UAW v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0298p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

INTERNATIONAL UNION, UNITED AUTOMOBILE, ┐

AEROSPACE AND AGRICULTURAL IMPLEMENT │

WORKERS OF AMERICA, │

> Nos. 15-2305/2478

Petitioner (15-2305), │

│

INTERNATIONAL UNION, UNITED AUTOMOBILE, │

AEROSPACE AND AGRICULTURAL IMPLEMENT │

WORKERS OF AMERICA, LOCAL 1700, │

Petitioner/Cross-Respondent (15-2305/2478), │

│

v. │

│

NATIONAL LABOR RELATIONS BOARD, │

Respondent/Cross-Petitioner (15-2305/2478). │

┘

On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

Nos. 07-CA-081195; 07-CB-082391.

Argued: September 28, 2016

Decided and Filed: December 21, 2016

Before: GILMAN, GIBBONS, and STRANCH; Circuit Judges.

_________________

COUNSEL

ARGUED: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT,

P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700. Jared D. Cantor,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-

Petitioner. ON BRIEF: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE &

BRAULT, P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700.

Jared D. Cantor, Usha Dheenan, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Respondent/Cross-Petitioner.

GIBBONS, J., delivered the opinion of the court in which GILMAN and STRANCH, JJ.,

joined. STRANCH, J. (pg. 19), delivered a separate concurring opinion.

1

Nos. 15-2305/2478 UAW v. NLRB Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. United Automobile, Aerospace and

Agricultural Implement Workers of America, Local 1700 (Local 1700) was charged with

violating its duty of fair representation in processing the grievance of Aretha Powell, a Local

1700 member, who was terminated from her position as an automotive plant janitor after

threatening a fellow employee. The charge stemmed from the allegations that Margaret

Faircloth, Powell’s union steward, had submitted a false statement against Powell and was

subsequently involved in Powell’s grievance process. After an Administrative Law Judge

dismissed the charge, the National Labor Relations Board (the Board) reversed, finding that

Local 1700 had violated its duty of fair representation to Powell by acting arbitrarily or in bad

faith. The Board emphasized that it was relying on three facts, taken together, to support its

finding: (1) Faircloth had submitted a statement against Powell that was partly false;

(2) Faircloth had represented Powell in the first stage of the grievance process without disclosing

the fact that she had submitted a statement; and (3) Powell was unaware of Faircloth’s statement

throughout the grievance process. Because we conclude that the Board’s finding regarding the

falsity of Faircloth’s statement is not supported by substantial evidence, and that there is an

insufficient basis to find that Local 1700 breached its duty of fair representation, we grant the

petition for review, deny the cross-application for enforcement, and vacate the portion of the

Board’s decision addressing the breach of the duty of fair representation.

I.

A.

Caravan Knight Facilities Management, LLC (Caravan Knight) performs janitorial

services for Chrysler Automotive at its Sterling Heights Assembly Plant (the Plant).

International Union, United Automobile, Aerospace and Agricultural Implement Workers of

America (the International Union), through its Local 1700 affiliate (Local 1700, collectively, the

Union) represents Caravan Knight janitors who work at the Plant. Caravan Knight and the

Nos. 15-2305/2478 UAW v. NLRB Page 3

Union were parties to a collective bargaining agreement (CBA) that ran from December 1, 2009

to November 30, 2012.

Aretha Powell, the charging party, was hired by Caravan Knight as a janitor on

September 2, 2008. At the same time, she joined the bargaining unit represented by Local 1700.

Powell’s employment at Caravan Knight was not without incident. In early May 2012,1 Powell

told a group of employees that she wanted to fight Faircloth and then offered to pay one hundred

dollars to anyone else who would also fight Faircloth. Powell later apologized to Faircloth when

she found out that Faircloth had learned of her statements. On May 10, Powell was issued a

disciplinary warning for walking away from a mandatory pre-shift meeting and not being able to

answer questions about what was discussed. Later in the day on May 10, Powell got into a fight

at the Plant with Dishan Longmire, her ex-boyfriend and a fellow Caravan Knight employee.

The fight was likely related to Longmire’s involvement with a third employee, Balinda Tanner.

The next day, prior to the start of her shift, Powell threatened Tanner while they were in

the cage area. Powell told Tanner, “I see I’mma have to tear into your motherfucking ass.”2

Tanner Hr’g Tr., JA 938. Tanner immediately reported the comments to Faircloth and

LeVaughn Davis, Local 1700’s union chairperson for the Plant. Tanner and Faircloth then

submitted statements to Shaun Walle, Caravan Knight’s site manager, indicating they were

present when the threat occurred.3 Faircloth later testified that she reported the May 10 incident

with Tanner because she believed Powell’s behavior was escalating. Walle proceeded to

investigate the allegations by interviewing several employees, among them, Nathaniel Hudson, a

janitor working on the day of the incident. On May 12, Powell met with Walle, Faircloth, and

Davis to submit her statement about the incident with Tanner. During that meeting, Walle

suspended Powell pending an investigation. Caravan Knight terminated Powell four days later

on May 16.

