Truck Drivers, Local Union No. 355

National Labor Relations Board - Board Decisions

Jun 7, 1977

229 N.L.R.B. 1319 (N.L.R.B. 1977)

TRUCK DRIVERS, LOCAL UNION NO. 355
Truck Drivers, Helpers, Taxicab Drivers, Garage
Employees and Airport Employees Local Union
No. 355, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Monarch Institutional Foods)
and Norman L. Buchanan. Case 5-CB- 1981
June 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 30, 1976, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge concluded that the
Respondent Union, in representing Norman Bu-
chanan upon his discharge by Monarch Institutional
Foods, hereinafter Monarch, violated its duty of fair
representation.
Buchanan was hired by Monarch in March 1974 as
a truckdriver and deliveryman. Beginning in early
1975, the Respondent, according to its business
agent, Harry Crout, began receiving occasional
complaints about Buchanan's work from John
McLaughlin, Monarch's warehouse supervisor.
On November 19, 1975, Buchanan was sent to
Pennsylvania to make deliveries and to service one of
Monarch's routes. He apparently was running
The letter sent to Crout by McLaughlin read as follows:
Dear Mr. Crout:
Please be advised that as a result of his actions, Mr. Norman L.
Buchanan has been terminated from his position with Monarch
Institutional Foods as of this date.
The immediate termination was effected because, in direct defiance
of my directions, Mr. Buchanan remained on his delivery route for five
(5) hours and thirty-eight (38) minutes beyond the limit I set. In my
opinion this defiance was in fact an actual theft of the dollars being
paid for those hours.
The following outline is a summary of the events of Wednesday,
November 19, 1975, the day concerned.
I. At approximately 2:00 P.M., I received a telephone call from
our salesman who covers the accounts to which Mr. Buchanan was
delivering. He told me that the driver was only to his 8th stop and that
there were 24 stops on his truck. He said that in his opinion (and mine)
the driver would never be able to complete his deliveries within a
reasonable schedule. He also advised me that Mr. Buchanan was
carrying an unauthorized passenger in the truck.
229 NLRB No. 186
behind schedule, and this fact was reported to
McLaughlin by a Monarch salesman who had
encountered Buchanan. Thereafter, during the after-
noon, McLaughlin spoke twice by telephone to
Buchanan. According to McLaughlin, during both
phone calls he instructed Buchanan that under no
circumstances was he to arrive back at the plant in
Baltimore after 7 p.m. Further, McLaughlin testified
that during the second phone call he directed
Buchanan to head back to the plant immediately,
making only those stops on his route. Buchanan, who
denied having been instructed to be back by 7 p.m.,
returned and clocked out at 12:38 a.m. on November
20.
Later, on the morning of November 20, McLaugh-
lin discharged Buchanan. In a discharge letter sent to
the Respondent, McLaughlin stated, in part, as
follows: "The immediate termination was effected
because, in direct defiance of my directions, Mr.
Buchanan remained on his delivery route for 5 hours
and 38 minutes beyond the limit I set. In my opinion
this defiance was in fact an actual theft of the dollars
being paid for these hours." McLaughlin thereafter
in the letter fully detailed his version of the events of
November 19.1
Buchanan did not file a written grievance but
complained to Crout. Thereupon a meeting with
Monarch officials was arranged for November 24.
Because the Union's steward could not attend on
November 24, the meeting was rescheduled for the
next day. When the meeting took place, Crout
argued that the whole affair had been a misunder-
standing and that Buchanan should be reinstated.
McLaughlin, contending that Buchanan had ignored
orders to return by 7 p.m. and had had an
unauthorized passenger in his truck, stated that the
discharge would stand. McLaughlin told Crout that
he could appeal to John Gates, Monarch's general
manager. Thereafter, Crout spoke to Gates on about
three occasions, but Gates reaffirmed that Buchanan
2. 1 called the next customer on Buchanan's route and left a
message for him to call me. When he did (about 2:10 P.M.), we talked
about his run and I told him that he should do his best to make as many
deliveries as possible, but that he must call me later and review the
remaining stops and that under no circumstances was he to be out later
than 700 P. M.
3. At approximately 4:00 P.M., Mr. Buchanan called me, and we
decided that he should only make deliveries that were on a direct route
back to our warehouse. This would enable him to meet my deadline of
7:00 P.M. He agreed and said he understood exactly what I meant.
4. As previously stated, Mr. Buchanan then completely disregard-
ed my instructions and remained on his delivery route until 12:38 A.M..
November 20, 1975. Even after this outrageous length of time, Mr
Buchanan did not complete his run.
5. He was advised the morning of November 20. 1975. that he was
being terminated immediately.
If any additional information is needed, please contact me at your
convenience.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be reinstated. Later still, in January 1976,
efforts on his behalf having been fruitless, Buchanan
asked Crout to take the matter to arbitration. Crout
then discussed the matter with Union President John
Sullivan. 2 However, Crout thereafter advised Bu-
chanan that they had decided not to take the matter
to arbitration because they felt they had little chance
of winning.
The Administrative Law Judge concluded that the
Respondent unlawfully failed to provide Buchanan
with proper representation. Specifically, the Admin-
istrative Law Judge found that the Respondent's
failure to utilize article 21 of its collective-bargaining
agreement amounted to a violation of Section
8(b)(1)(A) of the Act.3
The Board has stated that a union breaches its
statutory duty of fair representation when its conduct
toward a member of the collective-bargaining unit is
arbitrary, discriminatory, or in bad faith. See, e.g.,
Carpenters, Local Union # 1104 (The Law Company,
Inc.), 215 NLRB 537 (1974). There is no contention
in this case that the Respondent acted in bad faith or
out of hostility toward Buchanan. No evidence was
offered to show disparate treatment of Buchanan and
other members by the Union. However, the Respon-
dent's duty of fair representattion also encompasses
an obligation to deal fairly with employees in taking
certain actions or refraining therefrom. Therefore,
the key question herein is whether the Respondent
has engaged in "arbitrary conduct" in failing to insist
upon Monarch's complying with article 21 of the
collective-bargaining agreement.
The Respondent contended, and its uncontradicted
evidence showed, that article 21 had atrophied and
was consistently not being invoked at Monarch as
well as industrywide. Uncontradicted evidence indi-
cated that, despite the article's having been included
in all wholesale grocery industry contracts since
1952, the Respondent had not previously insisted on
observance of the 2-week notice provision of article
21.
