AMALGAMATED TRANSIT UNION LOCAL 1498 (Jefferson Partners L.P.)

National Labor Relations Board - Board Decisions

Apr 30, 2014

360 N.L.R.B. 777 (N.L.R.B. 2014)

AMALGAMATED TRANSIT UNION LOCAL 1498 777
360 NLRB No. 96
Amalgamated Transit Union Local No. 1498 (Jeffer-
son Partners L.P.) and Raymond Jones. Case
18–CB–086687
April 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MISCIMARRA
On April 4, 2013, Administrative Law Judge Ira San-
dron issued the attached decision. The General Counsel
filed exceptions and a supporting brief. The Respondent
filed cross-exceptions and a supporting brief,1 and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings,2 findings,
and conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent, Amalgamated
Transit Union Local No. 1498, violated its duty of fair
representation by (1) failing to timely request arbitration
of the Charging Party’s grievance, resulting in the forfei-
ture of his arbitral claim; and (2) thereafter erroneously
informing the Charging Party that the grievance was
scheduled for arbitration. We reverse.
Facts
The Respondent, a labor organization, represents a 95
member bargaining unit of the Employer’s busdrivers
and maintenance employees, who were covered by a
collective-bargaining agreement effective from March 1,
2009, to February 29, 2012. On July 23, 2010, Charging
Party Raymond Jones, a bargaining unit employee, filed
a grievance protesting the Employer’s failure to award
him a “C mechanic” position that he had bid on pursuant
to the agreement’s job bidding procedure. The Respond-

1 On May 24, 2013, the General Counsel filed a Motion to Strike the
Respondent’s Cross-Exceptions and Supporting Brief. On June 4,
2013, the Respondent filed a motion to withdraw its original electroni-
cally filed brief and replace it with a different document, on the ground
that the Respondent had inadvertently transmitted the wrong attach-
ment. On June 7, 2013, the General Counsel filed an opposition. Be-
cause the Board’s Associate Executive Secretary granted the Respond-
ent’s motion to withdraw its original brief on November 8, 2013, we
need not pass on the General Counsel’s motion to strike.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
ent’s president, Richard Davis, encouraged Jones to file
the grievance, suggested appropriate language, spoke to
management officials on Jones’ behalf, and made multi-
ple information requests to the Employer concerning
Jones’ failed bid. After the Employer denied the griev-
ance, Davis continued to vigorously represent Jones,
appealing the denial of the grievance and citing in his
appeal letter several contract provisions that he asserted
the Employer had violated in failing to award Jones the
position.3
The parties’ agreement requires that a party seeking
arbitration must, within 30 days following receipt of the
Employer’s denial of a grievance appeal, notify the Fed-
eral Mediation and Conciliation Service (FMCS) and
request a list of arbitrators. The contract specifies that,
absent the parties’ agreement to the contrary, failure to
comply with the 30-day time limit results in the forfei-
ture of the claim. In the present case, the Employer de-
nied the appeal on or about September 5. By letter dated
September 23, the Respondent informed the Employer
that the Union would take the grievance to arbitration. In
particular, the Respondent informed the Employer, truth-
fully, that it had directed its attorney, Weston Moore, to
file the necessary paperwork with the FMCS.4
The 30-day period for filing with the FMCS ended Oc-
tober 5. By letter dated October 7 but not mailed until
October 25, the Employer informed the Respondent that
the 30-day period had ended on October 5 but that the
Employer had heard nothing from the FMCS. The letter
went on to state that if the Employer did not receive the
arbitrator list “ASAP,” it would consider the grievance
forfeited.
Upon receiving this letter, Davis promptly telephoned
Moore to confirm that Moore had, in fact, arranged for
Jones’ arbitration. Moore erroneously advised Davis that
he had.5 Moore thought that he had arranged with the
Employer’s counsel to use an arbitration list that had
been requested for another grievance that was no longer
going forward, as they had done on occasion previously,
and therefore that he was not required to file the request
with the FCMS. But because Moore had not made such

3 Davis, who has no staff to assist him in union matters, personally
undertook all of these actions. In addition to serving as the Respond-
ent’s president, Davis works full time as an interstate busdriver for the
Employer.
4 The Respondent’s practice was that Moore, its longtime counsel,
would file the Respondent’s arbitration requests with the FMCS. There
are no exceptions to the judge’s finding that Moore is an agent of the
Respondent.
5 On October 28, immediately prior to Davis’ receipt of the Em-
ployer’s letter, Davis and Moore had met for a full-day’s audit of the
Respondent’s outstanding grievances and arbitrations. Both Davis and
Moore left the audit with the understanding, albeit mistaken, that
Moore had properly arranged for the arbitration of Jones’s grievance.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an arrangement with the Employer’s counsel nor contact-
ed the FMCS, the Respondent did not satisfy its contrac-
tual obligation, and Jones’ claim was forfeited. Approx-
imately 2 years elapsed between the Respondent’s initial
failure to request an arbitrator list in October 2010 and its
ultimate discovery of the mistake and notice to Jones.6
During that time, on various occasions, the Respondent
informed Jones that his arbitration was pending.
Discussion
A union breaches its duty of fair representation, and
thereby violates Section 8(b)(1)(A) of the Act, by engag-
ing in conduct concerning a bargaining unit employee
that is arbitrary, discriminatory, or in bad faith. See Va-
ca v. Sipes, 386 U.S. 171, 190 (1967). In the instant
case, the General Counsel asserts that the Respondent’s
conduct was “arbitrary,” and therefore unlawful.7 A un-
ion’s actions are considered arbitrary only if the union
has acted “so far outside ‘a wide range of reasonable-
ness’ as to be irrational.” See Air Line Pilots Assn. v.
O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford Motor Co.
v. Huffman, 345 U.S. 330, 338 (1953)). Mere negligence
is not sufficient to establish arbitrary conduct. See, e.g.,
Pacific Maritime Assn., 321 NLRB 822, 823 (1996);
Office Employees Local 2, 268 NLRB 1353, 1355
(1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d
851 (9th Cir. 1985). Accordingly, a union that negligent-
ly misses a filing deadline for an arbitration, even if it
results in the matter being time barred, does not violate
its duty of fair representation. Something more than in-
eptitude or mismanagement is required. See Rainey Se-
curity Agency, 274 NLRB 269, 270 (1985); Service Em-
ployees Local 579 (Beverly Manor Convalescent Cen-
ter), 229 NLRB 692, 695 (1977); Truck Drivers Local
692 (Great Western Unifreight System), 209 NLRB 446,
447–448 (1974). 8

