597 F.2d 388 | 4th Cir. | 1979
This case involves a petition by Norman L. Buchanan (“Buchanan”) for review of a decision and order of the National Labor Relations Board (“NLRB”) on the question of fair representation by the Intervenor Truck Drivers, Helpers, Taxicab Drivers, Garage Employees and Airport Employees Local Union No. 355 (“Union”). The Administrative Law Judge (“ALJ”), acting on a complaint filed by the General Counsel of the NLRB (“GCNLRB”) ruled that the Union had violated section 8(b)(1)(A) of the National Labor Relations Act (29 U.S.C. § 158(b)(1)(A)) in its representation of Buchanan by failing to invoke a two-week
Background
Buchanan, a truck driver, was hired by Monarch on March 7, 1974, and assigned to make deliveries on the Washington, D. C., run. He was notified by Monarch on November 20, 1975, by telephone and by a letter to the Union’s business agent,
21) In the event the Company desires to discharge an employee for any reason other than alleged dishonesty, or the use of intoxicants while on duty, the Company shall notify the Union by registered mail two (2) weeks prior to the effective day of such discharge and of the reason therefore [sic]. If the Union challenges the reason for discharge, it shall notify the company to that effect within forty-eight (48) hours after receipt of notice of discharge. Thereupon, an attempt shall be made to adjust the matter by negotiations, provided however, that if negotiations are ineffectual in settling the dispute, then the parties shall proceed to arbitration as provided for in Article 22 hereof.
The discharge shall not become effective pending arbitration.
In the event the reason for the discharge is alleged dishonesty, or the use of intoxicants while on duty, an employee may be summarily discharged provided however, that the Company shall immediately notify the Union by registered mail of such discharge and of the reason therefore [sic]. If the Union challenges the reason for the discharge it may request arbitration as provided for in Article 22 herein. The arbitrators shall render their decision within three (3) days after the matter has been submitted to them.
In the event the arbitrators decide in favor of an employee, the employee is to be reinstated and reimbursed in full for all time lost in connection with such dismissal.
According to Monarch’s warehouse supervisor, Buchanan was an inefficient employee, who frequently became lost, made errors in deliveries, and accumulated an excessive amount of overtime,
Later in his employment, Buchanan was transferred to delivery routes in the Maryland-Pennsylvania area. On November 19, 1975, Buchanan was assigned a route in Pennsylvania commencing at 6:00 a. m. He testified that he had trouble locating the stops along his route, of which there were some twenty-four; that he had made only nine deliveries by 2:00 p. m., when he met a Monarch salesman, who said that Buchanan would never complete his deliveries. The salesman spotted a person he assumed to be a “helper” on Buchanan’s truck. He telephoned the warehouse supervisor to inform him that Buchanan would not be able to complete all of his stops and to mention the “helper.” The warehouse supervisor left word at the next stop for Buchanan to call in. He did so and was instructed to continue his run, but not to remain out after 7:00 p. m. He was asked about the “helper,” since truck drivers were not allowed to have unauthorized passengers, and Buchanan was not provided with a “helper.” The warehouse supervisor testified that Buchanan told him that he had picked up the passenger and then put him off. The instruction to return by 7:00 p. m. was repeated later in the afternoon, when Buchanan again called in, and was overheard by the night supervisor. (Buchanan testified that he was not told to return by 7:00 p. m. and that the warehouse supervisor’s concern was that he not bring back too many undelivered orders; also, that he carried no unauthorized passengers on his truck.) Buchanan returned to Monarch’s premises sometime after 11:00 p. m. and clocked out at 12:38 a. m. The next morning, he called in to the warehouse supervisor and was discharged. That same day, the Union’s business agent telephoned the branch manager to ascertain details of Buchanan’s alleged offense and asked that the discharge be reconsidered. On November 24, the business agent discussed Buchanan’s discharge with the branch manager and the warehouse supervisor and asked them to reconsider it. The next day, a grievance meeting was held at which officers of the Union insisted that Buchanan’s failure to return by 7:00 p. m. was the result of a misunderstanding and asked for reinstatement.
Throughout the efforts in Buchanan’s behalf, the business agent kept him adequately informed of developments, but he did not invoke Article 21 of the collective bargaining agreement. He also obtained some money due Buchanan in connection with an unrelated grievance. In January 1976, after the Union’s efforts had proved fruitless and he had told Buchanan that nothing further could be done, Buchanan asked him to take the matter to arbitration. The business agent discussed this request with the Union’s president and other business agents, and Buchanan was informed on or about January 20, 1976, that they had decided not to take his case to arbitration because “there was no way the case could be won.” In February 1976 the business
On April 26, 1976, Buchanan filed an unfair labor practice charge against the Union, alleging violation of section 8(b)(1)(A) in not properly processing his grievance. On June 14, 1976, the Regional Director of the NLRB filed a complaint against the Union on the basis of Buchanan’s charge. Hearings were held on July 16 and August 10, 1976. The decision of the ALJ in favor of Buchanan was issued on December 30, 1976, to which exceptions were taken by the Union. On June 7, 1977, a three-member panel of the NLRB issued its decision, reversing the ALJ, and ordered that the complaint be dismissed.