1

All subsequent dates refer to 2012 unless otherwise indicated.

2

The ALJ credited Tanner’s testimony over Powell’s with respect to this incident.

3

The ALJ found Faircloth was not in the room at the time, relying on the “credible testimony” of Nathaniel

Hudson, a fellow Caravan Knight employee. JA 966. The Board also found that Faircloth did not witness Powell’s

statement to Tanner.

Nos. 15-2305/2478 UAW v. NLRB Page 4

As an elected union steward for Local 1700, Faircloth’s duties included processing

grievances for terminated employees. Under the CBA, grievances were processed in a series of

steps. First, the employee or a representative submitted a written grievance to her immediate

supervisor that was signed by a union committee person (Step 1). If the grievance was not

resolved at Step 1, Caravan Knight and Local 1700 representatives would meet to attempt to

resolve the dispute (Step 2). If the grievance could not be resolved in this meeting,

representatives from Caravan Knight, the International Union, and Local 1700 would meet to

attempt to resolve the grievance (Step 3). If this was unsuccessful, either party could take the

matter to binding arbitration (Step 4).

On May 18, Faircloth submitted a grievance on Powell’s behalf to satisfy Step 1. She

met with Walle to submit the grievance but did not offer any arguments on Powell’s behalf.4

Caravan Knight denied the grievance at Step 1. Local 1700 then proceeded to Step 2 of the

grievance procedure, with Davis now representing the Union and Powell. Davis and Caravan

Knight negotiated a settlement that would allow Powell to return to work without back pay. In

exchange, Powell would be required to complete an anger-management course, drop all pending

claims before the Board, and sign a ninety-day last-chance agreement. These terms were

consistent with a recent settlement agreement in a grievance based on similar facts. Davis

testified that a settlement was proposed within 48 hours of the grievance moving to Step 2.

Davis informed Powell of the proposed settlement on May 23. Powell rejected it.5 The

Union and Caravan Knight, nevertheless settled the grievance under the agreed-upon terms.

Powell received a letter confirming the disposition of her grievance on July 26.

Between May 16 and August 14, Powell filed a series of charges against Caravan Knight,

the International Union, and Local 1700, alleging violations of Sections 8(a)(1), (a)(3), (b)(1)(A),

and (b)(2) of the National Labor Relations Act (NLRA). After charges were filed, Caravan

Knight interviewed employees, asking about their interactions with Board investigators. Powell

4

Both the ALJ and the Board found that Faircloth’s actions constituted “representing Powell at Step 1” of

the grievance process. JA 967, 1155.

5

The ALJ found that Powell would have rejected the settlement regardless of its terms. The Board found

that she may have taken a different course.

Nos. 15-2305/2478 UAW v. NLRB Page 5

testified that she did not learn of Faircloth’s statement about the May 11 incident until the Board

informed her of it in early June.

B.

On August 21, the Board’s Regional Director consolidated Powell’s charges and issued a

single complaint against all three parties. This consolidated complaint alleged that Caravan

Knight violated Sections 8(a)(1) and (a)(3) of the National Labor Relations Act (NLRA) by

imposing onerous working conditions on Powell, changing her job duties, disciplining her,

suspending her, and discharging her because she engaged in protected activity. The complaint

also alleged that Caravan Knight violated Section 8(a)(1) of the NLRA by coercively

interrogating employees about their communications with a Board investigator. The complaint

alleged that the Union’s refusal to proceed to arbitration on Powell’s grievance was arbitrary,

discriminatory, or bad-faith conduct constituting a breach of the union’s duty of fair

representation to Powell, in violation of Section 8(b)(1)(A) of the NLRA. The complaint further

alleged that Local 1700 caused Caravan Knight to discriminate against and discharge Powell

because of her protected activity, in violation of Section 8(b)(2).

An Administrative Law Judge (ALJ) held a hearing on these allegations. On April 3,

2013, the ALJ issued a Decision and Order dismissing the complaint in its entirety. With respect

to Caravan Knight, the ALJ found an insufficient causal connection between Powell’s protected

activity and the disciplinary action. The ALJ also found that a totality of the circumstances

established that Caravan Knight’s subsequent interviews with employees were not unlawfully

coercive. The ALJ dismissed all charges against the International Union because the legal

distinction between the International Union and Local 1700 precluded any derivative duties on

the International Union and there was no indication that International Union officials were

involved in Powell’s grievance process.