6 The parties often took a long period of time to schedule an arbitra-
tion. A 2-year wait was not unprecedented.
7 We reject at the outset the Respondent’s argument that the judge
erred in granting the General Counsel’s motion, made during the hear-
ing, to amend the complaint to allege that the Respondent engaged in
arbitrary, and therefore unlawful, conduct; the complaint had originally
alleged only a deliberate violation of the duty of fair representation.
The General Counsel was unaware of the Respondent’s litigation posi-
tion—that Davis acted in good faith based on Moore’s mistake—until
Davis testified at the hearing, and the issue of arbitrary conduct was
fully litigated from that point forward. See CAB Associates, 340 NLRB
1391, 1397–1398 (2003) (judge granted General Counsel’s midhearing
motion to amend complaint); Board Rules and Regulations, Sec. 102.17
(judge may grant motions to amend “upon such terms as may be
deemed just”).
8 See Maritime Union District 1 (Mormac Marine Transport), 312
NLRB 944 (1993) (violation found where union did not even begin to
investigate claimed grievance for 9 months after its filing yet assured
the claimant that the grievance was being handled); Massachusetts
Laborers District Council (Manganaro Masonry Co.), 230 NLRB 640
We do not doubt that the Respondent, via its attorney
and agent Moore, acted negligently in failing to timely
secure an arbitration for Jones, resulting in the forfeiture
of his claim. Our review of the entire record, however,
fails to disclose the “something more than mere negli-
gence,” Office Employees Local 2, 268 NLRB at 1355,
necessary to establish a violation of the Act.
Respondent’s president, Davis, and Moore, its long-
time counsel, twice conferred to verify the timely status
of Jones’ arbitration, once before and once after receipt
of the Employer’s reminder letter. These efforts included
an audit, conducted on the Respondent’s own initiative,
of all pending grievances and arbitrations followed by
their prompt additional inquiry after receipt of the re-
minder letter. Neither Davis nor Moore evaded the Re-
spondent’s responsibility to timely arrange for Jones’
arbitration; rather, Moore failed to act in a manner con-
sistent with the Respondent’s contractual obligations but
believed that he had. “[I]nadvertent error is not the type
of conduct that the principles of [fair representation]
were intended to reach.” Truck Drivers Local 692, 209
NLRB at 448, quoting Operating Engineers Local 18
(Ohio Pipe Line Construction Co.), 144 NLRB 1365,
1368 (1963).
Our conclusion is supported by all the attendant cir-
cumstances here. From the outset, Davis zealously pur-
sued the grievance on Jones’ behalf, and there is no alle-
gation that the Respondent was remiss in any manner in
its handling of Jones’ grievance prior to seeking arbitra-
tion. Nor is there any evidence or allegation of animus
or discriminatory conduct whatsoever toward Jones by
the Respondent.
In sum, because the Respondent neither ignored Jones’
grievance nor processed it in a perfunctory manner, but
simply failed through negligence to timely file for arbi-
tration, the evidence does not establish that the Respond-
ent acted arbitrarily. See Vaca v. Sipes, 386 U.S. at 191.9
Accordingly, and applying settled precedent, we find that
the Respondent’s failure to meet the filing deadline did

(1977) (violation found where union failed to take any action to process
a grievance asserting wrongful termination, even though the claimant’s
conduct that caused the termination was taken at the insistence of the
union and with the assurance that the union would take care of him);
Service Employees Local 579, 229 NLRB at 695–696 (violation found
where union failed to investigate or in any way question the validity of
the employer’s asserted reason for the discharge of the claimant and cut
off further consideration of the grievance).
9 In finding a violation, the judge cited only one fair representation
case, Electrical Workers Local 48 (Oregon-Columbia Chapter of
NECA), 342 NLRB 101 (2004), reconsideration granted in part 344
NLRB 829 (2005). That case involved a union’s deliberate and repeat-
ed disregard of its hiring hall rules. The present case, in sharp contrast,
involves only a single inadvertent error.
AMALGAMATED TRANSIT UNION LOCAL 1498 779
not amount to a violation of its duty of fair representa-
tion.10
Remaining for consideration is the separate complaint
allegation that the Respondent acted arbitrarily by mis-
leading Jones regarding the status of his arbitration.
Based on credibility determinations, however, the judge
found that neither Davis nor Moore ever deliberately
misrepresented to Jones that an FMCS panel was proper-
ly arranged, but, instead, that they operated at all times
under the good faith but mistaken belief that Moore had
properly scheduled the arbitration. The Respondent’s
initial mistake—one of mere negligence—was not trans-
formed into something more by their subsequent con-
duct.11 The passage of time before the Respondent
learned of its mistake and so advised Jones, although
regrettable, did not render the Respondent’s conduct ar-
bitrary.12
ORDER
The complaint is dismissed.
MEMBER MISCIMARRA, dissenting.
My colleagues and I agree on nearly everything in this
case except the outcome. The issue here is whether the
judge properly found that the Respondent, Amalgamated
Transit Union Local No. 1498 (Local 1498), violated its
duty of fair representation based on its failure to request
arbitration and erroneously advising the grievant (Charg-
ing Party Raymond Jones) that his grievance was sched-
uled for arbitration. The law sets a high threshold for
duty-of-fair-representation claims. As my colleagues
correctly observe, it takes more than mere negligence to
establish “arbitrary” union conduct under the Vaca v.

10 In light of this finding, we find it unnecessary to pass on the Gen-
eral Counsel’s exception to the judge’s treatment of remedial issues.
11 Compare Maritime Union District 1, 312 NLRB at 944 (violation
stemmed from union assuring claimant for 9 months that grievance
would be handled, while in fact the union took no action), and Auto
Workers Local 417 (Falcon Industries), 245 NLRB 527, 535 (1980)
(violation where union willfully misinformed claimant that grievance
“was expected to go to arbitration—assertions for which there was no
basis whatever”) with Operating Engineers Local 18, 144 NLRB at
1368 (no violation where union’s conduct was based on its “honest
belief”).
12 Our dissenting colleague views the Respondent’s conduct as a
whole and finds that the course of conduct amounts to gross negligence.
But, as our colleague agrees, missing the initial filing deadline was
simply inadvertent error. The Respondent’s subsequent failure to real-
ize its mistake did not elevate its conduct to the level of gross negli-
gence.
Our colleague’s reliance on the Respondent’s failure to seek arbitra-
tion when the mistake was discovered is misplaced. Neither the Gen-
eral Counsel nor the Charging Party argues that the Respondent should
have done so. In any event, it is purely speculative whether, as our
colleague suggests, the Employer would have been required to arbitrate
its timeliness defense and whether the Union could also have presented
evidence regarding the merits of Jones’ claims.
Sipes standard.1 A single missed deadline in processing
a grievance does not constitute a breach of the fair-
representation duty.2 And there clearly are good policy
reasons for the high threshold that applies to fair repre-
sentation claims: grievance arbitration involves complex
considerations, and union representation requires many
subjective decisions that often require substantial discre-
tion and independent judgment by union representatives.
Vaca v. Sipes, 386 U.S. at 190–193 (identifying many
reasons that a breach of the statutory duty of fair repre-
sentation occurs “only when a union’s conduct . . . is
arbitrary, discriminatory, or in bad faith”).
I dissent in this case because, as the judge found, the
facts reveal that Local 1498’s agents—even though well-
intentioned—engaged in an initial failure to request arbi-
tration of the Jones’ grievance, which was compounded
by repeated failures to undertake any reasonable steps to
confirm that arbitration was being pursued, where recur-
ring inquiries clearly warranted some further action by
the Union. Consistent with the judge’s findings, and
based on the specific record evidence presented here, I
believe the record establishes that the Union’s grievance
processing degraded to the level of becoming “perfuncto-
ry” under Vaca v. Sipes, which warrants a conclusion
that the Union breached its duty of fair representation.3 I
would affirm the judge’s finding that the Respondent
Union breached its duty of fair representation and thus
violated Section 8(b)(1)(A) of the Act based on gross
negligence in the mishandling of Charging Party Ray-
mond Jones’ grievance.4

