Sheet Metal Workers' International Association, Local Union No 49, Afl-Cio (Aztech International, Ltd)

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 282 (N.L.R.B. 1988)

282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local Union No 49 , AFL-CIO (Aztech Inter
national, Ltd) and Pete Le'Mon Case 28-CB-
2479
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 4 1987 Administrative Law Judge
James M Kennedy issued the attached decision
The General Counsel and the Charging Party filed
exceptions and supporting briefs
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 briefs and has
decided to affirm the judge s rulings findings and
conclusions and to adopt the recommended Order
We agree with the judge that the Respondent
did not breach its duty of fair representation to the
employees involved by failing to give timely
8(d)(3) notice to the Federal Mediation and Concil
cation Service and any appropriate state agency or
by encouraging employees to continue striking
after October 2 1985 1 Like the judge, we find that
the Respondents deficiencies in representing the
employees amounted to no more than mere negli
gence 2
The difference between the majority and dissent
ing positions here is a narrow one Our dissenting
colleague states a willingness to accept as simple
negligence the Respondents failure to coordinate
timing of the notice and commencement of the
strike but would base a violation of the duty of
fair representation on the Respondents conduct
after October 2 Our difference then is limited to
how we evaluate the Respondents conduct after
October 2
By October 2 the Employer had delivered to
the strikers letters stating that the strike was illegal
because proper notice had not been given to the
Federal Mediation and Conciliation Service and
declaring that the strikers employment was termi
nated and that they could apply for jobs as new
employees 3 Some strikers asked the Respondent s
business agents about the letter and the agents re
plied that it was company rhetoric or a company
ploy and urged the strikers to stick together
In making this response without further investigat
ing the situation or obtaining the advice of the Re
spondent s attorneys the agents may have acted
negligently but their conduct was not so lacking of
a rational or logical basis as to be arbitrary
In meeting the employees questions the agents
assessed events from a practical point of view As
they saw it loss of employment is a risk in any
strike and employees best protection is to stick to
gether They considered the Employers statement
that the strikers employment was terminated as a
tactical maneuver designed to break the strike The
Board has recognized that employers use the tacti
cal discharge as a method of dissuading employees
from striking without intending to refuse to rein
state employees when they request it Crookston
Times Printing Co 125 NLRB 304 317 (1959) See
also Woodlawn Hospital 233 NLRB 782 788
(1977)
The agents were not lawyers and did not seem
to understand the effect that the failure to give
proper 8(d) notice had on the strikers status as em
ployees 4 Nor did they appear to appreciate the
distinction between terminating strikers employ
ment and replacing strikers Misunderstanding of
this critical distinction significant in labor law is
not uncommon among employees their representa
tives or management personnel See Eagle Com
tronics 263 NLRB 515 (1982) L A Water Treat
ment 286 NLRB 868 (1987) Dayton Food Fair
Stores v NLRB 399 F 2d 153 (6th Cir 1968)
Confronted with the Employers statement that
the strikers employment was terminated the
agents advised the employees to continue to act to
gether in an effort to return all employees to their
jobs and to obtain a bargaining agreement Within
the limits of their competence and experience the
agents judged economic pressure to be the most of
fective strategy to deal with the situation We do
not consider that judgment to be in reckless disre
gard of the Union s statutory duties to unit employ
ees 5 Indeed even if the agents had understood
that the strikers lost status as employees of the Em
ployer by operation of statute or had in fact been
permanently discharged by the Employer, there
' Notice was received by the Federal Mediation and Conciliation Serv
ice on September 17 1985 The strike commenced October 1 1985 All
subsequent dates are in 1985
2 There is no showing that the Respondent was hostile toward the em
ployees at Aztech or acted in bad faith in representing them In this
regard we agree with the judge s rejection of the Charging Party s im
plied bad faith argument based on the most favored nations clause
2 Among other things the letter stated If you wish to be considered
for such employment please come in and fill out an application As with
all new employees you will need to go through our normal pre employ
ment interview physical and drug/alcohol screening
4 In part Sec 8 (d) provides Any employee who engages in a strike
within any notice period specified in this subsection shall lose his
status as an employee of the employer engaged in the particular labor dis
pute for the purposes of sections 8 9 and 10 of this Act
5 We assume arguendo that a union that takes action in reckless dis
regard of its statutory duties to unit employees violates its duty of fair
representation
291 NLRB No 41
SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL)
was little they could do to benefit the employees at
that point The employees could only apply for
jobs as new employees hope to meet the Employ
er s interview requirements and see whether the
Employer would reemploy them It was not unrea
sonable for the agents to assume that collective
action in seeking reemployment would be more of
fective than individual action
Moreover as the judge points out the employees
were free to accept the Union s advice or the Em
ployer s advice There is no evidence that the Re
spondent by threat of fine or other retaliation co
