Truck Drivers Local 692

National Labor Relations Board - Board Decisions

Mar 7, 1974

209 N.L.R.B. 446 (N.L.R.B. 1974)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers, Chauffeurs and Helpers
Union, Local No. 692, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Help-
ers of America (Great Western Unifreight System)
and Marion Boyd Lee, Jr. Case 21-CB-4374
March 7, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed by Marion Boyd Lee, Jr., an
individual, herein called the Charging Party, and
duly served on General Truck Drivers, Chauffeurs
and Helpers Union, Local No. 692, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the
Respondent, the Regional Director for Region 21 of
the National Labor Relations Board issued a
complaint on December 8, 1972, alleging that the
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(l)(A) and Section 2(6) and
(7) of the National Labor Relations Act, as amended.
Copies of the charge and the Complaint and Notice
of Hearing before an Administrative Law Judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that the Charging
Party, an employee of Great Western Unifreight
System, herein called the Company, was one of the
employees in an appropriate unit represented by the
Respondent and covered by the collective-bargaining
agreement between the Respondent and the Compa-
ny. On or about June 15, 1972, the Charging Party
was discharged by the Company and on or about
June 20, 1972, he filed a grievance with the
Respondent protesting his discharge. Since on or
about June 20, 1972, the Respondent has failed and
refused, for arbitrary reasons, to timely process the
grievance. Subsequently, the Respondent filed an
answer and amended answer admitting all the factual
allegations in the complaint, but denying that it has
failed and refused, for arbitrary reasons, to timely
process the grievance and denying that it had
committed unfair labor practices within the meaning
of the Act.
On January 17, 1973, the Respondent filed with the
Board's Division of Judges, a request for a bill of
particulars as to the "arbitrary reasons for Respon-
dent's alleged acts or non-action" in failing and
refusing timely to process the Charging Party's
grievance. The General Counsel filed a memoran-
dum in opposition. In his ruling of January 30, 1973,
Administrative Law Judge Irving Rogosin directed
209 NLRB No. 52
the General Counsel to furnish the Respondent with
a bill of particulars, along with a statement of the
acts or conduct upon which the General Counsel
relies to establish "arbitrary reasons." Pursuant to
this direction, the General Counsel served the
Respondent with an answer to Respondent's bill of
particulars reiterating the substance of the allega-
tions in the complaint and also alleging that the
Respondent, through its business representative,
Dominick Scaccia, had failed and refused to process
the grievance with the Company until July 20, 1972,
when it had become time-barred under the collective-
bargaining agreement with the Company, and the
Charging Party had lost all rights to avail himself of
the terms of the contractual grievance procedure.
Thereafter, the Respondent filed an amended answer
to the complaint in which it denied the allegation
that the Charging Party had filed a grievance on June
20, 1972, and that it had failed and refused, for
arbitrary reasons, or for any reasons, to timely
process the grievance. The amended answer further
alleged that the Respondent had processed the
grievance expeditiously and in good faith, and that
the arbitration panel ruled that the grievance was
time-barred under the agreement between the Re-
spondent and the Company.
On February 12, 1973, the Respondent filed an
Alternative Motion for Summary Judgment or Bill of
Particulars, alleging, inter alia, that the General
Counsel's answer to Respondent's bill of particulars
was insufficient and requesting that the General
Counsel "state the acts or conduct on which he relies
to establish arbitrariness on the part of the Respon-
dent." By order of February 16, 1973, Judge Rogosin
denied the Respondent's motion and request.
On March 12, 1973, the Respondent filed with the
Board in Washington, D.C., a Motion for Summary
Judgment on the ground that the complaint, as
modified by the bill of particulars, did not state a
violation of the Act. Under all the particular
circumstances herein, the Respondent's motion was
viewed as constituting, in effect, a request under
Section 102.26 of the Board's Rules and Regulations
for special permission to appeal, and an appeal from
the failure of Administrative Law Judge Rogosin in
his order of February 16, 1973, to direct the General
Counsel to supply particulars as to the Respondent's
alleged "arbitrary reasons" for its conduct. Accord-
ingly, the Board, on April 23, 1973, granted the
Respondent's request for special permission to
appeal, granted its appeal, and ordered the General
Counsel promptly to furnish a specific statement as
to the Respondent's alleged arbitrary reasons for its
action or nonaction with respect to the Charging
Party's grievance.
