Petition for Writ of Certiorari — Le'Mon v. National Labor Relations Board
Supreme Court brief1992
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IN THE OF THE CLERK
Supreme Court of the Gnited States
OCTOBER TERM, 1991
PETE LE’MON,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
HUGH L. REILLY* EDWIN VIEIRA, JR.
National Right to Work Legal 13877 Napa Drive
Defense Foundation, Inc. Manassas, Virginia 22111
8001 Braddock Road, Suite 600 (703) 791-6780
Springfield, Virginia 22160
(703) 321-8510
ATTORNEYS FOR PETITIONER
*Counsel of Record
June 22, 1992
-i-
QUESTIONS PRESENTED FOR REVIEW
1. Is a per se violation of the duty of fair representation
established where employees are terminated from employment
because the labor organization that is their exclusive represen-
tative under § 9(a) of the National Labor Relations Act did not
fulfill its mandatory duty to file the notice of strike required by
§ 8(d) of the Act?
2. Is a violation of the duty of fair representation established
where the labor organization that is the employees’ exclusive
representative under § 9(a) failed to advise them that it had not
fulfilled its mandatory duty to file the notice of strike required by
§ 8(d) both prior to the employees’ vote on whether to ratify
their employer's bargaining proposal or engage in a sirike, and
again after the strike began when that default was
questioned—and, as a result, those employees were terminated
from employment?
3. If the duty of fair respresentation provides employees
with no relief when they are discharged from their employment
solely because the labor organization which is their § 9(a)
exclusive representative fails to file the notice of strike required
by § 8(d) and to advise the employees of that Statutory default,
are the employees deprived of their right to due process of law
under the Fifth Amendment to the Constitution of the United
States?
-ii-
PARTIES TO THE PROCEEDINGS BELOW
The parties named in the caption in this Court are the
parties to the proceedings below, namely:
Petitioner: Pete Le’Mon.
Respondent: National Labor Relations Board.
-ili-
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..........
PARTIES TO THE PROCEEDINGS BELOW ........
TABLE OF AUTHORITIES VEE y ree eT eEEL EET
INTRODUCTION OLAS Pe eee ee ee ee eee eee ee
OPINIONS BELOW .... 2... ccc ccc cece cen cncnns
DUE Kw vec e essen cere ercvrereseseces
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........------+eeeeees
STATEMENT OF THE CASE ........2cccccccccces
EE Pe Pee ee ee ee ee eS
Litigation History ........---- ese ee rere eee
ARGUMENT FOR ALLOWANCE OF THE WRIT ..
I. The substantial-evidence rule does not
permit the Court of Appeals to accept the
NLRB’s view that SMW’s conduct amounted
only to “mere negligence” ..........--+--+--
II. SMW’s conduct constitutes a breach of
the DFR whether labelled “mere negligence”
or “reckless disregard” of the employees’
WE vw i wees secens ae cee cee neesescces
-jv-
TABLE OF CONTENTS - CONTINUED
Page
III. If SMW’s conduct does not constitute a
breach of the DFR, Le’Mon has been
deprived of “liberty” and “property”
withdut due process of law, in violation
of the Fifth Amendment .................. 24
CRAAMMEIES aca ccwssescy eee eer eT Tere ree 28
APPENDICES
A. ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
DENYING PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING
See re es Oy Dn oe ccc c cows venesies la
B. DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH
CED CEC EG GUOEE 6 Ok 6h ea wkn eee ccscdus 3a
C. JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH
CURCUNT Ole 7, Dw... oo con. 5555..-.>- 9a
D. DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH
CIRCUIT AFFIRMING THE ORDER OF
THE NATIONAL LABOR RELATIONS
BOARD (May 7, 1990) ...........-ee eee eeee lla
E. DECISION AND ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AND ADMINISTRATIVE LAW JUDGE’S
SPE Ee CUO. SU, SUED 5 kn keseseascscccss 21a
-V-
TABLE OF CONTENTS - CONTINUED
Page
F. COMPLAINT AND NOTICE OF HEARING
(Ag. Zi, TRGB) osc sc emace’s Pree Peer Tee 49a
G. RELEVANT CONSTITUTIONAL AND
yy vptgi? $9. * Breer 55a
H. APPELLANT'S PETITION FOR PANEL ~*
REHEARING WITH SUGGESTION
FOR REHEARING EN BANC FILED
WITH THE UNITED STATES COURT
OF APPEALS FOR THE TENTH
COGAPEE GOO BO; SOME: So ke eke 6 soy es cerned 59a
-vi-
TABLE OF AUTHORITIES
Cases
Abood v. Detroit Board of Education,
431 U.S. 209 (1977)
Air Line Pilots Association v. O'Neill,
499 U.S. __, 111 S. Ct. 1127 (1991) .......
Alicea v. Suffield Poultry, Inc., 902 F.2d
125 (ist Cir. 1990)
Carey v. Piphus, 435 U.S. 247 (1978) ........
Carswell v. Bay County, 854 F.2d
454 (11th Cir. 1988)
Chicago Teachers Union, Local
No. I v. Hudson, 475 U.S. 292 (1986)
City of Canton v. Harmis, 489 U.S. 378 (1989)
Danese v. Asman, 875 F.2d 1239
(6th Cir. 1989), cert. denied,
494 U.S. 1027 (1990)
Davis v. City of Ellensburg,
869 F.2d 1230 (9th Cir. 1989)
Dutnisac v. Caterpillar Tractor Co.,
749 F.2d 1270 (9th Cir. 1983)
Eichelberger v. NLRB, 765 F.2d
851 (9th Cir. 1985)
Estelle v. Gamble, 429 U.S. 97 (1976)
“ee ee ee ee eeweeeeeeeeeee
“ee ef ee © @e © ee ew
-vii-
TABLE OF AUTHORITIES - CONTINUED
Page
Fidelity Leasing Corp. v. Dun & Bradstreet,
54 ©. Supp. 706 (ED. Pa. 1980) 2... 2... ccc eens 19
Ford Motor Co. v. Huffman,
Se NE ses ai cas Se Wah atea enone 27
Foust v. Electrical Workers, 572 F.2d
710 (10th Cir. 1978), rev'd on other
groumams, 442 US. 42 (1979) nw. ccc cee 8, 18
Hitchman Coal & Coke Co. v. Mitchell,
POE PUNE ik nuns bn 4ds <n sabecneesaw nn 25
J.I. Case Co. v. NLRB, 321 U.S.
RS ne ee ean oe 26
Kozera v. Westchester-Fairfield
Electrical Contractors Ass’n,
909 F.2d 48 (2d Cir. 1990),
cert. denied, _ US. __,
PRR EES cow na bade as even veeeGadeas 23
Local 860, Teamsters v. NLRB,
See ue ONE Cis GO OED ck ce aces ccnseeocds 23
Medo Photo Supply Corp. v. NLRB,
etn su de ebawnswedbiectake 25-26
NLRB v. Allis-Chalmers Mfg. Co.,
ee eb i we CRAKS wos vomeaws 20, 25
NLRB v. Catholic Bishop,
ee ME So ccna ot Ansan eet euateds 28
-Vili-
TABLE OF AUTHORITIES - CONTINUED
Page
NLRB v. Jones & Laughlin Steel Corp.,
— ge SP ere ere Tee eee eee eee eee ee 19, 26
Order of Railroad Telegraphers v.
Railway Express Agency, Inc., 321 U.S.
| RR Srey rere rr ee ee eee ee 26
Peterson v. Kennedy, 771 F.2d 1244
Perr eT Teer Tere rere eee 17, 25
Railway Clerks v. Allen,
I OC OT cas cn oa coe 6s wee ew vom 23
Robesky v. Qantas Empire Airways, Lid.,
og ge errr rr errr rey r rey eS 19
Robinson Insurance & Real Estate, Inc.
v. Southwestern Bell Telephone Co.,
306 F. Bae. FGF CWE. AGG. F973) ww cess 19
Spell v. McDaniel, 824 F.2d 1380
(4th Cir. 1987), cert. denied
sub nom. City of Fayetteville
oe ke eae. | rer rrrrrrerr err ere 24 ©
Steele v. Louisville & N.R.R.,
me es ree 23-24, 26-27
Swatts v. United Steelworkers,
ee Bee ey fe | err ere errr 23
United Steelworkers v. Rawson, :
RC reer ee re ray, passim
TABLE OF AUTHORITIES - CONTINUED
Page
Universal Camera Corp. v. NLRB,
i fe | a 16
Vaca v. Sipes, 386 U.S. 171 ( ME rp ebeeekus cen passim
Virginian Ry. v. System Federation
No. 40, 300 U.S. 515 (1937) ...................... 26
Wallace Corp. v. NLRB,
FEF Me MOTI) oon ck cence cc cewccce..,. 27
Constitutional, Rule &
Statutory Provisions
i SS ea eee 20
pi ee a, ZS
i passim
Rules of the Supreme Court of
the United States
RG Cxwbe deeds cee kth halcacc re 11
WE Weide e severe sis ce ee 11
aot Pe Seg gep rc a, ADNe Ie a Se eh 2
28 U.S.C.A. § 1254(1) (West 1990) ................... 2
National Labor Relations Act
29 US.C.A. § 141(b) (West 1990) .............. 3, 19
29 US.C.A. § 151 (West 1990) ................ 3, 19
29 U.S.C.A. § 157 (West 1990) ................... 3
-X-
TABLE OF AUTHORITIES - CONTINUED
Page
29 U.S.C.A. § 158(b)(1)(A)
Ee CES on cask 6 es 64.08 WOW ee
29 US.CA. § 158(d) (West 1990) ............. passim
29 U.S.C.A. § 158(d)(3) (West 1990) ........... 4, 13
29 US.CA. § 159(a) (West 1990) ............. passun
y Bib tow SF ith 8 eee 3,8
ee ey Se ak nae 0 bees d cebcicseons 23-24
Miscellaneous
Comment, “The Mechanics of Collective
Bargaining,” 53 Harv. L. Rev. 745
Pn SeccshseeeSat hee sa bekaseaseceekd cweens 26
J.A. Gross, The Making of the National
Labor Relations Board: A Study in
Economics, Politics and the Law,
ED 6c cee ek ee eecnsacekt-eesdetewsons 26
Weyland, “Majority Rule in Collective
Bargaining,” 45 Colum. L. Rev.,
| TTT eT TTT CR PLT TT eee ree Teer ere 26
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
PETE LE’MON,
Petitioner,
Vv.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
INTRODUCTION
Petitioner Pete Le’Mon respectfully requests that a writ of
certiorari issue to the United States Court of Appeals.
OPINIONS BELOW
This case originated with charges Le’Mon filed with the
National Labor Relations Board (NLRB) through its Regional
Office in Phoenix, Arizona. The NLRB Regional Director
issued a complaint which was heard before an Administrative Law
Judge (ALJ). The ALJ issued a recommended decision and
order. The ALJ’s recommended decision was reviewed by a
panel of the NLRB, which issued a decision. The NLRB’s
decision was reviewed by the United States Court of Appeals for
the Tenth Circuit. This process resulted in the following
decisions:
2.
The ALJ’s recommended decision and order is dated March
4, 1987, is officially reported at 291 N.L.R.B. No. 41, and is
reprinted in the Appendix (App. __) at 30a.
The NLRB’s decision and order is dated September 30, 1988,
is officially reported at 291 N.L.R.B. No. 41, unofficially reported
at 131 L.R.R.M. 1199, and is reprinted at App. 21a.
The initial decision of the United States Court of Appeals
for the Tenth Circuit is officially reported at 902 F.2d 810 (1990),
is unofficially reported at 134 L.R.R.M. 2209, and is reprinted at
App. lla. The judgment thereon is reprinted at App. 9a.
Pete Le’Mon, the petitioner here, filed a timely petition for
certiorari with this Court from the initial decision of the Tenth
Circuit in this case. This Court, on March 25, 1991, remanded
the case for reconsideration in light of United Steelworkers v.
Rawson, 495 U.S. 362 (1990), and Air Line Pilots Association v.
O'Neill, 499 U.S. __, 111 S. Ct. 1127 (1991). Le’Mon v. NLRB,
__ US. __, 111 S. Ct. 1383 (1991).
On remand, the Tenth Circuit affirmed its initial decision,
although on different grounds. Le’Mon v. NLRB, 952 F.2d 1203
(December 20, 1991) (Le’Mon II). The decision on remand is
reprinted at App. 3a. Le’Mon filed a timely petition for rehear-
ing and suggestion for rehearing en banc. The Court, by order
entered March 24, 1992, denied both the petition for rehearing
and the suggestion for rehearing en banc. The order is unpub-
lished, and is reprinted at App. la.
JURISDICTION
The decision of the Tenth Circuit on remand from this
Court, App. 3a, was entered December 20, 1991. Le’Mon’s
timely petition for rehearing and suggestion for rehearing en
banc, App. 59a, was denied on March 24, 1992. App. la. This
Court therefore has jurisdiction over the instant petition under
28 U.S.C.A. § 1254(1) (West 1990) and Rule 13.4 of its rules.
a eemeraceaaeenaaa mmm
x *
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First and Fifth Amendments to the Constitution of the
United States are relevant to this case. In addi'ion, §§ 7, 8(b)(1)
(A), 8(d), 9(a) and 10(f) of the National Labor Relations Act
(NLRA), respectively 29 U.S.C.A. §§ 157, 158(b)(I)(A), 158(d),
159(a), and 160(f) (West 1990), as well as 29 U.S.C.A. §§ 141(b),
151 (West 1990), are germane to this Court’s consideration of the
case. All relevant constitutional and statutory provisions are
reprinted verbatim and in order, beginning at App. 55a.
STATEMENT OF THE CASE
Material Facts
Le’Mon was employed by Aztech International, Inc.
(Aztech), as a silkscreen paint specialist, until October of 1985.
His employment was within a bargaining unit of employees
represented by Sheet Metal Workers’ International Association
Local No. 49 (SMW). SMW was the exclusive representative of
unit employees, including Le’Mon, under authority of NLRA
§ 9(a) for purposes of collective bargaining, contract administra-
tion, and grievance adjustment with Aztech on the employees’
behalf.
The Aztech/SMW collective bargaining agreement covering
unit employees was due to expire on September 30, 1985. In the
late Summer of 1985, SMW conducted a strike vote among the
Aztech employees it represented. The membership authorized a
strike to be conducted. On September 29, 1985, SMW had
received Aztech’s “final offer,” and held a membership vote to
i.
accept or reject the bargaining agreement proposed by Aztech.
The membership voted to reject Aztech’s offer.’
A strike ensued on October 1, and effectively ended on
October 5, 1985, when employees learned through newspaper
accounts or letters from Aztech that the strike was “illegal.”
Thereafter, Aztech would only take the striking former employees
back to employment as “new hires.”
SMW concedes that the strike was ii/egal, and that it had not
filed with the Federal Mediation and Conciliation Service
(FMCS) the strike notice mandated by NLRA § 8&(d). The
record before the ALJ explicitly shows SMW’s admission that,
“service of [the required] notice on the F[ederal] M[ediation] and
Cfonciliation] S[ervice] was given by lawyer (inaudible) Septem-
ber 11, 1985, which was received by the FMCS on September 17,
1985.”? It shows SMW’s additional admission that the notice
“did not comply with the thirty-day time period required for
notice of the existence of the dispute as set forth in Section
[8(d)(3)] of the [NLRAJ.”° And the record contains SMW’s
further admission that “its conduct [of the strike] began in less
than thirty days after service of the notice on FMCS.” * As
SMW’s lawyer put it: “Yeah, well, obviously I’m stuck with the
fact that we gave the notice on the 11th, it was received on the
17th by the Service, a strike commenced on October 1. Now, I’m
not going to deny any of those facts * * * that’s obvious.”* Thus,
' ‘There is a factual dispute, irrelevant to this petition, as to the exact date
within this period that the strike was authorized by SMW membership, as well
as to whether the authorization was unanimous or not.
? Transcript (Tr.__) of proceedings before the ALJ, October 21, 1986, at 8.
* Tr. 9 (emphasis added).
* Id.
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the strike was begun a full nineteen days before one was permit-
ted under § 8(d).
Even more fundamentally to this Court’s review of the issues
in this case, the record below shows that SMW never advised the
Aztech employees at the meetings held in September of 1985 that
the notice required by § 8(d) had not been timely filed. Accord-
ing to SMW records, meetings were held on September 18, 26,
and 30.° The September 30, 1985 meeting was crucial, as it was
held “[t]o accept or reject the contract.”’ Thus, in voting on
September 30, the employees were denied the vital piece of
information that SMW had not timely filed the notice which was
a mandatory precondition to a lawful strike. As the ALJ so
sensitively put it, despite his harsh decision described below, “I’m
sorry that it caused such pain for the employees, who found
themselves hooked by the language of Section 8-D, which
deprived them of employment status.”