erced the employees to continue collective action
The employees could have decided to abandon the
strike or to apply individually for employment a
decision employees are customarily faced with
during a strike They could have implemented their
decision on their own initiative unrestricted by
formalities within the Respondents control
Indeed the record reveals that many employees
did abandon the strike See Office Employees Local
2 (Janet Eichelberger) 268 NLRB 1353 (1984)
enfd 765 F 2d 851 (9th Cir 1985)
The representation that the Respondent provided
the employees in this case may not meet the stand
ards of competence and caution that the Board
would like to see observed It does not however
violate Section 8(b)(1)(A) A breach of the duty of
fair representation occurs only when the represent
ative s conduct is arbitrary discriminatory or in
bad faith Vaca v Sipes 386 U S 171 190 (1967)
We do not consider the conduct here to have been
arbitrary and the Respondents deficiency in repre
sentation is a matter for employees to consider in
selecting and supporting their representative not a
matter correctable under Section 8(b)(1)(A) of the
Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and dismisses the complaint
CHAIRMAN STEPHENS dissenting
The duty of fair representation issue posed in this
case involves the arbitrariness prong of the three
part standard formulated by the Supreme Court in
Vaca v Sipes 386 U S 171 190 (1967) (breach
occurs when a union s conduct toward a member
of the collective bargaining unit is arbitrary dis
criminatory or in bad faith ) There is no claim
that the Union s actions here were discriminatory
nor do I see this as a case involving bad faith Ar
bitrariness has been the most difficult and vexing
283
of the duty of fair representation inquiries 1 I do
not dispute the judge s reading of Board law as re
quiring a showing of more than mere negligence to
warrant a finding that a union has acted arbitrarily
so as to breach its duty of fair representation in
violation of Section 8(b)(1)(A) of the Act That is
clearly the holding of cases that are still good law
Teamsters Local 692 (Great Western Unifreight) 209
NLRB 446 447-448 (1974) Accord Rainey Secure
ty Agency 274 NLRB 269 (1985) Teamsters Local
282 (Transit Mix Concrete Corp) 267 NLRB 1130
(1983) enfd 740 F 2d 141 (2d Cir 1984) There is
not much guidance in our cases as to what that
more necessarily consists of but it makes sense
to me to hold a union guilty of breaching the duty
when it has erred in failing to perform some minis
terial or procedural act and with notice of that
error and of the possibility that it may seriously
injure rights of bargaining unit employees the
union has persisted in a course of action or inaction
that compounds the injury or makes it impossible
to cure Such conduct goes beyond negligence to
reckless disregard 2 In my view that occurred here
by virtue of the union agents response to informa
tion they had received by at least October 2 1985
the second day of the unlawful strike 3
I am willing to accept the proposition that a
union s failure to coordinate the filing of an 8(d)(3)
notice with the actual date on which the strike
commences may constitute simple negligence not
giving rise to an actionable breach of the duty of
fair representation even when the error results in
employees being made vulnerable to discharge
through participation in an unlawful strike On the
record here however I would find that the
Union s business agents Gary Briggs and George
Gilliland behaved in a manner that went beyond
mere negligence to reckless disregard of the harm
to the employees through actions that they took
after they were put on notice of the clear possibili
ty that the strike notice had not been timely given
and that the Employer was taking action against
the employees because of this
' See Robesky v Qantas Empire Airways 573 F 2d 1082 (9th Cir 1978)
(Kennedy J concurring) (no adequate guidance in law of torts or Feder
al common law of labor relations for construing this term)
2 A standard formulated by the Ninth Circuit regarding cases involving
unions handling of grievances reflects similar considerations In a series
of cases that circuit seems to have concluded that the negligent failure to
perform a ministerial act amounts to arbitrariness in breach of the duty of
fair representation when there is no judgment factor involved in decid
ing whether to perform the act in question and no rational and proper
basis for the union s conduct and the employee s right to pursue a claim
representing a strong individual interest is completely extmgaished by
the union s conduct Peterson v Kennedy 771 F 2d 1244 1254 (9th Or
1985) citing Dutrisac v Caterpillar Tractor Co 749 F 2d 1270 1274 (9th
Cir 1983) and Eichelberger v NLRB 765 F 2d 851 855 (9th Cir 1985)
3 All dates are in 1985
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is undisputed that the strike notice was mailed
to the Federal Mediation and Conciliation Service
on September 17 1985 and that therefore the
strike called by the Union on September 30 and
commenced on October 1 was plainly unlawful be
cause it occurred less than 30 days after notice was
given to the FMCS The judge also found-and
the finding is not disputed-that by October 2
Briggs and Gilliland knew that the Employer had
sent letters to the strikers telling them that they
were terminated because they were engaging in a
strike that was unlawful because of failure to give
timely notice to the FMCS The letter also in
formed the strikers that employment applications
were being accepted for their jobs and they could
fill out applications for positions as new employees
Briggs then called the law firm that represented
the Union and after learning that the attorney re
sponsible for sending out the notice was out of
town he made no further effort to check out the
timing of the notice Instead he encouraged em
ployees to remain on strike mistakenly advising