The Administrative Law Judge concluded that
article 21 was not fully ineffective or dormant
2 According to McLaughlin, he and Sullivan met sometime after the
November 25 meeting to discuss Buchanan's discharge. Sullivan asked that
Monarch "work something out" for Buchanan. However, telling Sullivan
that he had "gotten to the end of Thisl rope" with Buchanan, McLaughlin
repeated that he would not reinstate him.
3 Art. 21 of the collective-bargaining agreement between Monarch and
the Respondent reads as follows:
In the event the Company desires to discharge an employee for any
reason other than alleged dishonesty, or the use of intoxicants while on
duty, the Company shall notify the Union by registered mail two (2)
weeks prior to the effective day of such discharge and of the reason
therefore [sic]. If the Union challenges the reason for the discharge, it
shall notify the Company to the effect with forty-eight (48) hours after
receipt of notice of discharge. Thereupon, an attempt shall be made to
adjust the matter by negotiations, provided however, that if negotia-
because Monarch's letter discharging Buchanan
appeared to seek-without proper justification-to
bring the discharge within one of the exceptions to
the 2-week notice provision of article 21. In that
letter, Monarch charged Buchanan with "actual
theft." However, at the hearing, McLaughlin conced-
ed that he did not really contend that Buchanan had
been dishonest. Rather, he believed that Buchanan,
in direct contradiction of his order, had stayed out
on the clock for an extra 5-1/2 hours. McLaughlin
testified that he had believed that Buchanan had
stayed out for some reason other than making
deliveries. The Administrative Law Judge found that
the real nature of the complaint against Buchanan
was insubordination, not dishonesty. Accordingly,
she concluded that Monarch was deliberately at-
tempting to avoid the consequences and require-
ments of article 21 by bringing the discharge within
the dishonesty exception to the 2-week notice
provision. The Administrative Law Judge held that
Monarch's actions demonstrated that article 21 was
still effective.
Finding that article 21 was a viable provision, the
Administrative Law Judge concluded that the Re-
spondent's failure to invoke this clear and unambigu-
ous contract provision constituted an unlawful
failure to provide Buchanan with the representation
to which he was entitled.
As stated above, our inquiry here must be whether
the Respondent's nonutilization of article 21 on
behalf of Buchanan was so unreasonable and
unjustified as to violate its duty of fair representa-
tion. Unlike the Administrative Law Judge, we find
that the Respondent's actions cannot be so con-
strued.
On the record before us, we find that article 21 had
become less than a viable and effective contract
provision. Uncontradicted evidence indicated that
the 2-week notice provision had not and was not
being observed-though written in all contracts-
either at Monarch or at any other employer in the
wholesale grocery industry. At Monarch, there had
been previous discharges and, although no grievanc-
tions are ineffectual in settling the dispute, then the parties shall
proceed to arbitration as provided for in Article 22 thereof. The
discharge shall not become effective pending the outcome of the
arbitration.
In the event the reason for the discharge is alleged dishonesty, or the
use of intoxicants while on duty, an employee may be summarily
discharged provided however, that the Company shall immediately
notify the Union by registered mail such discharge and of the reason
therefore [sic]. If the Union challenges the reason for the discharge it
may request arbitration as provided in Article 22 herein. The
arbitrators shall render their decision within three (3) days after the
matter has been submitted to them.
In the event the arbitrators decide in favor of an employee, the
employee is to be reinstated and reimbursed in full for all time lost in
connection with such dismissal.
1320
TRUCK DRIVERS, LOCAL UNION NO. 355
es were filed relative thereto, it is clear that article 21
had not been observed.
Further, unlike the Administrative Law Judge, we
are reluctant to ascribe any particularly sinister
meaning to the language in Buchanan's discharge
letter. While it is correct that Monarch's charging
Buchanan with "theft" was unfounded, it is also true
that the letter set out in detail the events of
November 19. Thus, it does not appear that Monarch
was, in fact, trying to cover up the relevant facts or
the real nature of Buchanan's offense. In light of the
substantial evidence to the contrary, the choice of
words for Buchanan's discharge letter, without more,
does not establish that article 21 remained a fully
operative contract provision at Monarch and
throughout the wholesale grocery industry.4
Under these circumstances, the Respondent's
position that article 21 had atrophied cannot be
considered unreasonable or unjustified, and its
failure to seek compliance with the provision on
Buchanan's behalf was not arbitrary. Perhaps,
despite its dormancy, Article 21, having not been
removed from the contract, might have provided the
Respondent with an additional tool for use in
Buchanan's behalf. However, the issue here is not
whether the Respondent discharged its obligations
with maximum skill and adeptness, but whether, in
undertaking its efforts, it dealt fairly. The duty of fair
representation does not require that every possible
option be exercised or that a grievant's case be
advocated in a perfect manner.
The Board has held that a union "has a wide range
of discretion in serving the unit it represents." See
Ohio Valley Carpenters District Council, Local Union
No. 415, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Cincinnati Fixtures, Inc.), 226
NLRB 1032 (1976). This is not a case where a union
has treated with contempt or a lack of interest an
employee's request for help. See, e.g., United Steel-
workers of America, AFL-CIO (InterRoyal Corp.), 223
NLRB 1184 (1976). Nor is it a case where a union,
having undertaken to aid an employee, undercuts
that employee's position. See, e.g., 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).
Here, based on the consistent nonuse of article 21
at Monarch and elsewhere, the Respondent's failure
to demand compliance with the provision cannot be
deemed unreasonable. The Respondent did attempt,
through informal discussions, to gain Buchanan's
reinstatement, and the bona fides of those attempts
have not been challenged. Thus, the Respondent's
efforts on Buchanan's behalf-though perhaps not
optimal-rose above a perfunctory and unjustified
treatment of his problem and thereby comported
with the duty of fair representation.
Based on the foregoing, we shall dismiss the
allegations of the complaint.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' The Administrative Law Judge stated that the letter omitted reference
to Buchanan's carrying an unauthorized passenger. However, in the letter,
McLaughlin did mention-in discussing his call from the Monarch
salesman-this matter. Further, McLaughlin raised the matter at the
grievance meeting, again stating that a Monarch salesman had reported
another person in Buchanan's truck. Crout testified that Buchanan admitted
at the meeting that someone had been sitting in his truck at a stop but that
he (Buchanan) told the person to vacate the truck prior to departure.