Litigation History
On October 29, 1985, Le’Mon filed charges with the NLRB’s
Regional Office in Phoenix. He alleged that SMW violated
NLRA § 8(b)(1)(A) because, inter alia, it did not advise the
Aztech employees it represented that SMW had not timely filed
the § 8(d) notice. The Regional Director issued a complaint on
those charges on April 21, 1986.°
The issues raised by the Regional Director’s complaint were
presented to James M. Kennedy, ALJ, on October 21, 1986. ALJ
Kennedy issued his decision on March 4, 1987."° ALJ Kennedy
first identified two separate standards for duty-of-fair-representa-
tion (DFR) violations. First, he concluded that SMW’s duty “was
not a fiduciary one, for the Supreme Court and the Board have
both held that the relationship requires only that the statutory
representative provide equal protection to the employees it
represents.”"’ On the other hand, ALJ Kennedy also concluded
that “[a]s a result of Vaca [v. Sipes, 386 U.S. 171 (1967)] the duty
of fair representation is now often described as one in which a
union may not act arbitrarily, invidiously, irrelevantly, unfairly or
perfunctorily in carrying out its representational duties.” He
acknowledged that “the duty itself remains somewhat murky
depending on the fact pattern being presented.” After finding
that “if [SMW’s] duty is that of a fiduciary, it failed to meet it[,]”
ALJ Kennedy ultimately found no violation in this case because,
“only those [acts] which have been motivated by hostile, invidious,
irrelevant, or unfair considerations [result in a DFR viola-
tion].”"*
The NLRB affirmed in a decision and order dated Septem-
ber 30, 1988." The NLRB found that SMW’s “deficiencies in
representing the employees amounted to no more than mere
© App. 30a.
" App. 39a.
App. 40a.
"> App. 41a.
'* App. 46a (citing cases) (emphasis added). Also, at App. 46a n.7, the ALJ
noted that, “[t}he Board has imposed a fiduciary obligation on unions in the
enforcement of union security clauses.”
'S App. 21a.
2
x 2
negligence.” The NLRB admonished that “[t]he representa-
tion that [SMW] provided the employees in this case may not
meet the standards of competence and caution that the Board
would like to see observed.”’’ Despite the fact that SMW failed
to meet “the standards of competence and caution” the NLRB
would otherwise have liked, the NLRB found no violation of
§ 8(b)(1)(A) because “[a] breach of duty of fair representation
occurs Only when the representative’s conduct is ‘arbitrary,
discriminatory, or in bad faith.’”'* The NLRB did not “consider
the conduct here to have been arbitrary.” As a caveat, the
NLRB “assume[d], arguendo, that a union that takes action in
‘reckless disregard’ of its statutory duties to unit employees
violates its duty of fair representation.”"” But remarkably, the
NLRB suggested that the employees’ only remedy for SMW’s
nonfeasance and misfeasance was to “boot the rascals out,” and
not compensation for the losses resulting from that miscon-
duct.”
6 App. 22a. The NLRB panel agreed on this point. It split 2-1 over
whether SMW’s treatment of employees, on or after October 2, 1985, was a
further violation of the DFR.
” App. 24a.
* Id.
"9 Id.
® Id. at n.5.
' The NLRB said: “[SMW’s] deficiency in representation is a matter for
employees to consider in selecting and supporting their representative, not a
matter correctable under Section 8(b)(1)(A) of the Act.” App. 24a-25a.
-
Le’Mon filed a petition for review of the NLRB’s decision
with the United States Court of Appeals for the Tenth Circuit.”
The Tenth Circuit affirmed the NLRB in a decision filed May 7,
1990.~ Judgment was entered thereon on that same date.
In its decision, the court noted that, “[bjoth Vaca and Foust I
involved a union’s handling of an individual union member’s
grievance, while in the present case the union’s negligent conduct
affected all its members.”* Distinguishing those cases from
Le’Mon’s, the court said that “the injured party here is not an
individual or group singled out for treatment different from that
accorded the majority, but the entire class of Aztech employees
represented by the Union.”* On that basis, the court “de-
cline[d] to extend the duty to situations in which the injury
suffered is common to the majority of represented employees.””’
Like the NLRB, the court eschewed any relief for employees in
Le’Mon’s situation, saying, with complete disregard for the facts,
“the Aztech employees had a remedy against the Union for the
harm caused by the Union’s negligence and they used that
2 The court had jurisdiction over Le’Mon’s petition for review, as he is a
“person aggrieved by a final order of the Board granting or denying in whole or
in part the relief sought,” under NLRA § 10(f), 29 U.S.CA. § 160(f) (West
1990).
® App. 11a.
* App. 9a.
* App. 15a. Vaca refers to Vaca v. Sipes, 386 U.S. 171 (1967). Foust I
refers to Foust v. Electrical Workers, 572 F.2d 710 (10th Cir. 1978), rev’d on
other grounds, 442 U.S. 42 (1979) (emphasis in original text).
** App. 17a.
7” App. 20a.
-9-
remedy: they petitioned for an election to oust the Union as the
exclusive bargaining representative.”™
Le’Mon filed a timely petition for certiorari with this
Court.” This Court granted Le’Mon’s petition, and remanded
the case for consideration “in light of Air Line Pilots Association,
International v. O'Neill, 499 U.S. __[, 111 S. Ct. 1127] (1991)
and United Steelworkers of America, AFL-CIO-CLC vy. Rawson,
495 U.S. [362] (1990).””
On remand, the Tenth Circuit stated: “We affirm after
reconsideration of the case, albeit on grounds different from
those underlying our decision in Le’Mon I." The court
acknowledged that “[a]rbitrary union conduct breaches the duty
of fair representation and invites sanction by the [National Labor
Relations] Board and the courts.” The court also acknowl-
edged that “[a] finding that [union] conduct amounts to mere
negligence should be reviewed under the same [substantial
evidence] standard.”” Despite recognition of the applicable
legal and review standards, and without examining whether the
“record as a whole” supports (or requires) the conclusion that the
union’s conduct was more than “mere negligence” and even a per
se violation of the duty of fair representation, the court
* App. 18a. Of course, the court did not, and could not, explain how
Ousting SMW restores the employees’ economic losses resulting from its DFR
violation.
*® Le’Mon v. NLRB, 902 F.2d 810 (10th Cir. 1990), petition for cert. filed, 59
U.S.L.W. 3180 (U.S. Sept. 5, 1990) (No. 90-400).
* Le’Mon v. NLRB,__US.__, 111. Ct. 1383 (1991), vacating judgment
and remanding 902 F.2d 810 (10th Cir. 1990).
* Le’Mon v. NLRB, 952 F.2d 1203 (10th Cir. 1991), App. at 4a.
* App. at Sa.
* App. at 6a.
-10-
inexplicably concluded: “Where union behavior is merely
negligent, nothing more need be done, and courts should not
intervene.”™
Le’Mon filed a petition for panel rehearing with suggestion
for rehearing en banc.” He there presented his position that
the court on remand had “overlooked or ignored” issues present-
ed by O’Neill and Rawson.” He also argued that the panel’s
decision on remand raised serious and substantial questions under
the Fifth Amendment, on grounds that if, in these circumstances,
Le’Mon had no relief under the duty of fair representation, then
the statute’s grant of “exclusive representation” to SMW deprived
him of “liberty” and “property” interests in his employment.”
The court denied Le’Mon’s petition and suggestion by clerk's
order dated March 24, 1992, and without an opinion.*
ARGUMENT FOR ALLOWANCE OF THE WRIT
This Court should grant a writ of certiorari for two reasons:
First, although purporting to rely on a decision of the Court of
Appeals for the Ninth Circuit” for the proposition that the
DFR does not apply to a union’s “merely negligent” conduct, the
Court of Appeals for the Tenth Circuit instead has actually ruled
™ App. at 8a.
*§ App. at 62a. .
* App. at 69a-75a. .
*” App. at 75a-76a.
* App. at la.
* Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985), cited in App. at 6a.
|
44.
in conflict with that decision.“ And second, by holding the
DFR inapplicable to “merely negligent” violations of the man-
datory duty to file the mandatory § 8(d) notice, the Court of
Appeals has drawn into serious question the constitutionality of
§ 9(a), thereby implicitly deciding an important issue of federal
labor and constitutional law that has not been, but should be,
explicitly settled by this Court.
The Court of Appeals’ opinion in Le’Mon II explicitly rests
on two propositions:
¢ Substantial evidence supports the NLRB’s finding that
SMW’s conduct amounted only to “mere negligence.”
And,
@ “Mere negligence” cannot constitute a violation of the
DFR.“
The court’s denial of Le’Mon’s petition for rehearing and
rehearing en banc also implicitly rejects the argument that:
¢ Ifthe DFR provides no remedy here, Le’Mon has been
_ deprived of liberty and property without due process
(indeed, without any process) of law.“
On each of these points, the Court of Appeals has ruled in
irreconcilable conflict with the legitimate purposes of and limits
upon exclusive representation under § 9(a), this Court’s decisions
in O’Neill and Rawson, and the requirements of the Due Process
“ Rule of the Supreme Court of the United States 10.1(a) justifies review
on that ground alone.
“ Rule 10.1(c).
© App. at 6a.
© See App. at 75a.
-12-
Clause of the Fifth Amendment to the Constitution of the United
States.
I. The substantial-evidence rule does not permit the
Court of Appeals to accept the NLRB’s view that
SMW’s conduct amounted only to “mere negligence.”
Citing the Ninth Circuit’s earlier opinion in Eichelberger, the
Court of Appeals noted that “[a] finding [by the NLRB] that
[union] conduct amounts to mere negligence should be reviewed
under the [substantial-evidence] standard.“ As Eichelberger
itself demonstrates, however, that the record may contain
substantial evidence of “mere negligence” does not necessarily
preclude it from also containing substantial evidence of “‘some-
thing more’ than mere negligence, i.e., arbitrary conduct violative
of [the DFR]."* Thus, contrary to the Court of Appeals’ view,
the issue here is not whether “the evidence is insufficient to
support the [NLRB’s] characterization of the conduct of the
Union representatives as [mere] negligence,” but instead, whether
the evidence belies the NLRB’s denial that that conduct was
more than “merely negligent.”
Such is this case. The Court of Appeals focussed too
narrowly on whether “the Union representatives’ exhortation to
continue the strike after they learned of its possible illegality goes
beyond mere negligence." The record as a whole paints a
broader picture of culpability:
-
“ App. at 6a, citing Eichelberger v. NLRB, 765 F.2d 851, 856 (9th Cir. 1985).
© Eichelberger, 765 F.2d at 856.
“ App. at 7a (emphasis added).
nnn eneneeeeneemmmmnnmnme amen
i lace emailed
-13-
Before the strike began —
¢ The strike was illegal because one of SMW’s agents (an
attorney) had not timely filed with the FMCS the notice
required by § 8(d)(3).”’
¢ At three meetings—including the crucial one held to
accept or reject the contract—other of SMW’s agents
failed to advise the employees that the union had not
timely filed the notice that was a mandatory precondi-
tion to a lawful strike, and in the absence of which
“[a}]ny employee who engages in a strike * * * shall lose
his status as an employee of the employer engaged in
the * * * labor dispute.”
After the strike began —
¢ The day the strike began, all the employees received a
letter from Aztech stating that the strike was i!legal,
that the employees were not protected by the NLRA
against discharge, and that all of them were terminated
“effective immediately.”
¢ The next day, an article in a local newspaper reported
that Aztech had filed an unfair-labor-practice charge
against SMW, and that the NLRB Resident Officer had
stated that the picketing was illegal.”
¢ Both before and after the newspaper article appeared,
SMW agents Briggs and Gilliland were aware of
” Tr. at 8-9, 17. «
“ 29 U.S.C.A. § 158(d) (West 1990), App. at 58a.
” App. at 35a-36a.
* App. at 36a.
-14-
Aztech’s contention that the strike was illegal, but “did
not believe it,” and told employees that the statements
in the discharge letter were only “a company tactic.”
¢ Briggs’ and Gilliland’s disbelief of Aztech’s assertion was
not based on any knowledge or expertise they had,” or
on advice of SMW’s attorney, who was “out of town”
when Briggs called the attorney’s office to verify the
employer’s contention. Rather, it rested solely on
Briggs’ protracted failure to obtain the necessary
information.”
¢@ Thus, prior to and during the strike, one SMW agent—
its attorney—knew that the strike was illegal because of
his own failure to file a timely § 8(d) notice. During
the strike, two SMW agents—Briggs and Gilliland—had
actual notice that both Aztech and an NLRB represen-
tative considered the strike illegal. And, during the
strike, one SMW agent—Briggs—“was unable to find
out whether the [§ 8(d) notice] had been sent timely”
“because of [the attorney's] absence,” but “decided to
‘tough it out’” anyway,” apparently without contacting
the FMCS for verification of the true facts.
The NLRB opined that, in disregarding the employer’s letter
as “company ‘rhetoric’ or a company ‘ploy,’ and urg{ing] the
Strikers to ‘stick together,’” “without further investigating the
*' As the NLRB noted, “[t)he agents were not lawyers and did not seem to
understand the effect that the failure to give proper [§] 8(d) notice had on the
Strikers’ status as employees.” App. at 23a (footnote omitted). Nevertheless,
although aware of their own ignorance of the facts and controlling legal
principles, the agents blindly plunged ahead to recommend to the employees a
course of action that had catastrophic results.
* App. at 37a.
® Id.
-15-
situation or obtaining the advice of [SMW’s] attorneys,”™ Briggs
and Gilliland
may have a. -' negligently, but their conduct was not so
lacking of a r.- onal or logical basis as to be arbitrary.
In meeting the employees’ questions, the agents as-
sessed events from a practical point of view. As they
saw it, loss of employment is a risk in any strike, and
employees’ best protection is to stick together.”
Exactly the opposite is true: “[Al]ssess[ing] events from a
practical point of view”—in deliberate ignorance of both the facts
and the legal consequences thereof—was nonrational and illogical
where the statutory mandate of § 8(d) controlled. For, by force
of § 8(d), loss of employment was not simply “a risk in [continu-
ing the] strike,” but a certainty; and the employees gained no
“protection” by “stick{ing] together” under the delusion of
SMW’s misrepresentations about Aztech’s “rhetoric” and “ploys,”
but only guaranteed the forfeiture of their status as employees
and the benefits that status conferred on them.”
In sum, the Court of Appeals was doubly wrong to say that
Le’Mon rests his contention that the Union’s conduct
deserves sanction on his imputation of knowledge of
illegality to the Union representatives. The [NLRB]
* NLRB Decision, App. at 22a.
* App. at 23a.
* The NLRB suggested that SMW was not “reckless” because, “even if the
agents had understood that the strikers lost status as employees * * * , there was
little they could do to benefit the employees at that point.” App. at 24a. This
gratuitous supposition leaves aside the Possibility that, if SMW had quickly
admitted the illegality of and called off the strike, Aztech would have changed its
Position with respect to terminating the employees.
-16-
found that they did not know * * * and we have no
reason to upset this factual finding.”
First, one SMW representative (its attorney) did know of the
illegality of the strike. Second, two other SMW representatives
(Briggs and Gilliland) were on notice of the illegality, but in the
face of their own inexpertise in labor law and inability to confirm
matters with SMW’s attorney (both of which they were aware)
chose to disregard the dire consequences § 8(d) imposes, and
irresponsibly urged the employees to initiate and continue an
ultimately disastrous course of conduct—in effect, playing Russian
roulette with the employees’ jobs. To disregard what SMW’s own
attorney knew, because its other two agents did not know as
much; and then to disregard that the other two were on notice
that the attorney had information crucial to the situation (but the
specifics of which were unknown to them) is to ignore or flout,
not to apply, the substantial-evidence rule.*
II. SMW’s conduct constitutes a breach of the DFR
whether labelled “mere negligence” or “reckless dis-
regard” of the employees’ rights.
A. The Court of Appeals’ reliance on Eichelberger to deny
that “mere negligence” can constitute a violation of the DFR is
doubly peculiar, because Ejichelberger recognized that, in
Dutrisac,” the Ninth Circuit had held that “negligence may
violate [the DFR] where both the individual interest at stake is
strong and the union’s failure to perform a ministerial act
completely extinguishes the employee’s right to pursue his
*” App. at 7a.
* “The substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951).
* Dustrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983).
o17-
claim.”® As Dutrisac explained, “more instructive” than attach-
ing labels such as “simple negligence” to union misfeasance or
nonfeasance is to consider “the types of unintentional errors
* * * that usually are held to breach the [DFR].”"
Present in this case are the six elements necessary to make
out a DFR violation under Dustrisac, as applied in Eichelberger
and the later decision in Peterson:
e “[A]n employee’s interest in not being fired * * * is
strong.”
@ SMW “failed to perform a procedural or ministerial
act” under § 8(d).
© ‘“[T]he act in question did not require the exercise of
judgment.”*
e “[T]here was no rational and proper basis for the
union’s conduct”;® and SMW’s “total failure to act
* * * is unexplained and unexcused.”®”
© Dutrisac, 749 F.2d at 1274, quoted in Eichelberger, 765 F.2d at 855.
*' 749 F.2d at 1272-73.
© Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985).
© Eichelberger, 765 F.2d at 855.
- sneaiain 771 F.2d at 1254.
a '
at}
* Dutrisac, 749 F.2d at 1270.
-18-
@ “[T]he union’s failure to perform [that] ministerial act
completely extinguishe[d] the employee’s right” to
employment.* And,
@ SMW’s failure was “the solitary and indivisible cause of
the complete extinguishment of [the] employee’s * * *
rights.”