them-according to his own testimony-that there
was really no distinction between replacement and
discharge and that they should just hang together
Union Agent Gilliland admitted that he had been
in the dark about the legality of the strike but
nonetheless admitted telling employees who asked
about their termination letters that this was just
some of the Company s rhetoric 4
Because I would find a breach of the duty of fair
representation as of October 2 when Briggs and
Gilliland affirmatively misled inquiring employees
about the status of their strike I would issue a
cease and desist order and would also hold the
Union liable for any losses suffered from employ
ees delay until October 7 in offering to return 5
4 While I recognize that Briggs and Gilliland are not lawyers and I
therefore would not find a breach of the duty of fair representation
simply on the basis of their inability to give correct legal advice I find a
breach of the duty here because they falsely gave the impression that
they knew there was no difference between replacement and discharge
and that the Employers claim that the stoke was unlawful was just
rhetoric This would be a different case if the employees had been told
that the union agents did not know whether there was any truth to the
Employer s claims concerning the strike s legality but that they advised
staying out on strike as a tactical matter
It is not clear when strikers were rehired although the record shows
that at least one of them was not hired back until December 20 In com
pliance it could be determined on what dates the Employers hired re
placements and thus what effect the delay in offering to return likely
had on the strikers ability to return to work
Lewis S Harris Esq for the General Counsel
Gerald R Bloomfield Esq (Kool Kool Bloomfield &
Hollis) Albuquerque New Mexico for the Respond
ent
Dan A McKinnon III Esq (Marron McKinnon &
Ewing) Albuquerque New Mexico for the Charging
Party
DECISION
JAMES M KENNEDY Administrative Law Judge This
case was tried before me in Albuquerque New Mexico
on October 21 19861 The complaint is based on a
charge filed by Pete Le Mon an individual on October
28 1985 2 The complaint alleges that Sheet Metal Work
ers International Association Local Union No 49
AFL-CIO (Respondent) has engaged in certain viola
tions of Section 8(b)(1)(A) of the National Labor Rela
tions Act (the Act)
Issue
i
The principal issue is whether Respondent breached its
duty of fair representation under Section 8(b)(1)(A)
when it failed to give the Federal Mediation and Concil
ration Service 30 days notice of the existence of a labor
dispute thereby subjecting the employees it represented
to loss of employee status as defined by Section 2(3) of
the Act More specifically the case presents the question
of whether Respondent is financially liable for wages lost
by those employees when Aztech International Ltd dis
charged them for striking when Respondent failed to
meet the notice filing requirement of Section 8(d)(3) of
the Act
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs All
parties have filed briefs and they have been carefully
considered Based on the entire record as well as my ob
servation of the witnesses and their demeanor I make
the following
FINDINGS OF FACT
I INTERSTATE COMMERCE
Respondent admits the Employer Aztech Internation
al Ltd is a New Mexico corporation headquartered in
Albuquerque where it manufactures and markets heating
panels and evaporative cooler units It further admits
that during the 12 month period preceding the issuance
of the complaint Aztech in the course of its business op
erations sold goods valued in excess of $50 000 which
were transported directly to customers located outside
New Mexico It further admits that Aztech is an employ
er engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act
II LABOR ORGANIZATION
Respondent admits it is a labor organization within the
meaning of Section 2 (5) of the Act
Although no party has filed a motion to correct the transcript any
reviewer of the transcript should be wary for it contains numerous
errors omissions and misidentifications By way of illustration the cap
Lion appearing in the transcript volume is incorrect labeling Charging
Party Pete Le Mon as Respondent and Respondent Sheet Metal Work
ers Local 49 as the Charging Party It also omits entirely the appearance
of Harris counsel for the General Counsel and misidentifies the Charg
mg Party s attorney McKinnon as representing Respondent Likewise it
lists Respondents attorney Bloomfield as representing the Charging
Party
2 All dates are 1985 unless otherwise noted
SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL) 285
III THE ALLEGED UNFAIR LABOR PRACTICES
Fortunately given the sometimes inaccurate nature of
the transcript the facts in this case are not in significant
dispute Respondent has represented Aztech s production
employees for at least 15 years through a series of collec
tive bargaining contracts The most recent agreement ex
pired on September 30 Efforts to negotiate a successor
agreement had begun several months before but by Sep
tember 30 a new one had not been reached
Earlier September 11 Respondent s attorney Bloom
field had sent a notice of the existence of a labor dispute
to the Regional Office of the Federal Mediation and
Conciliation Service in San Francisco That letter was
not received by the Service until September 17 only 13
days before the contract was to expire
Section 8(d)(3) of the Act requires that such a notifica
tion be within 30 days of the termination or modification
of the contract in question Section 8(d) further says in
the event that any employee engages in a strike within
any notice period specified in Section 8(d) he or she
shall lose status as an employee for the purpose of ob
taming protection under Sections 8 9 and 10 of the
Act 3 The credible evidence demonstrates that neither
Gary Briggs Respondents business manager nor