On May 4, 1973, the General Counsel filed a
TRUCK DRIVERS LOCAL 692
response to the Board's order for a further bill of
particulars in which he stated:
The arbitrary reasons attributed to Respondent
in paragraph 9 of the Complaint and Notice of
Hearing issued on December 8, 1972, consist of
Respondent's Business Representative Dominick
Scaccia's negligence in failing to file and process
in a reasonable and timely manner the grievance
submitted to Respondent by employee Marion
Lee in connection with Lee's discharge by Great
Western Unifreight System as set forth in para-
graph 8 of the Complaint. As a result of
Respondent's negligence in failing to file the
grievance in a reasonable and timely fashion, said
grievance became time-barred under the terms of
the collective-bargaining agreement covering
employees of Great Western Unifreight System.
As a result, Lee has lost all rights to avail himself
of the terms of the grievance procedure applicable
to employees of Great Western Unifreight System
as set forth in the collective-bargaining agreement
referred to above.
Thereafter, on May 9, 1973, the Respondent filed
with the Board in Washington, D.C., a Motion for
Summary Judgment on the ground that the com-
plaint. as modified by the response for further
particulars, fails to state a violation of the Act. On
June 18, 1973, the General Counsel filed an opposi-
tion to the Respondent's Motion for Summary
Judgment.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this -proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
It has been well established by the courts and the
Board that a union, as the exclusive bargaining
representative of the employees in the appropriate
i In addition to alleging the substance of his further bill of particulars,
the General Counsel's opposition added the following details (1) the
Charging Party was terminated by the Company for allegedly refusing
and/or failing to report for work without being given one written warning
notice as required by the collective -bargaining agreement ; (2) the Respon-
dent's business agent assured the Charging Party that he had sufficient
grounds for a meritorious grievance , (3) the Charging Party filled out the
grievance form and left it at the Respondent 's office, (4) the grievance was
not presented to the Company until July 10, 1972, after the contractual time
for filing had passed , and (5) the Company took the position that the
grievance was untimely and lacking in merit
2 Ford Motor Company v Huffman, 345 U S 330 (1953); Vaca v. Sipes,
386 U.S . 171(1967); Miranda Fuel Company, Inc, 140 NLRB 181; Local No.
18, International Union of Operating Engineers, AFL-CIO and its agent,
George E. Miller (Ohio Pipe Line Construction Company), 144 NLRB 1365;
447
unit, has the statutory duty fairly to represent all
those employees both in its collective bargaining and
in its enforcement of the resulting collective-bargain-
ing agreement.2 In Miranda, supra, the Board first
enunciated the doctrine that a breach of the duty of
fair representation constituted an unfair labor
practice. In that case, the Board found that Section 7
of the Act conferred upon employees the right to be
free from unfair, irrelevant, and invidious treatment
by their exclusive collective-bargaining representa-
tive in matters affecting their employment. Accord-
ingly, it found that the union there involved breached
its duty of fair representation in violation of Section
8(b)(1)(A) of the Act when it caused an employee's
reduction in seniority for considerations which were
irrelevant, invidious, or unfair, and in so doing, the
Board, at 185, characterized the union's conduct as
"arbitrary conduct." 3
In his opposition to the Respondent's Motion for
Summary Judgment, the General Counsel concedes
that a union has broad discretionary power to settle
or abandon grievances and that a union would not
breach its duty of fair representation through slight
negligence or the exercise of poor judgment. He
maintains , however, that the Respondent 's negli-
gence in failing timely to file and process the
admittedly meritorious grievance, thereby causing
serious injury to the Charging Party by the termina-
tion of his employment and the loss of contractual
grievance procedure rights, falls squarely within the
definition of "arbitrary"4 and, therefore, constitutes
a breach of the Respondent's duty of fair representa-
tion violative of Section 8(b)(l)(A) of the Act under
the Miranda doctrine.