Buchanan, in his testimony, alluded only to being asked for a ride and
denied carrying an unauthorized passenger. The Administrative Law Judge
made no credibility resolutions on this matter, and the full story about the
unauthorized passenger-and Monarch's reliance on it for the discharge-
remains unclear. Suffice it to say, whatever the significance of the allegation
of carrying an unauthorized passenger, the matter proves little as to the
viability of article 21 and also does not illuminate the fairness or lack thereof
of the Respondent's efforts on Buchanan's behalf.
I In light of our Decision herein, we need not reach the issues posed by
the Respondent's exceptions to the Administrative Law Judge's recom-
mended remedy.
DECISION
JosEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to a charge filed on April 28, 1976, by Norman L.
Buchanan, a complaint was issued against Teamsters Local
Union No. 355 (the Union), Respondent, on June 14, 1976,
alleging that Respondent violated Section 8(b)(l)(A) of the
Act I by failing properly to prosecute a grievance concern-
ing Buchanan's discharge by Monarch Institutional Foods,
his employer, on November 20, 1975.
Pursuant to due notice the case was heard before me in
Baltimore, Maryland, on July 16 and August 10, 1976. The
General Counsel and Respondent were represented by
counsel and the Charging Party appearedpro se. All parties
were afforded full opportunity to present oral and written
evidence and to examine and cross-examine witnesses. The
parties waived oral argument and the General Counsel and
Respondent have filed posttrial briefs.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs, I make the
following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
A. Monarch Institutional Foods, a Division of Consoli-
dated Food Corporation (the Employer or Monarch), is a
Maryland corporation engaged in the wholesale distribu-
tion of food products from its Baltimore, Maryland,
National Labor Relations Act, as amended. 29 U.s.C. Sec. 151, el seq.
1321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
location. During the past year, a representative period,
Monarch purchased and received in interstate commerce
materials and supplies valued in excess of $50,000 directly
from points outside Maryland. Monarch is, and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
B. Respondent is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Facts
The Employer is engaged in providing food to institu-
tions such as schools, restaurants, and hospitals, in an area
embracing the District of Columbia and part of Virginia,
Maryland, and Pennsylvania. While based in Baltimore,
the Employer roughly divides its territory into two general
areas: one covering the District of Columbia and parts of
Virginia; the other, somewhat larger, including Baltimore
City as well as other parts of Maryland and Pennsylvania.
Buchanan, the Charging Party, was hired by Monarch as
a truckdriver on March 7, 1974. According to John B.
McLaughlin, Monarch's warehouse supervisor, Buchanan
was hired primarily because he had previously worked as a
truckdriver in Washington and McLaughlin had difficulty
finding drivers familiar with the Washington area. Buchan-
an had not been referred to Monarch by Respondent.
According to McLaughlin, Buchanan was originally
assigned to Washington deliveries, which he made for a few
months with a helper. McLaughlin testified that from the
beginning Buchanan was inefficient, frequently becoming
lost and making errors in deliveries. However, he was kept
on beyond his 30-day probationary period during which
time, under the collective-bargaining agreement, he could
have been summarily discharged. Sometime thereafter he
was taken off the Washington circuit and was given various
assignments in the Maryland-Pennsylvania area. He was
never assigned to a "regular" route, but rather was
dispatched where needed on a day-to-day basis. Buchanan
complained about not having been assigned a "regular"
route. It appears that all drivers except Buchanan and one
other were originally assigned regular routes or territories
but were subject to assignment to other routes or territories
when the need arose.2
McLaughlin testified that Buchanan was very slow at his
work. According to Charles G. Stone, Jr., Monarch's
comptroller, Buchanan was I of 6 drivers, of a total of 21,
whose ratios of overtime to straighttime were considered to
be unduly high. McLaughlin also testified that Buchanan
frequently made deliveries to the wrong customers and
often did not make all scheduled deliveries, bringing the
merchandise back to the company undelivered. Paul David
Linville, who became Monarch's night supervisor in May
2 Art. 5 of the collective-bargaining agreement provides, in part:
Whenever employees bid on and accept posted runs or are granted
open runs or other positions because of their seniority then in such
cases the employee shall remain on such run or in such position for a
period of not less than one year.
1975, testified that about 2 months later, because of his
inefficiency as a driver, Buchanan was assigned to
servicing trucks on the premises for about 2 weeks. He was
then returned to driving. McLaughlin testified that he first
complained about Buchanan to Harry E. Crout, Respon-
dent's business agent and recording secretary, around
September 1974, 6 months after Buchanan was hired.
McLaughlin also testified that he first spoke to Buchanan
about his excessive overtime 3 months later; i.e., around
the end of 1974. McLaughlin further testified that he spoke
to Crout about the matter probably six or more times
thereafter but Crout always persuaded McLaughlin to
continue being "patient" with Buchanan.
Crout testified that he had spoken with McLaughlin
about Buchanan on numerous occasions, the first being in
early 1975, when he called McLaughlin to discuss Buchan-
an's complaint at not having been assigned a regular route.
Crout testified that McLaughlin said "that if this man was
capable of running a route regular ... he would be on a
regular route in Washington five days a week." However,
in other testimony McLaughlin maintained that no driver
was rigidly assigned to any particular route, but all drivers
were required to know all the territories and serve them all
when needed. Crout further testified that on numerous
occasions, at least once every month or 6 weeks, McLaugh-
lin complained about Buchanan's poor performance. Crout
testified that he advised Buchanan about such criticisms
about three times. According to Crout, McLaughlin's
major complaint was Buchanan's "not being able to get the
loads off, and leaving merchandise at the wrong places." In
these conversations with Crout, McLaughlin always indi-
cated that Buchanan was a "nice fellow" or a "good
fellow"-always polite and affable, but inefficient. Crout
further testified that, when he relayed McLaughlin's
criticisms, Buchanan maintained that he was a competent
driver; he admitted that on occasion he had made
misdeliveries, but maintained that all other drivers did the
same. Crout also testified that he did not conclude from
McLaughlin's criticism that Buchanan's job was in jeop-
ardy.
In testifying, Buchanan denied having received com-
plaints about his work. He testified that, on the contrary,
he was frequently complimented by both McLaughlin and
John P. Gates, general manager of Monarch's distribution
center. It is undisputed that Buchanan never received any
written reprimands.
On November 19, Buchanan was sent to Pennsylvania.
He had 22 stops to make, with about 27 or 28 deliveries.