George Jeep Gilliland its business representative was
actually aware of the tardy notice
As early as April Business Representative Gilliland
began holding monthly meetings with the Aztech em
ployees first to learn what the employees wanted in the
new contract and later to inform them of the progress of
negotiations On July 30 60 days before the contract was
to expire Gilliland both to test the employees resolve
and to send a signal of solidarity to the Employer con
ducted a vote to give the Union authority to strike in the
event that became necessary Gilliland recalls that those
employees who voted voted unanimously to authorize a
strike He says there were two or three abstentions
An additional meeting was held in August and two in
September as the contract expiration date approached
The first was on September 26 and the last on September
In pertinent part Sec 8 (d) of the Act reads as follows
For the purposes of this section to bargain collectively is the per
formance of the mutual obligation of the employer and the represent
ative of the employees to meet at reasonable times and confer in
good faith with respect to wages hours and other terms and condi
tions of employment or the negotiation of an agreement or any
question arising thereunder and the execution of a written contract
incorporating any agreement reached if requested by either party
but such obligation does not compel either party to agree to a pro
posal or require the making of a concession Provided That where
there is in effect a collective bargaining contract covering employees
in an industry affecting commerce the duty to bargain collectively
shall also mean that no party to such contract shall terminate or
modify such contract unless the party desiring such termination or
modification-
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute
Any employee who engages in a strike within any notice period
specified in this subsection shall lose his status as an employee
of the employer engaged in the particular labor dispute for the pur
poses of sections 8 9 and 10 of this Act as amended but such loss
of status for such employee shall terminate if and when he is reem
ployed by such employer
30 The September 30 meeting was in essence a split
meeting designed to accommodate the employees on the
two shifts
Based on an amalgamation of the testimony it appears
that at the September 30 meetings Briggs presented the
Company s last contract offer He said he was displeased
with it in several respects First it did not contain a ban
on subcontracting and in his opinion permitted the Em
ployer to subcontract unit work even to the extent of
getting rid of all unit employees while still claiming that
company products were union made Second it con
tamed a random drug testing clause Third the wage
offer was inadequate containing no increases and only
an opportunity for a bonus at the end of the first year
He told the employees that for the past 15 years or so he
had heard their complaints about wages and about the
manner in which the Company had treated them He
also told them that they could accept the offer but if
they did he did not want to hear any further complaints
about inadequate contract protection He also told them
if they rejected the contract their other choice was to
strike It does not appear that he offered them the middle
ground of not striking but continuing to negotiate In his
judgment such a middle ground would have been im
practical given the status of the negotiations Briggs told
the employees that if they struck there were some risks
involved These included being replaced or being fired
At least one employee asked Briggs if he would sign
the contract as it had been proposed According to the
employees testimony Briggs equivocated finally saying
he could not live with a contract like the one the Em
ployer was offering As a result of Briggs answer some
employees testified that Briggs was exhorting them to
strike Indeed it appears that some picket signs had al
ready been made Even so I am not convinced that
Briggs was making any special effort to exhort them to
strike though it is clear that he disliked the Company s
proposal
In any event the employees were asked to vote to
accept or reject the contract proposed by the Employer
At each meeting the secret ballot showed that the em
ployees voted to reject it As a result in the early morn
ing hours of Tuesday October 1 Respondent established
a picket line at Aztech s premises
The strike lasted until the morning of Monday Octo
ber 7 It fell apart when the Employer discharged all the
strikers simultaneously filing 8(b)(3) charges against Re
spondent for having failed to comply with the 8(d)(3)
notice requirements set forth in footnote 3 above On
October 1 the Employer had handdelivered and/or
mailed discharge letters to each of the striking employ
ees In the letter Aztech s president Bennett King
stated
The strike in which you are participating is an ille
gal one because the Union failed to give proper
notice to the Federal Mediation and Conciliation
Service of the existence of a labor dispute so that
the FMCS might have an opportunity to help us
find solutions to the collective bargaining impasse
Because of this failure by the union employees en
gaged in the strike are not protected by the Nation
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
al Labor Relations Act against firing This letter
will serve as formal notice of your termination of
employment by Aztech International Ltd effective
immediately
Also on October 1 the Employer filed its 8(b)(3)
charge against the Union On October 4 the Regional
Office of the Board issued a complaint against the Union
alleging that the strike was unlawful 4 The following day
an article in the Albuquerque Journal newspaper noted
the issuance of the complaint together with a quotation
from the NLRB Albuquerque resident officer asserting
that the picketing was illegal
The Employers president King took several of the
