rise to the instant charge. At
all material times, John Steele has been a business repre-
sentative for the Respondent, and Bob Gunton has been
the Respondent's coordinator of business representatives.
Respondent admits that at all material times both men
have been its agents.
B. Events Giving Rise to Holt's Grievance of April 11
Holt was terminated on April 6 because, according to
a letter sent the Respondent, "Bessie Holt walked out of
the store with several bags of groceries (non-payment)."
Holt testified that she had done some shopping in her
employer's store during one of her breaks on April 6 and
had pushed the grocery cart containing the items she se-
lected through the check stand to an area where "go-
backs" 2 are placed and wrote "do not return" on the
bag.3 She testified that none of the other cashiers had
been able to cash her paycheck and that she intended to
pay for the items when someone was able to cash her
check. At or about 2 p.m., cashier Kim Perez was check-
ing out to go home, and, according to Holt, she asked if
Perez could cash her check and ring up her groceries.
Holt gave Perez her check, and Perez in return gave
Holt some cash, which Holt contends she did not count,
and a cash register receipt which she did not look at.
Perez, in fact, had not rung up the groceries which were
2 Groceries that customers decided at the last minute they did not
want
3 The cart contained several packages of beverage soda and cartons of
cigarettes
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located several cash registers away. In the meantime, the
store manager had observed Holt removing the merchan-
dise from the shelves and asked cashier Terry Mullen to
see if Holt paid for the merchandise. As Holt left the
store, the security officer stopped her and asked to see
the sales receipt. When she was unable to produce a re-
ceipt, she was asked to return to the manager's office,
where she continued to insist she had paid for the items.
After it became evident to all concerned that she had not
in fact paid, the Anaheim Police Department was called
and Holt was issued a citation for petty theft. She testi-
fied she was then either laid off or terminated.
On April 11, Holt filed the following grievance:
I was terminated on 4-6-79 by Ron Roberts for
taking merchandise that was not paid for. This was
a mistake and I would like my Business Rep. to in-
vestigate and reinstate me with all back wages.
Steele, who was assigned to handle the grievance, was
on vacation at the time of its filing. Nevertheless, a letter
was sent to the Employer over his signature on April 11,
protesting the termination and requesting that the Em-
ployer furnish the immediate cause of the discharge.
Steele returned from vacation on April 16, saw Holt's
grievance on April 17, and on April 18 received a letter
dated April 16 from Harvey Berger, Fed Mart's industri-
al relations representative, stating that Holt and another
employee had been terminated for security reasons, Holt
having "walked out of the store with several bags of
groceries (non-payment)," On the same date, Steele con-
tacted Holt and asked her to come in and see him for the
purpose of supplying a statement. Also on April 18,
Steele went to the store and talked to cashiers Kim
Perez and Terry Mullen, and also to Store Manager Vic
Young who was not at the store when the incident in-
volving Holt had occurred. Steele testified that Mullen
told him a security guard had observed Holt putting
merchandise in a cart, and that Roberts asked Mullen to
watch and see if Holt paid for the merchandise; that he
observed that it was not paid for; that Holt was stopped
outside the store and brought back to the office; that the
Anaheim Police Department was called and Holt was
given a citation. Perez told Steele that Holt had walked
behind her in the check stand with a basket containing
"six cases of pop and a bag of something"; 4 that she
asked Holt if she was going to pay for it; that Holt an-
swered affirmatively and took it to checkstand 12 where
the "go backs" were placed, and wrote "Hold for Holt"
on it. Perez denied she checked out the items, and
Steele's examination of Perez' cash register "detail tape"
disclosed no total for the amount of merchandise which
Holt had removed from the store.
On April 19, Steele sent a letter to Berger requesting a
meeting to discuss Holt's termination. On April 27, Holt
went to the Respondent's office and gave Steele a writ-
ten statement containing her version of the circumstances
surrounding her termination. The statement, in evidence
as Joint Exhibit 8, reads:
STATEMENT BY BESSIE HOLIT - FED MART #220
' Eight cartons of cigarettes.
On April 6, 1979, I was on my first break, at ap-
proximately 12:00 noon, and went back and picked
up some things I needed to take with me on vaca-
tion. No one could cash my check so I hauled the
cart through and told Kim, the checker, that I was
going to pay for it when I got my check cashed. I
put the small stuff that would go in a bag in a bag
and wrote "Do not return-Hold for Bessie or Holt"
all over it.