1 Office Employees Local 2, 268 NLRB 1353, 1355 (1984), affd.
sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985). Under
Vaca v. Sipes, 386 U.S. 171, 190 (1967), a breach of the duty of fair
representation occurs when a union’s conduct toward a member of the
bargaining unit is arbitrary, discriminatory, or in bad faith.
2 Truck Drivers Local 692 (Great Western), 209 NLRB 446, 447–
448 (1974).
3 Vaca v. Sipes, supra at 191, 194.
4 Where a union breaches its duty of fair representation by failing to
process a grievance properly, the grievant is entitled to a recovery only
if the General Counsel shows that the grievant would have prevailed
had the grievance been processed properly. Iron Workers Local 377
(Alamillo Steel Corp.), 326 NLRB 375, 377 fn. 10 (1998). Although
the Union breached its duty to Jones, I agree with the judge that the
record fails to establish that the Charging Party would have prevailed
on the merits of his grievance. Jones grieved his nonselection for a “C
mechanic” position on the basis that he was the most senior employee
bidding for it. The collective-bargaining agreement provides that sen-
iority is controlling if an employee “is deemed qualified by the shop
foreman” (emphasis added), and the foreman in the instant case did not
deem Jones qualified. Jones also contended that the Employer had a
binding past practice of choosing the senior bidder. But the collective-
bargaining agreement sets an especially high bar for “past practice”
claims, stating that a past practice must be “unequivocal,” “clearly
enunciated,” and proven “beyond a reasonable doubt.” Also, the
agreement states that “numerous arbitrations” (which are not part of the
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The record contradicts the majority’s finding that the
Union’s mishandling of Jones’ grievance was merely
negligent or, in their words, involved “only a single in-
advertent error.” As noted below, union representatives
engaged in multiple cumulative lapses. I agree that, if
viewed singly, no one failure by the Union here would
constitute a breach. Viewed together, the Union’s fail-
ures at Jones’ expense, unfortunately, clearly constitute
more than mere negligence.
Lapse No. 1. To move Jones’ grievance to arbitration,
the Union was required, under the collective-bargaining
agreement (CBA), to request an arbitral panel from the
Federal Mediation and Conciliation Service (FMCS)
within 30 days of receiving the employer’s final denial of
Jones’ grievance. Union President and Business Agent
Richard Davis relied on the Union’s longtime counsel,
Weston Moore, to request the arbitration panel.5 Moore
did not submit a request by the 30-day deadline, October
5, 2010.
Lapse No. 2. On October 28, 2010, Davis and Moore
held an all day audit of the Union’s outstanding griev-
ances, during which they failed to discover that an arbi-
tration panel had not been requested for the Jones griev-
ance.
Lapse No. 3. In a letter dated October 7, 2010, but
marked as sent on October 25 (and apparently received
after the October 28 audit), the Employer notified the
Union that it had not received a panel for Jones’ griev-
ance. The letter waived the Union’s previous failures,
but cautioned that the Employer would consider Jones’s
grievance forfeit if the Union did not request an FMCS
panel “ASAP.” The Union conceded that it received this
“last chance” reminder. This letter reasonably placed
Davis and Moore on notice that they needed to do some-
thing more than rely on the two steps previously taken
(both of which, as noted above, were deficient). Howev-
er, Davis and Moore took no action other than to rely on
the prior referral of the grievance to Moore (who was to
have requested an arbitration panel, but did not) and their
prior audit (which should have revealed that arbitration
had never been requested). Moreover, the letter clearly
apprised Davis and Moore of precisely the type of poten-
tial problem that ultimately emerged (i.e., that an arbitra-
tion panel had never been requested); it stated there was
a limited window for curative action (i.e., that an arbitra-

record) address what is required for a past practice to be “enunciated”
and “unequivocal.” Notwithstanding the judge’s error in finding that in
2010, a mechanic position went to the less senior bidder, I agree with
his finding that Jones would not have prevailed in arbitration based on
the “past practice” theory that was the basis for his grievance.
5 There are no exceptions to the judge’s finding that Moore was an
agent of the Union.
tion panel could belatedly be requested); and it identified
the negative outcome that ended up adversely affecting
the grievant based on the Union’s failure to take any re-
sponsive action (i.e., the Company would regard an arbi-
tration request as untimely).
Lapse No. 4. By February 2011, the Union’s failures
to request FMCS panels for pending grievances had be-
come sufficiently common that the Employer started
using a standard template letter to remind the Union of
its obligation in this regard. Whenever the Union noti-
fied the Employer that it was taking a grievance to arbi-
tration, the Employer sent Davis a letter explaining the
FMCS notification procedure and stating that “mere
submission to your attorney is not the same as submitting
[the panel request] to the FMCS” (emphasis added).
After receiving these form letters underlining for the Un-
ion its subpar record on securing FMCS panels—on top
of the fact that the Employer’s previous communication
specifically concerning Jones’ arbitration was that the
Union had not requested a panel—Davis did not take any
further action to confirm that an FMCS panel had been
requested regarding the Jones grievance.
Lapse No. 5. In November 2011, a manager informed
Jones that his grievance was not scheduled for arbitration
because the Union had not obtained a panel. When Jones
asked Davis about this, Davis advised Jones that his
grievance was going to arbitration. The judge credited
Jones’s testimony that Davis never informed Jones that
there was any problem regarding the arbitration of his
pending grievance.
Lapse No. 6. In May 2012, Moore began to suspect
that he had not ordered a panel for Jones because there
was no record of his having done so in Jones’ file.
Moore filed the instant charge in August 2012. Two
additional months elapsed before Davis and Moore per-
formed another all day audit on October 26, 2012, which
revealed that Moore had not requested an FMCS panel
for Jones’ arbitration.
Lapse No. 7. Under federal law, disputes about the
appropriateness of arbitration are subdivided into two
well-known categories that involve “procedural arbitra-
bility” and “substantive arbitrability,” respectively.6 The
Union’s failure to make a timely request for an arbitra-
tion panel regarding Jones grievance involves a question
about “procedural arbitrability.” Under the Supreme

6 See, e.g., John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543,
555–559 (1964) (describing difference between “procedural” and “sub-
stantive” arbitrability). See generally the “Steelworkers Trilogy” cases:
Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers
v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
AMALGAMATED TRANSIT UNION LOCAL 1498 781
Court decision in John Wiley & Sons, Inc. v. Livingston,7
disputes over “procedural arbitrability” must be submit-
ted to arbitration for resolution. Thus, even in October
2012, the Union could have attempted to pursue the
Jones grievance to arbitration, where an arbitrator would
have addressed the Employer’s procedural defense that
the Union’s arbitration request was untimely. Many ar-
bitrators have rejected timeliness arguments on a variety
of grounds (for example, where evidence existed that the
CBA’s procedural requirements had not consistently
been enforced, where equitable considerations militated
against strict adherence to the CBA’s procedural re-
quirements, or where the arbitrator’s resolution of the
merits made it unnecessary to address timeliness issues).8
In any event, if the Union had pursued arbitration as late
as October 2012 (when its second audit finally revealed
that an arbitration panel had never been requested regard-
ing the Jones grievance), the Employer would likely still
have been required to arbitrate its timeliness defense, and
it is possible—perhaps probable—that the Union could
also have presented evidence regarding the merits of
Jones’s claims.9 Jones will never know, because there is
no evidence that the Union tried to pursue arbitration,
even belatedly, after its earlier lapses were uncovered.
A union is entitled to “a wide range of reasonableness”
in carrying out its representative duties,10 but this stand-
ard still requires “reasonableness.” Substantial evidence
supports the judge’s conclusion that the Union’s actions
were “unconscionable and far outside the pale of reason-
able.” Therefore, I agree with the judge’s determination,
and I would affirm the judge’s 8(b)(1)(A) findings.