strikers including the Charging Party to his office
where he reported the issuance of the complaint to them
and showed them the newspaper article
Before the newspaper article appeared Briggs and Gil
Bland had told those strikers who had asked about the
assertions King had made in the discharge letter that
they regarded Kings letter as a company tactic saying
the Company was playing with their heads They
urged the strikers to remain together if they intended to
win the strike After the newspaper article appeared
Briggs and Gilliland continued to say the same thing
It should be observed here that although by October 2
Briggs and Gilliland were aware of the Company s con
tention that the strike was illegal they did not believe it
Both Briggs and Gilliland believed that at worst if the
FMCS notice had not been given the strike was unpro
tected Thus they surmised the worst that could happen
was a court could enjoin the picketing If that happened
they reasoned the court could probably not make them
go back to work The discharges which were by then a
fait accompli did not particularly concern them because
as Briggs had told the employees before employers often
attempt to win strikes by replacing the strikers To
Briggs that is exactly what was happening here
Briggs testified that when he learned of the Company s
contention that the notices had not been filed he had at
tempted to reach Attorney Bloomfield but could not do
so as he was out of town Briggs spoke to another indi
vidual at Bloomfield s law firm but it is not clear wheth
er he learned of the late filing with the FMCS He testi
fled he did not know if he had ever actually seen the
letter that had been sent to the FMCS saying that was
within the province of the Union s lawyers Based on
Briggs testimony I conclude that during the course of
the strike because of Bloomfield s absence he was
unable to find out whether the FMCS letter had been
timely sent
Despite his inability to find out from the law firm
what had actually happened Briggs thinking as a tradi
tional union official would decided to tough it out He
believed that whether the strike was legal or not as long
as the strikers could maintain solidarity there was a rea
sonably good chance that they could put enough eco
nomic pressure on the Company to prevail Although the
testimony is a little vague as to time and place it appears
4 See Fort Smith Chair Co 143 NLRB 514 518-519 (1963)
that remarks of that nature were made to strikers
Le Mon Limon Padilla and Tucker
Nonetheless on the morning of October 7 it became
apparent that most of the strikers were abandoning the
strike When Briggs saw that he told the remaining
strikers that the strike had been lost and that they should
go back to work so as not to be left alone
The record is not clear on how many employees
Aztech rehired or what the rate of rehire was Some
who had not been replaced were rehired immediately
others were hired later All were rehired as new employ
ees
Subsequently the employees upset over the Union s
handling of the strike filed a decertification petition
under Section 9(c) of the Act seeking an election to oust
the Union as their representative On receipt of the de
certification petition Respondent disclaimed interest in
representing Aztech s production and maintenance em
ployees
IV ANALYSIS AND CONCLUSIONS
The General Counsel asserts that Respondents failure
to file timely the 30 day notice of labor dispute with the
FMCS as required by Section 8(d) followed by a strike
within the 30 day period was a breach of a union duty
and said to be fiduciary which in turn amounts to a
breach of the duty of fair representation and therefore an
unfair labor practice within the meaning of Section
8(b)(1)(A) Respondent argues that the evidence shows
only that it committed an error of negligent omission and
that under the fair representation doctrine an act of neg
ligence does not breach that duty The threshold ques
tion is What is the appropriate level of care which Re
spondent must exercise to avoid liability under the doc
trine? Is Respondent a fiduciary thereby raising the level
of care that must be taken by 9(a) representative or is
Respondent something less than a fiduciary owing no
duty other than one of fair play?
In the seminal case of Steele v Louisville & Nashville
Railroad Co 323 US 192 202 (1944) the Supreme
Court in articulating the fair representation doctrine de
scribed the nature of a union s relationship to the individ
uals it represents as the exclusive statutory representa
tive
We think that the Railway Labor Act imposes
upon the statutory representative of a craft at least
as exacting a duty to protect equally the interests of
the members of the craft as the Constitution im
poses upon a legislature to give equal protection to
the interests of those for whom it legislates Con
gress has seen fit to clothe the bargaining represent
ative with powers comparable to those possessed by
a legislative body both to create and restrict the
rights of those whom it represents
Similarly the Board has held that a union does not stand
in a fiduciary relationship to the employees it represents
It has said instead that the relationship is analogous to
that between the legislator and constituent Service Em
ployees Local 579 (Beverly Manor Convalescent Center)
229 NLRB 692 fn 2 (1977) It appears therefore that Re
SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL)
spondent s duty to the Aztech employees here was not a
fiduciary one for the Supreme Court and the Board
have both held that the relationship requires only that
the statutory representative provide equal protection to
the employees it represents This is not to say that the
statutory representative cannot make reasonable choices
in carrying out its function even though those choices
may have incidental negative effects on some of its con
stituents Steele supra at 203 cf Ford Motor Corp v
Huffman 345 US 330 (1953)
In Steele the Court went on to say that although a