Then about 2:00 P.M., Kim was going home
early, so I asked her if she had the money to cash
my check and ring up my groceries. I was waiting
on a customer, and she said "Yes" [sic] but I would
have to get it in fives and tens as she didn't have
any big bills. I gave her my check and didn't think
about the groceries. She gave me the money and
told me to count it. The customer was complaining
about it being on their time so I told Kim that it's
there. She said it should be 61¢ change, I said there
was 60¢ here and then told her "Yes, the penny is
here." I put it all in my cigarette case without
counting it. Kim was closing her register at this
time.
I dod [sic] not think any more about the grocer-
ies until I got off at 6:30. I went over and took the
basket, asking checker, Jeff Linderman how he
liked my name all over everything and said at least
they did not put it back. I then walked out of the
store, and they stopped me.
/s/ Bessie L. Holt 4/27/79
Holt testified Steele told her that if she walked out of the
store with the groceries, she was definitely guilty; to
which she replied that she had thought so too, but that
her attorney had told her that that was not so because
she had no intention of stealing. She testified that Steele
told her that there was nothing that could be done until
she went to court and it was proven she was not guilty.
On May 8, Steele sent another letter to Berger renewing
his April 19 request to meet, and on May 16, sent a letter
to Fed Mart Industrial Relations Representative Judy
Gieseke stating that, if a response was not received to
the earlier request for a meeting, the Respondent would
take Holt's and another grievance to arbitration.
Holt testified that, sometime in May, she called and
asked Steele to request the company to give her accrued
sick and vacation pay, a voluntary quit, and to drop the
petty theft charges to forestall the embarassment of
going to court. While Steele testified Holt did not ask
that the charges be dropped, I conclude that the request
for a voluntary quit carried with it the implication that
the charges would be dropped. Pursuant to the request,
Steele called Gieseke and was advised that, in view of
the pending petty theft court case, Fed Mart was not
willing to give her a voluntary quit at that time. Holt
testified Steele told her that Fed Mart personnel "said
that they would discuss sick pay and vacation pay and
everything after I went to court, not before." Steele tes-
tified that, in a subsequent conversation on June 14, Holt
again stated she wanted to get a voluntary quit. Steele
testified that on June 15, after having "gone through my
1090
RETAIL CLERKS UNION LOCAL 324
investigation" which consisted of talking to the two Fed
Mart employees involved in the termination, and to Holt,
he decided he could not win an arbitration and therefore
sent Holt a letter closing the case. The letter, Joint Ex-
hibit 12, reads as follows:
Ms. Bessie Holt
2121 S. Artesia
Santa Ana, California 92704
Dear Sister Holt:
After a thorough investigation and following the
dispute procedures under the contract, the Union
has been unable to resolve your grievance with
your employers.
Therefore, we will be unable to process your
grievance further and in accordance with the Local
Union Bylaws we are closing your file.
If I may be of assistance to you in the future,
please do not hesitate to contact me.
Fraternally,
RETAIL CLERKS UNION LOCAL 324
/s/ John Steele
John Steele
Business Representative
for John C. Sperry
President
Holt testified that after receiving the letter she called
Steele for an explantion and:
He told me there was nothing else that can be
done and I asked him, "Well, after I go to court,
then you can open it back up or something; can't
you?" And he says, "Well, after you go to court
then" he says-"then maybe we can help you if you
are not guilty," and everything. He said, "The thing
to do is, when you go to court, call me after-you
know, if you're found guilty, call me and let me
know and then we'll open it back up and do what
needs to be done."
Holt's jury trial for petty theft took place from August
20 to 22. She was found not guilty.
According to Holt, a couple of days later she called
Steele "and told him that I was found not guilty and that
now I wanted my sick pay and vacation pay and every-
thing that I was entitled to." Asked if she wanted rein-
statement, she testified she replied, "Not really," but that
she felt it would be easier to get another job if she was
still working at Fed Mart and could use them as a refer-
ence. According to Steele, Holt stated "she wanted her
monies due her, her vacation and sick pay." It appears
from their testimony that Steele understood Holt's
answer to mean that Holt did not know whether she
wanted reinstatement.
Steele then set up a meeting in Gunton's office be-
tween Gunton, Steele, and Holt for August 27. Accord-
ing to Holt, she was asked by Steele if she had made up
her mind what she wanted from Fred Mart, and that she
responded, "Yes, I want everthing now I want my job
back, my sick pay, my vacation pay and my backpay."