Although he apparently had previously made a few runs to
Pennsylvania, he had never served the particular area he
did on that day. When he arrived at one of the stops,
apparently shortly before 2 p.m., George Weidman, a
salesman for Monarch, was present. Although Weidman
did not testify, the evidence establishes that, after identi-
fying himself, he examined Buchanan's manifest and
expressed the opinion that, at the rate he was going,
The Company shall have a probationary period of thirty (30) days in
order to qualify employees who have picked runs or positions posted.
The Company shall post all runs and/or positions not later than
January Ist yearly. Such runs will become effective the first pay week in
February yearly.
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TRUCK DRIVERS, LOCAL UNION NO. 355
Buchanan would never finish the deliveries scheduled. At
that time Buchanan was on about his 10th stop. Weidman
further observed that the manifest showed a route contain-
ing unnecessary retracing of steps. Buchanan replied that
he was required to follow the route charted on the
manifest. However, Weidman made one change in the
route and Buchanan went on his way. Weidman tele-
phoned McLaughlin and reported the incident. He also
informed McLaughlin that Buchanan had a "helper" on
the truck.
McLaughlin thereupon telephoned the next consignee on
Buchanan's route and left word to have Buchanan
telephone in. Buchanan did so at or about 2 o'clock.
McLaughlin testified that he asked Buchanan about the
"helper," since no helper had been provided and drivers
are not allowed to have unauthorized passengers. Accord-
ing to McLaughlin, Buchanan replied that he had picked
the passenger-helper up "right in the city where he was"
and had also "put him off." McLaughlin testified that he
then told Buchanan to continue as he was going, but in no
event was he to return to the plant later than 7 p.m.
McLaughlin maintained that people did not like to receive
grocery deliveries at night and it was "an absolute must"
that Buchanan return to Baltimore by 7 p.m. McLaughlin
asked Buchanan to call in again at 4 p.m.
Buchanan called, as requested, around 4 p.m. McLaugh-
lin testified that at that point he instructed Buchanan to
turn back toward Baltimore and make only those stops
which he could on his direct route back. According to
McLaughlin, Buchanan was again instructed that it was
absolutely mandatory that he be back by 7 p.m. Linville, in
charge of the second shift, was present with McLaughlin
during this 4 p.m. telephone conversation. He corroborated
McLaughlin's testimony as to the instructions given to
Buchanan.
Buchanan denied that McLaughlin had instructed him to
return by 7 p.m. According to Buchanan, in both telephone
conversations McLaughlin expressed some anxiety about
whether Buchanan would be able to make all his scheduled
stops at schools, which generally require early delivery.
Buchanan testified that McLaughlin said he did not object
to Buchanan's working overtime but said he was concerned
that Buchanan might bring back too much undelivered
merchandise. Buchanan assured McLaughlin that he
believed he could make all the school deliveries at least.
Buchanan further testified that in the 4 p.m. conversation it
was clearly stated that Buchanan was going to continue on
his prescribed route.
Linville testified that on the night of November 19 he
spoke to McLaughlin by telephone several times, the last
being around "1 1:30, going on 12:00." At that time Linville
reported that he had called the state police and two of the
establishments on Buchanan's return itinerary without
success in learning Buchanan's whereabouts.3 According to
Linville, McLaughlin said "the only thing we can do is
have him [Buchanan] see me [McLaughlin] first thing in
the morning when he comes in."
I Linville's testimony that it was "customary" to call only two stops
suggests that Buchanan's alleged misconduct was not uncommon among the
drivers.
As to the passenger-helper, Buchanan testified as follows.
The owner of the establishment at which he met Weidman
asked Buchanan to give a lift to a customer who was then
at the shop. Buchanan said yes. Weidman then saw the
customer either beside or in the truck while Buchanan was
inside the store. Buchanan then thought the matter over
and, upon returning to the truck, so informed the
prospective passenger. Buchanan then proceeded on his
way, with no passenger. Thus, he had not actually carried a
passenger anywhere. Although the salesman is still in
Monarch's employ, he was not called as a witness. 4 Thus
Buchanan's version of the "unauthorized passenger" is
unrefuted by competent evidence.
Buchanan testified he returned to the distribution center
at or about 11 p.m. When he arrived he told Linville, who
was then in charge, that he would clock out before he did
the required paperwork, but Linville told him to finish the
paperwork first. Buchanan did so and finally clocked out at
12:38 a.m., November 20, 1975. There is some conflict as to
the number of deliveries he had not made.
That morning Buchanan was discharged. Crout was
telephonically informed of the imminent discharge. Crout's
testimony in this regard was:
McLaughlin told me that he had specifically twice-not
once but twice-told the man to be in by 7:00, and that
he didn't follow the orders, and stayed out till-and
punched out after midnight, and, therefore, he was
going to have-plus he had an unauthorized passenger
on the truck and he had no choice but to discharge him.
Written notification of the discharge was then sent to
Crout, with a copy apparently also given to Buchanan. In
that notification McLaughlin said: "The immediate termi-
nation was effected because, in direct defiance of my
directions, Mr. Buchanan remained on his delivery route
for five (5) hours and thirty-eight (38) minutes beyond the
limit I set. In my opinion this defiance was in fact an actual
theft of the dollars being paid for those hours." There
followed "a summary of the events of Wednesday,
November 19, 1975." No mention was made of the alleged
infraction of company rules by carrying an "unauthorized
passenger."
No written grievance was ever filed concerning the
discharge. However, a meeting was arranged to discuss it
on November 24. At Buchanan's request, because the
union shop steward was unable to attend, the meeting was
postponed until the next day. However, Crout discussed
the matter with Gates and McLaughlin on November 24.
According to Gates, in that conversation McLaughlin
spoke "about the number of occasions that had come up in
the past" in which McLaughlin had complained to Crout
"concerning overtime." Gates himself told Crout that "it
was a case for immediate dismissal if an unauthorized
passenger was caught in one of our trucks." Crout testified
that he expressed the opinion that Buchanan must have
misunderstood McLaughlin's instructions because Buchan-
an would not unjustly accuse McLaughlin of lying.
McLaughlin refused to reconsider the discharge.
4 On the first hearing day, Respondent's counsel indicated his intention
to call Weidman as a witness. However, he did not do so.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A "grievance meeting" was held the next day, attended
by Buchanan, Crout, Business Agent Lovely Fickling,
Union Steward Lucius Peay, Comptroller Stone, and
McLaughlin. McLaughlin again refused to reconsider the
discharge but apparently indicated that an appeal could be
made to Gates, his superior, who was then out of town.