union s duty to the employees it represents is comparable
to the duties of a legislative body nonetheless the statu
tory grant of the exclusive right to represent the employ
ees impose[s] on the bargaining representative of a craft
or class of employees the duty to exercise fairly the
power conferred upon it in behalf of all those for whom
it acts without hostile discrimination against them
Steele supra at 202-203
The duty of fair representation was not initially con
sidered by the Board to be an unfair labor practice but
in Miranda Fuel Co 140 NLRB 181 (1962) enf denied
326 F 2d 172 (2d Cir 1963) the Board concluded that
the fair representation doctrine was subsumed under Sec
tion 8(b)(1)(A) of the Act There it stated5
[W]e are of the opinion that Section 7 [of the Act]
thus gives employees the right to be free from
unfair or irrelevant or invidious treatment by their
exclusive bargaining agent in matters affecting their
employment This right of employees is a statutory
limitation on statutory bargaining representatives
and we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations when
acting in a statutory representative capacity from
taking action against any employee upon consider
ations or classifications which are irrelevant invidi
ous or unfair
Although the Second Circuit would not enforce the
Board s theory that a failure to meet the duty of fair rep
resentation was an unfair labor practice within the mean
ing of Section 8(b)(1)(A) the Supreme Court disagreed
in Vaca v Sipes 386 U S 171 (1967) After reaching that
conclusion the Court stated A breach of the statutory
duty of fair representation occurs only when a union s
conduct toward a member of the collective bargaining
unit is arbitrary discriminatory or in bad faith See
Humphrey v Moore [375 U S 335 (1964)] Ford Motor
Co v Huffman supra (Vaca v Sipes supra at 190 )
The Court noting that the Vaca case arose in a context
involving the manner in which a union processed the
plaintiffs grievance added that it accepted the proposi
tion that a union may not arbitrarily ignore rrentonous
grievance or process it in a perfunctory fashion
As a result of Vaca the duty of fair representation is
now often described as one in which a union may not act
arbitrarily invidiously irrelevantly unfairly or perfunc
tonly in carrying out its representational duties The
Vaca Court even recognized that those phrases had
5 140 NLRB at 185
287
become cause for debate regarding the scope of their
meaning It had hoped to be able to provide clarity with
respect to defining those phrases Despite that effort the
duty itself remains somewhat murky depending on the
fact pattern being presented The Board has generally
held that duty of fair representation is not breached
when the union is forgetful commits an inadvertent
error or is negligent Operating Engineers Local 18 (Ohio
Pipeline Construction Co) 144 NLRB 1365 (1963) Team
sters Local 692 (Great Western Unifreight System) 209
NLRB 446 (1974)
Yet the courts have had some difficulty in determin
ing the breach of the duty when errors omissions and
negligence caused results that severely damaged an em
ployee s rights privileges or status For example the
Ninth Circuit in Dutrisac v Caterpillar Tractor 749 F 2d
1270 (9th Cir 1983) was faced with a situation in which
a union missed a deadline for filing a grievance The
court found that meeting a deadline for the filing of a
grievance was simply a ministerial act and easy to carry
out It appeared to recognize that the failure to file was
simply an act of negligence but observed that the gnev
ant s interests which were at stake were strong and that
the union s omission totally extinguished the grievant s
right to pursue his case In that circumstance the court
held that it was a breach of the duty of fair representa
tion to fail to complete the ministerial act of filing a
grievance in a timely way Despite some language of the
majority claiming that it was not finding a breach of the
duty for simple negligence Judge Norris disagreed in his
concurring opinion Given the facts of the case it ap
pears to me that Judge Norris is correct in his assessment
that the court relied on simple negligence to find a
breach of the duty 6 Nonetheless the Ninth Circuit s
analysis has some analytical impact here It is quite true
that meeting a filing deadline is a ministerial act that can
be easily met It is equally true that a missed deadline
can quite often result in great harm to an individual s
rights or status Indeed it can be reasonably argued that
the deadline that Respondent missed here is no different
from the deadline that was missed in Dutrisac Yet can it
be said in either case that the failure to file was arbitrary
discriminatory invidious irrelevant or perfunctory? It is
hard to characterize forgetfulness or mistake as any of
those although the Dutrisac court appears to have done
so
Earlier the Ninth Circuit had stated in Robesky v
Qantas Empire Airways supra at 1092 in a grievance han
dling context that the union s failure to disclose fully the
conditions of a settlement proposal even though uninten
tional had nonetheless been so reckless that the union
could not be shielded from liability under the fair repre
sentation doctrine It said the omission was so egre
gious so far short of minimum standards of fairness to
the employee and so unrelated to legitimate union inter
ests as to be arbitrary citing Ruzicka v General Motors
523 F 2d 306 (6th Cir 1975) Ruzicka was another case
in which the union failed timely to file a grievance and
6 Judge Norris was relying on comments made by Judge Anthony M
Kennedy in Robesky v Qunntas Empire Airways 573 F 2d 1082 (9th Cir
1978)
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
held that the failure amounted to arbitrary and perfunc
tory handling of the grievance sufficient to invoke the
doctrine
Despite its language in Ruzicka the Sixth Circuit has
recently begun to reanalyze the utility of the Vaca and