She went on to state that, at her trial, Security Officer
Le Wan had testified that, if she was not guilty, the
Company had no reason to fire her, and that she was en-
titled to get her job back.5 According to Holt, Gunton
responded that he would first try to get the sick pay and
vacation pay because, on the basis of the verdict in the
jury trial, Fed Mart owed her those items under the con-
tract, and that he would later go after reinstatement and
backpay. Steele testified he did not recall Holt saying
anything about wanting reinstatement, and Gunton
denied she stated she wanted either backpay or reinstate-
ment. There is no doubt, however, that everyone agreed
that Gunton would seek to obtain sick pay and vacation
pay for Holt under the contract.
On August 29, Gunton called Joan Lind, the industrial
relations representative of Fed Mart who was at that
time responsible for handling grievances. According to
Lind, Gunton informed her that Holt had been found in-
nocent and that he was requesting that Holt's sick pay
and vacation pay be paid to her, and that the Respondent
was not going to push to have her rehired. Lind checked
with corporate authorities, who authorized payment of
sick and vacation pay. In a later conversation, she ad-
vised Gunton that a check would be forthcoming and
that it was to be understood that the arbitration was to
be withdrawn. Gunton checked his file and informed her
that no request for arbitration had been filed. According
to Holt, after the check was apparently delayed, Gunton
gave her Lind's telephone number, but cautioned her not
to mention anything about backpay and reinstatement
since he did not want Fed Mart to know of his intention
with respect to those items until after Holt had received
her check for sick pay and vacation pay.
On September 11, Steele picked up the check in the
gross amount of $1,158.53 for delivery to Holt. Enclosed
with the check were two copies of a general release for
both Holt and an official of the Respondent to sign. In
essence, it was a release of all claims against Fed Mart
arising out of the wage claim and termination of Holt.
Holt objected to signing the release, but after conferring
with her attorney by telephone, did so after adding in
longhand at the end "The above in regards to Vacation
and Sick pay only" Gunton informed Lind of Holt's
action, and the release was returned to Fed Mart with
Steele's signature affixed for the Respondent.
A couple of days later, Holt called Gunton and asked
when he was going after her backpay and reinstatement,
and was told that, since she had signed the release, there
was nothing he could do, and that, the grievance had
been closed by the June 15 letter. Gunton testified he did
not recall any conversations with Holt after the release
was returned to Fed Mart. Respondent has taken no fur-
ther steps to recover backpay or reinstatement for Holt.
By letter dated September 24, the Respondent was ad-
vised that Holt had retained an attorney with respect to
her contention the Union should effectuate her reinstate-
ment with backpay.
5 Whether Le Wan was employed by Fed Mart or by an independent
security agency and the extent of his authonrity was not explored.
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
The General Counsel does not attack the Respondent's
initial handling of Holt's grievance. It is contended, how-
ever, the Respondent violated the Act by its failure to
complete the processing of Holt's grievance in August. It
is contended that, when Gunton told Holt in the August
27 meeting that he would seek to have the Employer re-
instate her with backpay, he committed the Respondent
to use its full resources to accomplish that end, and that
when he later, on his own initiative, advised Lind that he
was "not going to push to have Bessie [Holt] rehired,"
he acted arbitrarily, discriminatorily, and in bad faith,
thereby breaching the Respondent's duty of fair repre-
sentation in violation of Section 8(b)(1)(A) of the Act.
The General Counsel contends Gunton further breached
its duty to Holt by misleading her about the processing
of her grievance, and by telling her not to discuss her re-
instatement and backpay with Lind, thereby interfering
with her ability to obtain reinstatement and backpay
through other unnamed channels.
The Respondent would divide the case into two time
frames: (1) from April I 1, when Holt filed the grievance,
through June 15 when the Respondent closed the griev-
ance; and (2) from August 23, when Holt contacted the
Respondent after she had been acquitted of the petty
theft charge. With respect to time frame one, the Re-
spondent points out that it not only contacted the Em-
ployer promptly regarding the incident for which Holt
was discharged, but also took a detailed statement from
Holt and interviewed the other employees who had ob-
served the incident upon which the discharge was based.