Therefore, SMW’s conduct constituted a breach of the DFR
even if that conduct could be labelled by someone as “simple
negligence.”
B. Although eschewing the use of “mere[ } labels,” Dutrisac
did recognize that “a[ union’s] unintentional mistake is arbitrary
if it reflects a ‘reckless disregard’ for the rights of the individual
employee, but not if it reflects only ‘simple negligence violating
® Id. at 1274.
® Eichelberger, 765 F.2d at 855. The NLRB lamely offered that “the
employees were free to accept the Union’s advice or the Employer’s advice [as
to striking]. There is no evidence that [SMW], by threat of fine or other
retaliation, coerced the employees to continue collective action. The employees
could have decided to abandon the strike or to apply individually for employ-
ment.” App. at 24a. This too facile observation forgets that Le’Mon lost his
employment, not simply because he was on strike, but solely because: SMW
failed to file the § 8(d) notice, thus rendering the strike illegal ab initio; SMW
failed to notify Le’Mon of this crucial fact; and, after its lay agents should have
realized that a serious problem existed, SMW failed to correct—and, indeed,
created and exacerbated—the employees’ misunderstanding. As Le’Mon’s § 9(a)
exclusive representative, SMW alone had the authority, and the duty, to give the
§ 8(d) notice. Le’Mon was powerless in the premises. Therefore, “[hjaving
undertaken to act affirmatively on behalf of [Le’Mon], the Union is precluded
from escaping responsibility by asserting that [Le’Mon] could or should have
[taken action] rather than depend on it.” Foust v. Electrical Workers, 572 F.2d
710, 717 (10th Cir. 1978), rev’d on other grounds, 442 U.S. 42 (1979).
-19-
the tort standard of due care.’”” In the totality of the circum-
stances here, SMW’s actions (even if arguably “unintentional”)
manifested “reckless disregard” for Le’Mon’s employment
rights.” Yet, the crucial factual-cum-legal element in this case
is the unqualified notice-requirement of § 8(d) that SMW failed
to satisfy. This element renders SMW’s conduct a violation of
the DFR, even if that conduct arguably amounted only to “mere
negligence,” for three reasons:
First, § 8(d) embodies the vital congressional policy of
fostering collective bargaining, in preference to strikes and other
forms of direct action that disrupt interstate commerce.” To
excuse as an unfair labor practice or a breach of the DFR a
union’s failure to comply with § 8(d), simply because that failure
is “merely negligent,” would subordinate this overarching purpose
of the congressional scheme of labor-management relations to
some “lowest common denominator” of union behavior. Know-
ing that many unions acting as exclusive representatives under
§ 9(a) exercise tremendous power to disrupt the flow of interstate
commerce,” Congress could never have intended that national
labor law should immunize such disruption were its source the
unions’ “merely negligent” behavior. For the deleterious effects
” 749 F.2d at 1272, quoting Robesky v. Qantas Empire Airways, Ltd., 573
F.2d 1082, 1089-90 (9th Cir. 1978). See United Steelworkers v. Rawson, 495 US.
362, __, 110 S. Ct. 1904, 1911 (1990) (“The courts have in general assumed that
mere negligence * * * would not state a claim for breach of the duty of fair
representation, and we endorse that view today.” (Emphasis added.))
" See, e.g., Robinson Insurance & Real Estate, Inc. v. Southwestern Bell
Telephone Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)(“carelessness or
recklessness * * * that shows utter indifference to the consequences that may
result”); Fidelity Leasing Corp. v. Dun & Bradstreet, 494 F. Supp. 786, 790 (E.D.
Pa. 1980) (“a want of even scant care”).
” See 29 U.S.C.A. §§ 141(b), 151 99 1, 3-5 (West 1990) and NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1, 6-10 (1937).
™ See 29 US.C.A. § 151, 14 (West 1990).
-20-
on interstate commerce—and the reach of Congress’ power to
intervene“—are identical, whether a statutorily unauthorized
strike arises from “mere negligence,” from “reckless disregard” of
others’ rights, or from intentionally malicious conduct. Therefore,
the policy undergirding § 8(d) calls for a rule deeming any failure
to give the notice that section prescribes a per se violation of the
DFR.
Second, in line with Congress’ deep concern with limiting the
incidence of strikes that further bargaining or mediation might ~ -
forefend, following the failure of the union acting as a § 9(a)
exclusive representative to file the prescribed notice, § 8(d)
penalizes every employee on strike in the most draconian
manner: loss of “his status as an employee of the employer
engaged in the particular labor dispute.” Yet, perforce of § 9(a),
each employee has no choice but to rely on his exclusive repre-
sentative to fulfill the requirements of § 8(d), because exclusive
representation “extinguishes the individual’s power to order his
own relations with his employer and creates a power vested in the
chosen representative.”” The cruel disjunction between the
disability of each employee to protect his own job through self-
help, and the power of the union to misuse its § 9(a) status to
forfeit the employee’s job through noncompliance with § 8(d),
also argues compellingly for a rule deeming any failure to give
the notice the latter section prescribes a per se violation of the
DFR.
Third, such a per se rule would not offend, but indeed would
follow, the reasoning of this Court’s decision in Air Line Pilots |
Association v. O’Neill”® as to what constitutes “arbitrary” conduct
under the DFR. O’Neill held that “a union’s actions are arbitrary
only if, in light of the factual and legal landscape at the time of
™ US. Const. art. I, § 8, cl. 3.
> NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967).
* 499 US. __, 111 S. Ct. 1127 (1991).
Se
2.
the union’s actions, the union’s behavior is so far outside a ‘wide
range of reasonableness[ ]’ * * * as to be irrational.”” That is
always the case with respect to union violations of § 8(d)—for
§ 8(d) allows no “range of reasonableness” for union conduct;
and, therefore, “in light of the * * * legal landscape” the statute
paints, failure to follow its exceptionless prescription is necessarily
unreasonable as a matter of law, and “arbitrary” under the DFR.
A DFR claim arising under § 8(d) differs in kind from DFR
claims arising out of a union’s negotiation of a contract or
processing of a grievance. Where, as in O’Neill, a union is
involved “in negotiating and accepting [a] settlement,””
Congress did not intend judicial review of a union’s
performance to permit the court to substitute its own
view of the proper bargain for that reached by the
union. Rather, Congress envisioned the relationship
between the courts and labor unions as similar to that
between the courts and the legislature. Any substantive
examination of a union’s performance, therefore, must
be highly deferential, recognizing the wide latitude that
negotiators need for the effective performance of their
bargaining responsibilities.”
Here, in contrast, SMW’s failure to follow § 8(d) was not part of
“negotiating and accepting [a] settlement”—but rather integral to
an attempt to win a labor dispute by confrontation, not negotia-
tion. And judicial review of SMW’s actions under the DFR will
not “permit the court to substitute its own view of the proper
bargain for that reached by the union,” thereby arguably interfer-
ing with a power Congress conferred on the union—but rather
will impose liability on SMW precisely because of the latter’s
” Td. at __, 111 S. Ct. at 1130.
™ Id. at __, 111 S. Ct. at 1131 (footnote omitted).
™ Id. at___, 111 S. Ct. at 1135.
-22-
unexcusable violation of a strict congressional mandate. Thus,
application of a per se rule under the DFR for violations of
§ 8(d) will place the courts and labor unions in exactly the
relationship “between the courts and the legislature”: that is,
with the judiciary showing no deference to the legislature when
the latter transgresses constitutional limitations.
Similarly, whereas O’Neill held that a union did not breach
the DFR by agreeing to a “bad settlement,” inasmuch as “[a]
settlement is not irrational simply because it turns out in retro-
spect to have been a bad settlement,”"” here SMW’s failure to
follow § 8(d) was illegal, indefensible, and predictably disastrous
to the employees ex ante, not simply “in retrospect.” On no basis
could such action be considered a “rational” tactic. Moreover,
whereas O’Neill held that a union’s “decision to settle [a dispute]
rather than give up was certainly not illogical," here SMW’s
failure served no “logical” purpose at all. Finally, whereas-
O’Neill held that the settlement there was advantageous to “a
significant number” of employees,” here all the employees were
equally hurt by losing their status as employees through SMW’s
misfeasance.
Therefore, SMW’s conduct should be held a per se breach of
the DFR, whatever label arguably attaches to the facts.
C. A per se rule should also apply here because this case
involves SMW’s nondisclosure of information it alone possessed
that was critical to the employees’ welfare. At the three meetings
before the strike, although SMW (as an institution) knew that the
§ 8(d) notice had not been timely filed, it failed to disclose this
Id. at __, 111 S. Ct. at 1136. ’
"Id.
© Td. at__, 111 S. Ct. at 1137.
lai
fact to the employees.” After the strike began, SMW continued
to fail to disclose not only this fact, but also its other agents’
uncertainty and lack of hard knowledge about whether the notice
had been timely filed and what the effect of an untimely filing
was. SMW took these actions in the course of purporting to
“represent” the employees.
Several courts have recognized that the DFR contains a duty
of disclosure.“ This duty of disclosure reflects the constitutional
underpinnings of the DFR, specifically the component of
procedural due process recognized in Steele.* Procedural-due-
process rights, however, are absolute.” Therefore, SMW’s
failure to disclose critical § 8(d) information should be a per se
breach of the DFR.
D. In any event, this Court should not shrink from afford-
ing Le’Mon a remedy by explicitly adopting a standard under the
DFR that distinguishes between “mere negligence” and the
“reckless disregard” for employees’ rights evidenced here.”” In
litigation under Title 42, United States Code, Section 1983, this
© SMW knew, and had a duty to disclose, because its agent (the attorney)
knew, even if the particular Speakers at the meeting were ignorant of the
problem.
“ E.g., Kozera v. Westchester-Fairfield Elec. Contractors Ass'n, 909 F.2d 48,
49 (2d Cir. 1990), cert. denied, a, VS, 111 S. C 956 (1991); Alicea v.
Suffield Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990); Swatts v. United
Steelworkers, 808 F.2d 1221, 1224 (7th Cir. 1986); Local 860, Teamsters v.
NLRB, 652 F.2d 1022, 1025 (D.C. Cir. 1981).
" Steele v. Louisville & N.RR, 323 US. 192, 204 (1944): “Whenever
necessary to [ensure fair representation), the union is required * * * to give
[employees] notice of and Opportunity for hearing upon its proposed action.” Cf.
also Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 ( 1986).
" Carey v. Piphus, 435 U.S. 247, 266 (1978).
wd 2 Railway Clerks v. Allen, 373 U.S. 113, 124 (1963).
-24-
Court and other federal courts have taken a parallel tack,
separating “deliberate indifference” (which is actionable) from
“mere negligence” (which is not). Inasmuch as the DFR
derives from constitutional concerns over the permissible latitude
an exclusive representative may have “arbitrarily” to injure the
employees it represents,” the application in labor law of the
same standard of “deliberate indifference” (“reckless disregard”)
commonplace in constitutionally-based litigation under § 1983
would be logical and consistent.”
Ill. If SMW’s conduct does not constitute a breach of the
DFR, Le’Mon has been deprived of “liberty” and
“property” without due process of law, in violation of
the Fifth Amendment.
Unquestionably, as a result of SMW’s misfeasance under
§ 8(d), Le’Mon, through no fault of his own, has been deprived
of his property in “his status as an employee of the employer
engaged in the particular labor dispute.” This deprivation
ultimately derives from Le’Mon’s subjection to SMW as his § 9(a)
exclusive representative. For exclusive representation “extin-
guishes the individual [employee’s] power to order his own
relations with his employer and creates a power vested in the
™ E.g., City of Canton v. Harris, 489 U.S. 378, __, 109 S. Ct. 1197, 1204
(1989); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Davis v. City of Ellensburg,
869 F.2d 1230, 1235 (9th Cir. 1989); Danese v. Asman, 875 F.2d 1239, 1242-43
(6th Cir. 1989), cert. denied, 494 U.S. 1027 (1990); Carswell v. Bay County, 854
F.2d 454, 457 (11th Cir. 1988); Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir.
1987), cert. denied sub nom. City of Fayetteville v. Spell, 484 U.S. 1027 (1988).
” Steele, 323 U.S. at 198-99, 203 (opinion of the Court), 208 (separate
opinion of Murphy, J.). See post, pages 23-25.
® In this case, even the NLRB had no trouble in assuming that a “reckless-
disregard” standard could apply. App. at 24a, n.5.
ineaeaaiieeal
2s.
chosen representative,” “strip[s the individual employee] of
traditional forms of redress,”"” and gives unions “a thraldom
over the men who desiginate [them]” by “creat[ing] rights in [the]
unions overriding those of the employees they represent.””
And Le’Mon cannot sue SMW’s attorney for malpractice.™
If Le’Mon has no claim against SMW under the DFR jor
SMW’’s failure to fulfill the prescription of § 8(d), simply because
SMW’s conduct could arguably be characterized as “merely
negligent,” then § 9(a) deprives Le’Mon of both “liberty” and
“property” without due process of law, in violation of the Fifth
Amendment. The right of an employee to make contracts with
an employer, without membership in or other intermediation by
a union, “is a part of the constitutional rights of personal liberty
and private property, not to be taken away even by legislation,
unless through some proper exercise of the paramount police
power.” Whether § 9(a) exclusive representation is “a proper
exercise of the paramount police power” in principle this Court
*" NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967).
” Vaca v. Sipes, 386 U.S. 171, 182 (1967).
® Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 696-97 (1944)
(Rutledge, J., dissenting).
™ Peterson v. Kennedy, 771 F.2d 1244, 1256-59 (9th Cir. 1985). Peterson
justified this result on the theory that, “[i}f an attorney’s conduct falls within the
‘arbitrary, discriminatory or bad faith test’ * * * , the union member may sue the
union for breach of the [DFR].” Jd. at 1259. Thus, Le’Mon has a claim against
SMW under the DFR, or no claim at all against anyone.
* Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 251 (1917). It also
implicates First-Amendment rights of speech and association. See Abood v.
Detroit Bd. of Educ., 431 U.S. 209 (1977).
-26-
has never determined.” In creating the DFR, however, the
Court has recognized that serious constitutional questions would
arise were an exclusive representive authorized to ignore rights
guaranteed by the Constitution.” No reason exists not to apply
*When the constitutionality of the NLRA was first in issue, the NLRB
selected its test-cases “intentionally [to] avoi[d] presenting the Court with the
‘touchy’ and more doubtful question[ }” of exclusive representation. J.A. Gross,
The Making of the National Labor Relations Board: A Study in Economics,
Politics and the Law, 1933-1937 at 187 (1974). And in NLRB v. Jones &
Laughlin Steel Corp., this Court avoided the problem of exclusive representation
by interpreting the statute to permit individual employees to bargain directly with
their employer over the terms and conditions of their employment. 301 US. 1,
45 (1937). Accord, Virginian Ry. v. System Federation No. 40,300 U.S. 515, 548-
49 (1937)(Railway Labor Act). Only seven years later, in cases raising issues of
statutory construction alone, did this Court purport to re-interpret the labor acts
to preclude individual contracts under some circumstances. J.J.Case Co. v.
NLRB, 321 U.S. 332, 334-39 (1944); Order of Railroad Telegraphers v. Railway
Express Agency, Inc., 321 U.S. 342, 346-47 (1944). Neither of these decisions,
however, reconsidered the constitutional matters discussed in Jones & Laughlin
and Virginian Railway, although the statutory constructions adopted in those
cases predicated their constitutional holdings. See Comment, “The Mechanics of
Coliective Bargaining,” 53 Harv. L. Rev. 745, 789-91 (1940). The later decision
in Steele v. Louisville & N.R.R. also pretermitted the question by creating the
DFR, precisely to avoid grappling with the serious problems of due process and
equal protection that exclusive representation raises. 323 U.S. 192, 198 (1944).
See Vaca v. Sipes, 386 U.S. 171, 182 (1967); Weyland, “Majority Rule in
Collective Bargaining,” 45 Colum. L. Rev. 556, 568-69 (1945).
” Steele, 323 U.S. at 198-99, 203 (opinion of the Court), 208 (separate
opinion of Murphy, J.). Although arising under the Railway Labor Act, Steele
referred to “the like provision of” § 9(a), and cited NLRA judicial precedents
and legislative history as authority. 323 U.S. at 200, 202 n.3, citing inter alia J.J.
Case Co. v. NLRB, 321 U.S. 332 (1944), and Medo Photo Supply Corp. v. NLRB,
321 U.S. 678 (1944), along with Order of Railroad Telegraphers v. Railway
Express Agency, Inc., 321 U.S. 342 (1944)(a Railway Labor Act case that relied
on J.J. Case Co. as authority). This equation of the two acts is hardly surprising,
exclusive representation having been held identical under each in the seven years
before. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44-45 (1937), citing
Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 548-49 (1937). And the
Court immediately extended the DFR from the Railway Labor Act to the
iia ili aalli
2.
this analysis to a § 9(a) union’s statutory duty under § 8(d), the
failure to observe which results (as here) in the otherwise
uncompensatable loss of an employee’s property rights. And no
reason exists not to apply this analysis to “merely negligent”
failures to observe that duty, either.™
On Le’Mon’s petition for rehearing, the Court of Appeals
refused to address this issue, raising for the first time in any court
(Le’Mon believes) the issue of whether § 9(a) exclusive represen-
tation is unconstitutional where:
@ The § 9a) representative violates an exceptionless
statutory duty, with respect to which the union has no discretion.