Within a few days Crout spoke to Gates who, according to
Crout, said that Crout was "wasting [his] time" and
nothing would be done because Buchanan "had an
unauthorized person on the truck, plus the theft of time."
Crout spoke to Gates about three or four times but the
Company would not reconsider the discharge.
Three company representatives testified concerning the
quality of Buchanan's work and the reason for his
discharge. On cross-examination Gates testified as follows
concerning the reason for Buchanan's discharge:
Q. (By Mr. Karatinos) Mr. Gates, is it a fair
statement that the primary reason for Mr. Buchanan's
discharge was that he was carrying a passenger in his
truck?
A. That is one of two reasons, yes.
Q. Is that the primary reason?
A. No.
Q. What was the primary reason?
A. Both were primary reasons.
Q. And what was the other reason?
A. Excessive overtime, being told to come in,
insubordination.
* * $
Q. Are you contending that Buchanan in this case
was discharged for. . . dishonesty?
A. No, I wouldn't really call it dishonesty.
As previously observed, Weidman, who allegedly reported
the presence of an "unauthorized passenger" or helper, did
not testify. So far as appears, he did not report that the
unauthorized person had actually traveled with Buchanan.
Nor does it appear that either the Company or the Union
investigated that matter.
McLaughlin testified that he had wanted to discharge
Buchanan for some time but Crout had persuaded him to
be patient so that Buchanan could try to work out the
problems. In this connection, McLaughlin testified:
Q. And the complaints were always about the
same-he mixed up orders?
A. Yes, ma'am.
Q. And slow?
A. Yes, basically the same thing-and staying out
late.
Q. Staying out late because he was slow?
A. I think that's what it was.
* * * *
Judge Klein: Your letter to Mr. Crout says: "In my
opinion, this defiance was, in fact, an actual theft of the
dollars being paid for these hours." Was it your opinion
that Mr. Buchanan was not working those hours?
A. Yes, ma'am. I definitely feel that he stayed out
for some reason other than delivering groceries.
Q. Did you investigate that?
A. I did not investigate that.
Q. Did you ever accuse Mr. Buchanan of that?
A. I've talked to him, like I mentioned in the past,
and tried to find out from him what happened.
Q. My question was: Did you ever accuse him of
going off on his own personal business or what have
you?
A. No, ma'am, I have never accused him of that.
This is the first time.
Q. ... Why on November 20th did you state in
writing that you thought that it was actual theft,
whereas you had never said that or indicated that to
anybody before? Any reason?
A. No, no reason, other than I felt it was at that
time.
Linville testified that from the time he arrived at the
Company in May 1975 he found Buchanan's work
unsatisfactory. Because he was new, Linville was forbear-
ing for a few months. However, he thereafter spoke to
Buchanan on numerous occasions. Linville testified that
Buchanan appeared to take the criticism as a "joke" and
"never really made any sense." According to Linville,
Buchanan appeared generally to take no interest in his job
and then, on November 19, "he just went haywire."
Linville further testified that on that night McLaughlin had
not said anything about Buchanan's "cheating the Compa-
ny on overtime."
Crout testified that in several meetings and telephone
conversations he "tried to convince [McLaughlin and
Gates] that perhaps it was a misunderstanding" and that
the company should give Buchanan "a day off, two days
off maybe, a week off, but at least don't take the man's
job."
Buchanan took to driving a taxicab. While cabdriving, he
frequently stopped by the union office to check on the
progress of his protest of the discharge and on a grievance
he had filed concerning certain money due him by the
Company. Crout was able to obtain the money due without
the necessity of the Union's filing a formal grievance.
However, the Employer steadfastly refused to rescind the
discharge.
Crout kept Buchanan advised of developments during
Buchanan's frequent visits to the union office. Eventually
Crout informed Buchanan that nothing further could be
done. When Buchanan then requested that the matter be
submitted to arbitration, Crout consulted Union President
John Sullivan and thereafter, around January 20, 1976,
advised Buchanan that the Union would not seek arbitra-
tion because they felt he could not possibly win.
Crout testified that he thereafter referred Buchanan to
another potential job, but Buchanan did not apply for it.
When asked why he had referred Buchanan to other
employment in view of his alleged imcompetence, Crout
said that Buchanan was a "dues paying member" of the
Union. Crout then added: "The difference being that the
1324
TRUCK DRIVERS, LOCAL UNION NO. 355
job that I sent him to is a little different type company with
respect to giving people a chance. Had he not worked out
for them 30 days they would not have kept him."
Article 21 of the controlling collective-bargaining agree-
ment reads:
In the event the Company desires to discharge an
employee for any reason other than alleged dishonesty,
or the use of intoxicants while on duty, the Company
shall notify the Union by registered mail two (2) weeks
prior to the effective day of such discharge and of the
reason therefore [sic]. If the Union challenges the
reason for the discharge, it shall notify the Company to
that effect with forty-eight (48) hours after receipt of
notice of discharge. Thereupon, an attempt shall be
made to adjust the matter by negotiations, provided
however, that if negotiations are ineffectual in settling
the dispute, then the parties shall proceed to arbitration
as provided for in Article 22 thereof. The discharge
shall not become effective pending the outcome of the
arbitration.
In the event the reason for the discharge is alleged
dishonesty, or the use of intoxicants while on duty, an
employee may be summarily discharged provided
however, that the Company shall immediately notify
the Union by registered mail of such discharge and of
the reason therefore [sic]. If the Union challenges the
reason for the discharge it may request arbitration as
provided in Article 22 herein. The arbitrators shall
render their decision within three (3) days after the
matter has been submitted to them.
In the event the arbitrators decide in favor of an
employee, the employee is to be reinstated and
reimbursed in full for all time lost in connection with
such dismissal.
This clause has been in all of the Union's wholesale
grocery collective-bargaining agreements, at least since
1952. But Crout and Gates testified it has never been
invoked at Monarch. According to Gates, no Monarch
employee has ever had advance notice of his discharge.
The record, however, contains evidence concerning only
four discharges. One was for intoxication, which is
expressly excluded from the notice requirement. Another
employee was discharged for theft of company property,
which is also exempt from the notice agreement. One
Monarch employee was discharged because, according to
Crout, he had "excessive accidents since he's been there-
many of them-and what brought it to a head was, in one
week, he blew a motor up in a truck, blew a reefer up that
controls the freezing unit, and hit a low bridge-all in the
same week." There is no evidence that the dischargee
sought to grieve the discharge. The remaining discharge
was for aggravated absenteeism and, according to Crout,
the dischargee "never protested it or anything."