Miranda Fuel tests finding them to be unclear See
NLRB v Teamsters Local 299 782 F 2d 46 (6th Cir
1986) That case has some striking similarities to the case
before me and is one in which the Board found a viola
tion Indeed the General Counsel argues that the under
lying Board case Teamsters Local 299 (McLean Trucking
Co) 270 NLRB 1250 (1984) controls here even though
the Sixth Circuit denied enforcement At the risk of
overdistilling the facts McLean involved a company
whose collective bargaining contract contained a modi
feed no strike clause When a dispute arose regarding the
layoff of a small group of employees the union demand
ed over the protest of the company to hold a meeting
on the company premises during worktime The employ
er asserted to the union officials that the meeting was a
breach of the no strike clause and that the employees
could be disciplined The union nonetheless conducted
the meeting never telling the employees that the compa
ny regarded it as an illegal work stoppage or that the
company could discipline them The employer on pursu
ing the matter determined that the meeting was not an
exception to the no strike clause and subsequently disci
planed the employees in accordance with the terms set
forth in the contract
The Board held the union in McLean breached the
duty of fair representation when it encouraged the em
ployees to stop work in violation of the no strike clause
and when it exposed them to discipline a risk it had
failed to explain The Board held that the unions claim
that the work stoppage was only a meeting was not a
good faith position and that the union had deliberately
misled the employees regarding the consequences of
their action It held that the employees had the right to
expect that the union would not encourage them to vio
late the contract in a way that would expose them to a
loss of income or even of employment Specifically it
relied on both Miranda and Vaca in reaching its conclu
sion that the Union s contract was arbitrary 270 NLRB
1250 1252
The Sixth Circuit however regarded the Board s de
cision as an assertion that the duty of fair representation
imposes an affirmative obligation on a union to inform
its members of possible disciplinary consequences for
participating in at least some forms of union activity It
then said that after careful review of the case law it be
lieved that there was no support for interpreting the duty
of fair representation to encompass the fact pattern
before it It noted that both Yaca and Ruzicka involved
the arbitrary handling of an individuals grievance It ob
served that even though the individuals in those cases
had not been discriminated against in the classic sense
and even if the Union had not acted in bad faith the
grievants were alleging treatment disparate from other
members The court stated that the Board s position with
respect to the application of the Vaca logic was com
pletely out of context The court stated in McLean
supra at 51-52
would require us to extend the duty [of fair
representation] to cover a situation involving a
work stoppage rather than collective bargaining or
grievance processing and where a member or
group was not singled out for different treatment
In other words the duty would be expanded to in
elude an undefined fiduciary duty which a union
owes to its unit as a whole Such a duty could
impose on a union an obligation to authorize a
strike or any number of other affirmative actions
We decline to extend the duty so far since we be
lieve the duty of fair representation was never in
tended to be catch all for undesirable union activ
ity
We conclude as a matter of law that the duty of
fair representation is implicated only when an mdi
vidual or group is treated differently by a union-
either through discriminatory bad faith or arbitrary
conduct-than another individual group or the col
lective Since such differential treatment was not al
leged in this case we find that the Board was incor
rect as a matter of law to find a violation of the
duty of fair representation We therefore decline to
consider the Miranda Fuel question and cannot
grant enforcement on this basis
Thus both the Ninth and the Sixth Circuits have ques
tioned the utility of the Miranda and Yaca language and
have now come down on different sides of the issue The
Ninth Circuit is willing to say that negligence in some
circumstances is a perfunctory act the Sixth Circuit has
said that even a deliberate apparently reckless act re
sulting in the destruction or impairment of employee
rights or status is not a breach of the duty so long as the
employee is not treated differently from others and even
then only if the union s conduct is discriminatory arbi
trary or in bad faith
The foregoing discussion does not resolve the specific
fact pattern before me However I advert to it with the
specific purpose of observing that fair representation
cases of the kind presented here are not straightforward
Indeed both courts have strongly suggested that the Mi
randa and Vaca language is not of bright line assistance
in determining this kind of case The Sixth Circuit in
McLean even goes so far as to say that language arising
from grievance handling cases with respect to what a
union must do to inform its members of the conse
quences of their acts in other fact patterns is inappropn
ate The Board of course had held the opposite
In the instant case the Union did not inform the
Aztech employees that the 8(d) notice to the FMCS had
not been timely filed principally because its officials did
not know it I should observe here that there is a signifi
cant factual difference between Respondents omission
here and the Teamsters omission in McLean In McLean
the union knew it was risking a breach of the no strike
clause Indeed as the meeting began the employer in
formed the union that it was breaching that section of
the contract Aztech s King did not make a similar warn