@ As a direct and foreseeable consequence of that
violation, represented employees lose valuable property rights in
their employment. And,
@ The NLRB and the Court of Appeals hold that the
union did not breach its DFR simply because they label the
union’s conduct “merely negligent”—thereby denying the
employees any relief, not only against the union but also against
any third party.
As the circumstances of this case make clear, the security of
employees’ most important right under the NURA—employment
NLRA, explaining thereafter that Steele was the common source of the duty in
both statutes. See Wallace Corp. v. NLRB, 323 U.S. 248, 255-56 (1944); Ford
Motor Co. v. Huffman, 345 U.S. 330, 336-38 (1953), origin explained in Vaca v.
Sipes, 386 U.S. 171, 177 (1967).
™ Steele, after all, rests on the analogy between a union acting as an excluisve
representative and a legislature. 323 U.S. at 198-99. And judicial review of
legislative acts for (in)consistency with the Constitution turns not on whether the
legislature’s acts are “merely negligent,” “reckless,” or “intentional”—but only on
whether those acts comport with constitutional standards vel non.
-28-
itselfi—demands that this issue be addressed, if Le’Mon has no
claim for relief under the DFR.”
CONCLUSION
The writ of certiorari requested should be granted in order
that this Court can resolve:
1. whether a union exercising authority as “exclusive
representative” under § 9(a) commits per se violations of the
DFR owed all represented employees when it fails to file a timely
notice of strike under § 8(d), and further fails to advise employ-
ees of that critical fact;
2. whether such a series of defaults by a union in such
circumstances is more than “mere negligence” and, therefore, a
breach of the DFR; and
3. whether, if the DFR provides no relief for employees
discharged from their employment solely because of their
exclusive representative’s statutory default and subsequent
repeated failures to advise employees of that default, are the
employees deprived of their right to due process of law under the
Fifth Amendment?
These are serious and substantial questions under the NLRA
and United States Constitution. And the standards to be applied
in determining DFR cases continue to divide the Courts of
Appeals. These questions warrant consideration and answers by
* Of course, if possible, the issue should be avoided by deciding that the
DFR provides Le’Mon full relief. See NLRB v. Catholic Bishop, 440 U.S. 490,
499-500 (opinion of the Court), 508-11 (Brennan, J., dissenting) (1979).
-29-
this Court if the DFR is to be, as promised, a “bulwark” protect-
ing employees from harm at the hands of organizations granted
powers as “exclusive representative” under our labor laws.
June 22, 1992
Respectfully submitted,
HUGH L. REILLY*
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
EDWIN VIEIRA, JR.
13877 Napa Drive
Manassas, Virginia 22111
(703) 791-6780
*Counsel of Record for Petitioner
APPENDIX A
ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
DENYING PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
March 24, 1992
-la-
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETE LE’MON,
Petitioner,
¥.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION LOCAL
UNION NO. 49 AFL-CIO,
Intervenor.
ORDER
Entered March 24, 1992
Before McKAY, Chief Judge, HOLLOWAY, LOGAN,
SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK,
BRORBY, and EBEL, Circuit Judges and SEAY*, District
Judge.
Nee eee ee ee ee ee es
No. 88-2833
a.
Honorable Frank H. Seay, Chief Judge, United States District
Court for the Eastern District of Oklahoma, sitting by
designation.
This matter comes on for consideration of
petitioner’s petition for rehearing and suggestion for
rehearing en banc.
Upon consideration whereof, the petition for
rehearing is denied by the panel that rendered the
decision.
In accordance with Rule 35(b), Federal Rules of
Appellate Procedure, the suggestion for rehearing en
banc was transmitted to all of the judges of the court
who are in regular active service. No member of the
panel and no judge in regular active service on the
court having requested that the court be polled on
rehearing en banc, Rule 35, Federal Rules of Appellate
Procedure, the suggestion for rehearing en banc is
denied.
Entered for the Court
Js/
ROBERT L. HOECKER, CLERK
APPENDIX B
DECISION OF THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
December 20, 1991
-3a-
[952 F.2d 1203]
Pete LEYMON, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
SHIEET METAL WORKERS INTERNATIONAL
ASSOCIATION LOCAL UNION NO. 49
AFL-CIO, Intervenor.
No. 88-2833.
United States Court of Appeals,
Tenth Circuit.
Dec. 20, 1991.
*_* * &
[1204] Before SEYMOUR and BALDOCK, Circuit J udges,
and SEAY,” District Judge.
SEYMOUR, Circuit Judge.
On May 7, 1990, we denied Pete Le’Mon’s petition for
review of a National Labor Relations Board (NLRB) order
denying his claim that the Sheet Metal Workers’ International
Association, Local Union No. 49 (Union) had breached its duty
of fair representation. Le’Mon v. NLRB, 902 F.2d 810 (10th
Cir. 1990) (Le’Mon I). Le’Mon claimed that the Union breached
its duty by failing to file timely notice of a labor dispute with the
Federal Mediation and Conciliation Service (FMCS), and
subsequently encouraging a strike rendered illegal by the failure
_ * The Honorable Frank H. Seay, Chief Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.
-4a-
to file.’ Jd. at 811. On March 25, 1991, the Supreme Court
vacated the judgment and remanded the case to us for
reconsideration in light of its recent decisions in United
Steelworkers of America v. Rawson, 495 U.S. 362, 110 S.Ct. 1904,
109 L.Ed.2d 362 (1990), and Air Line Pilots Ass’n, Int’l v. O’Neill,
_ US. __, 111 S.Ct. 1127, 1130, 113 L.Ed.2d 51 (1991).
Le’Mon v. NLRB, __ U.S. ___, 111 S.Ct. 1383, 113 L.Ed.2d 440
(1991). We affirm after reconsideration of the case, albeit on
grounds different from those underlying our decision in Le’Mon
I.
I.
In our initial review of the NLRB’s decision in this case, we
held that the duty of fair representation did not apply to cases
where a “union’s negligent conduct affected all its members.”
Le’Mon I, 902 F.2d at 813. Consequently, we affirmed the
NLRB’s finding that the Union did not breach its duty of fair
representation for reasons other than those advanced by the
Board. Jd. at 815. As a result of our understanding of the scope
of the duty, we [1205]did not otherwise reach the merits of the
NLRB’s decision. O’Neill holds, however, that the judicially-
created duty of fair representation applies to “all union activity,”
111 S.Ct. at 1130, thereby invalidating our prior analysis.
Consequently, we must again review the NLRB’s refusal to find
a breach of the Union’s duty of fair representation in this case.
II.
The NLRB found that the Union’s failure to file with the
FMCS and its subsequent encouragement of an illegal strike
amounted to mere negligence. Sheet Metal Workers & Pete
Le’Mon, 291 NLRB No. 41 at 2 (October 6, 1988). The NLRB
refused to find the duty violated when the Union’s conduct was
in good faith and not outside the parameters defined by Vaca v.
' We do not restate the facts here. Our earlier opinion fully describes the
circumstances underlying this dispute. See 902 F.2d at 811-12.
ee
-Sa-
Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Id. at
4-5. Under Vaca, a union breaches its duty of fair representation
when its conduct is “arbitrary, discriminatory, or in bad faith.”
386 U.S. at 190, 87 S.Ct. at 916. The NLRB found the Union’s
behavior negligent rather than arbitrary, and therefore not in
violation of its duty. Sheet Metal Workers, 292 NLRB No. 41 at
S.
Arbitrary union conduct breaches the duty of fair
representation and invites sanction by the Board and the courts.
Thus, “(t)he doctrine of fair representation is an important check
on the arbitrary exercise of union power, but it is a purposefully
limited check.” Rawson, 110 S.Ct. at 1912. Rawson underscores
the restraint courts must exercise in sanctioning union activity.
Specifically, the Court held that “mere negligence will not state
a claim for violation of [the union’s fair representation] duty.”
Id. at 1913. Instead, union members who claim that their
bargaining representatives have violated the duty must allege that
the union “improperly discriminated among its members or acted
in arbitrary and capricious fashion in failing to exercise its duties
under the collective-bargaining agreement.” Jd. (emphasis
added). The passage illustrates the level to which union conduct
must rise to invoke a court’s sanction. Under Rawson, negligent
behavior is not arbitrary within the meaning of Vaca.
In O'Neill, the Court squarely rejected an argument that “a
union need owe no enforceable duty of adequate representation
because employees are protected from inadequate representation
by the union political process.” 111 S.Ct. at 1134.2 The Court
reasoned that a union’s duty is “akin to the duty owed by other
fiduciaries to their beneficiaries” and that, like a legislature, a
union’s actions are subject to some judicial oversight in addition
? We advanced a similar position in Le’Mon I. 902 F.2d at 814.
-6a-
to the political checks provided by the National Labor Relations
Act (NLRA). Jd.’ As in Rawson, the Court emphasized that
substantive review of union activity “must be highly deferential,”
O'Neill, 111 S. Ct. at 1135, and must be conducted with reference
to “the factual and legal landscape at the time of the union’s
actions.” Jd. at 1130.
The recent Supreme Court decisions, taken together, teach
that a court may review all union activity under the duty of fair
representation, and that a court may inquire into the substantive
merits of a union’s decisions. The cases do not, however, retreat
from Vaca’s limitation of court sanction to union conduct that
transcends negligence. “(M)ere negligence on the part of a
union does not rise to the level of a breach of the duty of fair
representation.” Peters v. Burlington N.R.R., 931 F.2d 534, 538
(9th Cir. 1991) (citing Rawson).
Il.
Both the NLRB and the ALJ found that the Union's
conduct amounted to no more than mere negligence. Sheet Metal
Workers, 291 NLRB No. 41 at 1-2. We must affirm the Board’s
ruling if its [1206] findings “are supported by substantial evidence
on the record and if it correctly interpreted and applied the law.”
Le’Mon I, 902 F.2d at 812 (citing cases). “We are not free to
overturn the Board’s decision because we might have decided the
matter differently. Rather, it is our responsibility to ascertain
that the Board acts within reasonable bounds and that the
supporting evidence is truly substantial.” Presbyterian/St. Luke's
Medical Center v. NLRB, 723 F.2d 1468, 1472 (10th Cir. 1983)
(citations omitted). A finding that conduct amounts to mere
negligence should be reviewed under the same standard. See
Eichelberger v. NLRB, 765 F.2d 851, 856 (9th Cir. 1985); see also
> Before O'Neill, it was by no means settled that a union had a fiduciary
duty toward all of its members. Indeed, in Le’Mon I, we noted that “no justice
has suggested a broader duty with respect to ai/ of the represented class of
employees.” 902 F.2d at 815 n.4.
SP
-Ja-
Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 923 (6th
Cir. 1991) (NLRB decisions on mixed questions of law and fact
reviewed under substantial evidence standard).
The record supports the Board’s findings. Le’Mon adopts
the position of the dissenting member of the NLRB panel, Sheet
Metal Workers, 291 NLRB No. 41 at 6-7 (Chairman Stephens,
dissenting), arguing that the Union representatives’ exhortation
to continue the strike after they learned of its possible illegality
goes beyond mere negligence. Mem. Brief of Pete Le’Mon at
13-14. However, Le’Mon does not argue that the evidence is
insufficient to support the Board’s characterization of the conduct
of the Union representatives as negligence. He would simply
characterize it differently. Even were we to agree with Le’Mon’s
characterization, we are not at liberty to substitute our judgment
for that of the Board, if there is substantial evidence to support
the Board’s position. Universal Camera Corp. v. NLRB, 340 U.S.
474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
Le’Mon argues that the Union acted with knowledge of the
strike’s illegality throughout the relevant period. Mem. Brief of
Pete Le’Mon at 13-14. The Administrative Law Judge found that
this was not the case. Rather, the Union representatives were
unable to verify the employer’s claim of illegality and assumed
that it was merely a tactic to break the strike. Jd.; Le’Mon I, 902
F.2d at 812. Le’Mon rests his contention that the Union’s
conduct deserves sanction on his imputation of knowledge of
illegality to the Union representatives. The Board found that
they did not know, however, and we have no reason to upset this
factual finding.
In our earlier opinion, we noted that the availability of
ouster of the Union limited the scope of the duty of fair
representation. Le’Mon I, 902 F.2d at 814. Although the Court
in O’Neill rejected the notion that ouster is sufficient protection
for the majority of union members against all union misbehavior,
111 S.Ct. at 1134, the Court’s analogy to judicial review of
legislative behavior underscores the important function of this
political check. While a democratic check may not suffice to
-8a-
protect union members against all union action, it does suffice to
protect employees against negligent representatives. If the union
does not do its job, it may be fired. Here, the employees took
action to decertify the union under section 9(c) of the NLRA, 29
U.S.C. § 159(c) (1988), and the union quit rather than face an
election. Where union behavior is merely negligent, nothing
more need be done, and courts should not intervene.
The order of the NLRB is affirmed.
APPENDIX C
JUDGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
May 7, 1990
any Seiad. PF | 7 “ .
: i bh Patt Bal Od. ats 3 Ste cs Pe ee a eT ats —
< - ri Bt ‘Pater feta (Oe SK a ye Sse
-9a-
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RELATIONS BOARD,
PETE LE’MON, )
)
Petitioner, )
) No. 88-2833
v. ) (N.L.R.B. No. 28-CB-2479)
)
NATIONAL LABOR )
)
)
)
Respondent.
JUDGMENT
Entered May 7, 1990
Before SEYMOUR and BALDOCK, Circuit Judges, and
SEAY*, District Judge.
* Honorable Frank H. Seay, Chief Judge, United States District
Court for the Eastern District of Oklahoma, sitting by
designation.
This cause came on to be heard upon petition for review of
an order of the National Labor Relations Board. The matter was
heard on the administrative record of the National Labor
Relations Board and was argued by counsel.
-10a-
Upon consideration whereof, it is ordered that the order of
the National Labor Relations Board is affirmed. Accordingly, the
petition for review is denied.
Entered for the Court
ROBERT L. HOECKER, Clerk
By: /s/
Patrick Fisher
Chief Deputy Clerk
APPENDIX D
DECISION OF THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
AFFIRMING THE ORDER OF THE NLRB
May 7, 1990
-lla-
[902 F.2d 810]
PETE LE'MON, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 88-2833.
United States Court of Appeals,
Tenth Circuit.
May 7, 1990.
*_*s* *& &
[811] Before SEYMOUR and BALDOCK, Circuit Judges,
and SEAY,” District Judge.
SEYMOUR, Circuit Judge.
Pete Le’Mon, one of the employees represented by Sheet
Metal Workers’ International Association, Local Union No. 49
(Union), argues that the Union’s failure to give the Federal
Mediation and Conciliation Service (FMCS) timely notice of a
labor dispute and the Union’s subsequent encouragement of the
illegal strike breached the Union’s duty of fair representation,
thereby constituting an unfair labor practice under section
8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C.
§ 158(b)(1)(A) (1982) (NLRA). The National Labor Relations
Board (NLRB) held that the Union did not commit an unfair
labor practice. Le’Mon appeals, and we affirm.
* The Honorable Frank H. Seay, Chief Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.
-12a-
I.
Aztech International, Ltd., is an Albuquerque company that
manufactures low temperature electric radiant heating panels and
multi-stage indirect/direct evaporative cooling units. All of
Aztech’s thirty-five production employees were covered by a
collective bargaining agreement entered into on October 8, 1981,
and effective until September 30, 1985. For several months prior
to the contract’s termination, the Union engaged in negotiations
with Aztech for a new agreement. At the same time, the Union
conducted monthly meetings with the employees to discuss the
Status of the contract talks.
On July 30, 1985, sixty days prior to the expiration of the
collective bargaining agreement, the employees voted
unanimously (with a few abstentions) to authorize the Union to
call a strike should the contract negotiations fail. On September
30, the Union met with the employees to discuss Aztech’s fina!
contract offer. Gary Briggs, the Union’s business manager,
presented the offer and expressed his displeasure with the failure
to ban or limit subcontracting by Aztech, the random drug-testing
clause, and the lack of wage increases. When asked by an
employee whether he would sign this contract, Briggs responded
that he would not. Briggs told the employees that their other
option was to strike, but that by striking they risked being
replaced. According to Briggs, being replaced was no different
than being fired. The employees voted by secret ballot to reject
Aztech’s offer and the next day, October 1, they went on strike
and began picketing.
The day the strike began, all the employees received a letter
from Aztech’s president, Bennett King, which stated that the
Union’s failure to give timely notice to the FMCS made the strike
illegal, that all striking employees therefore were not protected
by the NLRA from being fired, and that all striking employees
were fired, effective immediately. King then offered to rehire the
strikers as new employees if they filled out an application and
underwent the standard interview and screening process. In
-13a-
addition to the letter, Aztech also filed an unfair labor practice
charge against the Union.