Discussion and Conclusions
The complaint alleges that Respondent failed to meet its
obligation of fair representation to Buchanan in two
respects: (I) by failing to keep him adequately informed as
to the progress of the matter, and (2) by failing to invoke
article 21 of the collective-bargaining agreement calling for
2 weeks' advance notice of a discharge other than for
alleged dishonesty or intoxication.
(1) Undisputed evidence shows that after his discharge
Buchanan was in frequent contact with Crout and was kept
adequately advised of the status of discussions between
union and company representatives concerning his dis-
charge. The General Counsel has failed to support his
contention that Buchanan was not kept adequately
informed.
(2) Representatives of Respondent and the Employer
testified that no advance notice of discharge had ever been
given and the 2 weeks' notice provision in article 21 had
never been invoked. However, there was no evidence that
there ever had been any occasion to invoke the provision.
There is no evidence that any dischargee entitled to notice
sought to protest his discharge.
Despite the testimony of Respondent's witnesses, I find
that it has not been established as a matter of fact that
article 21 was a dead letter, the effectiveness of which had
been destroyed by nonuse. I base this conclusion primarily
on the wording of the Company's notice of Buchanan's
termination. In that letter McLaughlin stated his opinion
that Buchanan's "defiance was in fact an actual theft of the
dollars being paid for those hours" he worked from 7 p.m.,
November 19 to 12:30 a.m., November 20. At no time did
the company ever attempt to establish that Buchanan was
not actually working during those overtime hours. No
investigation as to that matter was made. Indeed, all the
available evidence indicates that Buchanan was actually
working during that time. When seen by Weidman at 2
p.m. Buchanan was making about his 10th delivery of the
day. He then proceeded to his next scheduled stop, as
demonstrated by the fact that he telephoned in response to
a message that had been left there for him. When he
returned to Baltimore that night he had made several more
deliveries, although the number of undelivered items he
brought back is not clear. Thus, between 2 and 11 p.m.,
when he returned to the center, he traveled farther and
probably made more deliveries than he had between 7 a.m.
and 2 p.m.
The Employer's representatives testified that there had
been virtually constant complaints about Buchanan's
alleged slowness and excessive overtime. However, there is
not a scintilla of evidence that anybody thought he was
being "dishonest." Indeed, Respondent's witnesses testified
that, as a person, Buchanan was well thought of. No reason
was advanced for believing that on November 19 his
slowness changed to dishonesty.
With this background, it is strange that the termination
notice accuses him of "actual theft," rather than "insubor-
dination," in not returning by 7 p.m. on November 19
and/or "inefficiency" or low productivity. Equally note-
worthy is the fact that the discharge letter says nothing
about the alleged transportation of an unauthorized
passenger, which Gates maintained was one of the two
"major" reasons for the discharge, and in itself was ground
for summary discharge (although the collective-bargaining
agreement does not so provide). It is undisputed that no
investigation was made to determine whether Buchanan
had "stolen" time; i.e., had claimed compensation for time
1325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he did not work. Gates specifically testified that he
did not believe Buchanan had been dishonest. Thus,
whatever the real motivation for Buchanan's discharge, it is
clear on the present record that he was not fired for actual
or suspected theft. I reject as unsupported the purportedly
factual statement in Respondent's brief that "Monarch
reasonably concluded that Buchanan had not worked
during those 5-1/2 hours but had 'stolen' time from the
employer."
Since there is no evidence that the Employer believed
Buchanan had been dishonest, the only reasonable infer-
ence is that the termination notice was written in terms of
"theft" in order to fit within the provision in article 21 of
the collective-bargaining agreement authorizing summary
discharge. Therefore Buchanan's termination notice itself
refutes Respondent's contention that the provisions of that
article had been allowed to atrophy. Accordingly, even if it
be assumed that an employer and a union can by a course
of conduct deprive individual employees of rights unequi-
vocally provided by a collective-bargaining agreement (an
assumption of at least doubtful validity),5 the record fails
to establish that such was the fact in this case.
Rejection of Respondent's contention that article 21 of
the agreement was not viable does not end the present
inquiry. The question remains whether Respondent's
failure to invoke the protection of that article amounted to
a breach of its duty of fair representation.
First, it is appropriate to note the absence of certain
facts. Although Buchanan's grievance concerning his shift
differential and overtime pay alleges that he was the victim
of racial discrimination, no evidence was presented to
support any such contention. 6 So far as appears, no charge
was ever filed alleging that the discharge was violative of
Section 8(a)(3) of the Act. Similarly, there is no allegation
that the Union was in any manner responsible for the
discharge in violation of Section 8(b)(2). The evidence
shows that Crout tried to persuade the Employer to reverse
its discharge decision. Buchanan himself testified that
Crout spoke well in the employee's favor in the "grievance
meeting" on November 25. Thus, absent article 21 of the
collective-bargaining agreement and the termination notice
tailored thereto, the present record would not warrant an
inference that Respondent acted unreasonably or discrimi-
natorily in failing to pursue the matter through arbitration
in the face of the Employer's complaints.
Although the boundaries of a union's duty of fair
representation have not been precisely delineated (see
American Postal Workers Union Local 4193, AFL-CIO
(William Scott), 226 NLRB 1000 (1976), it is now
established that a union may violate that duty by arbitrary
or ungrounded conduct without any demonstrated hostile
or discriminatory motivation. See, e.g., Griffin v. U.A. W.,
469 F.2d 181, 183 (C.A. 4, 1972):
The repeated references in [Vaca v. Sipes, 386 U.S.
171] to "arbitrary" union conduct reflected a calculat-
ed broadening of the fair representation standard ...
While negligence in handling grievances has not been
I Cf. Emmanuel v. Omaha Carpenters District Council, 535 F.2d 420, 423
(C.A. 8, 1976): "The union's duty of fair representation ... may be violated
identified as breaching the union's duty of fair
representation .. . the courts have adopted the
position that a union may not arbitrarily ignore a
meritorious grievance or handle it in a perfunctory
manner. .... Without any hostile motive of discrimi-
nation and in complete good faith, a union may
nevertheless pursue a course of action or inaction that
is so unreasonable and arbitrary as to constitute a
violation of the duty of fair representation. A union
may refuse to process a grievance or handle the
grievance in a particular manner for a multitude of
reasons, but it may not do so without reason, merely at
the whim of someone exercising union authority. A
union must especially avoid capricious and arbitrary
behavior in the handling of a grievance based on a
discharge-the industrial equivalent of capital punish-
ment. [Citations omitted.]