7 Supra fn. 6.
8 See, e.g., CBS, Inc., 75 LA 789 (Roberts, 1980) (declining to dis-
miss grievance where time limits not consistently enforced); Hughes
Aircraft Co., 89 LA 205, 207–208 (Richman, 1987) (recognizing equi-
table tolling of time limits); Food & Commercial Workers Local 227,
104 LA 1152, 1155 (Frockt, 1995) (arbitral law favors resolution on
substantive merits). See generally Alan Miles Ruben, ed., Elkouri &
Elkouri, How Arbitration Works 219–227, 273–276 (6th ed. 2003)
(discussing variety of timeliness issues and their resolution regarding
grievance-filing and appeals to arbitration); Schoonhoven, ed., Fair-
weather’s Practice and Procedure in Labor Arbitration 133–138 (4th ed.
1999) (discussing cases in which arbitrators may be reluctant to bar
grievances for untimely processing).
9 See, e.g., Elkouri & Elkouri, supra at 287–289 fn. 8, which de-
scribes the extent to which arbitrators consider evidence regarding
timeliness and the merits at the same time: “Sometimes arbitrability is
the sole question before the arbitrator, but probably more often the
arbitrator is called on to rule on both the preliminary issue of arbitrabil-
ity and, if the dispute is found to be arbitrable, also on the merits. . . .
Even without [a] contractual provision . . . the arbitrator might require a
party (against its wishes) to proceed to the merits before the ruling is
made on arbitrability.”
10 Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
Chinyere C. Ohaeri and Nichole L. Burgess-Peel, Esqs., for the
Acting General Counsel.
Weston R. Moore, Esq. (Moore Law Center), for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case arises
out of a September 28, 2012 complaint and notice of hearing
that stems from an unfair labor practice (ULP) charge that
Raymond Jones, an individual, filed on August 6, 2012, against
Amalgamated Transit Union Local No. 1498 (ATU, the Union,
or the Respondent).
I held a trial in Minneapolis, Minnesota, on February 13 and
14, 2013, at which I afforded the parties full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence. Jefferson Partners L.P. (JP or the Company)
chose not to participate in the proceedings.
Issues
Did the Union breach its duty of fair representation, and
thereby violate Section 8(b)(1)(A) of the Act, by:
(a) Failing to timely request an arbitration panel from the
Federal Mediation and Conciliation Service (FMCS), as per the
terms of its collective-bargaining agreement with JP, for the
grievance that maintenance department employee Jones filed on
July 23, 2010,1 regarding JP’s failure to accept his bid to be-
come a C Mechanic.2
(b) Misleading Jones, from about August through the sum-
mer of 2012, into believing that his grievance was still sched-
uled for arbitration?
If the Union breached its duty of fair representation, has the
Acting General Counsel (the General Counsel) sustained its
evidentiary burden of showing the probability that the griev-
ance would have been successful on the merits, and established
that that the Union should be held liable for a provisional make-
whole remedial formula? The parties agreed that I should make
this determination. See Iron Workers Local 377 (Alamillo Steel
Corp.), 326 NLRB 375 (1998).
Witnesses and Credibility
Testifying for the General Counsel were Jones, B mechanic
John Moore (Moore), and Sam Howell, who has served in vari-
ous management or supervisory positions with JP since October
2007. Howell has never exercised supervisory authority over
the maintenance department, where Jones was employed from
March 2003 until his termination on May 12, 2012.3 Howell’s
testimony related primarily to the contractual grievance-
arbitration procedure and his communications thereon with
Union President Richard Davis, not with the underlying cir-
cumstances of the grievance itself. Davis and ATU’s attorney,
Weston Moore (Attorney Moore), testified on ATU’s behalf.
The General Counsel contends (GC Br. at 30–31) that I should

1 All dates are in 2010, unless otherwise indicated.
2 The General Counsel avers that the Union acted arbitrarily, not
necessarily discriminatorily or in bad faith. Tr. 314.
3 The termination had nothing to do with the instant grievance, and
the parties agreed that it is not germane to this proceeding.
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
treat Attorney Moore as an agent of Respondent even though he
is not named in the complaint. His and Davis’ testimony leave
no doubt that he was an agent, and I so find.
Howell appeared candid, he answered questions directly and
with specificity, his testimony on direct and cross-examination
was consistent, and I did not detect any suggestions that he was
trying to skew his testimony for either the General Counsel or
the Respondent. Inasmuch as he was the most credible witness,
I credit him where his testimony diverged from that of Davis,
Jones, and Moore. Other than the caveats described below,
Moore and Davis appeared generally credible and to offer can-
did testimony.
Preliminarily, I note that nothing in the collective-bargaining
agreement or elsewhere in the record reflects that the bidding
process was any different for A and B mechanics than it was
for C mechanics, and it is therefore appropriate to consider
evidence relating to the selection of A and B mechanics. In-
deed, the General Counsel offered General Counsel’s Exhibit
22, which pertained to the selection of a B mechanic.
General Counsel’s Exhibit 22 is a December 23 memoran-
dum that then Vice President Robert Doherty sent to Shop
Maintenance Manager Ted Fritsch and Howell regarding a
conversation that he had with Davis about the shop tire position
that had become open, and for which two employees, Moore
and Quinton Moore, had bid. Based on Moore’s testimony, this
had to be the B mechanic position for which he successfully bid
and currently encumbers, even though he gave a later date. The
memorandum reflects that Quinton Moore was more senior but
that Moore had more experience.
The memorandum also indicates that seniority was not nec-
essarily the paramount consideration, at least from manage-
ment’s viewpoint. Thus, Doherty had asked Davis, “[D]o we
go off experience first or seniority?” to which Davis replied
that if both had experience, no matter how much, seniority
always takes precedence. In his memorandum, Doherty ex-
pressed reservations about Davis’ stance. Moreover, Moore
was ultimately selected for the position—even though he had
less seniority than Quinton Moore. These actions of manage-
ment undermine the testimony of Davis, Jones, and Moore that
seniority has always necessarily been the governing criterion in
determining which competing bidder gets a mechanic position.
In crediting the statements made in the memorandum, I take
into account that it was admitted without objection; that both
Doherty and Davis were agents of their respective principals;
and that Davis did not testify about the conversation referenced
in the memorandum and, ergo, did not dispute any of the state-
ments therein attributed to him and Doherty. Cf. Daikichi
Corp., 335 NLRB 622, 622 (2001); Colorflo Decorator Prod-
ucts, 228 NLRB 408, 410 (1977), enfd. mem. 583 F.2d 1289
(9th Cir. 1978).
Further, Davis, Jones, and Moore testified that, other than the
situation in this case, positions were always filled through the
internal bidding system (semiannual or when vacancies oc-
curred), and never by hiring outside applicants. That testimony
was implicitly contradicted by Howell’s testimony, in connec-
tion with General Counsel’s Exhibit 20 (the advertisement for
the C mechanic position on which Jones bid), that it has “been
our practice to post” advertisements for positions on line or in
the newspaper.4 Moreover, Moore testified that, at some later
point, an individual with the first name of Chris was hired from
outside the Company to be an A mechanic.5
The above considerations aside, Jones was not a generally
reliable witness. First and foremost, he was contradictory on a
number of significant matters. Second, his testimony about his
meeting with Howell on November 11, 2011, was inconsistent
with Howell’s account. Third, Jones often couched his answers
with “might have” or other qualifiers indicative of lack of cer-
tainty. Fourth, and related thereto, Jones frequently appeared to
be trying to answer questions in the best light in his favor rather
than in a direct, straightforward manner.
Jones first testified that the date of July 28 in management’s
response to his grievance was written by Fritsch but, later, that
he was the one who wrote it in.6 He testified that at the time
that he filed the grievance (July 23), he did not know that a new
employee had been selected to fill the position for which he had
bid,7 but the final schedule showing that he did not get the posi-
tion was posted on July 18.
Jones’ testimony was also confusing and contradictory, both
on direct examination and cross-examination, as to when he
first complained to Davis about the bidding process in July vis-
à-vis when Fritsch asked him to fill out an application and
when he filed the grievance.8 For example, Jones testified that
after he notified Davis on about July 23 that he had filed the
grievance, Davis replied that the Union would take it to arbitra-
tion if Davis did not get the position9—even though this had
been announced on July 18.
Jones’ testimony about what occurred when he went to see
Howell on November 11, 2011, about the status of his griev-
ance, did not jibe with Howell’s account. Thus, Jones testified
that he “figured” the matter was going to arbitration after the
computer screen that Howell accessed showed “arbitration,”
and Howell told him that “[i]t’s going to arbitration.”10 How-
ell, on the other hand, testified that the screen showed that the
Company had received no panel pick, that he told this to Jones,
and that Jones was “a little incredulous” and indicated that he
had filed or would file a complaint about the way ATU handled
his grievance.11 Howell was a more credible witness, and I
credit his account over Jones’.
When Jones was asked how many conversations he had with
Davis on the status of his grievance between January 2011 and
May 2012, Jones first said “several,” then “at least two or three
times a month,” and, finally, “four or five times a month.”12
I do note that Davis did not testify about his postgrievance
conversations with Jones and, hence, did not deny what Jones