In considering the claims against Local 1700, the ALJ found it undisputed that there was

a strained relationship between Powell and the three local union officials—Davis, Faircloth, and

Tanner—all of whom were involved in her grievance process. The ALJ, however, recognized

that these Local 1700 officials still filed a grievance on Powell’s behalf and negotiated a

Nos. 15-2305/2478 UAW v. NLRB Page 6

settlement for Powell’s reinstatement consistent with a recent settlement for another employee in

a similar situation. The ALJ found that the Board’s Acting General Counsel failed to show that

Tanner and Faircloth acted as union agents when submitting witness statements against Powell.

For these reasons, the ALJ concluded that there was no arbitrary or bad faith conduct on the part

of Local 1700, and thus no violation of its duty of fair representation under Section 8(b)(1)(A).

As to the Section 8(b)(2) charge that Local 1700 caused Caravan Knight to discharge Powell, the

ALJ found no evidence that Tanner and Faircloth did anything other than perform their required

duties as Caravan Knight employees by submitting the statements that led to Powell’s discipline

and termination.

The Board’s Acting General Counsel filed thirteen exceptions to the ALJ’s decision on

May 31, 2013.6 Caravan Knight filed two cross-exceptions on June 14, 2013. A three-member

panel of the Board issued a Decision and Order on August 27, 2015, affirming in part and

reversing in part the ALJ’s decision. The Board adopted all of the ALJ’s witness-credibility

determinations, finding no “clear preponderance” of evidence on which to reverse such findings.

JA 1151 n.2. The Board reversed the ALJ on two issues. First, it found that Caravan Knight

violated Section 8(a)(1) by coercively interrogating an employee about her statements to a Board

agent.7 Second, the Board found Local 1700 liable under Section 8(b)(1)(A) for violating its

duty of fair representation to Powell. Although the Board determined that Local 1700 acted

within its discretion to refuse to pursue Powell’s grievance past Step 2, it held that Local 1700

breached its duty of fair representation to Powell on the basis of three facts “consider[ed]

cumulatively” that established bad faith or arbitrary conduct:

(i) Union Steward Faircloth submitted a statement against Powell that was, in

part, false; (ii) Faircloth represented Powell in step 1 of the grievance procedure

without disclosing that she had submitted a statement against Powell; and (iii)

throughout the processing of her discharge grievance, Powell remained unaware

that Faircloth had submitted a statement regarding the matters at issue in Powell’s

grievance.

6

The Acting General Counsel did not take exception to the dismissal of the International Union, so it was

never considered by the Board and is not at issue in this appeal.

7

Caravan Knight has not challenged the Board’s decision.

Nos. 15-2305/2478 UAW v. NLRB Page 7

JA 1151, 1155. The Board reasoned that Powell might have pursued a different course of action

had she known of Faircloth’s statement. The Board was careful to note that this case presented

“unique circumstances” because of the “absence of any disclosure to Powell” and that its liability

finding was “narrowly circumscribe[d].” JA 1156.

The Union petitioned this court for review of the Board’s decision and order as to a single

issue: whether Local 1700 was liable under Section 8(b)(1)(A) for breaching its duty of fair

representation. The Board filed a cross-application for enforcement of its decision and order

against Local 1700.

II.

We review the Board’s factual determinations and its applications of law to fact under the

substantial-evidence standard. NLRB v. Galicks, Inc., 671 F.3d 602, 607 (6th Cir. 2012).

We uphold the Board’s decisions if there is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Int’l Union, United Auto., Aerospace & Agric.

Workers of Am. v. NLRB, 514 F.3d 574, 581 (6th Cir. 2008) (internal citations omitted). The

Board’s determinations of law are reviewed de novo. Id. at 580.

In reviewing the Board’s fact-finding, we “respect the judgment of the agency

empowered to apply the law to ‘varying fact patterns.’” Holly Farms Corp. v. NLRB, 517 U.S.

392, 399 (1996) (quoting Bayside Enters., Inc. v. NLRB, 429 U.S. 298, 304 (1977)). We “defer

to the Board’s reasonable inferences and credibility determinations, ‘even if we would conclude

differently under de novo review.’” Galicks, 671 F.3d at 607 (quoting FiveCAP, Inc. v. NLRB,

294 F.3d 768, 776 (6th Cir. 2002)). “The Board’s choice between two equally plausible and

reasonable inferences from the facts cannot be overturned on appellate review, even though a

contrary decision may have been reached through de novo review of the case.” Exum v. NLRB,

546 F.3d 719, 724 (6th Cir. 2008).

The Board is “free to find facts and draw inferences different from those of the ALJ.”

Jolliff v. NLRB, 513 F.3d 600, 607 (6th Cir. 2008). But it cannot “ignore relevant evidence that

detracts from its findings.” GGNSC Springfield LLC v. NLRB, 721 F.3d 403, 407 (6th Cir.