See also General Truck Drivers, Warehousemen, Helpers and
Automotive Employees, Local 315, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975),
enfd. 545 F.2d 1173 (C.A. 9, 1976).
It is true that a union "has a wide range of discretion in
serving the unit it represents" and it is not to be held in
violation of the Act merely because it may erroneously
construe an unclear contractual provision. Ohio Valley
Carpenters District Council, Local Union No. 415 (Cincinnati
Fixtures, Inc.), 226 NLRB 1032, 1033 (1976). But that
principle would appear inapplicable where, as here, the
governing contractual provision is unambiguous and not
susceptible of an interpretation warranting the union's
conduct.
Under article 21, Buchanan, as an employee, was entitled
to 2 weeks' prior notice of his discharge since, as the
evidence clearly shows, he was not in fact being discharged
for "alleged dishonesty, or the use of intoxicants while on
duty." By not questioning McLaughlin's opinion, stated in
the termination notice, that Buchanan's conduct "was in
fact an actual theft of the dollars being paid for" his
allegedly unauthorized overtime work, the Union virtually
made itself a party to the Employer's evasion of its
contractual commitment. The Union not only assisted the
Company in depriving Buchanan of a minimum of 2
weeks' pay, with a chance to try to demonstrate his ability
and willingness to perform his job, but, perhaps equally
important, it failed to have an unwarranted charge of
"theft" extinguished from his personnel record. Such
suggestion in the personnel file might well be catastrophic
to Buchanan should a future potential employer check his
references.
In addition to claiming that article 21 of the contract is
no longer effective, a contention heretofore rejected,
Respondent argues that it wisely "emphasized full rein-
statement" rather than taking the "dubious approach" of
pursing the terms of article 21, which "would have entitled
Buchanan only to 2 weeks' pay at best." There is no
evidence that Respondent ever exercised such affirmative
when a union . . . waives the provisions of a collective bargaining
agreement intended to benefit an employee."
6 The grievance was satisfied without arbitration.
1326
TRUCK DRIVERS, LOCAL UNION NO. 355
judgment. Nor is it clear how demanding the contractual
notice could prejudice a plea for mitigation of the
discipline. It is difficult to understand how Crout could fail
to protest the particular termination notice if he was
attempting to represent Buchanan's interest. Cf. United
Steelworkers of America, Local 8093, AFL-CIO-CLC
(Kennecott Copper Corporation), 225 NLRB 802, 804 (1976):
"Respondent's actions in this instance were so unreason-
able as to be something more than poor judgment."
Additionally, it is not at all clear that arbitration could
not and would not result in more relief for Buchanan than
2 weeks' backpay. The arbitrators presumably could not
ignore the provisions of article 21. Unless the collective-
bargaining agreement clearly and specifically so provides,
arbitration is not available to alter an agreement. Couch v.
Prescolite Manufacturing Corporation, 191 F.Supp. 737, 740
(W.D.Ark., 1961). Amalgamated Clothing Workers of
America [Henry I. Siegel Co.] v. N.LR.B., 324 F.2d 228,
231 (C.A. 2, 1963). See Bellacicco & Sons v. Bakery &
Confectionery Workers, 92 LRRM 3694, 36% (N.Y. Supr.
Ct.) LC ¶ 53,864: "Arbitration cannot change the written
contract . . . for in order to do so, it would have to go
completely outside the agreement signed by the parties and
would be obliged to rely upon oral testimony relating to the
prior agreement negotiations and alleged oral 'understand-
ings.' "7 Contractual provisions for advance notice of
discharge are generally construed to be mandatory and
arbitrators have aside discharges and ordered reinstate-
ment with backpay when employers have failed to comply
with such contractual requirements. See, e.g., Zenith Radio
Corp., 47 LA 257 (1966); Coca-Cola Bottling Co. of
Madison, 39 LA 995 (1962); Heavy Minerals Co., 32 LA
962, 964 (1959); Kroger Co., 36 LA 1386, 1388 (1961);
Huffman Mfg. Co., 38 LA 882 (1962); Ed Friedrich, Inc., 37
LA 1003 (1961); Valley Iron Works, 33 LA 769 (1960);
Texas Co., 32 LA 413 (1958); The Arcrods Co., 39 LA 784
(1962). Although no opinion is here expressed on the issue,
it may be that arbitrators would hold that the Employer
was bound by the termination notice and could not defend
the discharge on any ground other than that stated in the
notice.
Respondent lays stress on the fact that, although
Buchanan was present at the meeting on November 25,
when his discharge was discussed by representatives of the
Union and the Employer, he did not raise the subject of
article 21. Respondent chides the General Counsel for
taking the initiative to interject the contractual issue.
Buchanan is not very articulate or highly educated. Thus,
as is true of most employees (Local No. 324 Operating
Engineers (Michigan Chapter, Associated General Contrac-
tors of America, Inc.), 226 NLRB 587 (1976), and cases
there cited), it is especially true of Buchanan that he was
almost totally dependent on the Union for job protection.
A union's obligation does not end with the negotiation of a
collective-bargaining agreement; at least equally important
is its obligation to enforce the contract, seeking preserva-
tion of the rights it has won for the employees. To place on
I Cf. District 2, Marine Engineers Beneficial Association. AFL-CIO v.
Falcon Carriers, Inc., 374 F.Supp. 1342, 1348, fn. 2 (S.D.N.Y., 1974): "An
oral agreement entered into dunng the period of a written collective
bargaining agreement may be considered by the court and may be
the individual employee sole responsibility for his own
protection is the antithesis of the collective bargaining
protected by the Act. It ill behooves the Union to berate
the Board for seeking to obtain for employees the
protection which the Union has failed to afford. It is not
the purpose of the present complaint to enforce the
collective-bargaining agreement; its purpose is simply to
remedy the Union's unlawful failure to provide Buchanan
the union representation to which he was entitled.
On the foregoing considerations, I find and conclude
that, as alleged, Respondent violated Section 8(bl)I)(A)
when it failed to seek the Employer's compliance with
article 21 of its collective-bargaining agreement before
discharging Buchanan. Without making any finding as to
whether the discharge was warranted (The Buffalo Newspa-
per Guild Local 26, American Newspaper Guild AFL-CIO-
CLC (Buffalo Courier-Express, Inc.). 220 NLRB 79 (1975)),
I conclude that, in view of article 21 of the collective-
bargaining agreement and, especially, the wording of the
termination notice apparently issued thereunder, Buchan-
an's grievance had sufficient merit to require Respondent
to take it to arbitration.