4 Tr. 213.
5 Tr. 76.
6 Tr. 168–169, 275. The General Counsel represented that after
Fritsch denied the grievance, Howell later had him add the date. This
does not cure the inconsistencies in Jones’ testimony.
7 Tr. 128. See GC Exh. 5.
8 See Tr. 122, et. Seq.; Tr. 170, et. seq.
9 Tr. 132.
10 Tr. 156–157. See also Tr. 195 (viewing the screen “satisfied” him
that the arbitration process was still going on).
11 Tr. 258–260. See also Tr. 242–243.
12 Tr. 144–145.
AMALGAMATED TRANSIT UNION LOCAL 1498 783
testified Davis told him therein. Cf. Daikichi Corp., above;
Colorflo Decorator Products, above. Jones’ testimony on this
matter was also consistent with what Davis testified was his
misunderstanding of the arbitration posture of the grievance.
Accordingly, I credit this aspect of Jones’ testimony. I cite the
well-established trial precept that witnesses may be found par-
tially credible. Jerry Ryce Builders, 352 NLRB 1262, 1262 fn.
2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951). In this regard, the trier of fact must consider the plau-
sibility of a witness’ testimony and appropriately weigh it with
the evidence as a whole. Golden Hours Convalescent Hospi-
tals, 182 NLRB 796, 797–799 (1970).
Facts
I find the following facts in this case, based on the entire
record, including testimony, observations of witness demeanor,
and my credibility findings; documents; stipulations; and the
thoughtful posttrial brief that the General Counsel filed. Alt-
hough the Respondent’s counsel was granted an extension of
time to file a brief, he failed to do so.
At the outset, I emphasize that the absence of the Company
as a formal participant in the trial, and the lack of testimony by
any maintenance department management/supervisors, has
resulted in an evidentiary void in terms of deciding whether the
grievance probably would have been found meritorious had the
Union taken it to arbitration. All I have before me are fairly
summary written statements from Doherty and Fritsch when
they responded to the grievance and/or to the Union’s related
information requests.
Thus, we do not know the precise reasons why management
determined that applications were necessary for the C mechanic
position in July, why they deemed Jones and the two other
coach servicers who bid on the C mechanic position unqualified
to perform the work, how often positions were posted to
nonemployees, whether other positions in the maintenance
department have been filled by outside candidates, and perhaps
other relevant facts and circumstances.
I further note that the record is devoid of any evidence of ar-
bitrators’ decisions construing or weighing the contractual pro-
visions that ATU and JP cited in support of their respective
positions on the grievance.
JP, a limited partnership with a headquarters office and place
of business in Minneapolis, Minnesota (the facility), and with
various branch locations in several States in the Midwest and
Southwest, is engaged in the interstate and intrastate bus trans-
portation of passengers. In the calendar year ending December
31, 2011, JP derived gross revenues in excess of $250,000 for
the transportation of passengers from within Minnesota directly
to points outside of the state, thus establishing the Board’s stat-
utory jurisdiction.
At all times material, ATU has been the exclusive collective-
bargaining representative of a unit of employees as described in
article 3, recognition, of the most recent collective-bargaining
agreement between JP and ATU, effective by its terms from
March 1, 2009, to February 29, 2012,13 and extended by mutual

13 GC Exh. 2.
agreement into 2013 and until negotiation of a successive con-
tract.
The unit consists of up to about 95 employees at the various
locations where the Company conducts business, including
drivers and maintenance department employees. The latter
includes, A mechanic (the highest classification), B mechanic,
C mechanic aka tire maintenance, coach servicer, and detailer.14
On average, there are about seven A mechanics, two B mechan-
ics, one C mechanic at a time, and about 10–15 coach servicers
at the facility.
Relevant Provisions in the Collective-Bargaining Agreement
Central to this proceeding are the contract’s bidding and
grievance-arbitration provisions. There are two kinds of bid-
ding for maintenance department positions: for particular va-
cancies or new positions, and for all positions on a semiannual
basis.
Article 48, provides, inter alia, that when new vacancies oc-
cur or are created, employees be notified by bulletin board,
system wide, no longer than 5 days after the position is vacant
and shall remain posted for 5 continuous days. Particularly
pivotal to this case, the article goes on to state, “Employees
bidding for such positions, upon being deemed qualified by the
shop foreman, will be selected on the basis of seniority.” Fur-
ther, if the shop foreman, after a probationary period not ex-
ceeding 20 days, finds the employee incapable of holding the
position, the employee shall revert to his former position.
Article 48.1 sets out the semiannual bid procedure for all
jobs in the maintenance department, to be effective the first
Saturday on or after January 15 and July 15 of each year. Bids
shall be posted for at least 5-calendar days and closed at 12:01
p.m. on the fifth day preceding the effective date of the bid.
This provision does not expressly refer to seniority or a proba-
tionary period, but the practice has been similar to that for va-
cancy bids.
For the semiannual bids, two sheets are posted, listing posi-
tions and shifts: one for mechanics, and the other for coach
servicer positions. Employees can bid on more than one posi-
tion or shift, on one or both sheets, designating their choices in
order of preference. It appears, contrary to Jones’ testimony (at
Tr. 113), that employees wishing to stay in their current posi-
tions still enter their names.
Turning to the grievance procedure, article 42.4 sets out the
steps for cases not dealing with discipline, which includes the
instant matter. There is no contention that the Union’s was
remiss in its handling of Jones’ grievance prior to the final step,
arbitration.
The arbitration provision is article 43, which provides, in rel-
evant part, that:
(1) The aggrieved party files for arbitration by notify-
ing FMCS and the Company within 30 days following re-
ceipt of the Company’s decision on a grievance appeal.
(2) The party requesting arbitration shall request that
FMCS submit a list of seven arbitrators to the Company
and to the Union, from which one shall be selected as the
arbitrator.