After investigating the matter, it was concluded in good
faith that it would be pointless to take the grievance to
arbitration; accordingly, Respondent advised Holt the
grievance was closed. With respect to the period cov-
ered in time frame two, Respondent points out that since
the notice that the matter would be submitted to arbitra-
tion was dated May 16, and as the grievance was proper-
ly closed on June 15, in August the grievance was time-
barred by the collective-bargaining agreement and arbi-
tration was an impossibility. 6 The Respondent contends,
further, that the weight of the evidence shows that the
Union pursued and obtained all benefits desired by Holt;
namely, sick and vacation pay. The Respondent argues
that Holt's testimony, and that she requested the Re-
spondent's agents to obtain reinstatement, backpay, vaca-
tion, and sick pay, are inconsistent in that vacation and
6 Art. XIV of the collective-bargaining agreement provides, in perti-
nent part:
Section B, Paragraph 2: Meeting of Representatives. Upon receipt
of a written notice from either party, the representatives of the Em-
ployer and the representatives of the Union shall meet within a cal-
endar week and attempt to settle or resolve the matter.
Section C, Paragraph 1. (a) Any matter not satisfactorily settled or
resolved in Paragraph B hereinabove shall be submitted to arbitra-
tion for final determination upon written demand of either party.
The written demand for arbitration may be made at any time after
the expiration of fifteen (15) days but not alter than sixty (60) days
from the date of the notice, submitting the matter under Paragraph
B, Section 2, hereinabove, to the meeting of representatives Failure
to comply with the time limits tet forth in this Paragraph and in Para-
graph B, Section 2 above, shall render such grievance null and void.
Section C, Paragraph I. (c) Any of the time limits set forth in this
Article XIV may be extended by mutual agreement.
sick pay are benefits due on termination of employment;
therefore, it would be ludicrous to suggest that the
Union, which handles approximately 25 grievances per
week, would seek termination benefits and reinstatement
and backpay at the same time. The Respondent also
argues that Holt's failure to exhaust internal union reme-
dies precludes an action against the Union for breach of
the duty of fair representation.
In making an assessement of the credibility of the wit-
nesses, I was impressed with the sincerity of Holt and
Lind, who seemed to make a sincere effort to recall con-
versations. On the other hand, the testimony of both
Steele and Gunton was punctuated with lack of recollec-
tion and failures to deny testimony. In at least one in-
stance they contradicted each other and, of course, were
contradicted in several respects by Holt, and Gunton
was contradicted by Lind. Accordingly, I credit both
Holt and Lind over Gunton and Steele whereever there
is a conflict in testimony.
Much has already been written regarding the Union's
duty of fair representation. Although an employer may
discharge an employee for no reason at all without vio-
lating the Act, unions have obligations to employees they
represent that employer's do not. A union's obligation
was discussed recently by the Board in San Francisco
Web Pressmen and Platemakers' Union No. 4 affiliated
with the International Printing and Graphic Communica-
tions Union of North America (San Francisco Newspaper
Printing Company, Inc.. d/b/a San Francisco Newspaper
Agency), 249 NLRB 88, 89 (1980), wherein it stated:
A union violates its duty of fair representation to
bargaining unit members when it "arbitrarily
ignore[s] a meritorious grievance or process[es] it in
a perfunctory fashion." Vaca, et al. v. Sipes, 386
U.S. 171, 191 (1967). We have recently stated that
where, as here, a union undertakes to process a
grievance was perfunctory or motivated by ill-will
or other invidious considerations. Glass Bottle Blow-
ers Association of the United States and Canada,
AFL-CIO, Local No. 106 (Owens-Illinois, Inc.), 240
NLRB 324 (1979).
As in the San Francisco Newspaper case, there is no
evidence here upon which to make a finding that the Re-
spondent acted through hostile motivation or harbored
any animus against the discharged employee. The issue is
then reduced to whether the Respondent processed the
grievance in a perfunctory fashion by failing to insist that
Holt receive reinstatement and backpay, and whether it
mislead her about processing the grievance, thereby in-
terfering with her ability to obtain reinstatement and
backpay through other channels.