2013). The ALJ’s findings “are part of the record we must review” and therefore are considered

Nos. 15-2305/2478 UAW v. NLRB Page 8

“to the extent that they reduce the weight of the evidence supporting the Board’s conclusion.”

Int’l Union, United Auto., Aerospace & Agric. Workers, 514 F.3d at 581 (citing W.F. Bolin Co.

v. NLRB, 70 F.3d 863, 879 (6th Cir. 1995)).

III.

As a preliminary matter, the Board argues that two issues raised by the Union are

jurisdictionally barred because they were not properly presented to the Board. The first is

whether the Board’s opinion imposes too great a duty to act on the Union given the established

standard for the duty of fair representation (Issue 1). The second is whether the failure to

disclose Faircloth’s statement is immaterial because the Union cannot breach its duty of fair

representation when it had no obligation to pursue an unmeritorious grievance in the first place

(Issue 2).8 The Board alleges that these issues were not “specifically assert[ed] before the

Board” in the Union’s Answer to the Acting General Counsel’s Exceptions, or in a subsequent

motion for reconsideration. CA6 R. 30, at 23. The Union objects to the Board’s assertion,

suggesting that it relies on a “hypertechnical and legally unsound” interpretation of the

jurisdictional bar under 29 U.S.C. § 160(e), and that the Board was “adequately apprised” of the

issues because they were “sufficiently presented” and “necessarily considered” by the Board.

CA6 R. 34, at 15, 19. Because we can resolve the case on appeal without reaching Issue 2, we

consider only whether Issue 1, the Union’s challenge to the scope of the duty imposed by the

Board, is jurisdictionally barred.

We lack jurisdiction to hear any “objection that has not been urged before the Board, its

member, agent, or agency” unless “the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.” 29 U.S.C. § 160(e); Temp-Masters, Inc. v. NLRB,

460 F.3d 684, 690 (6th Cir. 2006); NLRB v. U.S. Postal Serv., 833 F.2d 1195, 1201–02 (6th Cir.

1987) (“Our jurisdiction is conferred by . . . 29 U.S.C. § 160(e).”). We have recognized,

however, that “[t]he specificity required for a claim to escape the ban imposed by [§ 160(e)] is

that which will ‘apprise the Board of an intention to bring up the question.’ A general objection

8

The Union conceded that a third issue—whether the Board needed to find that the alleged breach more

than likely affected the outcome of the grievance procedure in order to impose liability—is more properly litigated

at the compliance stage of the Board’s enforcement proceedings.

Nos. 15-2305/2478 UAW v. NLRB Page 9

combined with special circumstances may be sufficient to constitute notice.” NLRB v. Watson-

Rummell Elec. Co., 815 F.2d 29, 31 (6th Cir. 1987) (internal citation omitted) (quoting May

Dep’t Stores v. NLRB, 326 U.S. 376, 386 n.5 (1945)). An objection was “urged before the

board” if it was raised with sufficient specificity in briefing prior to the Board’s decision, or in a

subsequent motion for reconsideration. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

645, 665–66 (1982) (finding an issue barred because it was “not raised during the proceedings

before the Board” or “in a petition for reconsideration or rehearing”); Temp-Masters, 460 F.3d at

690; U.S. Postal Serv., 833 F.2d at 1202 (recognizing that briefing on exceptions before the

Board would be sufficient to preserve an issue).

The Union filed an Answering Brief in response to the Acting General Counsel’s

exceptions to the ALJ’s decision. It does not appear that the Union filed any subsequent briefing

before the Board or a motion to reconsider the Board’s decision. A review of the record clearly

indicates that the Union sufficiently presented arguments about the increased scope of the duty of

fair representation similar to those it now raises. In its brief, the Union discussed its duty to

“serve the interests of all members” and “avoid arbitrary conduct” as required by Vaca v. Sipes,

386 U.S. 171, 177 (1967). JA 1117. It raised an argument that the Board should leave some

discretion to the Union in pursuing grievances and that not every grievance would be handled

with the “maximum skill and adeptness,” nor must “a grievant’s case be advocated in a perfect

manner.” JA 1117–18. The Union asserted that “[m]ere negligence, poor judgment or ineptitude

in grievance handling are insufficient to establish a breach of the duty of fair representation.” JA

1118. The Union now makes an almost identical argument: “[T]he Board’s theory in this case

imposes a duty on Unions to act as professional legal ethicists, a duty incompatible with and

contrary to established duty of representation law.” CA6 R. 21, at 38. Because the Union’s prior

briefing was sufficient to apprise the Board of the issue it now raises on appeal, we find that

Issue 1 was properly preserved for consideration here.

IV.