Under section 8(d)(3) of the NLRA, 29 U.S.C. § 158(d)(3)
(1982), the party desiring termination or modification of the
collective bargaining agreement (here the Union) is required to
give the FMCS notice of an [812]impending labor dispute within
thirty days of notifying the other party of its wish to terminate or
modify.'. The Union concedes that it failed to meet. this
requirement because the letter mailed by the Union’s attorney,
Gerald Bloomfield, was dated September 11 and was received by
the FMCS on September 17, well outside of the thirty-day
deadline. Neither Briggs nor the Union's business representative,
George Gilliland, was aware of this late notice.
Briggs and Gilliland learned of Aztech’s contention that the
strike was illegal, but initially they did not believe the allegation
and were unable to confer with the Union attorney because he
was Out of town. When asked about Aztech’s letter, the Union
officials told the strikers that the company was simply trying to
scare them and that the letter was a ploy to break up the strike.
Briggs encouraged the strikers to stick together; if they
maintained solidarity, he said, chances were good that the
economic pressure would force Aztech to accede to the Union's
demands and the strikers would regain their jobs. Briggs
continued to urge the strikers to “stick together,” even after the
NLRB's Regional Office issued a complaint against the Union
and after a newspaper printed a story on the illegality of the
strike. By October 7, however, the strike was obviously
' The purpose of the notice requirement is to “provide for a waiting period
during which there can be no strike” and to enable the FMCS to try “to bring
about a peaceful settlement.” Procter & Gamble Indep. Union v. Procter &
Gamble Mfg., 312 F.2d 181, 188 (2d Cir. 1962), cert. denied, 374 US. 830, 83
S.Ct. 1872, 10 L.Ed.2d 1053 (1963); see also R. Gorman, Labor Law 425 (1976)
(“it was clearly the intention of Congress to have the mediation agencies notified
and given an opportunity to intervene in the bargaining prior to the use of
economic weapons”).
-14a-
disintegrating, and Briggs told the employees still out on strike
that they should attempt to go back to work.
After the failure of the strike, the employees, upset with the
Union's handling of the labor dispute, filed a decertification
petition under section 9(c) of the NLRA, 29 U.S.C. § 159(c)
(1982), in which they sought an election to oust the Union as the
exclusive bargaining representative. When the Union received —
the petition, it disclaimed interest in representing Aztech’s
production employees.
II.
Le’Mon’s principal argument is that the Union breached its
duty of fair representation by failing to give notice of a labor
dispute to the FMCS within the prescribed time period and by
encouraging the Aztech workers to continue with the illegal
strike. Before considering Le’Mon’s arguments, we note that the
appropriate standard of review in labor cases requires that we
must affirm the Board’s decision if its findings are supported by
substantial evidence on the record and if it correctly interpreted
and applied the law. Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Central Soya Co.
v. NLRB, 867 F.2d 1245, 1247 (10th Cir. 1988); NLRB v.
Carbonex Coal Co., 679 F.2d 200, 203 (10th Cir. 1982).
Le’Mon relies primarily on our decision in Foust v.
International Brotherhood of Electrical Workers, 572 F.2d 710
(10th Cir. 1978) (“Foust I’), rev'd on other grounds, 442 U.S. 42,
99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (“Foust IT”), to support his
argument that a breach of the duty of fair representation
occurred. Foust I involved a radioman employed by the Union
Pacific Railroad Company. The Union Pacific dismissed Foust
following an on-the-job injury, and his attorney wrote to the
appropriate officer of the union to get the discharge decision
reversed. We stated that the union failed “to pursue the claim
in question despite the tact that it had full knowledge of the 60-
day limit [for filing the grievance].” Foust J, 572 F.2d at 716
(emphasis added). We noted that the union had delayed
-1Sa-
unnecessarily, sending letters back and forth between various
union officials and insisting that “despite the shortness of time,
. . . Foust personally submit the claim to them.” Jd. Accordingly,
we upheld the court’s jury charge as a proper statement of the
applicable law and affirmed the jury’s determination that the
[813] union had breached its duty of fair representation.
As the Supreme Court has held, “[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 v. Sipes, 386 U.S. 171, 190,
87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); see also Foust II, 442
US. at 47, 99 S.Ct. at 2125; Woods v. North Am. Rockwell Corp.,
480 F.2d 644, 648 (10th Cir. 1973); Reid v. International Union,
United Auto. Workers, 479 F.2d 517, 520 (10th Cir.), cert. denied,
414 US. 1076, 94 S.Ct. 592, 38 L.Ed.2d 483 (1973). Such
conduct includes, for example, situations in which a union
“arbitrarily ignore[s] a meritorious grievance or processes] it in
perfunctory fashion.” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. We
held in Foust J that the union's handling of the grievance was
done in a perfunctory manner, and Le’Mon urges us to find that
the failure of the Sheet Metal Workers’ Union to give the FMCS
timely notice was done in a similarly “perfunctory fashion.”
Both Vaca and Foust J involved a union’s handling of an
individual union member’s grievance, while in the present case
the union’s negligent conduct affected ail its members. This
distinction is a significant one, as an analysis of the duty of fair
representation reveals, and is one that precludes recovery in the
instant case.
The duty of fair representation, a duty which predates the
prohibition on union unfair labor practices in the 1947
amendments to the NLRA, is a statutory obligation that “has
‘judicially evolved’ as part of federal labor law.” Breininger v.
Sheet Metal Workers Int'l Ass'n Local Union No. 6, ___ U.S. oa
110 S.Ct. 424, 432, 107 L.Ed.2d 388 (1989) (quoting Motor Coach
Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925,
29 L.Ed.2d 473 (1971)). The Supreme Court first recognized the
-16a-
duty in a Railway Labor Act case. See Steele v. Louisville &
N.R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). In
Steele, the Railroad had removed five black firefighters, previously
assigned to a highly desirable “passenger pool,” and replaced
them with white firefighters. The Railroad was acting pursuant
to a new collective bargaining agreement it had negotiated with
its employees’ bargaining representative, the Brotherhood of
Locomotive Firemen and Enginemen. This union, which by its
constitution excluded all blacks from membership, had initiated
the negotiations because it “desire[d] to amend the existing
collective bargaining agreement in such manner as ultimately to
exclude all Negro firemen from the service.” Jd. at 195, 65 S.Ct.
at 228. The resulting racially discriminatory agreement formed
the basis of the suit against the union and the Railroad.
In analyzing the black firefighters’ claim, the Supreme Court
acknowledged the statutory right of the majority of any craft to
choose its representative responsible for collective bargaining
with the employer. But the Court rejected the argument that
Congress therefore “intend[ed] to confer plenary power upon the
union to sacrifice, for the benefit of its members, rights of the
minority of the craft, without imposing on it any duty to protect
the minority.” Jd. at 199, 65 S.Ct. at 230. If the union did not
owe some duty to represent the minority, the Court reasoned,
then minority members “would be left with no means of
protecting their -interests, or indeed, their right to earn a
livelihood by pursing the occupation in which they are employed.”
Id. at 201, 65 S.Ct. at 231. The Court held that “[s]o long as a
labor union assumes to act as the statutory representative of a
craft, it cannot rightly refuse to perform the duty, which is
inseparable from the power of representation conferred upon it,
to represent the entire membership of the craft . . . without
hostile discrimination, fairly, impartially, and in good faith.” Jd.
at 204, 65 S.Ct. at 232.’
? Although Steele was a Railway Labor Act case, the Supreme Court later
held that the duty of fair representation applied equally to National Labor
Relations Act cases. See Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct.
-17a-
[814] As the duty-of-fair representation doctrine has evolved,
its function as the protector of minority and individual employee
rights, whether in collective bargaining or in the handling of
grievances, has been emphasized consistently. See Vaca, 386 U.S.
at 182, 87 S.Ct. at 912 (“the duty of fair representation has stood
as a bulwark to prevent arbitrary union conduct against
individuals stripped of traditional forms of redress by the
provisions of federal labor law”) (emphasis added); Breininger,
110 S. Ct. at 432 (the duty “is an essential means of enforcing
fully the important principle that ‘no individual union member
may suffer invidious, hostile treatment at the hands of the
majority of his [or her] coworkers’” (quoting Motor Coach
Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 29
L.Ed.2d 473 (1971))) (emphasis added); DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 164 n.14, 103 S.Ct.
2281, 2290 n.14, 76 L.Ed.2d 476 (1983) (the duty exists to ensure
that “individual employees are not. . . deprived of all effective
means of protecting their own interests”) (emphasis added); Foust
II, 442 US. at 46-47, 99 S.Ct. at 2124-25: Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d
231 (1976).
Unlike these Supreme Court cases and unlike Foust I, the
injured party here is not an individual or group singled out for
treatment different from that accorded the majority, but the
entire class of Aztech employees represented by the Union.’
681, 685, 97 L.Ed. 1048 (1953); see also Vaca, 386 U.S. at 177, 87 S.Ct. at 909;
Foust II, 442 U.S. at 46 n.8, 99 S.Ct. at 2124 n.8. Foust J also arose under the
Railway Labor Act.
* Le’Mon observes that the Union and an Fl Paso, Texas, firm with
considerably more Union-represented employees had entered into a collective
bargaining agreement containing a “most-favored-nations” clause which provided
that “there shall not be a more favorable contract offered to any competitor of
the employer in the jurisdiction of Sheet Metal Local No. 49.” Rec., vol. II, C.P.
ex. 1, art. XX. Le’Mon then argues, inconsistently, that this El Paso contract
induced the Union to strike to get wages comparable to those in the El Paso
firm, and to file a late notice in order to make the strike illegal. The ALJ found
-18a-
This, then, is not a situation in which a minority would be
deprived of any remedy were it not for the duty of fair
representation. Here, the Aztech employees had a remedy
against the Union for the harm caused by the Union’s negligence
and they used that remedy: they petitioned for an election to
oust the Union as the exclusive bargaining representative. This
powerful remedy of ouster, available to the employees by virtue
of their majority status, ensures that a union will have the proper
incentives to represent the employees “without hostile
discrimination, fairly, impartially, and in good faith.” Steele, 323
U.S. at 204, 65 S.Ct. at 232.
Despite the availability of the ouster remedy, Le’Mon
nevertheless urges us to view the duty of fair representation as
one which creates a kind of fiduciary obligation owed by the
Union to all those it represents. The Supreme Court, however,
that the El Paso contract was not “a legitimate consideration here’ since
Albuquerque and El Paso are a distant 270 miles apart, too far to be a factor to
the Union. Rec., vol. III, doc. 1, at 12 n.8. The ALJ also noted thai if the
Union’s object was to abandon the Aztech employees to save the El Paso
contract, it did not need the excuse of an untimely notice.
Because we conclude there is sufficient evidence to support the ALJ’s
factual conclusions, we need not address whether the entire group of Aztech
employees constituted a discriminated-against minority vis-a-vis the El Paso
majority.
-19a-
has never conceived of the duty of fair representation in such a
broad way.‘ To the [815]contrary, the courts’ role in assessing
union actions in duty-of-fair-representation cases is generally
analogized to the “special scrutiny” courts must apply when
analyzing legislative actions under the Equal Protection Clause.
As the Supreme Court noted in Steele:
“[T]he Railway Labor Act imposes upon the statutory
representative of a craft at least as exacting a duty to
protect equally the interests of the members of the craft
as the Constitution imposes upon a legislature to give
equal protection to the interests of those for whom it
legislates. Congress has seen fit to clothe the bargaining
representative with powers comparable to those
“In a recent case involving the right to a jury trial in duty-of-fair-
representation cases, Justice Marshall, writing for four members of the Supreme
Court, stated that “[jJust as a trustee must act in the best interest of the
beneficiaries, a union, as the exclusive representative of the ‘workers, must
exercise its power to act on behalf of the employees in good faith.” Chauffers,
Teamsters & Helpers, Local No. 39] v. Terry, __ U.S. __, 110 S.Ct. 1339, 1346,
108 L.Ed.2d 519 (1990) (citation omitted). Justice Marshall reasoned that “just
as a beneficiary does not directly control the actions of a trustee, an individual
employee lacks direct control over a union’s actions taken on his [or her] behalf.”
Id. (citation omitted) (emphasis added). Justice Kennedy, writing for two other
justices, also found the trust analogy helpful in assessing the right to a jury trial,
but he was careful to limit the breadth of this analogy and to emphasize that he
did not which to “imply that a union acts as a trustee in all instances or that trust
law, as a general matter, should inform any particular aspects of federal labor
law.” Id. 110 S.Ct. at 1357.
This case of course is factually distinct from the situation which prompted
Justice Marshall to draw the trust analogy. Although an individual employee may
Share many of the same characteristics as a relatively powerless beneficiary, a
majority of represented employees, with the power to decertify a union, has little
in common with the traits Justice Marshall ascribed to a trust beneficiary.
Therefore, while some members of the Supreme Court would impose a kind of
fiduciary duty on a union vis-a-vis individual employees, no justice has suggested
a broader duty with respect to all of the represented class of employees.
-20a-
possessed by a legislative body . . . but it has also
imposed on the representative a corresponding duty.”
Id. at 202, 65 S.Ct. at 232; see also Gorman, Labor Law at 716
(“the democratic process within the union has induced ... courts
to accord special scrutiny to decisions which worsen the job status
of workers whose only common characteristic—while not as
invidious as their color, sex, or national origin—is their minority
status within the union”); Harper & Lupu, Fair Representation as
Equal Protection, 98 Harv. L. Rev. 1211 (1985); ALJ Opinion,
rec., vol. III, doc. 1, at 7 (“the [union-employee] relationship
requires only that the statutory representative provide equal
protection to the employees it represents”).
For these reasons, the Sixth Circuit has declined “to extend
the duty [of fair representation] to cover a situation . . . where a
member or group was not singled out for different treatment.”
NLRB v. Local 299, Int’l Bhd. of Teamsters, 782 F.2d 46, 51 (6th
Cir. 1986). The alleged breach of duty in Local 299 included the
union’s failure to inforrn the employees that the company viewed
them as engaging in an illegal work stoppage in violation of the
contract. The court specifically rejected the argument that a
fiduciary duty between a union and all its represented employees
existed, and it held that “the duty of fair representation is
implicated only when an individual or group is treated differently
... than another individual, group or the collective.” Jd. at 51-
52.
Because the concerns which prompted the Supreme Court
to develop a duty of fair representation are not present in this
case, we decline to extend the duty to situations in which the
injury suffered is common to the majority of represented
employees. Holding as we do that the union’s duty of fair
representation was not implicated in this case, we need not
address the other contentions raised by Le’Mon.
The order of the NLRB is affirmed.
APPENDIX E
DECISION AND ORDER
OF THE
NATIONAL LABOR RELATIONS BOARD
AND ADMINISTRATIVE LAW JUDGE’S DECISION
September 30, 1988
ee net Teen ee eee eee tee ee a" ie, i li CE BES LEAD Neg ALORA GEILE ELLs Mig cet ba Ee praia a4e
-21a-
D—9165
291 NLRB No. 41 D—9165
Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SHEET METAL WORKERS’ INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 49,
~~ AFL—CIO (Aztech International, Ltd.)
and Case 28—CB—2479
PETE LE’MON, an Individual
DECISION AND ORDER
On March 4, 1987, Administrative Law Judge James M.
Kennedy issued the attached decision. The General Counsel and
the Charging Party filed exceptions and supporting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-mémber panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt the
recommended Order.
We agree with the judge that the Respondent did not breach
its duty of fair representation to the employees involved by failing
to give timely Section 8(d)(3) notice to the Federal Mediation
and Conciliation Service and any appropriate state agency or by
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D—9165
encouraging employees to continue striking after October 2,
1985.' Like the judge, we find that the Respondent’s deficiencies
in representing the employees amounted to no more than mere
negligence.’
The difference between the majority and dissenting positions
here is a narrow one. Our dissenting colleague states a willing-
ness to accept as simple negligence the Respondent's failure to
coordinate timing of the notice and commencement of the strike,
but would base a violation of the duty of fair representation on
the Respondent’s conduct after October 2. Our difference, then,
is limited to how we evaluate the Respondent’s conduct after
October’2.
By October 2, the Employer had delivered to the strikers
letters stating that the strike was illegal because proper notice
had not been given to the Federal Mediation and Conciliation
Service and declaring that the strikers’ employment was terminat-
ed and that they could apply for jobs as new employees.’ Some
strikers asked the Respondent’s business agents about the letter,
and the agents replied that it was company “rhetoric” or a
company “ploy,” and urged the strikers to “stick together.” In
making this response, without further investigating the situation
or obtaining the advice of the Respondent’s attorneys, the agents
' Notice was received by the Federal Mediation and Conciliation Service on
September 17, 1985. The strike commenced October 1, 1985. All subsequent
dates are in 1985.
? There is no showing that the Respondent was hostile toward the
employees at Aztech or acted in bad faith in representing them. In this regard,
we agree with the judge’s rejection of the Charging Party’s implied bad-faith
argument based on the “most favored nations lause.”
> Among other things the letter stated, “If you wish to be considered for
such employment, please come in and fill out an application. As with all new
employees, you will need to go through our normal pre-employment interview,
physical and drug/alcohol screening.”
|
|
-23a-
D—9165
may have acted negligently, but their conduct was not so lacking
of a rational or logical basis as to be arbitrary.