CONCLUSIONS OF LAW
I. Monarch Institutional Foods, a Division of Consoli-
dated Food Corporation, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Truck Drivers, Helpers, Taxicab Drivers, Garage
Employees and Airport Employees Local Union No. 355,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By failing to require that Monarch Institutional
Foods adhere to the provisions of article 21 of its
collective-bargaining agreement with Respondent in con-
nection with the discharge of Norman L. Buchanan on
November 20, 1975, and by failing to file and process,
through arbitration if necessary, a grievance against such
discharge, Respondent has violated and is violating Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. It has not been shown that Respondent engaged in
any unfair labor practices other than as set forth in
Conclusion of Law 3.
TRE REMEDY
Having found that Respondent breached its duty of fair
representation, I shall recommend imposition of the
customary cease-and-desist and notice-posting require-
ments. The appropriate affirmative remedy to be recom-
mended presents more difficult problems.
In its brief, Respondent says: "Paragraph 21, even if
applicable and vital, would have entitled Buchanan only 2
weeks' pay at best." But this statement ignores the crucial
incorporated into the written agreement only when it is not inconsistent with
the provisions of the writing.... When found to be inconsistent, the
written agreement, and not the subsequent oral agreement. must control."
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision for arbitration if, after negotiations, the Union
still "challenges the reason for discharge." On the present
record, the Union certainly should challenge the reason for
the discharge set forth in the termination notice. Since
article 21 requires that the reason for the discharge be
stated in the notice, it is at least arguable that arbitrators
would rule that they are bound by the stated ground and
thus unable to consider evidence of Buchanan's alleged
past derelictions, with which the present record is replete.
It is most unlikely that arbitrators would find Buchanan
guilty of "theft," as charged in the termination notice. Nor
can it be predicted with any degree of certainty that
arbitrators would find that the overtime hours spent by
Buchanan on November 19 warranted the extreme penalty
of discharge. Buchanan denied having been ordered to
return to the center by 7 p.m. If such direction was given, it
is possible that he misunderstood; nothing in the present
record or in his demeanor at the hearing remotely suggests
that Buchanan is the type of person who would intentional-
ly disobey instructions. Arbitrators might well conclude
that discharge is too harsh a penalty for an honest mistake
or misunderstanding. Crout testified that he had requested
the Employer to lessen the discipline to something like a
suspension of from a day to a week. These are matters
properly to be presented to the arbitrators. As noted above,
arbitrators are frequently reluctant to sustain the extreme
penalty of discharge.
In this discussion of the remedy, the General Counsel
says:
Since reinstatement cannot be ordered. . . Buchanan
should be compensated for loss of earnings pending the
Union's reopening of his grievance and negotiations
with the Employer seeking reinstatement for him
pursuant to the terms of Paragraph 21. Thereafter,
should the Employer fail to reinstate him, the Employer
would be in breach of contract and liable pursuant to
Section 301 of the Act. Should Buchanan be reinstated
following the Union's request, he will remain on the
payroll for at least two weeks, or longer should the
Union decide to seek arbitration in his case ...
It now appears that the Board does order monetary
compensation, in the form of a "make whole" order, in
unfair representation cases against unions. Cf. Teamsters
Local 315 (Rhodes & Jamieson, Ltd), supra; Steelworkers
Local 8093 (Kennecott Copper Corp.), supra, Local Union
No. 2088, I.B. E. W. (Federal Electric Corporation), 218
NLRB 396 (1975); Local 485, I.B.E. W. (Automotive Plating
Corp.), 170 NLRB 1234 (1968), enforcement denied as to
backpay 454 F.2d 17 (C.A. 2, 1972). Under these Board
decisions, it appears that relief against the offending union
is not dependent on determination that the employer acted
improperly. The Board's view is that the union should be
made to bear the loss where and to the extent that its
conduct has prevented the complaining employee from
invoking contractual remedies for seeking remedial action
by the Employer. In Federal Electric Corporation, supra, 218
NLRB at 397, a unanimous Board panel (Members
Jenkins, Kennedy, and Penello) said:
The uncertainty as to whether [the employee's]
grievance would have been found to be meritorious
. . . is a direct product of Respondent's [the union's]
unlawful action and where, as here, such an uncertainty
requires resolution, at least for the purposes of
determining monetary responsibility, we deem it only
proper to resolve the question in the favor of the
discriminatee and not the wrongdoer. Accordingly, we
shall presume that [the employee's] grievance, if
processed, would have been found to be meritorious
Buchanan was entitled to continued employment for 2
weeks, extended until the rendition of an arbitral award if
arbitration was sought. Since I have found, under the
particular facts of this case, that the Union was obligated
to seek arbitration, its responsibility to make Buchanan
whole should continue until the Union meets that obliga-
tion. Thus, in accordance with the General Counsel's
request, I shall recommend that Respondent be required to
make Buchanan whole for loss of earnings since his
discharge, on November 20, 1975, until the Union seeks
arbitration of the discharge. Backpay shall, as is customary,
bear interest at the rate of 6 percent per annum in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
If the Employer refuses to go to arbitration voluntarily,
Respondent shall institute an appropriate suit under
Section 301 of the Act, on behalf of Buchanan. Since the
Union has expressed its agreement with the Employer's
substantive position, Buchanan is entitled to a representa-
tive of his own choosing, the reasonable cost to be defrayed
by Respondent. Local Unions Nos. 186 et al, Teamsters,
IBT (United Parcel Service), 203 NLRB 799 (1973), enfd. in
major part 509 F.2d 1075 (C.A. 9, 1975). Since such
arbitration may well involve questions of law and there is
little reason to believe that there are nonlawyers available
with sufficient expertise to represent Buchanan, it will be
recommended that Buchanan be permitted representation
by a lawyer. Local Unions Nos. 186 et al, Teamsters, IBT
(United Parcel Service), 220 NLRB 35 (1975). Similarly, if
litigation under Section 301 of the Act becomes necessary,
Respondent shall reimburse Buchanan for all expenses,
including reasonable counsel fees to an attorney of
Buchanan's choosing, in connection with such litigation.
[Recommended Order omitted from publication.]
1328