Conversely, the Respondent argues that negligence,
by definition, is not an arbitrary reason and therefore
the complaint herein as modified by the General
Counsel's bills of particulars, alleging unfair repre-
sentation based solely on the Respondent 's negli-
gence, does not state a violation of Section 8(b)(1)(A)
of the Act and should be dismissed. We find merit in
the Respondent's position because we do not equate
mere negligence with irrelevant, invidious, or unfair
Local 485, International Union of Electrical, Radio & Machine Workers,
AFL-CIO (Automotive Plating Corp), 170 NLRB 1234; Local 933, United
Automobile, Aerospace and Agricultural Implement Workers of America
(UA W), 193 NLRB 223.
3 Although the Board's Miranda decision was denied enforcement by a
divided Second Circuit Court (326 F.2d 172 , 1963), the Fifth Circuit Court
approved the Miranda doctrine in Local Union No. 12, United Rubber, Cork,
Linoleum & Plastic Workers ofAmerica, AFL-CIO v. N.LR B, 368 F.2d 12
(C.A. 5, 1966), enfg. 150 NLRB 312, and the Supreme Court indicated its
approval of the doctrine in Vaca v. Sipes, supra
4 The General Counsel cites Black's Law Dictionary as defining
"arbitrary" as ". . done capriciously or at pleasure; without adequate
determining principle ; not founded in the nature of things; nonrational; not
done or acting according to reason ...
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations which the Board, in Miranda, supra,
also characterized as "arbitrary conduct."
In support of its position, the Respondent cites
several court decisions. In Bazarte,5 the Third Circuit
Court, in the context of a refusal further to press a
grievance, decided that "an employee, therefore, is
subject to the union's discretionary power to settle or
even abandon a [meritorious ] grievance so long as it
does not act arbitrarily" and that "[p]roof that a
union acted negligently or exercised poor judgment is
not enough to support a claim of unfair representa-
tion."6 In Encina,7 also in the context of a refusal to
process a grievance, a Federal district court held that
even proof of "poor quality" representation is
insufficient to support a claim, of unfair representa-
tion, without a showing "that the Union's actions in
refusing to arbitrate his case were arbitrary, discrimi-
natory or in bad faith ...."8 Finally, in Brough,9
which involved a suit brought by an employee who
alleged that the union breached its duty of fair
representation by negligently failing to discover a
defect in the employer's machine with the result that
the employee was injured, the First Circuit Court, in
affirming the district court's grant of the union's
motion for summary judgment, stated at 750 that
"[t]he Labor-Management Relations Act imposes
upon the exclusive bargaining representative only a
duty of good faith representation, not a general duty
of due care."
In addition to the aforementioned court decisions,
there are also Board decisions which support the
principle that something more than mere negligence
is required for union action or nonaction to be
considered arbitrary and, therefore, a breach of the
duty of fair representation in violation of Section
8(b)(1)(A) of the Act. Thus, in the precedent
establishing the Miranda case, the Board, in support
of its contention that the union's action was arbitrary
and without legitimate purpose, noted, at 188, that
"the Union sought to have the employee forfeit his
contract seniority, first on one groundless basis and
finally on another basis which was `in conflict with
the agreement.' " Similarly, in Local 933, sup a,10 the
Board affirmed an Administrative Law Judge's
finding of an 8(b)(1)(A) violation where the union
agent's handling of an employee's grievance was
found to be perfunctory, arbitrary, discriminatory,
and in bad faith because the asserted untimeliness of
the grievance was a sham and because the union
agent, who opposed the employee's effort to become
a steward, avoided first-step consideration in the
grievance procedure by the employee's immediate
supervisor in favor of second-step consideration by a
less friendly supervisor. Further, in Local 485,
supra,11 the Board, in finding that the union violated
Section 8(b)(1)(A) of the Act by failing to press an
employee's grievance concerning his discharge noted
that the union's business agent resented the employ-
ee's activities in opposition to him at a union
meeting, threatened to get rid of him, referred to the
employee as an "instigator," and made no attempt
even at an opportune time to informally discuss with
the employer the employee's discharge. Finally, in
Local 18, supra,12 the Board reversed an Administra-
tive Law Judge's Decision and dismissed an
8(b)(1)(A) complaint, based on the allegation that the
failure to refer for employment an employee from the
hiring hall, because the union neglected to reregister
him as requested, was allegedly motivated by unfair
or irrelevant or invidious reasons. The Board found,
at 1368: "Mere forgetfulness or inadvertent error is
not the type of conduct that the principles of
Miranda were intended to reach. And there is no
convincing evidence that the Respondent's agents
removed Long's card from the referral files for any
reason other than an honest belief that Long had in
fact failed to reregister."