If, in fact, Holt's grievance had been finally deter-
mined and put to rest on June 15, when the Respondent
advised Holt that her file was being closed in accordance
with the Local Union's bylaws, this complaint would
have no merit, since the Board has repeatedly held that a
labor organization is not required automatically to proc-
ess a grievance if it in good faith believes that the griev-
ance is without merit and it would be pointless to carry
it to arbitration. I have no doubt that, on June 15, the
1092
RETAIL CLERKS UNION LOCAL 324
Respondent believed Holt's grievance lacked merit. It
appears, however, that Fed Mart was not informed that
the Respondent had abandoned the grievance at that
time, and it is clear from both the Gunton-Steele-Holt
conversation of August 27, and the Gunton-Lind tele-
phone conversation of August 29, that both the Respond-
ent and Fed Mart were proceeding upon the assumption
that the grievance was not dead, and that Fed Mart in
fact thought it was pending arbitration. In this regard,
there was no evidence that Fed Mart ever received a
copy of the June 15 letter advising Holt that her "file"
had been "closed" in accordance with the Local Union's
bylaws. Moreover, it does not appear from the record
that Gunton realized Holt's grievance had not been set
for arbitration until sometime after August 27 when Lind
sought from him an assurance that the grievance would
be dropped. Thus, even though the grievance had been
"closed" insofar as the Local Union's bylaws may have
been concerned, the Respondent continued to represent
Holt pursuant to the grievance, and Fed Mart proceeded
on the assumption that the grievance was still pending
and arbitration had been requested. In light of these cir-
cumstances, it appears that if in fact the June 15 letter
had any effect upon the disposition of the grievances-
and I am not convinced that it did-that by their actions
following Holt's acquittal, the parties had, pursuant to
article XIV, C, I (c), of their collective-bargaining agree-
ment, extended the time limits set forth therein. In this
regard, Gunton acknowledged he was proceeding under
the guise of Holt's grievance when he talked to Lind on
August 27. Furthermore, he testified that while he had
concurred in the "closing" of the grievance on June 15,
he was not aware that Holt's petty theft trial was coming
up. Steele's apparent failure to inform Gunton of the
forthcoming trial, and the "closing" of the file prior to
the trial, indicates a rather cavalier approach to Holt's
grievance.
I credit the testimony of Holt to the effect that, in
May, Steele told her that Fed Mart would not discuss
sick or vacation pay or anything else until after the
criminal trial. ? I further credit Holt's testimony that,
after receiving the letter of June 15, she called Steele and
that he told her to contact him if she was found not
guilty and that the Respondent would "open it back up
and do what needs to be done." On cross-examination,
Steel admitted that, after the trial, when Holt called to
inform him of the outcome, he asked if she wanted her
job back. It is clear from the credited testimony that
while she in fact expressed some reservation about rein-
statement at that time, she informed him, and Steele ad-
mitted she did, that she wanted "vacation pay, backpay,
sick pay and monies that was due her." I further credit
Holt's testimony that, when she met with Gunton and
Steele, she stated she wanted reinstatement and backpay
in addition to sick and vacation pay, and that Gunton
told her that they would first seek to recover sick and
vacation pay, and then go after reinstatement and back-
pay. I further credit Lind's testimony that Gunton called
and asked for only sick and vacation pay and stated that
I This appears to be consistent with the procedure followed by the Re-
spondent and Fed Mart.
the Respondent did not seek to have Holt reinstated.
Thus, the Respondent not only misled Holt about the
processing of her grievance, but then proceeded to "rep-
resent her" in an apathetic and perfunctory manner.
Having undertaken to process Holt's grievance, the Re-
spondent was thereafter obligated to dispose of it in ac-
cordance with its duty of fair representation.
As stated by Administrative Law Judge Richard J.
Boyce in Groves-Granite, a Joint Venture, 229 NLRB 56,
62-63 (1977):
A union is permitted a wide range of discretion
in determining whether and how to handle employ-
ee grievances, so long as its determination is not
colored by considerations that bear on union mem-
bership or are otherwise arbitrary or in bad faith.30
Misconduct ordinarily cannot be inferred from a
union's simple refusal to institute grievance
action;3 ' nor does negligence or poor judgment, un-
tainted by improper considerations, give rise to a
violation.3 2 As in other dealings with those it repre-
sents, however, a union may not purposely keep
employees uninformed or misinformed concerning
their grievances; 3 and, having committed itself to
the prosecution of a grievance, a union is under a
duty to present it most favorably to the employ-
ee.3 4
:"' Iaca v Sipe., U.S. 171 (1967); Bazarte v. United Transporta-
tion LUnion, 429 F. 2d 868 (C A 3. 1970); Figueroa v. Sindicato de
lrabajadore Packringhouse, AFL-CIO, 425 F.2d 281 (C.A I, 1970);
Buffalo News paper Guild, Local 26. American .Vevspaper Guild
(BuJfalba Courier Erprens), 220 NL RB 79 (1975): Lxoal 575, Packing-
houne Division, Amalgamated Meat Cutters and Butcher Workmen
(Omaha Packing Co.,l 206 NLRB 576, 579 (1973).