Before determining whether the Union breached its duty of fair representation to Powell,

we address whether there is substantial evidence in the record to support the factual findings

relied on by the Board. See Galicks, 671 F.3d at 607. Substantial evidence exists if a

Nos. 15-2305/2478 UAW v. NLRB Page 10

“reasonable mind might accept [the evidence] as adequate to support a conclusion.” Int’l Union,

United Auto., Aerospace & Agric. Workers of Am., 514 F.3d at 580.

A.

There is no question that Faircloth submitted a statement against Powell with respect to

the May 11 incident in the cage area. The parties, however, dispute the Board’s finding that

Faircloth’s statement was “partly false.” See JA 1155. The underlying factual issue is whether

Faircloth witnessed the incident between Powell and Tanner. Both the ALJ and the Board

determined that Faircloth had not witnessed the incident. After reviewing both the Board’s

analysis and the administrative record, we conclude that this finding lacks substantial evidence.

Initially, the ALJ determined that “Faircloth was not present in the room at the time [of

the threat].” JA 966. The Board agreed, stating:

In her witness statement, Faircloth asserted that she had witnessed the

threat. Consistent with the judge’s credibility determinations, which we have

adopted, that was not the case. Instead, Faircloth learned of the threat when

Tanner reported it to Faircloth immediately following the incident.

JA 1153. The ALJ credited the following testimony of Nathaniel Hudson, a Caravan Knight

employee, in making this determination:

Q. Who is your steward?

A. Margaret [Faircloth]

Q. . . . Prior to the meeting that morning – well, the time you were there, did

you see Faircloth in the area?

A. I saw her on my way out.

Q. She was entering as you were leaving?

A. Yes.

Hudson Hr’g Tr., JA 669–70. The ALJ also credited testimony from LeVaughn Davis

confirming that Hudson was in fact present at the meeting:

Q. On May 11, 2012, did you attend the daily meeting?

A. Yes, I did.

Q. Do you recall who was there?

A. There was Aretha, Balinda, Ms. Jackie, Debbie, Larry, Eddie, Patrice,

Dishan, Amer, myself, Nathaniel, Shantell, and Keenan.

Nos. 15-2305/2478 UAW v. NLRB Page 11

Davis Hr’g Tr., JA 890–91 (emphasis added). Although not mentioned by the ALJ or the Board,

Hudson continued his testimony with respect to the incident and Faircloth’s presence on cross-

examination:

Q. . . . [I]s it fair to say that once you left the cage area, you don’t know what

occurred in the cage area?

A. No.

Q. Am I correct?

A. Yes, you’re correct.

Q. All right. And as you were walking out the cage area, you passed Ms.

Faircloth, who was entering the cage area?

A. Yes.

Q. Did you pass her like in the hallway or in the doorway?

A. Doorway. It’s a big open space, you know.

Q. Okay.

A. -- that open up because sometimes we bring supplies in. She was walking

in as I was walking out.

Q. All right. Was she already in the cage area?

A. She was just –

Q. At the time?

A. -- she was just at the entrance.

Hudson Hr’g Tr., JA 679–80. Hudson also testified that shortly after he left, there was a

“commotion” in the cage area, and he saw Powell leave “upset about something.” JA 680.

The Union argues that we need not discredit Hudson to find a lack of substantial evidence

because “Hudson’s testimony is not inconsistent with Faircloth’s presence in the area where the

threat occurred.” CA6 R. 21, at 20. We agree. Hudson’s testimony supports two inferences:

first, that Hudson was not present for Powell’s threat because he had left the cage area just before

it occurred, and second, that Faircloth had entered the cage area just prior to a commotion that

left Powell upset, activity that could have been Powell’s exchange with Tanner. There is nothing

in Hudson’s testimony, however, to support the Board’s inference that Faircloth was not present

at the time of the threat. Furthermore, his testimony does not contradict Tanner’s testimony that

Faircloth was present during the May 11 incident. Tanner was credited by the ALJ in other parts

of the initial decision, but ignored by the Board in considering Faircloth’s presence.

Although the record before us does not conclusively establish Faircloth’s presence at the

time of the threat, we are not faced with a case involving “two equally plausible and reasonable

Nos. 15-2305/2478 UAW v. NLRB Page 12

inferences from the facts.” Exum, 546 F.3d at 724. The Board’s inference as to Faircloth not

being present was unreasonable. Such a conclusion is not supportable in a reasonable mind. See

Int’l Union, United Auto., Aerospace & Agric. Workers of Am., 514 F.3d at 580. The record

further indicates that the Board ignored relevant evidence—Tanner’s testimony—that detracted

from its findings. See GGNSC Springfield, 721 F.3d at 407. The only reasonable inference from

the record before the Board was that Faircloth was in the area shortly before the incident between

Powell and Tanner occurred. This directly contradicts the Board’s finding that Faircloth was not

present, which was the basis for finding that her statement was partly false. As such, the Board’s

finding about Faircloth’s statement is not supported by substantial evidence.

