Insufficient evidence supported NLRB finding that union’s representation of employee was arbitrary, in bad faith

By Joy Waltemath

By Ronald Miller, J.D.

The NLRB’s conclusion regarding the falsity of a union steward’s statement against an employee was not supported by substantial evidence, ruled the Sixth Circuit, finding an insufficient basis to hold that a union acted arbitrarily or in bad faith and therefore breached its duty of fair representation. The Board did not address how the union’s actions constituted arbitrary conduct, but simply asserted that a union steward’s failure to disclose her adverse statement was sufficient to establish a breach. Judge Stranch filed a separate concurring opinion (United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB, December 21, 2016, Gibbons, J.).

Threats and discipline. The union represented janitors employed by a company that contracted to provide janitorial services at a Chrysler plant. The union and employer were parties to a collective bargaining agreement that governed the conditions of employment for the janitors. In early May 2012, the employee told a group of coworkers that she wanted to fight the steward and then offered to pay $100 to anyone else who would also fight the steward. She later apologized to the steward. She was issued a disciplinary warning for walking away from a mandatory pre-shift meeting and not being able to answer questions about what was discussed. Later that day, she got into a fight at the plant with her ex-boyfriend, a fellow janitor.

The next day, prior to the start of her shift, she threatened another coworker who was romantically involved with her ex-boyfriend. The victim immediately reported her comments to the steward and the union’s plant chairperson. They in turn submitted statements to the employer’s site manager, indicating they were present when the threat occurred. The site manager instituted an investigation into the matter. As a result, she was suspended and later terminated.

Grievance resolved. As part of the parties’ three-step grievance process, the steward filed a grievance, but did not offer any arguments on the employee’s behalf. The employer denied the grievance. At Step 2, the union chairperson represented the employee. The union and employer negotiated a settlement that would allow the employee to return to work without back pay. In exchange, she would be required to complete an anger-management course, drop all pending claims before the Board, and sign a 90-day last-chance agreement. She rejected it. Nevertheless, the parties settled the grievance and sent the employee a letter confirming the disposition of her grievance.

NLRB charges. Meanwhile, the employee filed a series of NLRB charges against the employer and union. The Board consolidated her charges and issued a complaint alleging that the employer acted unlawfully by imposing onerous working conditions on her, changing her job duties, disciplining her, suspending her, and discharging her because she engaged in protected activity. Additionally, it was alleged that the employer coercively interrogated employees about their communications with a Board investigator. The complaint also alleged that the union’s refusal to proceed to arbitration on the employee’s grievance was arbitrary, discriminatory, or bad-faith conduct, constituting a breach of the union’s duty of fair representation to the employee. Further, it was alleged that the union caused the employer to discriminate against and discharge the employee because of her protected activity.

An administrative law judge dismissed the complaint in its entirety. Although the ALJ found that there was a strained relationship between the employee and the three local union officials involved in her grievance process, he recognized that the officials still filed a grievance on her behalf and negotiated a settlement for reinstatement that was consistent with a recent settlement for another employee in a similar situation. The NLRB affirmed in part and reversed in part, finding the union liable for violating its duty of fair representation to the employee. The union petitioned for review of the Board’s decision that it breached its duty of fair representation. The Board filed a cross-application for enforcement.

Issues preserved for appeal. As a preliminary matter, the Sixth Circuit found that the union properly preserved for consideration its argument that the Board’s opinion imposed too great a duty to act on the union given the established standard for the duty of fair representation. In this instance, the union filed an answering brief in response to the NLRB Acting General Counsel’s exceptions to the ALJ decision. A review of the record clearly indicated that the union sufficiently presented arguments about the increased scope of the duty of fair representation similar to those it raised on appeal. Because the union’s prior briefing was sufficient to apprise the Board of the issue raised on appeal, the issue was properly preserved for consideration here.

Steward’s statement. Next, the appeals court considered the Board’s finding that the steward’s statement was “partly false”—specifically, that the steward actually witnessed the incident in which the employee threatened her ex-boyfriend’s paramour. Although both the ALJ and the Board determined that the steward had not witnessed the incident, the court concluded that this finding lacked substantial evidence. The record did not conclusively establish the steward’s presence at the time of the threat, but the Board’s inference as to her not being present was unreasonable, as the Board ignored relevant evidence that detracted from its findings. The only reasonable inference from the record before the Board was that the steward was in the area shortly before the incident between the employees occurred. As such, the Board’s finding about the steward’s statement was not supported by substantial evidence.

Breach of duty. Finally, the appeals court found there was not substantial evidence to support the Board’s determination that the steward and union failed to disclose an adverse statement made by the steward while representing the employee in grievance proceedings. The Board did not address in detail how the union’s actions constituted arbitrary conduct, but simply asserted that a union steward’s failure to disclose her adverse statement was sufficient to establish a breach. Consequently, the appeals court vacated that portion of the Board’s finding that the union violated its duty of fair representation.

However, given the employee’s history of misconduct, the union had a rational basis for not disclosing the steward’s statement. Moreover, because the employee was not allowed on the plant premises, it was rational for the steward to represent her during Step 1 of the grievance process. Further, the steward’s representation of the employee did not adversely affect the outcome of the grievance proceedings.

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