14 Id. at 37.
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(3) Within 10 work days following receipt of the list
of arbitrators, the Union and Company representatives
shall alternately strike one name until one name remains
and will the arbitrator.
(4) The arbitration shall be conducted as soon as pos-
sible.
The article is silent on who bears the burden of proof at an arbi-
tration proceeding. It concludes with paragraph 43.7, time
limits, stating:
It is agreed that either party hereto failing to comply with the
time limits outlined in [the grievance and arbitration proce-
dures] shall forfeit its case, unless the parties agree in writing
to extend or waive the time limits . . . .
In addition to citing article 48 in support of the grievance,
the Union cited article 45.7 (an employee who bids and quali-
fies for a higher-pay classification position shall receive the
higher pay upon completion of a 20-day probationary period)
and 56 (incorporating working practices that are not specified
in the agreement). In opposition to the grievance, management
also cited article 48, as well as article 7.1, the management-
rights clause (providing, inter alia, that the right to promote is
the sole responsibility of the Company).
Article 56 states that working practices exist that are not
specified in the contract and that, if proven, they are binding
upon the parties. The party asserting a past practice needs to prove
beyond a reasonable doubt: (1) that the practice be unequivocal;
(2) clearly enunciated and acted upon; and (3) readily ascertain-
able over a reasonable period of time as a fixed and established
practice accepted by both parties.
Jones’ Bid for C Mechanic
Jones was a coach servicer at the facility at all times, from
about March 2003 until May 19, 2012, when he was terminat-
ed,. A coach servicer maintains the interior and exterior clean-
liness of the buses, maintains fuel levels, and parks the buses in
the lot outside of the wash bay. The position requires a certain
amount of physical exertion. Jones became a union member
when he became full time after his first year of employment.
On July 7, management posted the semiannual bid sheet for
mechanics15 on a bulletin board in the breakroom. It included
all positions, including a C mechanic. The C mechanic mounts
and dismounts tires, determines which ones cannot be repaired,
polishes and cleans tires, and makes certain that there is suffi-
cient stack for the next shift.16 The position, which requires a
great deal of lifting and bending, and take considerable energy,
is more physically demanding that the coach servicer position.
Jones and other coach servicers had occasion to assist Moore
move or lift bus tires.
Jones was the most senior of the three coach servicers who
bid for the C mechanic position. Moore, the incumbent, did
not, since he was voluntarily returning to a coach servicer posi-
tion. The bid sheet stated that bids closed on July 14 at 12
o’clock and that selections would be effective on July 18.

15 GC Exh. 4.
16 See GC Exh. 3, an accurate job description. Tr. 84 (Moore).
Fritsch, the new shop maintenance manager, asked Jones on
about July 15 to fill out an application for the position.17 He
also had the other two applicants fill out applications. On its
face, the application form appears to be for new hires.
I credit Jones and Moore that they were unaware of any other
occasions when management asked employees who bid on a
higher-level position to complete such an application. I further
find, taking into account their testimony and Davis’, but noting
Moore’s selection in 2010, that seniority was usually, but not
always, the deciding criterion in determining which bidder was
selected. I also credit Jones’ and Moore’s uncontroverted tes-
timony that coach servicers bidding into the C mechanic posi-
tion have usually received a week of training from someone
already encumbering that position, and that no one has “failed”
and lost the new position, although on at least one occasion, an
employee voluntarily relinquished it while still in the training
period. As previously noted, Moore received a week of train-
ing when he went into the B mechanic position.
Fritsch told Jones that he wanted to get someone who had the
most experience and that he was pressed for time in filling the
position. He confirmed that he was looking for outside appli-
cants. Immediately after their conversation, Jones went to see
Vice President Dougherty, who was also a new manager. Jones
told him that having an employee fill out an application for a
bid position was unusual and that normally an employee was
chosen solely by seniority and then trained once in the position.
Doherty said that he stood by what Fritsch was doing.
On about July 16, the Company advertised for a “qualified
mechanic” to work in the tire shop.18 Howell testified that it
was generated by the Company’s human resources department
and that he saw it posted at bulletin boards at the facility. Alt-
hough he could not say whether it was also posted on line or in
the newspaper, he testified, “I know that’s been our practice to
do so.”19 Moore did see it posted on line on an employment
website. On at least one other occasion, the Company has hired
an individual outside of the Company to fill a mechanic posi-
tion (mechanic A) rather than “promoting” from within.
On July 18, the Company posted the new list of employees’
positions.20 For the C mechanic position, Moore’s name was
given, with the explanation that “John would have to wait till
we would get someone trained in the tire shop.”21
An outside candidate, Mike Masanz, was hired for the C me-
chanic position. He started on August 9 and received a week of
training from Moore, who then went into the coach servicer
position for which he had bid.
As noted earlier, Jones’ testimony was confusing and contra-
dictory as when he first called Davis vis-à-vis when he filed his
grievance on July 23, and whether he knew at the time that he
filed the grievance that he had not been given the position. In
any event, Davis encouraged him to file a grievance and sug-

17 GC Exh. 17.
18 GC Exh. 20.
19 Tr. 213.
20 GC Exh. 5.
21 See also GC Exh. 6, showing that Moore put in for a coach ser-
vicer position and received it, with the notation, “John won the bid but
he will need to stay in the tire shop until we get a replacement.”
AMALGAMATED TRANSIT UNION LOCAL 1498 785
gested what language he use, and on July 23, he did so.22 It
stated:
I want to be placed in which position I picked for as my num-
ber one choice for tire maintenance because I shouldn’t have
to do the application process. I should be trained into the po-
sition.
Thus, the focus of the grievance was on his having to fill out an
application, but by that time, management had already an-
nounced (on July 18) that he had not received the position.
On July 28, Fritsch, on the bottom portion of the grievance,
wrote “denied based on article 48 in the contract.”
The Union’s Handling of Jones’ Grievance
1. The Union’s communications with Jones
Jones likely exaggerated the number of subsequent conversa-
tions he had with Davis about the status of the grievance, and
his testimony about the specific words Davis used was not al-
ways clear. Nevertheless, the latter did not testify thereon or
dispute Jones’ account, which comported with what Davis testi-
fied was his understanding. Accordingly, I find that Davis told
Jones (incorrectly) that the grievance was going to arbitration,
even after Jones’ termination in May 2012, or close to 2 years
after Jones did not get the position. I also credit Jones’ testi-
mony that Davis never told him at any time that there was a
problem with the grievance proceeding to arbitration. Jones
never had any conversations with Attorney Moore.
I find, based on Howell’s credited version, that on November
11, 2011, when Jones came to see him about the status of the
grievance, Jones became upset when Howell told him in so
many words that the grievance was not scheduled for arbitra-
tion because the Union had failed to provide the Company with
a panel. However, inasmuch as Davis thereafter told Jones the
contrary, I conclude that Jones’ charge of August 12, 2012, was
not barred by Section 10(b) of the Act.
2. The Union’s communications with management
In late July or early August, after the grievance was filed,
Davis called Doherty. Doherty said that he did not have the
time to train Jones and was going to hire outside help. Davis
unsuccessfully tried to get him to change his mind.
By letter of August 8 to Doherty, Davis filed an appeal of
Fritsch’s denial of the grievance, citing articles 48, 45.7, and 56
of the collective-bargaining agreement (described earlier) and
requesting that Jones be awarded the C mechanic position ret-
roactively to July 17.23
Doherty responded by letter of August 17, stating that the
Company stood by Fritsch’s decision, based on Jones’ “previ-
ous work history and experience” and “on the amount of time
needed to train a new person in the position vacated by another
union employee.”24 Doherty pointed out that both articles 45.7
and 48 referred to “qualified” candidates.
By letter of August 27 to Doherty, Davis made an infor-
mation request for information relating to the outside person
who had filled the position and, since Doherty had cited Jones’