' loca v. Sipes, supra, at 386 U.S. 191
2 Bazarte 'v United Iranspoxrtation Union, supra at 872
'' Cf Local No. 324. International Union of Operating Engineers
(Michigan Chapter. 4GC). 226 NLRB 587 (1976). Ashbestos Workers.
Local No
.
5 (Insulation Specialties Corp.), 191 NLRB 220, 221
(1971)
On the basis of the foregoing, I conclude and find that
the Respondent failed to comply with its obligation to
refrain from misinforming Holt concerning the manner in
which it would process her grievance, and then proceed-
ed to process her grievance in an apathetic, perfunctory,
and arbitrary manner, all in violation of its duty to fairly
represent Holt, thereby violating Section 8(a)(l) of the
Act. Local 417, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW) (Falcon Industries, Inc.), 245 NLRB 527 (1979);
Glass Bottle Blowers Association of the United States and
Canada, AFL-CIO, Local No. 106 (Owens-Illinois, Inc.),
supra, Groves-Granite, supra. 8
I The Respondent's affirmative defense that Holt failed to exhaust in-
ternal union remedies, after it closed her grievance on or about June 15.
has been determined by the Supreme Court to lack merit N.L.R.R v.
Industrial Union of Marine and Shipbuilding Workers of America. AFL-
CIO, et al. [United States Line, Company], 391 US 418 (1968). Further,
the Board's customary remedy, approved by the Court, has been to
award backpay in cases against labor organizations for failure to fairly
represent employees Accordingly, Respondent's affirmative defense
based on that proposition also lacks merit
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCILUSIONS OF LAW
1. Fed Mart is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(l)(A) of
the Act by failing to fairly represent Bessie L. Holt re-
garding her grievance against the company, and by will-
fully misinforming her about the processing of her griev-
ance.
4. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
THE REMIEDY
Having found that the Respondent has violated the
Act in certain respects, I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act. As a result of the Respondent's unlawful conduct,
Holt's entitlement to any possible reinstatement by Fed
Mart ended with the execution of the release which she
executed on November 9, and it is unlikely Fed Mart
would agree at this point and in these circumstances to
now submit her discharge to arbitration. Even if it did,
however, the chances of a result favorable to Holt would
be much less than if the Respondent had processed the
grievance as it represented it would. Therefore, I agree
with the General Counsel that an immediate backpay
order is appropriate. Accordingly, I shall recommend the
Respondent be required to find substanitally equivalent
employment for Holt, and make her whole for any loss
of earnings she may have suffered because of the Re-
spondent's unlawful conduct, by payment of a sum of
money equal to that which she normally would have
earned as wages from August 29, the date Gunton in-
formed Fed Mart that it was not going to seek to have
Holt reinstated, to the date substantially equivalent em-
ployment is found for her, less her net earnings during
such period with backpay computed on a quarterly basis
in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and with interest
thereon as set forth in Florida Steel Corporation, 231
NLRB 651 (1977). 9
The Respondent will also be required to post appropri-
ate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
9 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER1 o
The Respondent, Retail Clerks Union Local 324,
United Food and Commercial Workers International
Union, AFL-CIO-CLC, Buena Park, California, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Failing or refusing to process the grievances of
Bessie L. Holt, or any other employee, or processing
such grievances in a perfunctory manner, without reason
or for arbitrary or invidious reasons.
(b) Willfully misinforming Bessie L. Holt or any other
employee concerning the manner in which it intends to
process her grievance.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Bessie L. Holt whole for any loss of pay she
may have suffered by reason of her failure to work for
Fed Mart Stores, Inc., between August 29, 1979, and the
date on which we find her sustantially equivalent em-
ployment, in the manner set forth in the part of this De-
cision entitled "The Remedy."
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." I Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(c) Furnish signed copies of the notice to the Regional
Director for Region 21 for posting by Fed Mart Stores,
Inc., said employer being willing, at all locations where
notices to employees are customarily posted.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
LO In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1094