In meeting the employees’ questions, the agents assessed
events from a practical point of view. As they saw it, loss of
employment is a risk in any strike, and employees’ best protection
is to stick together. They considered the Employer’s statement
that the strikers’ employment was terminated as a tactical
maneuver designed to break the strike. The Board has recog-
nized that employers use the tactical discharge as a method of
dissuading employees from Striking without intending to refuse to
reinstate employees when they request it. Crookston Times
Printing Co., 125 NLRB 304, 317 (1959). See also Woodlawn
Hospital, 233 NLRB 782, 788 (1977).
The agents were not lawyers and did not seem to understand
the effect that the failure to give proper 8(d) notice had on the
Strikers’ status as employees.‘ Nor did they appear to appreciate
the distinction between terminating strikers’ employment and
replacing strikers. Misunderstanding of this critical distinction,
significant in labor law, is not uncommon among employees, their
representatives, or management personnel. See Eagle Comtron-
ics, 263 NLRB 515 (1982); L.A. Water Treatment, 286 NLRB No.
88 (Nov. 12, 1987); Dayton Food Fair Stores v. NLRB, 399 F.2d
153 (6th Cir. 1968).
Confronted with the Employer’s statement that the strikers’
employment was terminated, the agents advised the employees to
continue to act together in an effort to return all employees to
their jobs and to obtain a bargaining agreement. Within the
limits of their competence and experience, the agents judged
economic pressure to be the most effective strategy to deal with
* In part, Sec. 8(d) provides: “Any employee who engages in a strike within
any notice period specified in this subsection . . . shall lose his status as an
employee of the employer engaged in the particular labor dispute, for the
Purposes of sections 8, 9, and 10 of this Act... .”
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D—9165
the situation. We do not consider that judgment to be in reckless
disregard of the Union’s statutory duties to unit employees.*
Indeed, even if the agents had understood that the strikers lost
status as employees of the Employer by operation of statute or
had in fact been permanently discharged by the Employer, there
was little they could do to benefit the employees at that point.
The employees could only apply for jobs as new employees, hope
to meet the Employer’s interview requirements, and see whether
the Employer would reemploy them. It was not unreasonable for
the agents to assume that collective action in seeking reemploy-
ment would be more effective than individual action.
Moreover, as the judge points out, the employees were free
to accept the Union’s advice or the Employer’s advice. There is
no evidence that the Respondent, by threat of fine or other
retaliation, coerced the employees to continue collective action.
The employees could have decided to abandon the strike or to
apply individually for employment, a decision employees are
customarily faced with during a strike. They could have imple-
mented their decision on their own initiative, unrestricted by
formalities within the Respondent’s control. Indeed, the record
reveals that many employees did abandon the strike. See Office
Employees Local 2 (Janet Eichelberger), 268 NLRB 1353 (1984),
enfd. 765 F.2d 851 (9th Cir. 1985).
The representation that the Respondent provided the
employees in this case may not meet the standards of competence
and caution that the Board would like to see observed. It does
not, however, violate Section 8(b)(1)(A). A breach of duty of
fair representation occurs only when the representative’s conduct
is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386
U.S. 171 190 (1967). We do not consider the conduct here to
have been arbitrary, and the Respondent's deficiency in represen-
‘ We assume, arguendo, that a union that takes action in “reckless
disregard” of its statutory duties to unit employees violates its duty of fair
representation.
-25a-
D—9165
tation is a matter for employees to consider in selecting and
supporting their representative, not a matter correctable under
Section 8(b)(1)(A) of the Act.
ORDER
The National Labor Relations Board adopts the recommend-
ed Order of the administrative law judge and dismisses the
complaint.
Dated, Washington, D.C. September 30, 1988
Wilford W. Johansen, Member
Mary Miller Cracraft, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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D—9165
CHAIRMAN STEPHENS, dissenting.
The duty of fair representation issue posed in this case
involves the arbitrariness prong of the three-part standard
formulated by the Supreme Court in Vaca v. Sipes, 386 U.S. 171,
190 (1967) (breach occurs “when a union’s conduct toward a
member of the collective bargaining unit is arbitrary, discriminato-
ry, or in bad faith”). There is no claim that the Union’s actions
here were discriminatory, nor do I see this as a case involving bad
faith. “Arbitrariness” has been the most difficult and vexing of
the duty of fair representation inquiries.’ I do not dispute the
judge’s reading of Board law as requiring a showing of more than
mere ‘negligence to warrant a finding that a union has acted
arbitrarily so as to breach its duty of fair representation in
violation cf Section 8(b)(1)(A) of the Act. That is clearly the
holding of cases that are still good law. Teamsters Local 692
(Great Western Unifreight), 209 NLRB 446, 447—448 (1974).
Accord: Rainey Security Agency, 274 NLRB 269 (1985); Team-
sters Local 282 (Transit-Mix Concrete Corp.), 267 NLRB 1130
(1983), enfd. 740 F.2d 141 (2d Cir. 1984). There is not much
guidance in our cases as to what that “more” necessarily consists
of; but it makes sense to me to hold a union guilty of breaching
the duty when it has erred in failing to perform some ministerial
or procedural act and, with notice of that error and of the
possibility that it may seriously injure rights of bargaining unit
employees, the union has persisted in a course of action or
inaction that compounds injury or makes it impossible to cure.
Such conduct goes beyond negligence to reckless disregard.’ In
' See Robesky v. Qantas Empire Airways, 573 F.2d 1082 (9th Cir. 1978)
(Kennedy, J. concurring) (no adequate guidance in law of torts or Federal
common law of labor relations for construing this term).
? A standard formulated by the Ninth Circuit in connection with cases
involving unions’ handling of grievances reflects similar considerations. In a series
of cases, that circuit seems to have concluded that the negligent failure to
perform a ministerial act amounts to arbitrariness in breach of the duty of fair
-27a-
D—9165
my view, that occurred here by virtue of the union agents’
response to information they had received by at least October 2,
1985, the secdnd day of the unlawful strike.’
I am Willing to accept the proposition that a union’s failure
to coordinate the filing of a Section 8(d)(3) notice with the actual
date on which the strike commences may constitute simple
negligence not giving rise to actionable breach of the duty of fair
representation, even where the error results in employees’ being
made vulnerable to discharge through participation in an unlawful
strike. On the record here, however, I would find that the
Union’s business agents, Gary Briggs and George Gilliland,
behaved in a manner that went beyond mere negligence to
reckless disregard of the harm to the employees through actions
that they took after they were put on notice of the clear possibili-
ty that the strike notice had not been timeiy given and that the
Employer was taking action against the employees because of
this.
It is undisputed that the strike notice was mailed to the
Federal Mediation and Conciliation Service on September 17,
1985, and that therefore the strike called by the Union on
September 30 and commenced on October 1 was plainly unlawful
because it occurred less than 30 days after notice was given to the
FMCS. The judge also found—and the finding is not
disputed—that by October 2 Briggs and Gilliland knew that the
Employer had sent letters to the strikers telling them that they
representation when there is no “judgment” factor involved in deciding whether
to perform the act in question and “fo rational and proper basis” for the union’s
conduct and the employee’s right to pursue a claim representing a “strong
individual interest” is completely extinguished by the union’s conduct. Peterson
v. Kennedy, 771 F.2d 1244, 1254 (9th Cir. 1985), citing Dutrisac v. Caterpillar
Tractor Co., 749 F.2d 1270, 1274 (9th Cir. 1983), and Eichelberger v. NLRB, 765
F.2d 851, 855 (9th Cir. 1985).
> All dates are in 1985.
D—9165
were terminated because they were engaging in a strike that was
unlawful because of failure to give timely notice to the FMCS.
The letter also informed the strikers that employment applica-
tions were being accepted for their jobs and they could fill out
applications for positions as new employees.
Briggs then called the law firm that represented the Union;
and, after learning that the attorney responsible for sending out
the notice was out of town, he made no further effort to check
out the timing of the notice. Instead, he encouraged employees
to remain on strike, mistakenly advising them—according to his
own testimony—that there was really no distinction between
replacement and discharge and that they should just hang
together. Union Agent Gilliland admitted that he had been “in
the dark” about the legality of the strike, but nonetheless
admitted telling employees who asked about their termination
letters that this was just “some of the Company’s rhetoric.”
Because I would find a breach of the duty of fair representa-
tion as of October 2, when Briggs and Gilliland affirmatively
misled inquiring employees about the status of their strike, I
=
,
* While I recognize that Briggs and Gilliland are not lawyers and I therefore
would not find a breach of the duty of fair representation simply on the basis of
their inability to give correct legal advice, I find a breach of the duty here
because they falsely gave the impression that they knew there was no difference
between replacement and discharge and that the Empioyer’s claim that the strike
was unlawful was just “rhetoric.” This would be a different case if the employees
had been told that the union agents did not know whether there was any truth
to the Employer’s claims concerning the strike’s legality but mt Gay ebvied
staying Out on strike as a tactical matter.
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D—9165
would issue a cease-and-desist order and would also hold the
Union liable for any losses suffered from employees’ delay, until
October 7, in offering to return.’
Dated, Washington D.C. September 30, 1988
James M. Stephens, Chairman
NATIONAL LABOR RELATIONS BOARD
* It is not clear when strikers were rehired, although the record shows that
at least one of them was not hired back until December 20. In compliance, it
couid be determined on what dates the Employers hired replacements and, thus,
what effect the delay in offering to return likely had on the strikers’ ability to
return to work. j
-30a-
JD(SF)—21—87
Albuquerque, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFORNIA
SHEET METAL WORKERS’ INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 49,
AFL-CIO (Aztech International, Ltd.)
and Case 28—CB—2479
PETE LE’MON, an Individual
Lewis S. Harris, Albuquerque, NM, i
for the General Counsel.
Dan A. McKinnon III, of Marron, McKinnon & Ewing,
Albuquerque, NM, for the Charging Party.
Gerald R. Bloomfield of Kool, Kool, Bloomfield
& Hollis, Albuquerque, NM, for Respondent.
DECISION
JAMES M. KENNEDY, Administrative Law Judge: This
case was tried before me in Albuquerque, New Mexico, on
October 21, 1986.' The complaint is based upon a charge filed
' Although no party has filed a motion to correct the transcript, any
reviewer of the transcript should be wary for it contains numerous errors,
Omissions, and misidentifications. By way of illustration, the caption appearing
-3la-
by Pete Le’Mon, an Individual, on October 28, 1985.2 The
complaint alleges that Sheet Metal Workers’ International
Association, Local Union No. 49, AFL-CIO (herein called
Respondent) has engaged in certain violations of Section
8(b)(1)(A) of the National Labor Relations Act, as amended
(herein called the Act).
Issue
The principal issue is whether Respondent breached its duty
of fair representation under Section 8(b)(1)(A) when it failed to
give the Federal Mediation and Conciliation Service 30 days
notice of the existence of a labor dispute, thereby subjecting the
employees it represented to loss of employee status as defined by
Section 2(3) of the Act. More specifically, the case presents the
question of whether Respondent is financially liable for wages
lost by those employees when Aztech International, Ltd. dis-
charged them for striking when Respondent failed to meet the
notice filing requirement of Section 8(d)(3) of the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. All parties have filed
briefs and they have been carefully considered. Based upon the
entire record, as well as my observation of the witnesses and their
demeanor, I make the following:
Findings of Fact
in the transcript volume is incorrect, labeling Charging Party Pete Le’Mon as
Respondent, and Respondent Sheet Metal Workers’ Local 49 as the Charging
Party. It also omits entirely the appearance of Mr. Harris, Counsel for the
General Counsel and misidentifies the Charging Party’s attorney, Mr. McKinnon,
as representing Respondent. Likewise, it lists Respondent’s attorney, Mr.
Bloomfield, as representing the Charging Party.
? All dates are 1985 unless otherwise noted.
-32a-
JD(SF)—21—87
I. Interstate Commerce
Respondent admits the Employer, Aztech International, Ltd.,
is a New Mexico corporation headquartered in Albuquerque
where it manufactures and markets heating panels and evapora-
tive cooler units. It further admits that during the 12-month
period preceding the issuance of the complaint that Aztech, in
the course of its business operations, sold goods valued in excess
of $50,000 which were transported directly to customers located
outside New Mexico. It further admits that Aztech is an
employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
II. Labor Organization
Respondent admits it is a labor organization within the
meaning of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
Fortunately, given sometimes inaccurate nature of the
transcript, the facts in this case are not in significant dispute.
Respondeni has represented Aztech’s production employees for
at least 15 years through a series of collective-bargaining con-
tracts. -The micst recent agreement expired on September 30.
Efforts to negotiate a successor, agreement had begun several
months before, but by September 30 a new one had not been
reached.
Earlier on September 11, Respondent’s attorney, Bloomfield,
had sent a notice of the existence of a labor dispute to the
Regional Office of the Federal Mediation and Conciliation
Service in San Francisco. That letter was not received by the
Service until September 17, anly 13 days before the contract was
to expire.
Section 8(d)(3) of the Act requires that such a notification
be within 30 days of the termination or modification of the
ee
-33a-
JD(SF)—21—87
contract in question. Section 8(d) further says in the event that
any employee engages in a strike within any notice period
specified in Section 8(d) he or she shall lose status as an employ-
ee for the purpose of obtaining protection under Sections 8, 9
and 10 of the Act.’ The credible evidence demonstrates that
neither Gary Briggs, Respondent’s business manager, or George
“Jeep” Gilliland, its business representative, were actually aware
of the tardy notice. ;
> In pertinent part Section 8(d) of the Act reads as follows:
For the purposes of this section, to bargain collectively is
the performance of the mutual obligation of the employer
and the representative of the employees to meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement or any question
arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by
either party, but such obligation does not compel either
party to agree to a proposal or require the making of a
concession: Provided, That where there is in effect a
collective-bargaining contract covering employees in an
industry affecting commerce, the duty to bargain collec-
tively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party
desiring such termination or modification—
(3) notifies the Federal Mediation and Con-
ciliation Service within thirty days after such
notice of the existence of a dispute. . .
. ° ~
. . . Any employee who engages in a strike
within any notice period specified in this
subsection . . . shall lose his status as an
employee of the employer engaged in the
particular labor dispute, for the purposes of
sections 8, 9, and 10 of this Act, as amended,
but such loss of status for such employee shall
terminate if and when he is reemployed by
such employer.
-34a-
. JD(SF)}—21—87
As early as April, business representative Gilliland began
holding monthly meetings with the Aztech employees, first to
learn what the employees wanted in the new contract and later
to inform them of the progress of negotiations. On July 30, 60
days before the contract was to expire, Gilliland, both to test the
employees’ resolve and to send a signal of solidarity to the
employer, conducted a vote to give the Union authority to strike
in the event that became necessary. Gilliland recalls that those
employees who voted, voted unanimously to authorize a strike.
There were, he says, two or three abstentions.
An additional meeting was held in August and two in
September as the contract expiration date approached. The first
was on September 26 and the last on September 30. The
September 30 meeting was, in essence, a split meeting designed
to accommodate the employees on the two shifts.
Based upon an amalgamation of the testimony, it appears
that at the September 30 meetings Briggs presented the Com-
pany’s last contract offer. He said he was displeased with it in
several respects. First, it did not contain a ban on subcontracting
and, in his opinion, permitted the Employer to subcontract unit
work even to the extent of getting rid of all unit employees while
still claiming that Company products were union-made. Second,
it contained a random drug-testing clause and, third, the wage
offer was inadequate, containing no increases and only an
opportunity for a bonus at the end of the first year. He told the
employees that for the past 15 years or so he had heard their
complaints about wages and about the manner in which the
Company had treated them. He also told them that they could
accept the offer but if they did he did not want to hear any
further complaints about inadequate contract protection. He also
told them if they rejected the contract their other choice was to
strike. - It does not appear that he offered them the middle
ground of not striking but continuing to negotiate. In his
judgment, such a middle ground would have been impractical,
given the status of the negotiations. Briggs told the employees
: -35a-
JD(SF)—21—87
that if they struck there were some risks involved. These
included being replaced or being fired.
At least one employee asked Briggs if he would sign the
contract as it had been proposed. According to the employee’s
testimony Briggs equivocated, finally saying he could not live with
a contract like the one the Employer was offering. As a result of
Briggs’ answer, some employees testified that Briggs was exhort-
ing them to strike. Indeed, it appears that some picket signs had
already been made. Even so, I am not convinced that Briggs was
making any special effort to exhort them to strike, though it is
clear that he disliked the Company’s proposal.
In any event the employees were asked to vote to accept or
reject the contract proposed by the Employer. At each meeting
the secret ballot showed that the employees voted to reject it. As
a result, in the early morning hours of Tuesday, October 1,
Respondent established a picket line at Aztech’s premises.
The strike lasted until the morning of Monday, October 7.