From the above court and Board decisions, it is
clear that negligent action or nonaction of a union by
itself will not be considered to be arbitrary, irrele-
vant, invidious, or unfair so as to constitute a breach
of the duty of fair representation violative of the Act.
Something more is required. In the instant case, the
modified complaint merely alleges only that the
Respondent negligently failed and refused to timely
process the meritorious grievance to the serious
detriment of the Charging Party. Nothing more is
charged. Absent an allegation showing something
more than negligence alone, we conclude that the
negligent conduct of the Respondent alleged herein
does not constitute by itself a breach of the duty of
fair representation in violation of Section 8(b)(1)(A)
of the Act.
We shall, accordingly, grant the Respondent's
Motion for Summary Judgment and dismiss the
complaint herein in its entirety.
On the basis of the entire record, the Board makes
the following:
5 Bazarte v. United Transportation Union, 429 F 2d 868 9 Brough v United Steelworkers of America, 437 F 2d 748
6 Id at 872 10 193 NLRB 223.
7 Enema v Tony Lama Company, Inc, 316 F Supp 239, affd 448 F 2d 11 170 NLRB 1234
1264 (C A 5) 12 144 NLRB 1365.
8 Id at 243-244
TRUCK DRIVERS LOCAL 692 449
FINDINGS OF FACr
1. THE BUSINESS OF THE COMPANY
The Company, with an office, terminal, and place
of business in Compton, California, is engaged in the
transportation of freight by motor truck. During the
past calendar year, in the course and conduct of its
business operations, the Company derived gross
revenue in excess of $50,000 from the transportation
of freight in interstate commerce.
We find, on the basis of the foregoing, that the
Company is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers. Chauffeurs and Helpers
Union, Local No. 692, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
CONCLUSIONS OF LAW
The conduct of the Respondent, as alleged in the
modified complaint herein, does not violate Section
8(b)(1)(A) of the Act.
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment be, and it hereby is, granted,
and the modified complaint be, and it hereby is,
dismissed in its entirety.
MEMBER FANNING, concurring:
I agree with my colleagues that the Respondent's
Motion for Summary Judgment should be granted
and the complaint in this case dismissed in its
entirety.
In doing so, however, I do not agree with the
majority's statement that the Supreme Court in Vaca
v. Sipes approved the Board's Miranda Fuel doctrine.
Although the Court was willing to "assume" for
purposes of its decision therein that a breach of the
duty of fair representation was an unfair labor
practice. as the Board majority and the Fifth Circuit
Court of Appeals had held, the Court did not, in fact,
adopt that view.';' 1 dissented from Miranda because
I did not believe that every arbitrary or putatively
"unfair" act by a union with respect to its members
was automatically an unfair labor practice pro-
scribed by Congress. The situation in Vaca v. Sipes
and the instant case are good examples of my reasons
for objecting to the Miranda rule. In the former case
the Court held that an employee did not have an
absolute right to require a union to take his grievance
to arbitration, even though the evidence indicated
that the underlying grievance was meritorious.14 In
the instant case we hold that an employee cannot
validly complain of unfair treatment because the
Union through negligence failed to process his
grievance at an appropriate time . Both of these cases,
in my view, are factually similar to the circumstances
under which the Board majority found an unfair
labor practice in Miranda. All that occurred in that
case was a refusal by the union to accord seniority
rights to one of its members, who claimed he was
entitled to more seniority than his fellow union
members had determined was his due as a matter of
contract right.