22 GC Exh. 7.
23 GC Exh. 8.
24 GC Exh. 9.
work history, for all information that the Company had used to
deny Jones’ bid.25
By letter of September 23 to Howell, Davis notified the
Company that the Union was submitting the grievance to arbi-
tration and that he had requested that Attorney Moore request a
panel of arbitrators from FMCS.26 At all times material, How-
ell has been the management representative who monitors and
keeps a log of the Company’s handling of grievances and arbi-
trations. General Counsel’s Exhibit 19 is a printout of his log
for the instant grievance. He is also the management official to
whom FMCS emails a panel list after the Union has requested
such.
Howell responded by letter of October 7 (not mailed until
October 25), acknowledging receipt of the September 23 let-
ter.27 He pointed out that article 43.1 gave the Union 30 days
from the date of the receipt of the Company’s decision to file
for arbitration by notifying FMCS, which would submit the
panel to the Company; however, those 30 days had expired on
October 5, and Howell had still not received such notification.
He went on to state that if the Company did not receive the
panel as soon as possible, it would consider the grievance for-
feited as per article 43.7. Howell testified without controver-
sion that the Union “frequently” failed to timely submit a panel
request to FMCS.28
David replied to Howell by letter of November 4, stating
that, by letter dated September 23, he had sent in a request to
Attorney Moore to request a panel from FMCS.29
Doherty, by letter of November 17, responded to Davis’ in-
formation requests.30 He explained that it was not until after
management took the semiannual bid down did they know that
there would be an opening in the C mechanic position (when
Moore did not bid for it). Upon knowing of the opening, man-
agement asked the three coach servicers who had bid for it to
fill out applications and be interviewed, and concluded that
none of them had any experience with tire services, the mini-
mum requirement for the job. Because Moore was going to
start school within several weeks and would then not be able to
work in that position, and with safety being the Company’s first
priority, management decided to advertise for an external can-
didate with the minimum experience and knowledge. Masanz
had the necessary background and experience and was hired on
August 9. Doherty emphasized that safety was the Company’s
top priority and that article 7.1 gave the Company the sole right
to promote. As far as Jones’ previous work history and experi-
ence, Doherty stated that Jones did not have any previous work
history as a tire mechanic or any other relevant experience.
Davis testified that Doherty called him in December to ex-
plain why management had made the decision to hire an out-
side employee, but Davis’ description of what Doherty said
strongly suggests that the conversation occurred before
Doherty’s November 17 letter. In any event, Doherty gave the

25 GC Exh. 10. He repeated the requests by letters of September 23
and November 5. GC Exhs. 12, 15.
26 GC Exh. 11.
27 GC Exh. 13.
28 Tr. 224.
29 GC Exh. 14.
30 GC Exh. 16.
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same reasons for why Jones was not given the position: (1)
Jones was not qualified; and (2) the Company had no time to
train anyone.
Starting in February 2011, because of the Union’s pattern in
not timely requesting FMCS panels, Howell sent a standard
template letter to Davis when the latter notified him that a
grievance was being submitted to arbitration. It described the
FMCS notification procedure and stated, “Please note that the
mere submission to your attorney is not the same as submitting
it to the FMCS.”31
It is undisputed that the Union never requested a panel from
the FMCS for Jones’ grievance.
3. The Union’s internal processes and deliberations
Davis, who works out of JP’s Kansas City, Missouri facility,
has served as the Union’s president since January 1994, and as
a full-time interstate driver for JP and its predecessors since
May 1965. He is responsible for handling grievances (averag-
ing 35 yearly) and complaints from members in the various JP
locations, and managing the Union’s financial affairs, including
filing taxes. Davis conducts union business out of an office at
his Joplin, Missouri residence. For this, the Union pays him
$110 monthly. He receives no other compensation from the
Union. Davis must clock off to conduct union business and
thus has to do such on his own time. He has no staff to assist
him. In 2010, he was a long-distance driver and also spent
about 3 hours daily on union business.
During the past 5 years, the Union ordered 26 arbitration
panels. Not all of the subject grievances went to hearing, be-
cause of settlement, the union executive board’s decision not to
proceed, the affected employee’s choice not to go forward, or
JP’s forfeiture of the grievance by not timely responding.
Scheduling an arbitration hearing is often a lengthy process,
largely due to difficulties in getting everyone available. Thus,
in some cases, a hearing has been held 2 years after the griev-
ance was filed.
Davis and Attorney Moore met all day on about October 28
regarding 16–18 grievances, including Jones’, and other mat-
ters. They discussed and ordered arbitration panels for some of
the grievances, and Davis believed at the end of the meeting
that they had one for Jones’ grievance.
In late October early November, Davis called Attorney
Moore to confirm that a panel had been ordered for Jones’
grievance. Attorney Moore said yes, that he had ordered a
panel.
Almost 2 years later, in mid- or late October 2012, Attorney
Moore conducted an audit of the status of all FMCS requests
over the past 5 years, matching requests with client names.
Some panels had employees’ names on them, but many others
did not (e.g., “mileage grievance” or “tire shop job”). His audit
showed which grievances had panels, which were left open for
panels, which had been settled, which the employee had with-
drawn, and which the Company had forfeited. During the
course of the audit, Attorney Moore could not find Jones’ name
among the panels that the Union had ordered. He informed
Davis of this when they met on about October 26 in another all-

31 See GC Exh. 21.
day session. He also told Davis that he had been speaking with
an attorney of the Company about whether one of the several
panels that had been ordered but no longer needed could be
used for Jones’ grievance. This never came to fruition.
Attorney Moore testified that he did not that the Union was
missing a panel for Jones until the October 2012 audit, although
he “had a suspicion in May because there wasn’t one in his
file.”32
Analysis and Conclusions
Did the Union Breach its Duty of Fair Representation?
1. In failing to timely request an FMCS panel
In Vaca v. Sipes, 386 U.S. 171, 190 (1967), the Supreme
Court held that a union breaches its duty of fair representation
by conduct toward a member of the collective-bargaining unit
that is “arbitrary, discriminatory, or in bad faith.” The General
Counsel relies primarily on the “arbitrary” criterion. Indeed,
there is no evidence that the Union had any animus toward
Jones for any reason or that Davis or Attorney Moore acted in
bad faith in failing to comply with the agreement’s arbitration
provision deadline for requesting an FMCS panel. Rather, the
issue here is whether the Union’s admitted negligence rose to a
sufficient level of egregiousness to constitute “arbitrary.”
As the Board held in Teamsters Local 896 (Anheuser-
Busch), 280 NLRB 565, 574 (1986):
Section 8(b)(1)(A) does not proscribe every act of disparate
treatment or negligent conduct, but only those which, because
motivated by hostile, invidious, irrelevant, or unfair consid-
erations, may be characterized as “arbitrary, discriminatory or
bad faith conduct.” [Footnote omitted.]
The Board further elucidated this standard in Pacific Mari-
time Assn., 321 NLRB 822, 823 (1996), stating that
“[S]omething more than mere negligence or the exercise of
poor judgment must be shown in order to support a finding of
arbitrary conduct,” citing Teamsters Local 337 (Swift-Eckrich),
307 NLRB 437, 439 (1992). See also Rainey Security Agency,
274 NLRB 269, 270 (1985). The union’s conduct may be “far
from model” and yet not so egregious as to find a violation.
Diversified Contract Services, 292 NLRB 603, 605 (1989). To
be found arbitrary, the conduct must be “so far outside a ‘wide
range of reasonableness’ as to be irrational.” Gaston v. Team-
sters Local 600, 614 F.3d 774, 778 (8th Cir. 2010) (citations
omitted); see also Airline Pilots v. O’Neill, 499 U.S. 65, 76
(1991); Mine Workers District 65, 317 NLRB 663, 663–664
(1995).
“Exactly when a union’s conduct constitutes ‘something
more than mere negligence’ is not susceptible to precise defini-
tion . . . . [T]he totality of circumstances in a case must be ex-
plored and examined.” Office Employees Local 2, 268 NLRB
1353, 1355 (1984), affd. sub nom. 765 F.2d 851 (9th Cir.
1985); see also Maritime Union District 1 (Marmarc Marine
Transportation), 312 NLRB 944, 947–948 (1993).
Clearly, between Davis and Attorney Moore, Jones’ griev-
ance inadvertently fell through the cracks as a result of an utter-

32 Tr. 348; see also Tr. 351–352.
AMALGAMATED TRANSIT UNION LOCAL 1498 787
ly chaotic and disorganized system of monitoring arbitrations,
and of Davis’ wrongful assumption that Attorney Moore had
requested an FMCS panel. This could be characterized as mere
negligence at the outset.
However, Howell’s October 7 letter stated that he had not re-
ceived timely notification that a panel had been requested for
Jones’ grievance and, starting in February 2011, Howell sent
Davis reminders that Davis’ requests to Attorney Moore to
obtain an FMCS panel were not tantamount to requests for a
panel from FMCS. Those communications certainly would
have put a reasonable person on notice of a potentially fatal
impediment to pursuing Jones’ grievance to arbitration, and
triggered the duty on Davis’ part to further inquire of Attorney
Moore the status of the grievance. I further note that Attorney
Moore had “suspicions” in May 2012 that no panel had been
requested for Jones yet did not conduct an audit until October
2012, after which he so advised Davis. In sum, some delay in
the Union’s determination that no FMCS panel was requested
could be excused, but over 2 years was unconscionable and far
outside the pale of reasonable, even taking into account that
Davis ran a one-person operation on the Union’s behalf and had
to conduct union business on his own time.
I note that there is no way to ever know whether, had the Un-
ion in fact scheduled Jones’ grievance for arbitration, the out-
come might have made a difference as far as Jones’ May 2012
termination.
Accordingly, I conclude that the Union’s conduct amounted
to “reckless disregard” for ensuring that it properly handled the
grievance, thereby going beyond mere negligence and crossing
into the nature of “gross negligence” falling under the penum-
bra of arbitrary. Cf. Electrical Workers Local 48 (Oregon-
Columbia Chapter of NECA), 342 NLRB 101, 108 (2004)
(Reckless disregard for deviations from a union’s hiring hall
rules held to be gross negligence.). Therefore, I further con-
clude that, by arbitrarily failing to timely request an FMCS
panel under the terms of the collective-bargaining agreement,
and causing Jones’ grievance to lose by default, the Union vio-
lated its duty of fair representation under Section 8(b)(1)(A) of
the Act.
2. In intentionally or arbitrarily misleading Jones.
Crediting Davis and Attorney Moore, I conclude that neither
one of them deliberately misrepresented to Jones that an FMCS
panel had been selected for his grievance and that it would be
going forward to arbitration. On the contrary, Davis was under
the good faith but mistaken belief that Attorney Moore had
made the necessary arrangements for an FMCS panel.
For the reasons stated above for finding the Union’s conduct
arbitrary, I further conclude that the Union arbitrarily misled
Jones into believing that his grievance was still scheduled for
arbitration and thereby breached its duty of fair representation
under Section 8(b)(1)(A) of the Act.
Has the General Counsel Shown that the Grievance
Would Have Prevailed?
In Rubber Workers Local 250 (Mack-Wayne Closures), 290
NLRB 817 (1988), the Board ordered a union that breached its
duty of fair representation by arbitrarily refusing to process a
grievance to, inter alia, make the employee whole for any loss
of pay he may have suffered for that breach of duty in the event
that the union could not pursue the remaining stages of the
grievance procedure for any procedural or substantive reason (a
provisional make-whole order).
The General Counsel correctly points out in its brief (at 30 et
seq.) that the Respondent failed to offer evidence to show that
Jones’ grievance would have been unsuccessful. This is not
surprising since nothing in the record (including GC Exh. 22)
suggests that Davis did not genuinely believe that the grievance
had merit. Regardless, the initial burden of evidence is on the
General Counsel to show the likelihood of its success.
The Board, in Mack-Wayne Closures, above, held that a pro-
visional make-whole remedy was appropriate upon the General
Counsel’s showing that the grievance was not “clearly frivo-
lous,” with the burden on the respondent to counter with proof
that the grievance affirmatively lacked merit. Id. at 818–819.
However, the Board imposed a heightened evidentiary bur-
den on the General Counsel in Iron Workers Local 377 (Alamil-
lo Steel Corp.), 326 NLRB 375 (1998), the case that now con-
trols. Thus, to establish that a union should be required to
compensate a grievant for the losses suffered as a consequence
of the union’s mishandling of the grievance: “[T]he General
Counsel must . . . show that the grievance was one presenting a
claim on which the grievant would have prevailed if the griev-
ance had been properly processed by the union.” Id. at 377.
The evidentiary standard is by a preponderance of the evidence.
Id. at 381 fn. 10. The Board further stated that in determining
whether the General Counsel has met that burden, the standard
that an arbitrator would have applied pursuant to the contractual
grievance-arbitration procedure will be taken into account.
However, the collective-bargaining agreement is silent on this
matter, and I have no such information before me.
Determining the probability of success of Jones’ grievance is
also made more difficult by (1) my not having evidence of any
prior arbitration awards involving the contractual provisions at
issue, especially any construction of the language in article 48
that “Employees bidding for such positions, upon being
deemed qualified by the shop foreman, will be selected on
the basis of seniority” (emphasis added), or of the management-
rights clause in article 7.1; (2) my not having a full and com-
plete account of why management decided that neither Jones
nor the other two coach servicers who bid for the C mechanic
position were not qualified; (3) my not knowing how often JP
advertised for, and selected, outside employee over current
maintenance department employees who bid for jobs.
I take into account that management went outside of the unit
to select an A mechanic on at least one occasion (Moore’s tes-
timony); that Moore was given the B mechanic position in 2010
over a more senior employees because he had more experience
(GC Exh. 22), reflecting a disagreement between management
and the Union over the role of seniority; and that management
has solicited online and by newspaper to fill other vacant posi-
tions (Howell’s testimony). These factors might have seriously
weakened the Union’s contention that JP was obliged to place
Jones in the C mechanic position. I must also consider the flaws
in Jones’ credibility in his testimony before me, although I cite
this only as supplemental, not primary, consideration in making
my determination.
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, the Union has relied on past practice to argue that
Jones should have been awarded the C mechanic position solely
because of his seniority and that the Company should not have
gone outside the unit to fill the position. However, the contract
requires the party asserting a past practice to prove its existence
beyond a reasonable doubt, a standard that the Union has not
met in this case.
In all of these circumstances, I cannot find that the General
Counsel has met its burden of showing by a preponderance of
evidence that the Union would have been successful had it
taken Jones’ grievance to an arbitration hearing. On the contra-
ry, I have no idea how an arbitrator would have ruled. Accord-
ingly, I conclude that a provisional make-whole remedy is not
appropriate.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section
8(b)(1)(A) of the Act: (1) arbitrarily failing to timely request an
FMCS panel, pursuant to the terms of the collective-bargaining
agreement, for Jones’ grievance; and (2) arbitrarily misleading
Jones into believing that his grievance was still in the arbitra-
tion process.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. For the reasons stated
above, I will not recommend a conditional make-whole reme-
dy.
[Recommended order omitted from publication.]