B.

Although the Board erred in finding that Faircloth’s statement was partly false, our

review of the record confirms that there is substantial evidence to find that Faircloth represented

Powell in Step 1 of the grievance process. In her role as a union steward, Faircloth prepared and

submitted materials that initiated the grievance process after Powell was terminated. She then

met with Walle to submit the grievance. Although this was the extent of her formal involvement

with Powell’s grievance, we find it is sufficient to support the Board’s finding that Faircloth had

“represented” Powell during Step 1 of the grievance process.

The Union, for the most part, does not dispute the facts in the record.9 Instead, it argues

that the Board “vastly overstates” Faircloth’s role in the grievance process, something the Union

describes as “ministerial.” CA6 R. 21, at 29; CA 6 R. 34, at 9. The fact that there are not

significant negotiations during Step 1 and that the majority of grievances are rejected at Step 1

and proceed to Step 2 does not change the fact that Faircloth submitted forms to start the

grievance process on Powell’s behalf. In doing so, she was representing Powell’s interests and

ensuring that both Powell and the Union preserved their rights under the CBA to challenge

Powell’s termination. Powell’s testimony supports such a finding regarding Faircloth’s role.

Powell testified that Faircloth informed her that a grievance had been initiated and that Faircloth

would manage the initial steps of the grievance because Powell was not allowed on the premises.

9

The Union vigorously argues that the Board mistakenly found that Faircloth held a “Step 1 meeting” on

May 12. But the record clearly states that Powell met with Walle to submit the grievance on May 18.

Nos. 15-2305/2478 UAW v. NLRB Page 13

Powell also testified that she continued to stay in contact with Faircloth about the status of her

grievance and alternative avenues for relief. This indicates that Powell understood Faircloth to

be an important part of her grievance process and challenges the Union’s attempt to minimize

Faircloth’s role. With this record, we find substantial evidence to support the Board’s finding

that Faircloth represented Powell in Step 1 of the grievance process.

C.

The Union does not take direct issue with the Board’s finding that Powell was unaware

that Faircloth had submitted a statement against her throughout her grievance process. The

Union concedes that Davis did not mention Faircloth by name during his May 23 call with

Powell, in which he shared the company’s settlement offer, and advised Powell of statements

against her. The Union points out that Powell knew about the statement “at the latest on June 2,

only 8 days after her last discussion with Davis about the settlement on May 25.” CA6 R. 21, at

34. But the Union does not dispute the Board’s finding that neither Faircloth, Davis, nor anyone

at Local 1700 disclosed Faircloth’s statement prior to the conclusion of the grievance process.

Because the Union has effectively admitted that it failed to disclose Faircloth’s statement, we

uphold the Board’s finding. See Galicks, Inc., 671 F.3d at 608 (citing FiveCap, Inc., 294 F.3d at

768).

To the extent that the Board’s finding is disputed, there is substantial evidence that the

Union failed to disclose Faircloth’s statement. Powell testified that she was aware that Tanner

had filed a statement against her, but it was only after filing a charge with the Board that she was

informed that Faircloth had filed a statement about the incident. The record supports this

testimony. Powell filed her first charge with the Board on May 16. Powell did not mention

Faircloth’s statement until she filed a second charge with the Board in early June, well after

Davis settled the grievance with Caravan Knight. These undisputed facts provide substantial

evidence for the Board’s finding that no one disclosed Faircloth’s statement to Powell, and that

Powell was unaware of the Faircloth statement while her grievance was being processed.

Nos. 15-2305/2478 UAW v. NLRB Page 14

V.

Having evaluated the Board’s factual findings, we consider whether the record provides

substantial evidence to support the Board’s determination that Local 1700 breached its duty of

fair representation to Powell on these facts.10 See Galicks, Inc., 671 F.3d at 607–08. Although

we recognize our policy of deference to the Board’s determinations, see id., we conclude that the

remaining factual basis of the Board’s decision—that Faircloth and Local 1700 failed to disclose

Faircloth’s adverse statement to Powell while Faircloth was representing her in grievance

proceedings—is insufficient to support such a finding. Because there is no basis to find that the

Union violated its duty of fair representation on either the facts of this case or any applicable

precedent, we see no reason to remand the case to the Board. Instead, we vacate the portion of

the Board’s decision finding that Local 1700 violated its duty of fair representation

A.

