# Petition for Writ of Certiorari — Le'Mon v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0855%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 830 ## Text our US ae oe i VU; 0.0: 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 De. #7. eae immatmemmeaeaeamma em caamaaicarata tae eee eanien aetna xs 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 — 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... .” -24a- 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 -26a- 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. -29a- 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 -36a- 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). -37a- 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 -38a- 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 -39a- 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. -40a- 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, -4la- 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 -43a- 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 -4Sa- 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 -46a- 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 -47a- 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. -48a- 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. -50a- 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, -53a- 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. -54a- 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 -5Sa- 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. -56a- 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 -57a- 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 da [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0855%3A1. Public record. Not legal advice.