It fell apart when the Employer discharged all the strikers,
simultaneously filing Section 8(b)(3) charges against Respondent
for having failed to comply with the Section 8(d)(3) notice
requirements set forth in footnote 3, above. On October 1, ‘he
Employer had hand-delivered and/or mailed discharge letters to
each of the striking employees. In the letter Aztech’s president,
Bennet King, stated:
The strike in which you are participating is an illegal
one because the Union failed to give proper notice to
the Federgl Mediation and Conciliation Service of the
existence of a labor dispute so that the FMCS might
have an opportunity to help us find solutions to the
collective bargaining impasse. Because of this failure by
the union, employees engaged in the strike are not
protected by the National Labor Relations Act against
firing. This letter will serve as formal notice of your
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JD(SF)—21—87
termination of employment by Aztech International,
Lid. effective immediately. . . .
Also on October 1, the Employer filed its Section 8(b)(3)
charge against the Union. On October 4, the Regional Office of
the Board issued a complaint against the Union alleging that the
strike was unlawful.‘ The following day an article in the Albu-
querque Journal newspaper noted the issuance of the complaint,
together with a quotation from the NLRB Albuquerque Resident
Officer asserting that the picketing was illegal.
The Employer’s president, King, took several of the strikers,
including the Charging Party, to his office where he reported the
issuance of the complaint to them and showed them the newspa-
per article.
Before the newspaper article appeared Briggs and Gilliland .
had told those strikers who had asked about the assertions King
had made in the discharge letter that they regarded King’s letter
as a company tactic, saying the Company was “playing with their
heads.” They urged the strikers to remain together if they
intended to win the strike. After the newspaper article appeared
Briggs and Gilliland continued to say the same thing.
It should be observed here, that although by October 2
Briggs and Gilliland were aware of the Company's contention
that the strike was illegal, they did not believe it. Both Briggs
and Gilliland believed that at worst, if the FMCS notice had not
been given, the strike was unprotected. Thus, they surmised that
the worst which could happen was that a court could enjoin the
picketing. If that happened, they reasoned, the court could
probably not make them go back to work. The discharges, which
were by then a fait accompli, did not particularly concern them
because, as Briggs had told the employees before, employers
* See Fort Smith Chair Co., 143 NLRB 514, 518-519 (1963).
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JD(SF)—21—87
often attempt to win strikes by replacing the strikers. To Briggs
that is exactly what was happening here.
Briggs testified that when he learned of the Company’s
contention that the notices had not been filed, he had attempted
to reach attorney Bloomfield but could not do so as he was out
of town. Briggs spoke to another individual at Mr. Bloomfield’s
law firm but it is not clear whether he learned of the late filing
with the FMCS. He testified he did not know if he had ever
actually seen the letter which had been sent to the FMCS, saying
that was within the province of the Union’s lawyers. Based on
_ Briggs’ testimony I conclude that during the course of the strike,
* because of Mr. Bloomfield’s absence, he was unable to find out
whether the FMCS letter had been sent timely.
Despite his inability to find out from the law firm what had
actually happened, Briggs, thinking as a traditional union official
would, decided to “tough it out.” He believed that whether the
strike was legal or not, as long as the strikers could maintain
solidarity there was a reasonably good chance that they could put
enough economic pressure on the Company to prevail. Although
the testimony is a little vague as to time and place, it appears that
remarks of that nature were made to strikers Le’Mon, Limon,
Padilla and Tucker.
Nonetheless, on the morning of October 7 it became
apparent that most of the strikers were abandoning the strike.
Upon seeing that, Briggs told the remaining strikers that the
strike had been lost and that they should go back to work so as
not to be left alone.
The record is not clear with respect to how many employees
Aztech rehired or what the rate of rehire was. Some, who had
not been replaced, were rehired immediately; others were hired
later. All were rehired as new employees.
Subsequently, the employees, upset over the Union’s
handling of the strike, filed a decertification petition under
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JD(SF)}—21—87
Section 9(c) of the Act seeking an election to oust the Union as
their representative. Upon receipt of the decertification petition
Respondent disclaimed interest in representing Aztech’s produc-
tion and maintenance employees.
IV. Analysis and Conclusions
The General Counsel asserts that Respondent’s failure to file
timely the 30-day notice of labor dispute with the FMCS as
required by Section 8(d) followed by a strike within the 30-day
period was a breach of a union duty, said to be fiduciary, which
in turn amounts to a breach of the duty of fair representation and
therefore an unfair labor practice within the meaning of Section
8(b)(1)(A). Respondent argues that the evidence shows only that
it committed an error of negligent omission and that under the
fair representation doctrine an act of negligence does not breach
that duty. The threshhold question therefore is what is the
appropriate level of care which Respondent must exercise to
avoid liability under the doctrine? Is Respondent a fiduciary,
thereby raising the level of care which must be taken by Section
9(a) representative or is Respondent something less than a
fiduciary owing no duty other than one of fair play?
In the seminal case of Steele v. Louisville & Nashville R. Co.,
323 U.S. 192, 202 (1944), the Supreme Court in articulating the
fair representation_doctrine described the nature of a union’s
relationship to the individuals it represents as the exclusive
statutory representative:
We think that the Railway Labor Act imposes upon
the statutory representative of a craft at least as exact-
ing a duty to protect equally the interests of the mem-
bers of the craft as the Constitution imposes upon a
legislature to give equal protection * . the interests of
those for whom it legislates. Congress has seen fit to
clothe the bargaining representative with powers
comparable to those possessed by a legislative body both
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JD(SF)—21—87
to create and restrict the rights of those whom it
represents. . . .
Similarly, the Board has held that a union does not stand in a
fiduciary relationship to the employees it represents. It has said,
instead, that the relationship is analogous to that between the
legislator and constituent. Service Employees, Loca! 579 (Beverly
Manor Convalescent Center), 229 NLRB 692, fn. 2 (1977). It
appears therefore that Respondent’s duty to the Aztech employ-
ees here was not a fiduciary one, for the Supreme Court and the
Board have both held that the relationship requires only that the
statutory representative provide equal protection to the employ-
ees it represents. This is not to say that the statutory representa-
tive cannot make reasonable choices in carrying out its function
even though those choices may have incidental negative effects
on some of its constituents. Steele, supra, at 203; cf. Ford Motor
Corp. v. Hu.*man, 345 U.S. 330 (1953).
In Steele the Court went on to say that although a union’s
duty to the employees it represents is comparable to the duties
of a legislative body, nonetheless the statutory grant of the
exclusive right to represent the employees “impose[s] on the
bargaining representative of a craft or class of employees the duty
to exercise fairly the power conferred upon it in behalf of all
those for whom it acts, without hostile discrimination against
them.” Steele, supra, at 202-203.
The duty of fair representation was not initially considered
by the Board to be an unfair labor practice, but in Miranda Fuel
Co., 140 NLRB 181 (1962), enf. denied 326 F.2d 172 (2nd. Cir.
1963), the Board concluded that the fair representation doctrine
was subsumed under Section 8(b)(1)(A) of the Act. There it
stated:°
* 140 NLRB 181, 185.
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JD(SF)—21—87
. .. [Wje are of the opinion that Section 7 [of the Act]
thus gives employees the right to be free from unfair or
irrelevant or invidious treatment by their exclusive
bargaining agent in matters affecting their employment.
This right of employees is a statutory limitation on
Statutory bargaining representatives, and we conclude
that Section 8(b)(1)(A) of the Act accordingly prohibits
labor organizations, when acting in a statutory represen-
tative capacity, from taking action against any employee
upon considerations or classifications which are irrele-
vant, invidious, or unfair. [Footnote omitted.]
Although the Second Circuit would not enforce the Board’s
theory that a failure to meet the duty of fair representation was
an unfair labor practice within the meaning of Section 8(b)(1)(A),
the Supreme Court disagreed in Vaca v. Sipes, 386 U.S. 171
(1967). After reaching that conclusion, the Court stated:
A breach of the statutory duty of fair representation
occurs Only when a union’s conduct towards a member
of the collective bargaining unit is arbitrary, discrimina-
tory, or in bad faith. See Humphrey v. Moore, [375 U.S.
335 (1964)]; Ford Motor Co. v. Huffman, [supra]. (Vaca
v. Sipes, supra at 190.)
The Court, noting that the Vaca case arose in a context involving
the manner in which a union processed the plaintiff's grievance,
added that it accepted the proposition that a union may not
arbitrarily ignore meritorious grievance or process it in a perfunc-
tory fashion. (Emphasis supplied.)
As a result of Vaca the duty of fair representation is now
often described as one in which a union may not act arbitrarily,
invidiously, irrelevantly, unfairly or perfunctorily in carrying out
its representational duties. The Vaca court even recognized that
those phrases had become cause for debate with respect to the
scope of their meaning. It had hoped to be able to provide
clarity with respect to defining those phrases. Despite that effort,
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JD(SF)—21—87
the duty itself remains somewhat murky depending on the fact
pattern being presented. The Board has generally held that duty
of fair representation is not breached where the union is
forgetful, commits an inadvertent error, or is negligent. Local 18,
Operating Engineers (Ohio Pipeline Construction Co., 144 NLRB
1364 (1963); Teamsters Local 692 (Great Western Unifreight
System), 209 NLRB 446 (1974).
Yet the courts have had some difficulty in determining the
breach of the duty where errors, omissions and negligence caused
results which severely damaged an employee’s rights, privileges or
status. For example, the Ninth Circuit in Dutrisiac v. Caterpillar
Tractor, 349 F.2d 1270 (1983) was faced with a situaticn where a
union missed a deadline for filing a grievance. The court found
that meeting a deadline for the filing of a grievance wa; simply a
ministerial act and easy to carry out. It appeared to recognize
that the failure to file was simply an act of negligence but
observed that the grievant’s interests which were at stake were
strong and that the union’s omission totally extinguished the
grievant’s right to pursue his case. In that circumstance the court
held that it was a breach of the duty of fair representation to fail
to complete the ministerial act of filing a grievance in a timely
way. Despite some language of the majority claiming that it was
not finding a breach of the duty for simple negligence, Judge
Norris disagreed in his concurring opinion. Given the facts of the
case, it appears to me that Judge Norris is correct in his assess-
ment that the court relied on simple negligence to find a breach
of the duty.° Nonetheless, the Ninth Circuit’s analysis has some
analytical impact here. It is quite true that meeting a filing
deadline is a ministerial act which can be easily met. It is equally
true that a missed deadline can quite often result in great harm
to an individual’s rights or status. Indeed, it can be reasonably
argued that the deadline which Respondent missed here is no
different from the deadline which was missed in Dutnsiac. Yet,
* Judge Norris was relying on comments made by Judge Anthony M.
Kennedy in Robesky v. Quantas Empire Airways, 573 F.2d 1082 (9th Cir. 1978).
-42a-
JD(SF}—21—87
can it be said in either case that the failure to file was arbitrary,
discriminatory, invidious, irrelevant or perfunctory? It is hard to
characterize forgetfulness or mistake as any of those although the
Dutnisiac court appears to have done so.
Earlier, the Ninth Circuit had stated in Robesky v. Qantas
Empire Airways, 573 F.2d 1082, 1092 (1978) in a grievance-
handling context that the union’s failure to disclose fully the
conditions of a settlement proposal, even though unintentional,
had nonetheless been so reckless that the union could not be
shielded from liability under the fair representation doctrine. It
said the omission was “so egregious, so far short of minimum
standards of fairness to the employee and so unrelated to
legitimate union interests as to be arbitrary,” citing Ruzicka v.
General Motors, 523 F.2d 306 (6th Cir. 1975). Ruzicka was
another case in which the union failed timely to file a grievance
and held that the failure amounted to arbitrary and perfunctory
handling of the grievance sufficient to invoke the doctrine.
Despite its language in Ruzicka, the Sixth Circuit has
recently begun to reanalyze the utility of the Vaca/Miranda Fuel
tests finding them to be unclear. See NLRB v. Teamsters Local
299 (McLean Trucking Co.), 782 F.2d 46, 121 LRRM 2478, 2482
(1986). That case has some striking similarities to the case before
me and is one in which the Board found a violation. Indeed, the
General Counsel argues that the underlying Board case, Team-
sters Local 299 (McLean Trucking Co.),.270 NLRB 1250 (1984)
controls here even though the Sixth Circuit denied enforcement.
At the risk of over-distilling the facts, McLean involved a
company whose collective-bargaining contract contained a
modified no-strike clause. When a dispute arose with respect to
the layoff of a small group of employees, the union demanded,
over the protest of the company, to hold a meeting on the
company premises during worktime. The employer asserted to
the union officials that the meeting was a breach of the no-strike
clause, and that the employees could be disciplined. The union
nonetheless conducted the meeting, never telling the employees
that the company regarded it as an illegal work stoppage or that
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JD(SF}—21—87
the Company could discipline them. The employer, upon
pursuing the matter, determined that the meeting was not an
exception to the no-strike clause, and subsequently disciplined the
employees in accordance with the terms set forth in the contract.
The Board held the union in McLean breached the duty of
fair representation when it encouraged the employees to stop
work in violation of the no-strike clause and when it exposed
them to discipline, a risk it had failed to explain. The Board held
that the union’s claim that the work stoppage was-only a meeting
was not a good faith position and that the union had deliberately
misled the employees with respect to the consequences of their
action. It held that the employees “had a right to expect that the
Union would not encourage them to violate the contract in a way
that would expose them to a loss of income or even employ-
ment.” Specifically, it relied on both Miranda and Vaca in
reaching its conclusion that the Union’s contract was arbitrary.
270 NLRB 1250, 1252.
The Sixth Circuit, however, regarded the Board’s decision as
an assertion that the duty of fair representation “imposes an
affirmative obligation on a union to inform its members of
possible disciplinary consequences for participating in at least
some forms of union activity.” It then said that after careful
review of the case law it believed that there was no support for
interpreting the duty of fair representation to encompass the fact
pattern before it. It noted that both Vaca and Ruzicka involved
the arbitrary handling of an individual's grievance. It observed
that even though the individuals in those cases had not been
discriminated against in the classic sense and even if the Union
had not acted in bad faith, the grievants were alleging treatment
disparate from other members. It stated that the Board’s position
with respect to the application of the Vaca logic was “completely
out of context” and
. . . [wjould require us to extend the duty [of fair
representation] to cover a situation involving a work
stoppage rather than collective bargaining or grievance
-44a-
JD(SF)—21—87
processing, and where a member or group was not
singled out for different treatment. In other words, the
duty would be expanded to include an undefined
fiduciary duty which a union owes to its unit as a whole.
Such a duty could impose on a union an obligation to
authorize a strike, or any number of other affirmative’
actions. We decline to extend the duty so far, since we
believe the duty of fair representation was never
intended to be “catch-all” for undesirable union activity.
* * * We conclude as a matter of law, that the duty of
fair representation is implicated only when an individual
or group is treated differently by a union—either
through discriminatory, bad-faith, or arbitrary conduct—
than another individual, group or the collective. Since
such differential treatment was not alleged in this case,
we find that the Board was incorrect as a matter of law
to find a violation of the duty of fair representation.
We therefore decline to consider the Miranda Fuel
question, and cannot grant enforcement on this basis.
Thus, both the Ninth and the Sixth Circuits have questioned
the utility of the Miranda/Vaca language and have now come
down on different sides of the issue. The Ninth Circuit is willing
to say that negligence in some circumstances is a perfunctory ‘ect;
the Sixth Circuit has said that even a deliberate, apparently
reckless, act resulting in the destruction or impairment of employ-
ee rights or status is not a breach of the duty so long as the
employee is not treated differently than others and even then
only if the union’s conduct is discriminatory, arbitrary or in bad
faith.
The foregoing discussion does not resolve the specific fact
pattern before me. I advert to it, however, with the specific
purpose of observing that fair representation cases of the kind
presented here are not straightforward. Indeed, both courts have
strongly suggested that the Miranda/Vaca language is not of
bright-line assistance in determining this kind of case. The Sixth
Circuit in McLean even goes so far as to say that language arising
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JD(SF}—21—87
from grievance-handling cases with respect to what a union must
do to inform its members of the consequences of their acts in
other fact patterns is inappropriate. The Board, of course, had
held the opposite.
In the instant case the Union did not inform the Aztech
employees that the Section 8(d) notice to the FMCS had not
been timely filed principally because its officials did not know it.
I should observe here that there is a significant factual difference
between Respondent’s omission here and the Teamsters’ omission
in McLean. In McLean the union knew it was risking a breach
of the no-strike clause. Indeed as the meeting began the
employer informed the union that it was breaching that section
of the contract. Aztech’s King did not make a similar warning
and I credit the Union’s evidence that it took several days to find
out what had actually happened with respect to the FMCS filing.
In the meantime, of course, the Employer had already taken the
disciplinary act which Section 8(d) permitted it to take. It can
clearly be said that the Teamsters’ act in McLean was taken
knowingly and with reckless disregard for employee rights. The
same cannot be said of Respondent’s omission. Thus, the Board’s
decision in McLean is factually distinguishable from the case
presented here, even without regard to the Sixth Circuit’s
decision to deny enforcement. I must disagree therefore with the
General Counsel who urges that the Board’s decision in McLean
controls.