Section 7 of the NLRA guarantees employees “the right to self-organization, to form,

join, or assist labor organizations” as well as the right “to engage in . . . concerted activities for

the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Under

Section 8(b)(1)(A), it is an unfair labor practice for a labor organization to “restrain or coerce”

employees in exercising their Section 7 rights. 29 U.S.C. § 158(b)(1)(A). Within the framework

of the NLRA, the Supreme Court has found that unions have an implied duty of fair

representation to their members. Driver v. U.S. Postal Serv., 328 F.3d 863, 868 (6th Cir. 2003)

(citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983)). This duty “stands ‘as a

bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of

redress by the provisions of federal labor law.’” DelCostello, 462 U.S. at 164 n.14 (quoting Vaca

v. Sipes, 386 U.S. 171, 182 (1967)). It applies “in all contexts of union activity, including

contract negotiation, administration, enforcement, and grievance processing.” Merritt v. Int’l

Ass’n of Machinists & Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010) (citing Williams v.

Molpus, 171 F.3d 360, 364–65 (6th Cir. 1999)).

10

We recognize that we could consider the Board’s determination of the scope of the duty of fair

representation as a matter of law de novo. Because the Board’s application of law to fact fails under the more

deferential “substantial evidence” standard, we apply that here.

Nos. 15-2305/2478 UAW v. NLRB Page 15

“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.”

Vaca, 386 U.S. at 190. This standard provides “three separate and distinct possible routes by

which a union may be found to have breached its duty.” Driver, 328 F.3d at 869 (quoting Black

v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 584 (6th Cir. 1994)). Because there is no

allegation of discrimination here, we consider only whether Local 1700 breached its duty by

acting arbitrarily or in bad faith.

B.

“A union’s actions are arbitrary only if, in light of the factual and legal landscape at the

time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness

as to be irrational.” Airline Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (internal citation

and quotation marks omitted). “The ‘wholly irrational’ standard is described in terms of

‘extreme arbitrariness.’” Garrison v. Cassens Transp. Co., 334 F.3d 528, 539 (6th Cir. 2003)

(quoting Black, 15 F.3d at 585). In the context of employee grievances, we have held that the

duty of fair representation requires a union to undertake a “reasonable investigation to defend a

member from employer discipline.” Driver, 328 F.3d at 869 (quoting Black, 15 F.3d at 585). It

“does not require a union to exhaust every theoretically available procedure simply on the

demand of a union member. . . . However, the ignoring or the perfunctory processing of a

grievance may violate the duty of fair representation.” St. Clair v. Local 515, 422 F.2d 128, 130

(6th Cir. 1969) (citing Vaca, 386 U.S. at 194). Furthermore, we have held that “[m]ere

negligence on the part of a union” is not sufficient to show arbitrary conduct, Garrison, 334 F.3d

at 538 (citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372–73 (1990)), and we note

that “when reviewing a union representative’s actions or omissions, we must never lose sight of

the fact that union agents are not lawyers, and as a general proposition, cannot be held to the

same standard as that of licensed professionals,” id. at 539; see also Danton v. Brighton Hosp.,

335 F. App’x 580 (6th Cir. 2009).

The Board did not address in detail how Local 1700’s actions constituted arbitrary

conduct. The decision cites no judicial or Board precedent to support such a finding. Instead, it

simply asserts that Faircloth’s representation of Powell without disclosing her adverse statement,

Nos. 15-2305/2478 UAW v. NLRB Page 16

along with the inference that such action “reasonably could have altered Powell’s approach to the

processing of her grievance,” constituted arbitrary conduct sufficient to establish a breach of the

duty of fair representation. JA 1155. After reviewing the record, we agree with the Union that

there is not substantial evidence to find that Local 1700 acted arbitrarily with respect to Powell

because Local 1700’s actions were not “wholly irrational.” Garrison, 334 F.3d at 539.

First, there was a rational basis for Local 1700 not to disclose Faircloth’s statement. It

was reasonable for Local 1700 to be concerned about how Powell would respond based on her

history at Caravan Knight. Prior to the May 11 incident, Powell had both indicated her desire to

fight Faircloth and had an altercation with an ex-boyfriend at the plant. Faircloth testified that

she gave her statement regarding Powell’s incident with Tanner only because she believed

Powell’s behavior to be escalating. The Board recognized that Faircloth’s statement “would in

all likelihood result in Powell’s discharge,” but found it acceptable for Faircloth to submit such a

statement because “the union [had] a legitimate interest in reporting such threats to an employer

consistent with its duty to represent all unit employees.” JA 1154. Local 1700’s interest in

protecting the entire bargaining unit from the threats of a single union member makes it rational

to not disclose Faircloth’s statement in an attempt to protect her from any retaliation by Powell.

Second, there was a rational explanation for Faircloth’s decision to represent Powell

during Step 1 of the grievance process. Powell was unable to file a grievance herself because she

was not allowed to be on the Plant’s premises. The responsibility thus fell to Faircloth as

Powell’s union steward. Although, in theory, Faircloth could have recused herself, the only

evidence in the record to support such a practice was Davis’s testimony that he had, on occasion,

processed grievances for employees when a union steward was unable to do so. We hesitate to

find that Local 1700 breached its duty of fair representation because Faircloth did not recuse

herself. Such an action starts to resemble a rule similar to an attorney’s conflict of interest—and

our prior cases clearly state that “union agents are not lawyers” and “cannot be held to the same

standard as that of licensed professionals.” Garrison, 334 F.3d at 539.