I am of the view that a union should be accorded a
reasonable amount of discretion in the exercise of its
representative function. If every intraunion resolu-
tion of a question concerning seniority or grievance
were subject to an over-the-shoulder appraisal by the
Board for fairness , the burden on unions and the
Board ultimately would become intolerable. This is
not to say that 1 condone or sanction gross
inisconduct by unions toward employees, whether or
not the duty of representation is involved. In the
recent Siebenoller case (International Brotherhood of
Painters, etc., (W. J. Siebenoller, Jr., Paint Co.), 205
NLRB No. 110), 1 joined my colleagues in finding
violations of Section 8(b)(2) and 8(b)(1)(A) where a
union took coercive action against an employer to
cause the employer not to hire black employees. The
facts in that case showed that the union went further
and brought false charges against the employer in
furtherance of its objective. Clearly, in my opinion,
the record warranted the inference that such conduct
would encourage union membership by demonstrat-
ing the potency of union power. It was equally clear
that no legitimate function of union representation
justified such blatant use of union force to cause
unlawful discrimination against an employee or
group of employees. Similarly, in International Union
of Operating Engineers, Local 18, AFL-CIO (W. F.
Murphy), 204 NLRB No. 112, 1 agreed with my
colleagues that the union violated Section 8(b)(2) and
8(b)(1)(A) by refusing to refer a member to a job on
the ground that he had behaved improperly as a
union member during an election and at the union
office. It has long been well settled that unions which
operate exclusive hiring halls have a special obliga-
tion not to discriminate against members or non-
13 Supra at 186
14 Ibid at 194-195
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members except for the application of lawful union-
security contracts or reasons relating to the legiti-
mate performance of their representational duties.
These cases would not seem to pose serious
questions of fair or unfair representation. Yet the
Siebenoller case was rationalized by the Administra-
tive Law Judge and the Board majority on that
ground alone . Why so? Is there some magic in the
phrase "duty of fair representation " that requires its
invocation whenever a union engages in misconduct
against an employee or a group of employees? In the
Miranda case the majority concluded that Section
8(b)(1)(A) was violated when a union in its represent-
ative function took action against an employee on
grounds that were "irrelevant, invidious or unfair."
But these words have absolutely no meaning or force
until they are translated into the statutory language
of "restraint and coercion" which Congress used in
that section of the Act. I prefer to interpret the
statute , as I did in Miranda and subsequent cases,
and as I have done in the instant case , by linking the
alleged unlawful conduct to the test provided in
Section 8 (b)(1)(A) rather than the less precise test
suggested by the Miranda rule. The latter test, in my
opinion , is confusing and may , as I believe it did in
Miranda, lead to an incorrect result . It seems to me
that the literal language of the statute , though less
sparkling, is sufficient to determine whether or not a
breach of representational duty has occurred . For the
inherent ambiguity of terms such as "irrelevant,"
"unfair," and "invidious" cannot be helpful in
deciding what the law permits and what it forbids.
Gross misconduct of a union in refusing to process
an employee 's grievance need not , if the evidence is
otherwise adequate , be characterized by inflammatory
words to warrant a finding by the Board that the
union has engaged in restraint and coercion of an
employee in violation of the Act.
In sum , I do not find it necessary to distinguish the
Miranda case from the instant case . In my opinion,
the critical question before us is whether or not the
Union restrained and coerced the Charging Party in
the exercise of his Section 7 rights by failing to
process his grievance in a timely manner . Believing,
as I do , that a union should be permitted some
leeway in the performance of its representational
duties , I conclude that the Union 's negligence,
without more , does not require the intervention of
the Board into this intraunion matter.