ing and I credit the Union s evidence that it took several
SHEET METAL WORKERS LOCAL 49 (AZTECH INTERNATIONAL)
days to find out what had actually happened regarding
the FMCS filing In the meantime of course the Em
ployer had already taken the disciplinary act that Section
8(d) permitted it to take It can clearly be said that the
Teamsters act in McLean was taken knowingly and with
reckless disregard for employee rights The same cannot
be said of Respondent s omission Thus the Board s deci
sion in McLean is factually distinguishable from the case
presented here even without regard to the Sixth Cir
curt s decision to deny enforcement I must disagree
therefore with the General Counsel who urges that the
Board s decision in McLean controls
Instead it seems to me that the General Counsel has
not shown that the Unions failure to file the FMCS
notice was anything other than an act of negligence mis
take or inadvertence Under Board law as set forth in
Operating Engineers Local 18 (Ohio Pipeline Construction
Co) supra and Teamsters Local 692 (Great Western Uni
freight System) supra no breach of the duty can be made
out The only two theories I can see that would require
a finding of a violation is either an adoption of the Gen
eral Counsels fiduciary duty theory or the Ninth Cir
curt s analysis regarding a failure to perform a ministerial
act The fiduciary theory would of course impose a
higher duty of care on the union than is normally seen in
fair representation cases I think it is fair to conclude that
if the Union s duty is that of a fiduciary it failed to meet
it However I have already noted that the fiduciary duty
does not exist here 7 Moreover the Board has not ac
cepted the Ninth Circuits approach here In fact the
Board has held it is not every act of disparate treatment
or negligent conduct which is proscribed by Section
8(b)(1)(A) but only those which [have been] motivated
by hostile invidious irrelevant or unfair consider
ations Steelworkers Local 2869 (Kaiser Steel Corp) 239
NLRB 982 (1978) Thus while we may be offended by
Respondents failure to file the FMCS notice and its con
sequent negative impact on the employment status of the
individuals Respondent represented it appears that under
current Board law the Respondent did not breach the
duty of fair representation when it called the strike 8
7 The Board has imposed a fiduciary obligation on unions in the en
forcement of union security clauses See Conductron Corp 183 NLRB
419 429 (1970) Machinists Lodge 946 (Aerojet General Corp) 186 NLRB
561 562 (1970) and cases cited in fn 1 Boilermakers Local 732 (Triple A
Machine Shop) 239 NLRB 504 (1978)
8 The Charging Party has observed that Respondent was subject to a
most favored nations clause in a contract with an El Paso Texas firm
He argues that Respondent could not politically accept a lower rate in
Albuquerque without risking wage cuts at the larger El Paso company
He says it follows therefore that Respondent specially exhorted Az
tech s employees to strike to obtain the El Paso rate Whether the em
ployees won or lost he argues the Respondent was acting improperly If
the employees succeeded Aztech already financially precarious would
be rendered uncompetitive and forced out of business If they failed and
the strike was lost Respondent would not be obligated to sign a new
contract Either way the El Paso contract would not be jeopardized
I do not accept the premise Respondent had a specific purpose in Al
buquerque to obtain a new contract with Aztech El Paso is 270 miles
289
Moreover as it breached no duty of fair representation
at the time of the calling of the strike and as the em
ployees were discharged almost instantly thereafter it
was faced with a fait accompli The employees were free
to either accept the Unions advice or the Employer s
advice and to make their own decisions thereafter
Briggs and Gilliland s statements to employees after the
strike was underway that to win the strike they had to
stick together was only the ordinary encouragement of a
union official to maintain solidarity during a labor dis
pute Such statements do not amount to any special en
couragement to continue to strike in the face of an un
reasonable risk Therefore I cannot find a violation
based on the General Counsels second theory either
that a breach of the duty occurs when the Union fails to
tell its employees to go back to work
Indeed it seems to me that the Aztech employees took
the steps that one would expect them to take against a
union that failed adequately to represent their interests
They fired the Union as their representative when they
filed their decertification petition and induced the dis
claimer of representation That is certainly the most ap
propriate means of punishing a representative that has
made such a horrendous error
Based on the foregoing findings of fact and the record
as a whole I issue the following
CONCLUSIONS OF LAW
1 Aztech International Ltd is an employer engaged
in commerce and in an industry affecting commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 Respondent Sheet Metal Workers International As
sociation Local 49 AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act
3 Respondent has engaged in no violations of the Act
as alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed9
ORDER
The complaint is dismissed in its entirety
distant and probably not much of a consideration to the Union as it
sought a new contract in Albuquerque More significant is the observa
tion that even if Respondent was concerned with the most favored na
tions clause in El Paso it did not need to file a late notice with the
FMCS to create a dispute justifying the abandonment of the Aztech em
ployees to save the El Paso contract Any strike would have accom
plished that Therefore I do not regard the El Paso most favored nations
clause to be a legitimate consideration here The Charging Party s posi
Lion regarding it is illogical
9 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses