Transit Union Division 822

National Labor Relations Board - Board Decisions

Dec 23, 1991

305 N.L.R.B. 946 (N.L.R.B. 1991)

946
305 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817
(1988) (Mack-Wayne II), the Board held that ‘‘the General Counsel
must initially establish that an employee’s grievance was not clearly
frivolous as a prerequisite to a provisional make-whole remedy.
Once the General Counsel meets that burden, the burden of proof
shifts to the union to establish that the grievance lacks merit. The
Union may elect to litigate that issue in either the unfair labor prac-
tice stage or in a compliance proceeding.’’ At the hearing the Re-
spondent Union elected to litigate the issue of the merits of the four
grievances involved at the compliance stage of these proceedings
should it be found that the Respondent Union violated the Act as
alleged.
Amalgamated Transit Union Division 822 and Ger-
man Trujillo. Case 22–CB–6430
December 23, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 21, 1991, Administrative Law Judge Jesse
Kleiman issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent 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 and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Steven Kessler, Esq., for the General Counsel.
Richard P. Weitzman, Esq. (Weitzman & Rich, P.C.), of
Irvington, New Jersey, for the Respondent Union.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. The charge
was filed by German Trujillo on April 17, 1990, and a com-
plaint and first amended complaint were issued on June 1
and 8, 1990, respectively. The complaints allege that Amal-
gamated Transit Union Division 822 (the Respondent Union),
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act), by failing to represent German Trujillo, Jorge
Fernandez, Jose Dominguez, and Ramon Blasquez for rea-
sons which are unfair, arbitrary, invidious, and a breach of
the fiduciary duty owed to the employees whom it rep-
resents. The Respondent Union filed its answer on June 18,
1990, denying the material allegations in the complaints and
raising the following affirmative defenses: That the above-
mentioned employees ‘‘by their own acts, brought about the
action of the Employer in discharging them’’; that these four
employees ‘‘by their own acts, furnished their fellow mem-
bers of the Union with proper cause to determine, in good
faith, not to vote to proceed with their grievances to arbitra-
tion; and that should it be determined that the Respondent
Union has in fact violated the Act as alleged in the com-
plaints,’’ that a full hearing as to the merits of each of the
grievances would be required as a precondition to assessing
any ‘‘remedial award in favor of the grievant[s] by way of
damages.’’1 This case was tried in Newark, New Jersey, on
October 15, 1990.
On the entire record and the briefs filed by the General
Counsel and the Respondent Union and on my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Bergen Avenue Bus Owners Association (the Em-
ployer), a corporation with an office and place of business
in Bayonne, New Jersey, is engaged in the business of the
transportation of passengers. During the preceding 12
months, the Employer has derived gross revenue in excess of
$250,000 in the course and conduct of its business oper-
ations. The Respondent Union admits, and I find, that Bergen
Avenue Bus Owners Association is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is uncontested, and I find, that the Respondent Union is
a labor organization within the meaning of Section 2(5) of
the Act and that by virtue of Section 9(a) of the Act, the Re-
spondent Union is the exclusive bargaining representative for
the purposes of collective bargaining of the Employer’s em-
ployees in a unit appropriate for the purposes of collective
bargaining composed of all bus drivers employed by the Em-
ployer excluding office, clerical, supervisory, mechanics,
guards, watchmen, dispatcher, owner-drivers (providing they
have at least a 10-percent interest in their corporation), and
sons or daughters of the owners of record as of the effective
date of an agreement between the Employer and the Re-
spondent Union which ran from September 1987 through
September 7, 1990. Additionally, the Respondent Union ad-
mits, and I find, that Jose Moreno was and is the Respondent
Union’s president and an agent acting in its behalf within the
meaning of Section 2(13) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Background
The collective-bargaining agreement between the Em-
ployer and the Respondent Union (September 8, 1987–Sep-
tember 7, 1990) contained a grievance and arbitration proce-
dure provision which provides for a grievance meeting be-
tween the Employer and the grievants ‘‘and/or his Shop
Steward’’ (Step One), then a hearing before ‘‘the Pooling
947TRANSIT UNION DIVISION 822
2 Sec. 21.15 of the constitution and general laws of the Amal-
gamated Transit Union (the International Union), makes provision
for such an assessment by the local unions.
3 The hiring dates of the respective grievants were: July 9, 1978,
February 17, 1982, July 10, 1969, and March 23, 1981.
4 The Respondent Union’s executive board is composed of the
Union’s president, Moreno, the Union’s secretary and the union del-
egate.
5 Grievant Ramon Blasquez did not attend this meeting.
6 Lee Roy Borders and Eric McCovery, both part-time busdrivers
at that time. Borders testified that this was not a factor affecting his
vote on the arbitration issue. McCovery testified that since there was
plenty of work for the part-time busdrivers during that period, he
was not concerned about losing his job in connection with the arbi-
tration vote nor about the assessment for the arbitration costs. Al-
though unsure of this, Moreno stated that possibly Clifford Lewis,
a full-timer, had also asked this question.
Board of the Association ’’ (Step Two), and then if the
grievance is unresolved it is submitted to the New Jersey
Board of Mediation for arbitration (Step Three).
Moreover, the Respondent Union’s Constitution and by-
laws article II, section 6 provides in pertinent part that:
The Executive Board shall recommend whether or
not an appeal through arbitration shall be taken in cases
where a member of this Division has been discharged
by management. In cases of arbitration affecting our
members, the matter must be referred to a Referendum
Vote of the hourly rated members from the company
involved, with the provision that should the members
agree to arbitration the costs will be assessed equally
against each of the hourly rated members of the Divi-
sion from the company involved in the arbitration case.
All approved arbitration cases must be carried through
to the completion of the case, if the member so de-
sires.2
2. The grievances
German Trujillo, Jorge Fernandez, Jose Dominguez, and
Ramon Blasquez (referred to collectively as the grievants and
individually by name), were employed as full-time bus driv-
ers for the Employer with their own ‘‘runs.’’3 The grievants
were discharged by the Employer on or about June 28, 1989,
for allegedly stealing company revenues. The Respondent
Union filed timely grievances on behalf of each grievant and
processed these grievances through Steps 1 and 2 of the
grievance procedure. At the grievance meetings the Respond-
ent Union was shown ‘‘undercover reports,’’ made by ‘‘un-
dercover agents’’ of an outside investigative agency hired by
the Employer to observe its operations, which accused the
grievants of ‘‘fare irregularities or fare clipping, explained as
removing company funds from the company fare box without
authorization.’’ Additionally, at the grievance meetings, the
Employer asserted that Jose Dominguez had confessed to
having done this.
In accordance with the requirements of the Respondent
Union’s constitution and bylaws, Moreno, who had rep-
resented the grievants at the grievance meetings, presented
the matter to the Respondent Union’s executive board4 and
recommended that these grievances should proceed to arbi-
tration because he felt that notwithstanding the Employer’s
evidence, which he had some doubts about, the grievants had
a ‘‘50–50’’ chance to be successful at arbitration. The Re-
spondent Union’s executive board agreed and voted to rec-
ommend to the membership that these grievances be taken to
arbitration.
3. The union meeting of March 7, 1990
By letter dated February 28, 1990, the Respondent Union
notified the grievants that an ‘‘arbitration vote concerning
your case’’ would be held at the Welcome Inn in Bayonne,
New Jersey, on March 7, 1990, and that it was important for
each grievant to attend the meeting in order to explain his
case to the membership.
Present at the March 7, 1990 union meeting were Moreno,
Robert Wood, the Respondent Union’s secretary-treasurer,
three of the grievants (Trujillo, Fernandez, and Dominguez)5
and 18 other union members including Rudy Morgan, the
shop delegate. The Respondent Union’s witnesses testified
that Moreno explained the arbitration process to the member-
ship and asked if there were any questions regarding this
procedure. One of the members asked about the cost of arbi-
trating the grievances and Moreno explained that the mem-
bership would be assessed for the costs of each individual ar-
bitration case. Moreno told them that after the costs of the
arbitration was determined, he would discuss with the mem-
bership the method and amount of the assessment and the
membership would decide how payment would be made,
whether in a lump sum or by monthly deductions so as to
have the ‘‘least amount of impact . . . on the membership
financially.’’
Next, Moreno explained each of the grievant’s cases, that
they had been accused of stealing company funds and dis-
charged based on outside undercover agents’ investigative re-
ports of such alleged thefts. Moreno told the membership
that it was the Respondent Union’s executive board rec-
ommendation as well as his own that these grievances should
be sent to arbitration, since he felt that the grievants had a
‘‘50–50’’ chance of winning their arbitration cases. Moreno
also advised the membership that they should consider each
of the grievant’s cases on an individual basis and without
malice. Moreno was asked if one of the grievants had con-
fessed to having stolen company receipts but Moreno ques-
tioned the reliability of any purported confession since no
union representative had been present when it was allegedly
made and none of the grievants had acknowledged any guilt
to either Moreno or shop delegate Morgan.
Additionally, some of the union members6 asked Moreno
what the effect would be on the job rights of other employ-
ees should the grievants win their arbitration cases. Moreno
responded that the grievants would be reinstated to their full-
time day positions with scheduled runs while those drivers
who had taken their jobs after the discharges would be
‘‘bumped’’ back to full-time positions either on the night
shift or guaranteed 40 hours weekly but with no set runs.
Any part-time busdriver who had been moved up to a full-
time position related to the grievants’ discharges would be
returned to the part-time pool. Moreno also told the member-
ship that no part-timer would be terminated since there was
sufficient work present to retain them all and at the worst
there might occur a reduction in the part-time hours avail-
able.
The grievants present at this meeting were then given the
opportunity to speak to the membership on their own behalf
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Trujillo and Fernandez both speak Spanish, are not fluent in
English, and have a limited understanding of the English language.
They testified through the use of an interpreter. It appears from the
record evidence that the March 7, 1990 meeting was conducted
mostly in English except where questions were asked in Spanish and
then Moreno responded to these questions in both English and Span-
ish.
8 Trujillo acknowledged that he had arrived at the meeting after it
had commenced and that perhaps such a discussion may have pre-
ceded his arrival. However, the evidence in this case tends to show
that if the reason for the grievant’s discharges, etc., were discussed
at all, this occurred at a time when Trujillo would actually have been
present at the meeting. While the minutes of the March 7, 1990
meeting state in substance that the ‘‘floor’’ was turned over to Tru-
jillo ‘‘so he could answer any questions the membership may have
or to make any statement he may wish,’’ the minutes are silent as
to whether any questions were asked and if so what such questions
encompassed. Robert Wood, who took and prepared the minutes, tes-
tified that he had failed to record the questions and answers made
at this meeting since he records the minutes in longhand, but he ac-
knowledged that the membership did in fact ask Trujillo and
Fernandez about the circumstances of their grievances as did the Re-
spondent Union’s other witnesses. 9 All busdrivers listed were full time unless designated otherwise.
which Trujullo and Fernandez did.7 They were asked to ex-
plain the charges made against them, and both Trujillo and
Fernandez professed their innocence denying any wrong-
doing on their part, and asserted that the Employer was out
to get them for some time. Trujillo told the membership that
the reason for the Employer’s enmity against him was be-
cause of his participation in a prior strike action. Trujillo
then asked the members for their support and declared that
the grievants were willing to pay for the costs of the arbitra-
tions out of their own pockets. Moreno explained to Trujillo
that under the Respondent Union’s constitution and bylaws
the membership was required to vote on whether or not to
take a grievance to arbitration and to pay for the costs of any
arbitration so voted.
The membership then voted by secret ballot for each of
the 4 grievances individually with the resulting vote tally
being: Trujillo—7 yes, 12 no, 1 void; Fernandez—7 yes, 13
no; Dominguez—8 yes, 11 no; Blasquez—6 yes, 13 no.
These grievances were not taken to arbitration.
Moreno also testified that after the vote had been taken
several of the union members told him, ‘‘Jose, you don’t
know what’s going on. . . . They were doing it.’’ One of
the members also made reference to the finding of a
‘‘plumbers tool’’ on one of the grievant’s buses which could
be used to extract moneys from the bus fare box. Moreno,
however, told them that the vote had already been taken.
While the testimony of the General Counsel’s witnesses,
Trujillo and Fernandez, was similar to that given by the Re-
spondent Union’s witnesses as set forth above with respect
to what generally occurred at this meeting, it did differ there-
from in several significant aspects. Both Trujillo and
Fernandez denied that Moreno had explained the reasons for
their discharge or that any questions were asked by the mem-
bership regarding the merits of the grievances or that any
discussion ensued about this, contrary to the testimony of the
Respondent Union’s witnesses.8 Moreover, both these wit-
nesses stated that Moreno had told the members that they
would be assessed the sum of $1 per member for each case
that went to arbitration (a total of $4 should the four griev-
ances be voted to arbitration). They also testified that
Moreno had advised the membership that should these arbi-
tration cases be won by the grievants then they would be re-
turned to their former positions displacing any employees
who had been placed in their jobs and who would then return
to their prior positions with the result that at least one part-
time busdriver would lose his job based on seniority status.
Trujillo also testified that Moreno never said that the griev-
ants had a ‘‘50–50’’ chance to win their arbitration cases or
that the Respondent Union’s executive board had suggested
that their grievances be taken to arbitration, again in opposi-
tion to the testimony of the Respondent Union’s witnesses.
4. Additional evidence
The following is a list of the date of hire, the status of
the driver, full-time (FT) or part-time (PT), and the date of
promotion to full-time where applicable of the union mem-
bers who attended the March 7, 1990 meeting and the four
grievants:9
Jose Dominguez 7/10/69
German Trujillo 7/9/78
Uvaldo Chavez 12/6/78
Julio Martinez 3/8/80
Ramon Blasquez 3/23/81
Jose Ramon 8/16/81
Jorge Fernandez 2/17/82
Raul Hernandez 3/30/83
Rudy Morgan 3/10/84
Eugene Reo 9/7/84
David Ravenell 8/20/85
Brenda Davis 7/20/89(PT)
John Scott 12/28/86
James Smith 1/9/88(PT)
Frank Kenny 4/30/88(PT)
Harvey Waiters 8/4/88; (FT) 8/14/89
Eddie Wheeler 3/3/89(PT)
Clifford Lewis 3/24/89; (FT) 8/14/89
James Mann 5/18/89(PT); (FT) 10/1/90
Eric McCovery 6/9/89(PT); (FT) 10/1/901
Lee Roy Borders 6/9/89(PT); (FT) 10/1/90
Jeffrey Chambers 7/9/89; (FT) 10/15/89
Additionally, the Respondent Union produced evidence of
nine cases covering the period 1986–1989, wherein the mem-
bership had voted to take employee disciplinary grievances
to arbitration, five of which involved employee discharges,
the other four employee suspensions. These cases were sub-
mitted to membership vote pursuant to the same provisions
of the Respondent Union’s constitution and bylaws as in the
instant case. Moreover, evidence was submitted showing that
under this same procedure, the Respondent Union’s member-
ship voted affirmatively to process the following grievances
to arbitration regarding grievants Trujillo, Valesquez, and
Blasquez:
October 1986—Trujillo and Valesquez—suspension
grievances
February-June 1987—Trujillo—discharge grievance
October 1988—Blasquez—suspension grievance
949TRANSIT UNION DIVISION 822
10 Also see Steele v. Louisville & Nashville R.R., 323 U.S. 192
(1944); NLRB v. American Postal Workers Missouri Local, 618 F.2d
1249 (8th Cir. 1980); Miranda Fuel Co., 140 NLRB 181 (1962).
11 Vaca v. Sipes, supra; American Postal Workers Missouri Local,
240 NLRB 1198 (1979), enfd. in pertinent part 618 F.2d 1249 (8th
Cir. 1980); Laborers Local 300 (Memorial Park), 235 NLRB 334
(1978).
12 Hines v. Anchor Motor Freight, 424 U.S. 554 (1976).
13 Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Hines v. An-
chor Motor Freight, supra; Ryan v. New York Newspaper Printing
Pressmens Union 2, 590 F.2d 451 (2d Cir. 1970); P.P.G. Industries,
229 NLRB 713 (1977); Ohio Valley Carpenters District Council,
226 NLRB 1032 (1976).
14 Steelworkers Local 7748 (Eaton Corp.), 246 NLRB 12 (1979);
P.P.G. Industries, supra; Ohio Valley Carpenters District Council,
supra.
15 Communications Workers Local 3217, 243 NLRB 85 (1979).
16 Vaca v. Sipes, supra; Griffin v. Auto Workers, supra.
17 Griffin v. Auto Workers, supra; Encina v. Tony Lama Boot Co.,
448 F.2d 1264 (5th Cir. 1971).
18 Also see Hines v. Anchor Motor Freight, supra; Steelworkers
Local 15167 (Memphis Folding Stairs), 258 NLRB 484 (1981), enf.
denied 692 F.2d 1052 (7th Cir. 1982). Compare Service Employees
Local 579 (Beverly Manor Convalescent Center), 229 NLRB 692
(1977), in which the Board found that the union’s grievance inves-
tigation was perfunctory and arbitrary, and San Francisco Web
Pressmen & Platemakers Union 4, 249 NLRB 88 (1980), wherein
the Board held that the union’s investigation was reasonable.
19 Plumbers Local 195 (Stone & Webster Engineering), 240 NLRB
504 (1979); Massachusetts Laborers’ District Council (Manganaro
Masonry), 230 NLRB 640 (1977); King Soopers, Inc., 222 NLRB
1011 (1976); San Francisco Web Pressmen & Platemakers Union 4,
supra; Teamsters Local 692 (Great Western), 209 NLRB 446 (1974).
In Service Employees Local 579 (Beverly Manor Convalescent Cen-
ter), supra, the Board found a violation of the union’s duty of fair
representation where the union failed to conduct any investigation of
the asserted reason for the grievants’ discharge.
20 Furniture Workers Local 76B (Office Furniture), 290 NLRB 51
(1988), and cases cited in fn. 62 therein.
B. Analysis and Conclusions
The Duty of Fair Representation
1. The amended complaint alleges in substance that the
Respondent Union violated Section 8(b)(1)(A) of the Act by
taking the grievances of German Trujillo, Jorge Fernandez,
Jose Dominguez, and Ramon Blasquez to a vote of the union
membership which had pecuniary and job interests in voting
not to proceed to arbitration, thus it failed to represent these
employees for reasons which are unfair, arbitrary, invidious,
and a breach of the fiduciary duty owed the employees who
it represents. The Respondent Union denies this allegation.
In Vaca v. Sipes, 396 U.S. 171 (1967), the Supreme Court
of the United States stated:
It is now well established that, as the exclusive bar-
gaining representative of the employees . . . the Union
[has] a statutory duty fairly to represent all of those em-
ployees, ‘‘and that this duty’’ includes a statutory obli-
gation to serve the interests of all members without
hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to
avoid arbitrary conduct . . . a breach of the statutory
duty of fair representation occurs only when a union’s
conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory or in bad faith.10
In interpreting the appropriate standard fashioned by the
Supreme Court in the Vaca v. Sipes case by which to meas-
ure union conduct, the United States Court of Appeals,
Fourth Circuit, in Griffin v. Auto Workers, 469 F.2d 181 (4th
Cir. 1972), stated:
A union must conform its behavior to each of these
three separate standards. First, it must treat all factions
and segments of its membership without hostility or
discrimination. Next, the broad discretion of the union
in asserting the rights of its individual members must
be exercised in complete good faith and honesty. Fi-
nally, the union must avoid arbitrary conduct. Each of
these requirements represents a distinct and separate ob-
ligation, the breach of which may constitute the basis
for civil action.
A labor organization which fails to live up to this obligation
unjustifiably restrains employees in the exercise of their Sec-
tion 7 rights and thereby violates Section 8(b)(1)(A) of the
Act.11 The duty of fair representation has been held to ex-
tend to the investigation, processing, and representation of
grievances.12
However, at the same time the courts and the Board have
recognized that unions must necessarily be allowed a ‘‘wide
range of reasonableness’’ in serving their constituencies, but
in the exercise of that discretion, a union must act in ‘‘good
faith, with honesty of purpose, and free from reliance on im-
permissible considerations.’’13 Accordingly, a union does not
violate the duty of fair representation where it refuses to
process a grievance pursuant to a reasonable interpretation of
the collective-bargaining agreement14 or a good-faith evalua-
tion as to the merits of the grievance.15 An employee has no
absolute right to have a grievance processed through to any
particular stage of the grievance procedure or to have a
grievance taken to arbitration.16 A union may screen griev-
ances and press only those it concludes will justify the ex-
pense and time involved in terms of benefiting the member-
ship at large.17 But, as the Supreme Court held in Vaca v.
Sipes, a union will breach its duty of fair representation
when it has ‘‘arbitrarily ignored a meritorious grievance or
processed it in a perfunctory fashion.’’18 Moreover, a union
is not liable under the duty of fair representation for mere
negligence, poor judgment, ineptitude, forgetfulness, or inad-
vertence.19
The Board as well as a majority of the courts have held
that a union can violate its duty of fair representation absent
any evidence of bad faith if it is shown that the union acted
in a perfunctory or arbitrary manner.20 As the United States
Court of Appeals, Fourth Circuit, explained in Griffin v. Auto
Workers, supra at 183:
Without any hostile motive of discrimination 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 in a particular manner for a multitude of rea-
sons, but it may not do so without reason, merely at the
whim of someone exercising union authority.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Teamsters Local 315 (Rhodes & Jamieson), 217 NLRB 616
(1975), enfd. 545 F.2d 1173 (9th Cir. 1976).
22 Operating Engineers Local 324, 226 NLRB 587 (1976).
23 Griffin v. Auto Workers, supra at 182; Thompson v. Brotherhood
of Sleeping Car Porters, 316 F.2d 191 (4th Cir. 1963).
24 Teamsters Local 315 (Rhodes & Jamieson), supra at 619; NLRB
v. Teamsters Local 315, 545 F.2d 1173 (9th Cir. 1976). Also see Oil
Workers Local 5–114 (Colgate Palmolive Co.), 295 NLRB 742
(1989). In these cases, had the Board wanted to accomplish such a
result it could have done this directly, given the opportunity that it
had to do so. In focusing on the discriminatory nature of the results
of such a delegation to the union membership factually these deci-
sions give rise to the corollary that such a delegation would be law-
ful if no discriminatory action flows therefrom.
25 Machinists Local 697 (H.O. Canfield Rubber Co.), 223 NLRB
832 (1976); Hughes Tool Co., 104 NLRB 318 (1953).
26 Vaca v. Sipes, supra; Griffin v. Auto Workers, supra; Encina v.
Tony Lama Boot Co., 448 F.2d 1264 (5th Cir. 1971); Curth v. Fara-
day, Inc., 401 F. Supp. 678 (1975).
27 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W
Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223
NLRB 320 (1976).
28 See the testimony of Woods, Leroy Borders, Eric McCovery,
and Rudy Morgan.
29 For example: In Griffin v. Auto Workers, supra, the union placed
a grievance matter in the hands of a hostile person, the grievants’
antagonist; in Auto Workers Local 600 (Ford Motor), 225 NLRB
1299 (1976), the union permitted its agent to handle a grievance and
Moreover, in Miller v. Gateway Transportation Co., 616
F.2d 272 (7th Cir. 1980), the United States Court of Appeals,
Seventh Circuit, citing Griffin v. Auto Workers, supra, stated:
We note also that the duty of fair representation is of
a special importance when a grievance for wrongful
discharge is involved. As the Fourth Circuit said, ‘‘A
union must especially avoid capricious and arbitrary be-
havior in the handling of a grievance based on a dis-
charge—the industrial equivalent of capital punish-
ment.’’ Griffin v. Auto Workers, 469 F.2d 191 (4th Cir.
1970).
In addition and of significant importance, the Board has
noted that the duty of fair representation encompasses obliga-
tions that cannot be avoided by a union delegating the au-
thority to make decisions and, when such decisions are dele-
gated to its membership, the union is not immune from the
consequences thereof, since, by having selected the method
for determination, it is underwriting its inherent fairness.21
Moreover, the duty of fair representation encompasses the
obligation to provide substantive and procedural due process
in taking action or refraining therefrom, without reference to
whether the union’s conduct effects a discrimination as
such.22
Whether a union breached its duty of fair representation
depends on the facts of each case.23 There is no evidence in
this case of hostility or animus on the part of the Respondent
Union towards any of the four grievants nor facts indicating
possible bad faith and, therefore, the issue to be resolved is
whether the Respondent Union acted in an arbitrary manner
regarding the grievances of Trujillo, Fernandez, Dominguez,
and Blasquez. In applying the above principles to the facts
in this case, I find and conclude that the Responent Union
did not breach its duty of fair representation in violation of
Section 8(b)(1)(A) of the Act.
First, it should be noted that the Board has not found it
improper for a union to delegate to its membership the au-
thority to decide whether or not a grievance should be taken
to arbitration so long as the statutory standard of fairness is
met within the context of such delegation.24 Nor has the
Board declared it unlawful for a union to require payment by
its membership of the costs of processing a grievance
through arbitration unless such charges or assessments are
discriminatorily applied or in some other manner constitutes
arbitrary or bad-faith conduct.25 Additionally, it has been
held that where a union decides in good faith and on the
basis of objective, rational criteria that a grievance lacks suf-
ficient merit to justify the expense of arbitration, such deci-
sion does not violate the Act,26 and I believe that this would
also be true where the union delegates such decisional au-
thority to its membership.
Second, after carefully considering the record evidence,
and basing my findings on my observation of the demeanor
of the witnesses, the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities and reason-
able inferences which may be drawn from the record as a
whole, I tend to credit the account of what occurred, as given
by the Respondent Union’s witnesses.27 Their testimony was
given in a forthright manner, was generally corroborative and
consistent with each others and, most importantly, apparently
consistent with the other evidence in the record and therefore
most believable. For significant example, the Respondent
Union’s president, Jose Moreno, testified that at the member-
ship meeting on March 7, 1990, at which the four grievances
were considered by the membership for arbitration, he ex-
plained what each grievance case was about, that the griev-
ants had been discharged ‘‘for theft of company funds or
company receipts’’ based on the surveillance reports of out-
side undercover agents. The General Counsel’s witnesses,
Trujillo and Fernandez, denied that the reasons for their dis-
charges were mentioned or discussed. However, Moreno’s
testimony in this regard was corroborated by several of the
Respondent Union’s other witnesses who attended this meet-
ing,28 by the minutes taken at the meeting by the Union’s
secretary-treasurer, Robert Wood, and, most importantly, by
the ‘‘Stipulation’’ of facts in evidence which states:
10. Moreno explained the case to the membership and
stated it was the Executive Board’s as well as his rec-
ommendation to proceed to arbitration. He stated that
the membership should consider each case individually.
Moreover, both Trujillo and Fernandez denied that Moreno
had said that the Union’s executive board had recommended
that their grievances be taken to arbitration which is clearly
contradicted by the parties ‘‘Stipulation.’’
With the above in mind, where the courts and the Board
have found that a union breached its duty of fair representa-
tion in those cases involving the union’s delegation of its au-
thority to its membership in grievance processing or other as-
pects of contract administration, and where there has been no
finding of union hostility, discrimination, bad faith, or dis-
honesty, there has been involved a significant or total pres-
ence of self-interest or conflict-of-interest motivation on the
part of the membership or the party to whom the Union dele-
gated its decisional authority, and without there being any
evidence present of an accompanying consideration of the
merits of the grievance.29
951TRANSIT UNION DIVISION 822
reject it notwithstanding the agent’s own status as an interested party
with a conflicting position and his decision culminating in his own
benefit; and in Teamsters Local 315 (Rhodes & Jamieson), supra,
the union members voted on an issue of bumping rights but after
a layoff had been announced, with each member having knowledge
of the layoff status of his own job and with the voting limited to
only those who would be adversely affected by a vote to permit
bumping.
30 It is not unusual that, based on the evidence in the record, the
testimony of a witness may be credited in part, while other segments
thereof may be given less weight or disbelieved. Jefferson National
Bank, 240 NLRB 1057 (1979).
31 See Auto Workers Local 600 (Ford Motor), supra, in which the
delegated person handling the grievance on behalf of the union, had
in effect a pecuniary interest in rejecting the grievance. It appeared
therein that the agent’s sole reason for rejecting the grievance was
his own individual monetary benefit.
32 Griffin v. Auto Workers, supra; Encina v. Tony Lama Boot Co.,
supra.
33 The General Counsel states in his brief:
It was fear that this monetary interest would cause the member-
ship to vote not to proceed to arbitration that caused Trujillo to
take the floor and implore the membership for their support,
while emphasizing that the Grievants were willing to pay for
their own attorneys, even though that would not have been pos-
sible.
However, Trujillo’s offer that the grievants would pay for the arbi-
tration costs could just as well have been prompted by the member-
ship’s reference to an alleged confession by one of the grievants,
Moreno’s mention of outside investigators reports of their alleged
misconduct and membership questions as to the circumstances of
their grievances with perhaps the realization that the membership
would not believe their protestations of innocence and deny arbitra-
tion on the merits, so that there would be no resulting out-of-pocket
costs to the membership if the grievances were sent to arbitration.
In the instant case, the credited evidence shows that
Moreno explained the grievance and arbitration process and
the cicumstances of each of the four grievances to the mem-
bership at the March 7, 1990 union meeting. Questions were
asked by individual members about the costs of arbitrating
these grievances, and about the effect of the success of these
grievances on the job rights of other employees. Moreno’s
responses to these questions indicated that the membership
would be assessed the costs of any grievance sent to arbitra-
tion and that the membership would determine the method of
payment so as to make such payments as financially painless
as possible; and that should the grievants win their cases at
arbitration they would be reinstated to their former positions
and those employees who now held these jobs would be re-
turned to their prior jobs, however, with no employees being
laid off because of the sufficiency of the work load present.
Moreover, a member asked about a confession purportedly
given by one of the grievants but Moreno discounted the im-
pact of any such alleged confession advising the membership
that both he and the Respondent Union’s executive board
were recommending that these grievances be sent to arbitra-
tion, and that he felt that there was a ‘‘50–50’’ chance of
winning the arbitrations.
Additionally, the grievants present at this meeting were
given the oppotunity to present their cases to the membership
and both Trujillo and Fernandez did so. They were asked
about the nature of their grievances and Trujillo requested
the membership’s support in voting affirmatively to take
these grievances to arbitration and offered that the grievants’
would themselves pay for the costs of the arbitrations. In
fact, according to Fernandez’ testimony, Trujillo said that
‘‘[W]e didn’t need their money and that we would pay for
the attorney; that what we needed was their help, their signa-
ture from the union.’’30
The General Counsel argues that:
Respondent submitted the issue of whether the
Grievant’s grievances should be taken to arbitration to
a vote of the membership despite the fact that the mem-
bers had a strong pecuniary interest in the deci-
sion. . . . Assessing the membership the costs of arbi-
tration directly is especially burdensome where, as in
this case, there were several grievances which would
have to go to arbitration. . . . The membership voted
not to proceed to arbitration even though Moreno rec-
ommended that they vote to arbitrate these matters.
The above circumstances made it impossible for the
Grievants to have an impartial membership vote on
whether the grievances should be processed to arbitra-
tion. Failing to provide an impartial, fair and reasonable
process to decide if the Grievant’s cases would go to
arbitration violated the Union’s duty of fair representa-
tion.
I do not agree.
While the General Counsel’s arguments are not without
some persuasion and under different circumstances might be
decisive,31 under the facts present in this case, I do not find
that to be so. Of significance is the fact that there is evidence
in the record that the membership apparently considered the
merits of these grievances, at least in good part, in deter-
mining whether or not to process the grievances to arbitra-
tion. At the March 7, 1990 meeting the question of an al-
leged confession by one of the grievants was raised and dis-
cussed as well as the reasons for the employees’ discharges.
Additionally, while this occurred after the vote was taken
and the meeting concluded, union members stated their belief
that the grievants had actually engaged in the alleged illegal
conduct for which they were discharged. It should also be
noted that prior to the vote, the membership was made aware
that an independent outside investigative agency hired by the
Employer had allegedly observed the grievants engaging in
such conduct. Moreover, Fernandez testified that ‘‘probably
everyone must have known’’ about the reasons for the dis-
charges among the membership at the meeting.
As indicated hereinbefore, a union may screen grievances
and press only those that it concludes will justify the expense
and time involved in terms of benefiting the membership at
large.32 It is therefore imperative that when the union dele-
gates such authority to its membership that a decision against
arbitration be founded on objective and rational criteria, es-
pecially where the membership has a pecuniary interest as a
factor therein. But it suffices if such a decision is made in
good faith and on the basis of objective, rational criteria that
the grievance lacks merit to justify the expense of arbitration.
While somewhat of a close question, because four grievances
were presented at the membership meeting, from all the
above I conclude that such was what occurred in the instant
case.33
The General Counsel also argues in his brief that:
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 The United States Court of Appeals, Ninth Circuit, in enforcing
the Board’s order in NLRB v. Teamsters Local 315 (Rhodes &
Jamieson), 545 F.2d 1173 (9th Cir. 1976), stated:
We do not intimate that it would be improper for a union to
use an election process to make a decision under other cir-
cumstances. However, we agree with the Board that to base its
decision as to whether the bumping principle should in general
be applied to this Employer upon an expression from the em-
ployees so limited in scope and focus constituted arbitrary Union
action without rational basis prejudicial to Holman, and a failure
fairly to represent his interests.
The membership also voted not to proceed to arbitra-
tion because their job status and seniority would have
been adversely affected if the Grievants had won their
arbitration and the arbitrator had ordered reinstatement
with full seniority rights . . . the entire membership
would have been adversely effected. . . . The pertinent
facts present here are analogous to the facts in Team-
sters Local 315 (Rhodes & Jamieson, Ltd.), 217 NLRB
616 (1975), [hereinafter referred to as Rhodes &
Jamieson].
Again I do not agree.
While I concur with the General Counsel’s assessment that
should the grievants win their arbitration cases some employ-
ees would be required to be returned to their prior positions,
this would normally be true in any case involving a dis-
charge grievance successfully pursued through arbitration, al-
though somewhat moreso in the instant case because of the
number of grievances involved at the same time. However,
as indicated previously, the Board has not declared it unlaw-
ful for a union to delegate its authority to the membership
to decide the issue of whether or not to process a grievance
to arbitration, notwithstanding that members’ seniority or job
rights could be affected by the outcome of the arbitration,
unless such rights were the main or sole factor influencing
the members decision.
In Rhodes & Jamieson, the applicable collective-bar-
gaining agreement provided:
Where jobs or equipment are eliminated senior em-
ployees shall be reassigned by the employer to another
classification with full seniority rights subject to em-
ployee qualifications. Local 315 reserves the right to
apply this principle by individual employer.
The employer therein announced its intention to eliminate the
delivery service jobs of two drivers, one of whom was Ted
Holman. The union had not yet determined whether to apply
the bumping rights principle to this employer. The union
conducted an election among its members employed at the
particular plant involved. The ballot used stated:
Do you want the warehousemen, yard men, flat rack
and dump drivers to be re-assigned, with their full se-
niority, as ready-mix drivers.
Those members voting cast 8 ‘‘yes’’ votes and 20 ‘‘no’’
votes. Holman was then terminated.
Although the employer desired to reassign Holman to an-
other job, the union decided not to permit him to be placed
in the other job because of the election results. Holman ap-
pealed the decision to the union’s executive board which
upheld his appeal ‘‘because a vote was taken after the fact
that an operation was being eliminated and that a fair vote
could not be taken at this time.’’ The union’s executive
board’s decision was reversed on appeal to the ‘‘Teamsters
Joint Council No. 7.’’ The Board majority held that the
union had failed to represent Holman in a fair and impartial
manner in violation of Section 8(b)(1)(A) of the Act.
In Rhodes & Jamieson, after referring to Judge Sobeloff’s
‘‘significant statement describing the duty of unions not to
be arbitrary . . . writing for the Fourth Circuit’’ in Griffin
v. Auto Workers, supra, that ‘‘A union may refuse to process
a grievance . . . for a multitude of reasons, but it may not
do so without reason, merely at the whim of someone exer-
cising union authority,’’ the Board stated:
What Judge Sobeloff said about handling grievances
is equally applicable to the administration of collective-
bargaining agreements outside the grievance procedures.
In the instant case like Miranda Fuel, the Union acted
affirmatively to deprive an employee of a claimed con-
tractual right which was recognized by the Employer.
In such cases, although we may apply the same stand-
ard of review, we do not have the problem of deter-
mining whether the union acted within its wide latitude
of discretion in determining whether to commit its lim-
ited resources to the pursuit of a grievance.
However, that ‘‘problem’’ is exactly the issue in the case at
bar.
The Board continued in Rhodes & Jamieson:
But what was the basis for the position the Union took
initially? As far as the record shows, only dump truck
drivers were included in the announced layoff. Yet the
ballot, which was given to the voters after the an-
nouncement of the layoff, asked the voters whether they
wanted ‘‘the warehousemen, yard men, flat rock and
dump drivers to be re-assigned, with their full seniority,
as ready-mix drivers.’’ The record does not tell us on
what information this characterization of the potential
impact of the bumping right was based. It appears to
be grossly inaccurate as a description of the announced
layoff and substantially incomplete as a description of
the contractual bumping provision, omitting as it does
the mutuality of the right. We do not know what infor-
mation the voters had available to them with which to
evaluate the accuracy of that characterization of the
bumping issue. We do not know what opportunity was
given to any of the interested employees to make their
cases before the decisionmakers. What is striking, how-
ever, is that the vote was taken after the layoff was an-
nounced, and whether or not the voters knew all the de-
tails of the layoff each presumably knew whether his
own job was scheduled for elimination. Those not
scheduled for layoff would naturally think twice before
voting for bumping rights just then. And most impor-
tantly, the voting on this issue was limited to those, and
only those, who would be adversely affected by a vote
to permit the bumping. That is, the election itself was
designed so that it could express, not fairness, but only
the conflict of interest of each member of the elec-
torate.34
953TRANSIT UNION DIVISION 822
35 See fn. 23.
36 Clothing & Textile Workers Local 148T (Leshner Corp.), 259
NLRB 120 fn. 6 (1982).
37 See fn. 26.
38 See fn. 13.
39 See fn. 16.
40 Also see Hughes Tool Co., supra.
In contrast to Rhodes & Jamieson, in the instant case the
grievants were given the opportunity to present their cases
before the decisionmakers, the effect of any bumping or se-
niority rights of the members in connection with the success-
ful arbitration of these grievances was explained with the
prediction that there would be no layoffs resulting therefrom,
and most importantly, there is evidence in the record that the
numbers considered the merits of the grievances in voting as
they did as part of the decisionmaking process. Additionally,
much of what is discussed in support of my conclusions con-
cerning the other issues presented in this case is also applica-
ble hereto.
Whether a union breached its duty of fair representation
depends on the facts of each case.35 However, it is also true
that the burden of proving allegations in the amended com-
plaint rests on the General Counsel.36 I am not unmindful
that taken together, a pecuniary interest coupled with a job
interest in the outcome of a vote regarding whether to proc-
ess a grievance to arbitration might exert more influence on
the membership voting than if only one of such interest were
involved. This is actually what makes this a close case. But
these interests are usually always present in some degree in
these types of cases, and in the instant case there is sufficient
evidence in the record to conclude that the membership had
given consideration to the merits of the grievances and de-
cided that they lacked sufficient merit to justify the expense
of arbitration. The courts and the Board have held that a de-
cision made in good faith and on the basis of objective, ra-
tional criteria, that a grievance lacks sufficient merit to jus-
tify the expense of arbitration, such a decision does not vio-
late the Act.37
From all the above and from the circumstances present in
this case, I find and conclude that the General Counsel has
not sustained the burden of proving the allegations in the
amended complaint nor established that the Respondent
Union violated Section 8(b)(1)(A) of the Act by breaching its
duty of fair representation.
2. The amended complaint also alleges that the procedure
required by the Respondent Union’s constitution and bylaws,
namely, that the costs of arbitration be bourne directly by the
membership, violates its ‘‘duty to represent all Unit employ-
ees in a fair and impartial manner,’’ and thereby the Re-
spondent Union has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act. The Respond-
ent Union denies this allegation.
The General Counsel contends that:
The procedure of assessing the costs of arbitration
directly on the membership, in cases where the mem-
bership has voted to proceed to arbitration creates an
inherent conflict between the membership’s desire to
adjust inequities and their own economic self inter-
est. . . . The directness of the economic interest will
necessarily increase the concern the membership has
over costs, which creates the possibility that the mem-
bership will not vote for what it feels is right but will
vote its own self interest. This conflict becomes even
more of a factor where, as here, the bargaining unit is
not large. Further, the cost of arbitration remains high.
There is no reason why this conflict has to exist. The
alternative, for the costs to come out of a general fund,
offers a legal means of financing the costs of arbitra-
tion. The Respondent, by contractually requiring that
the costs of arbitration be assessed directly against its
hourly rated employees, has made the procedure of de-
termining whether cases should be taken to arbitration
inherently unfair and unreasonable, in violation of the
Act.
The General Counsel seeks a ruling, in effect, which would
make a union’s requirement that its members be assessed the
costs of handling grievances through arbitration a per se vio-
lation of Section 8(b)(1)(A) of the Act. I do not believe that
either the courts or the Board would prescribe to such a rul-
ing.
It should be remembered that both the courts and the
Board have recognized that unions must be allowed a ‘‘wide
range of reasonableness’’ in serving their constituencies, in-
cluding grievance handling, although in the exercise of that
discretion a union must act in ‘‘good faith, with honesty of
purpose, and free from reliance on impermissable consider-
ation.’’38 Moreover, it has been held that an employee has
no absolute right to have a grievance taken to arbitration.39
As indicated hereinbefore, the Board in Machinists Local 697
(H.O. Canfield Rubber Co.), supra, considered the issue of
the imposition of costs for the processing of grievances to ar-
bitration and while that case involved costs assessed only
against unit employees who were not members of the union,
which the Board found to be discriminatory and violative of
the Act, the Board did not declare that all direct assessments
of members would be inherently unlawful.40 As Chairman
Murphy stated in her opinion ‘‘concurring in part and dis-
senting in part’’ in the Machinists case:
Under these principles, a bargaining representative’s
requiring payment of a reasonable fee by all employees
for processing a grievance, imposed upon members and
nonmembers alike, cannot be discriminatory treatment
of either group, and such a fee to be paid by nonmem-
bers on the same basis as members cannot be unlawful.
The only obligation imposed on a labor organization by
the duty of fair representation is that it accord equal
nondiscriminatory treatment to all those whom it rep-
resents without regard to membership.
As to the General Counsel’s argument that such a direct
assessment of the membership makes the procedure of hav-
ing the membership determine whether or not to take a griev-
ance to arbitration inherently unfair and unreasonable be-
cause of economic self-interest, one need only look to the
evidence of prior grievances being voted to arbitration by the
membership, including one involving grievant German Tru-
jillo wherein a prior discharge grievance was voted to arbi-
tration resulting in a rescision of the discharge, with a sus-
pension imposed instead.
From the above, I find and conclude that the provision in
the Respondent Union’s constitution and bylaws requiring
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the assessment of arbitration costs directly to its membership
does not violate its duty of fair representation in contraven-
tion of Section 8(b)(1)(A) of the Act.
Based on all the foregoing, I find and conclude that the
General Counsel did not show that the Respondent Union
failed in its duty to fairly represent the four grievants in vio-
lation of Section 8(b)(1)(A) of the Act and therefore, I rec-
ommend that the amended complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
1. The Respondent Union, Amalgamated Transit Union
Division 822, is a labor organization within the meaning of
Section 2(5) of the Act.
2. The Bergen Avenue Bus Owners Association is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
3. The Respondent Union has not violated the Act as al-
leged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended41
ORDER
The amended complaint is dismissed in its entirety.