Instead, seems to me that the General Counsel has not
shown that the Union’s failure to file the FMCS notice was
anything other than an act of negligence, mistake or inadver-
tence. Under Board law as set forth in Local 18 Operating
Engineers (Ohio Pipeline Construction Co.), supra, and Teamsters
Local 692 (Great Western Unifreight System), supra, no breach of
the duty can be made out. The only two theories which I can see
which would require a finding of a violation is either an adoption
of the General Counsel’s fiduciary duty theory or the Ninth
Circuit’s analysis with respect to a failure to perform a ministerial
act. The fiduciary theory would of course impose a higher duty
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JD(SF)—21—87
of care upon the union than is normally seen in fair representa-
tion cases. I think it is fair to conclude that if the Union’s duty
is that of a fiduciary, it failed to meet it. However, I have already
noted that the fiduciary duty does not exist here.’ Moreover, the
Board has not accepted the Ninth Circuit’s approach here. In
fact the Board has held “. . . it is not every act of disparate
treatment or negligent conduct which is proscribed by Section
8(b)(1)(A), only those which have been motivated by hostile,
invidious, irrelevant, or unfair considerations. . .” Steelworkers
Local 2869 (Kaiser Steel Corp.), 239 NLRB 982 (1978). Thus,
while we may be offended by Respondent’s failure to file the
FMCS notice and its consequent negative impact upon the
employment status of the individuals Respondent represented, it
appears that under current Board law the Respondent did not
breach the duty of fair representation when it called the strike."
” The Board has imposed a fiduciary obligation on unions in the enforce-
ment of union security clauses. See Conductron Corporation, 183 NLRB 419,
429 (1970); Rocket and Guided Missile Lodge 946, [AM (Aerojet-General Corp.),
186 NLRB 561, 562, (1970) and cases cited in fn. 1; Boilermakers Local 732
(Triple A Machine Shop, Inc., 239 NLRB 504, (1978).
* The Charging Party has observed that Respondent was subject to a “most-
favored-nations” clause in a contract with an El Paso, Texas firm. He argues
that Respendent could not politically accept a lower rate in Albuquerque without
risking wage cuts at the larger El Paso company. He says it follows, therefore,
that Respondent specially exhorted Aztech’s employees to strike to obtain the El
Paso rate. Whether the employees won or lost, he argues, the Respondent was
acting improperly. If the employees succeeded, Aztech, already financially
precarious, would be rendered uncompetitive and forced out of business. If they
failed and the strike was lost, Respondent would not be obligated to sign a new
contract. Either way the El F iso contract would not be jecpardized.
I do not accept the premise. Respondent had a specific purpose in
Albuquerque, to obtain a new contract with Aztech. El Paso is 270 miles distant
and probably not much of a consideration to the Union as it sought a new
contract in Albuquerque. More significant is the observation that even if
Respondent was concerned with the most favored nations clause in E! Paso, it
did not need to file a late notice with the FMCS to create a dispute justifying the
abandonment of the Aztech employees to save the El Paso contract. Any strike
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JD(SF)—21—87
Moreover, as it breached no duty of fair representation at
the time of the calling of the strike and, as the employees were
discharged almost instantly thereafter, it was faced with a fait
accompli. The employees were free to either accept the Union’s
advice or the Employer's advice and to make their own decisions
thereafter. Briggs’ and Gilliland’s statements to employees after
the strike was under way that to win the strike they had to stick
together was only the ordinary encouragement of a union official
to maintain solidarity during a labor dispute. Such statements do
not amount to any special encougggement to continue to strike
in the face of an unreasonable risk. Therefore, I cannot find a
violation based upon the General Couhsel’s second theory either,
that a breach of the duty occurs when the Union fails to tell its
employees to go back to work.
Indeed, it seems to me that the Aztech employees took the
steps that one would expect them to take against a union which
failed adequately to represent their interests. They fired the
Union as their representative when they filed their decertification
petition and induced the disclaimer of representation. That is
certainly the most appropriate means of punishing a representa-
tive which has made such a horrendous error.
Based on the foregoing findings of fact and the record as a
whole, I hereby issue the following:
would have accomplished that. Therefore, I do not regard the El Paso most
favored nations clause to be a legitimate consideration here. The Charging
Party’s position with respect to it is illogical.
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JD(SF)—21—87
Conclusions of Law
1. Aztech International, Ltd. is an employer engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. Respondent, Sheet Metal Workers’ Internztional
Association, Local No. 49, AFL-CIO, is a labor orgauization
within the meaning of Section 2(5) of the Act.
3. Respondent has engaged in no violations of the Act as
alleged in the complaint.
Based upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:’
ORDER
The complaint is dismissed in its entirety.
Dated: March 4, 1987
/s/
James M. Kennedy
Administrative Law Judge
* If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended 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.
APPENDIX F
COMPLAINT AND NOTICE OF HEARING
April 21, 1986
-49a-
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 28
SHEET METAL WORKERS’ INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 49,
AFL-CIO (Aztech International, Ltd.)
and Case 28-CB-2479
PETE LE’MON, an Individual
COMPLAINT AND NOTICE OF HEARING
It having been charged by Pete Le’Mon, an individual
(herein called Le’Mon), that Local 49, Sheet Metal Workers
International Association, AFL-CIO (designated in the caption
hereof by its correct name and herein called the Respondent),
has engaged in and is engaging in certain unfair labor practices
affecting commerce as set forth and defined in the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.,
herein called the Act, the Generai Counsel of the National Labor
Relations Board, on behalf of the National Labor Relations
Board (hereinafter called the Board), by the undersigned,
pursuant to Section 10(b) of the Act and Section 102.15 of the
Board’s Rules and Regulations, Series 8, as amended, hereby
issues this Complaint and Notice of Hearing and alleges as
follows:
1. The charge herein was filed by Le’Mon on October 28,
1985, and a copy thereof was served by certified mail upon the
Respondent on the same date.
2. Aztech International, Lid. (herein called Aztech), is
now, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State
of New Mexico.
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3. At all times material herein, Aztech has maintained an
office and principal place of business in Albuquerque, New
Mexico, where it is engaged in the manufacture and marketing of
heating panels and evaporative cooling units.
4. During the past 12-month period, which period is
representative of its operations at all times material herein,
Aztech, in the course of its business operations described above
in paragraph 3, sold goods valued in excess of $50,000 which were
transported in interstate commerce and delivered to customers
outside the State of New Mexico.
5. Aztech is now, and has been at all times material herein,
an employer engaged in commerce within the meaning of Section
2(5) of the Act.
6. The Respondent is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
7. (a) At all times material herein, Gary Briggs has
occupied the position of business manager of the Respondent,
and is now, and has been at all times material herein, an agent of
the Respondent, acting on its behalf, within the meaning of
Section 2(13) of the Act.
(b) At all times material herein, George “Jeep”
Gilliland has occupied the position of business representative of
the Respondent, and is now, and has been at all times materiai
herein, an agent of the Respondent, acting on its behalf, within
the meaning of Section 2(13) of the Act.
8. At all times material herein, by virtue of Section 9(a) of
the Act, the Respondent has been, and is now, the exclusive
bargaining representative for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, of all employees of
Aztech in the following unit:
-S5la-
[AJll production employees of [Aztech], excluding only
supervisors, office clerical help, watchmen and guards as
defined in the National Labor Relations Act of 1947, as
amended.
9. At all times material herein, the Respondent and Aztech
have maintained in effect and have enforced a collective-
bargaining agreement covering wages, hours, and other terms and
conditions of employment of the employees of Aztech in the unit
described above in paragraph 8, which, by its terms, expired on
September 30, 1985.
10. (a) On or about October 1, 1985, the Respondent
engaged in a strike, and continued to engage in a strike, against
Aztech until on or about October 7, 1985.
(b) The object of the strike described above in
subparagraph 10(a) was in furtherance of the Respondent’s
reopening of the collective-bargaining agreement described above
in paragraph 9, and the demand for a successor agreement to it.
(c) Commencing on or about October 1, 1985, and
continuing to October 7, 1985, the Respondent, in the
furtherance and support of its demands as described above in
subparagraph 10(b), picketed at Aztech’s Albuquerque, New
Mexico, facility with picket signs stating “Aztech International,
No Contract, SMWIA, Sheet Metal Workers, Local Union #49.”
11. On or about September 17, 1985, the Respondent
served a written notice on the Federal Mediation and
Conciliation Service of the existence of a dispute between the
Respondent and Aztech, as described above in subparagraphs
10(a) through 10(c).
12. The Respondent commenced the conduct as described
above in paragraph 10, and its subparagraphs, less than 30 days
after service of the notice described above in paragraph 11.
-52a-
13. Since on or about September 30, 1985, the Respondent
by its agents has failed to fairly represent employees of Aztech by
the following acts and conduct:
(a) On or about September 30, 1985, the Respondent,
through Gary Briggs, induced and encouraged employees to vote
in favor of striking Aztech despite its knowledge that it had not
complied with the 30-day time period required for notice of the
existence of a dispute, as set forth in Section 8(d)(3) of the Act.
(b) On or about October 1, 1985, the Respondent,
through George “Jeep” Gilliland, willfully encouraged employees
to continue its strike of Aztech by affirmatively misrepresenting
to employees that proper notice had been made in compliance
with the provisions of Section 8(d)(3) of the Act.
(c) On or about October 2, 1985, and continuing
through October 7, 1985, the Respondent, through Gary Briggs
and George “Jeep” Gilliland, continued to encourage employees
to participate in the strike against Aztech despite its knowledge
that it had not complied with the provision of Section 8(d)(3) of
the Act.
14. As aconsequence of the Respondent’s acts and conduct
described above in paragraph 13, and its subparagraphs, certain
striking employees of Aztech suffered loss of employment, wages,
seniority rights, and other employment benefits.
15. By the acts and conduct described above in paragraph
13, and its subparagraphs, in connection with its representative
Status as described above in paragraphs 8 and 9, the Respondent
has failed to represent the employees of Aztech by engaging in
unfair, arbitrary, and invidious conduct, which conduct constitutes
a breach of the fiduciary duty owed to employees whom it
represents.
16. By the acts and conduct described above in paragraph
13, and its subparagraphs, and paragraph 15, and by each of said
acts and conduct, the Respondent has restrained and coerced,
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and is continuing to restrain and coerce, employees in the
exercise of the rights guaranteed by Section 7 of the Act, and the
Respondent thereby has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(1)(A) of the
Act.
17. The acts and conduct of the Respondent described
above in paragraphs 13, 15, and 16, occurring in connection with
the operations of Aztech, described above in paragraphs 2
through 5, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several states of the
United States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
18. The acts and conduct of the Respondent described
above constitute unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act, which affect commerce within the
meaning of Section 2(6) and (7) of the Act.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged above in paragraphs 13, 15, and 16, the General
Counsel seeks an order providing that Respondent:
Notify the Regional Director for Region 28, in writing,
within 20 days from the date of this Order, what steps
have been taken to comply therewith. For the purpose
of determining or securing compliance with this Order,
the Board, or any of its duly authorized representatives,
may obtain discovery from the Respondent, its officers,
agents, successo1s or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil
Procedure. Such discovery shall be conducted under the
supervision of the United States Court of Appeals
enforcing this Order and may be had upon any matter
reasonably related to compliance with this Order, as
enforced by the Court.
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The General Counsel further prays for such other relief as may
be just and proper to remedy the unfair labor practices herefa
alleged.
PLEASE TAKE NOTICE that commencing at 9 a.m.
(MDT), on May 20, 1986, and continuing on consecutive days
thereafter until concluded, a hearing will be conducted in the
Hearing Room, National Labor Relations Board, Patio Plaza
Building, 5000 Marble Avenue NE, Albuquerque, New Mexico,
before a duly designated administrative law judge of the Board on
the allegations set forth in the above complaint, at which time
and place you will have the right to appear in person, or
otherwise, and give testimony.
YOU ARE FURTHER NOTIFIED that, pursuant to
Sections 102.20 and 102.21 of the Board’s Rules and Regulations,
Series 8, as amended, the Respondent shall file with the
undersigned, acting in this matter as an agent of the Board, an
original and four copies of an answer to said complaint within 10
days from the service thereof, and that, unless the Respondent
does so, all of the allegations in the complaint shall be deemed
to be true and shall be so found by the Board. You are also
notified that, pursuant to said Rules and Regulations, the
Respondent shall serve a copy of the answer on each of the other
parties.
Form NLRB-4668, Summary of Standard Procedures in
Formal Hearings Held before the National Labor Relations
Board in Unfair Labor Practice Proceedings Pursuant to Section
10 of the National Labor Relations Act, as amended, is attached.
Dated at Phoenix, Arizona, this 21st day of April, 1986.
Ls/
Roy H. Garner, Regional Director
APPENDIX G
RELEVANT
CONSTITUTIONAL AND STATUTORY
PROVISIONS
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UNITED STATES CONSTITUTIONAL PROVISIONS
AMENDMENT I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to fetition the Government for a
redress of grievances.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensa-
tion.
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STATUTORY PROVISIONS
§ 7 NLRA, 29 U.S.C, § 157
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in section 158(a)(3) of this title.
§ 8(b)(1)(A) NLRA,
29 U.S.C. § 158(b)(1)(A)
(b) It shall be an unfair labor practice for a labor organiza-
tion or its agents—
(1) to restrain or coerce (A) employees in the exercise of
the rights guaranteed in section 157 of this title: Provided,
That this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the
acquisition or retention of membership therein; . . . .
§ 8(d) NLRA,
§ 29 U.S.C. § 158(d)
(d) For the purposes of this section, to bargain collectively
is the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the execution
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of a written contract incorporating any agreement reached if
requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a
concession: Provided, That where there is in effect a collective-
bargaining contract ~~. :ring employees in an industry affecting
commerce, the duty to t+ -gain collectively shall also mean that no
party to such contract ..all terminate or modify such contract,
unless the party desiring such termination or modification—
(1) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty
days prior to the expiration date thereof, or in the event
such contract contains no expiration date, sixty days to the
time it is proposed to make such termination or modifica-
on;
(2) offers to meet and confer with the other party for
the purpose of negotiating a new contract or a contract
containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation
Service within thirty days after such notice of the existence
of a dispute, and simultaneously therewith notifies any State
or Territorial agency established to mediate and conciliate
disputes within the State or Territory where the dispute
occurred, provided no agreement has been reached by that
time; and
(4) continues in full force and effect, without resorting
to strike or lock-out, all the terms and conditions of the
existing contract for a period of sixty days after such notice
is given or until the expiration date of such contract, which-
ever occurs later:
The duties imposed upon employers, employees, and labor
organizations by paragraphs (2)-(4) of this subsection shall
become inapplicable upon an intervening certification of the
Board, under which the labor organization or individual, which is
a party to the contract, has been superseded as or ceased to be
-58a-
the representative of the employees subject to the provisions of
section 159(a) of this title, and the duties so imposed shall not be
construed as requiring either party to discuss or agree to, any
modification of the terms and conditions contained in a contract
for a fixed period, if such modification is to become effective
before such terms and conditions can be reopened under the
provisions of the contract. Any employee who engages in a strike
within the sixty-day period specified in this subsection shall lose
his status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 158 to 160
of this title, but such loss of status for such employee shall
terminate if and when he is reemployed by such employer.
§ 9(a) NLRA,
29 U.S.C. § 159(a)
(a) Representatives designated or selected for the
purposes of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That
any individual employee or a group of employees shall have the
right at any time to present grievances to their employer and to
have such grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining contract or
agreement then in effect: Provided further, That the bargaining
representative has been given opportunity to be present at such
adjustment.
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APPENDIX H
APPELLANT’S PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING EN BANC
FILED WITH THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
January 31, 1992
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETE LE’MON
Petitioner,
Vv.
No. 88-2833
NATIONAL LABOR RELATIONS BOARD,
Respondent,
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION LOCAL
UNION NO. 49 AFL-CIO,
Intervenor.
he ee ee ee ee ee, ee
ON REMAND FROM THE
UNITED STATES SUPREME COURT
(S. Ct. NO. 90-400)
ON PETITION FOR REVIEW FROM THE
NATIONAL LABOR RELATIONS BOARD
(NLRB No. 28~CB-2479)
APPELLANT'S PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING EN BANC
Hugh L. Reilly, Esq.
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Rd., Suite 600
Springfield, VA 22160
(703) 321-8510
-60a-
STATEMENT OF APPELLANT’S COUNSEL
PURSUANT TO TENTH CIRCUIT RULE 35.2.2
Hugh L. Reilly, counsel for the appellant, Pete Le’Mon,
pursuant to his right and obligation under Tenth Circuit Rule
35.2.2 states:
I express a belief (and the conviction) based on a reasoned
and studied professional judgment that the panel decision is
contrary to the following decisions of the United States Supreme
Court,
Universal Camera v. NLRB, 340 U.S. at 494 (1951);
Airline Pilots Association v. O'Neill, __§ US. at __,
111 S.Ct. at 1130, 1133, 1134, 1135, & 1137 (1991); and
United Steelworkers v. Rawson, 495 U.S. at __, 110 S.Ct. at
1911 (1990).
I also express a belief (and the conviction) based on a
reasoned and studied professional judgment that this appeal
involves the following five questions of exceptional importance.
1. Is there substantial evidence, under Universal Camera,
to support a decision of the NLRB which fails to
address admissions in the record which utterly destroy,
or at least substantially undermine, the “factual”
predicate for the Board’s decision?
2. Is the
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