We also note that Faircloth’s representation of Powell at Step 1 did not adversely affect

the outcome of the grievance proceedings. The record indicates that Step 1 usually consists of

nothing more than a union steward filling out a bare-bones form to notify the employer of the

Nos. 15-2305/2478 UAW v. NLRB Page 17

grievance’s basic allegations. This is all Faircloth did at Step 1 in this case. And at Step 2,

another union official, Davis, represented Powell and negotiated a settlement on her behalf. The

Board found that this settlement was reasonable and consistent with a settlement offered to

another employee in a similar case. This leaves no factual basis on which to conclude that

Faircloth’s involvement at Step 1 affected the outcome of the grievance proceedings in any way.

Furthermore, the Board’s own precedent allows a union member and her union

representative to have an adverse relationship without the Union breaching its duty of fair

representation. Roadway Express, Inc., 355 N.L.R.B. 197, 202 (2010). At most, Faircloth’s

failure to recuse herself from Powell’s grievance process at the outset was negligent. Her actions

were not wholly irrational. Thus, there is not sufficient evidence to support the Board’s finding

that Local 1700 breached its duty of fair representation by engaging in arbitrary conduct.

C.

A union can also breach its duty of fair representation by acting in bad faith. This occurs

when “it acts with an improper intent, purpose, or motive . . . encompass[ing] fraud, dishonesty,

and other intentionally misleading conduct.” Merritt, 613 F.3d at 619 (quoting Spellacy v.

Airline Pilots Ass’n Int’l, 156 F.3d 120, 126 (2d Cir. 1998)). In this case, there is little, if any,

evidence in the record to support a finding that Local 1700 acted with improper intent. Had there

been substantial evidence to support the claim that Faircloth gave a partly false statement, the

Board might have been able to establish bad faith conduct. Faircloth’s failure to disclose her

statement during her representation of Powell, however, is an insufficient basis to find that she

and Local 1700 acted in bad faith. Additionally, the record indicates that Faircloth properly

handled the grievance, that the grievance was resolved by Local 1700 on terms favorable to

Powell, that the settlement was “reasonable and consistent” with that of an analogous incident,

and that there was no evidence that Powell would have accepted the offer at Step 2 if she had had

a different representative at Step 1. This is not the type of “intentionally misleading conduct”

associated with a finding of bad faith. Merritt, 613 F.3d at 619. We conclude that the Board

lacked substantial evidence to find a breach of the duty of fair representation on the basis that

Local 1700 acted in bad faith.

Nos. 15-2305/2478 UAW v. NLRB Page 18

VI.

For these reasons, we grant the petition for review, deny the cross-application for

enforcement, and vacate the portion of the Board’s decision finding that Local 1700 violated its

duty of fair representation.

Nos. 15-2305/2478 UAW v. NLRB Page 19

_________________

CONCURRENCE

_________________

STRANCH, Circuit Judge, concurring. I concur with the lead opinion that there is not

sufficient evidence to support the Board’s finding that Local 1700 breached its duty of fair

representation, but write separately to emphasize the unique circumstances that merit vacating

the Board’s decision. In reviewing the Board’s factual determinations under the substantial

evidence standard, we defer to the Board’s reasonable inferences and credibility determinations

even when “we would conclude differently under de novo review.” Mt. Clemens Gen. Hosp. v.

NLRB, 328 F.3d 837, 844 (6th Cir. 2003) (citing Painting Co. v. NLRB, 298 F.3d 492, 499 (6th

Cir. 2002)). This considerable deference reflects the weight given to the Board’s expertise and

its prerogative to choose among the conflicting testimony of witnesses. See NLRB v. Taylor

Mach. Prods., Inc., 136 F.3d 507, 514 (6th Cir. 1998) (“[I]f the record supports the Board’s

decision, we may not substitute our own judgment for that of the Board.”)

In the present case, the Board expressly stated that it relied on a combination of three

factual findings to determine that Local 1700 violated its duty of fair representation. As

explained in the lead opinion, we find that one of these conclusions—that Faircloth submitted a

partially false statement—is not supported by substantial evidence in the record. Though the

Board’s other two factual findings remain, they are insufficient to support its ultimate

conclusion. The Board’s determination rested expressly on the cumulative effect of these three

findings. Had the Board’s determinations on the three factors been independent, remand to the

Board for consideration in light of our reversal on one finding would have been appropriate. On

this unusual record, however, I concur with vacating the portion of the Board’s decision finding

that Local 1700 violated its duty of fair representation.