OPINION
Three threshold issues have been raised: (1) whether, as argued by the Union, this court lacks jurisdiction because the petition for review was filed more than sixty days after entry of the decision and order of the NLRB;
(1) Jurisdictional issue
[1] With respect to the jurisdictional issue, the Union argues that the sixty-day limitation period in 28 U.S.C. § 2107
(2) Laches issue
In both Kovach and Griffith, supra, the subject of laches was discussed. In
Each case should be viewed independently in the light of all its surrounding facts. The party raising the issue of timeliness should not only show that more time has elapsed than was reasonably necessary in the particular situation, but he should also show that during that time his opponent has gained some advantage he did not originally have or that he himself has been prejudiced by the delay in bringing the action.
In that case, the period of time between entry of the NLRB’s order and the filing of the petition for review was nearly six months, while in Griffith the period was seventy-nine days. In neither case was the doctrine of laches invoked. Here the period was ten months and six days. We are inclined to agree with the Union and Amicus that this period was more than reasonably necessary,
(3) “Atrophy” of two-week notice provision in Article 21
In support of its finding that the two-week notice provision (which was a condition precedent to arbitration) in Article 21 of the collective bargaining agreement had “atrophied” by mutual consent of the parties, the NLRB relied on testimony of the business agent that since he began representing the employees at Monarch in 1967 there had been no application of the two-week notice provision; also, on testimony of the warehouse supervisor that he knew of no application of the provision during the eight to ten years he had been warehouse supervisor;
(4) Fair representation issue
The question here is whether, notwithstanding the Union’s failure to invoke the two-week notice provision and proceed to arbitration under Article 21 of the collective bargaining agreement, the NLRB correctly ruled that the Union satisfied its duty to Buchanan of fair representation for purposes of section 8(b)(1)(A) of the National Labor Relations Act.
The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), has affirmed the principle that the statute imposes upon unions the duty “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.”
In view of the Union’s efforts on Buchanan’s behalf, both before and after his discharge, which have been related earlier in this opinion, we are satisfied that substantial evidence supports a conclusion that the Union handled Buchanan’s grievance in good faith and without hostility or discrimination.
In arguing that the Union was arbitrary in failing to demand his immediate reinstatement pending arbitration under Article 21, Buchanan declares that no excuse for
Finally, Buchanan argues that the Union “had a contractual right to demand reinstatement pending arbitration” and that its failure to enforce this right on his behalf without any reason was “so arbitrary as to constitute a violation of the duty of fair representation.” However, collective bargaining agreements are not ordinary contracts. NLRB v. Cone Mills Corp., 373 F.2d 595, 598 (4th Cir. 1967). They are unique in character and a field unto themselves. United Packinghouse Workers of America v. Maurer-Neuer, Inc., 272 F.2d 647, 649 (10th Cir. 1959), cert, denied, 362 U.S. 904, 80 S.Ct. 611, 4 L.Ed.2d 555 (1960). A union, as custodian of the collective bargaining process in behalf of all employees, must be permitted a “wide range of reasonableness ... in serving the unit it represents.” Ford Motor Co. v. Huffman, supra. Considering the circumstances of Buchanan’s case, it is our conclusion that the Union, which had to take into account its responsibility to look out for the best interests of the collective bargaining • unit, did not act arbitrarily in declining to press for enforcement of the two-week notice and reinstatement provision. Bazarte v. United Transportation Union, supra.
Accordingly, we hold that the NLRB correctly ruled that the Union satisfied its duty to Buchanan of fair representation for purposes of section 8(b)(1)(A) of the National Labor Relations Act.
The decision and order of the NLRB are affirmed.
AFFIRMED.
. Monarch has filed an amicus curiae brief.
. The letter, signed by Monarch’s warehouse supervisor, stated that Buchanan was terminated immediately because, “in direct defiance of my directions, Mr. Buchanan remained on his delivery route for five (5) hours and thirty-eight (38) minutes beyond the limit I set.” The letter also stated: “in my opinion this defiance was in fact an actual theft of the dollars being paid tor those hours.” Regarding the latter, the warehouse supervisor testified that he did not really contend that Buchanan had been dishonest.
. It appears that he had worked overtime in all but five weeks of his employment and in excess of ten hours per week overtime in thirty weeks of his employment.
. Buchanan testified that the business agent spoke up in his behalf at the grievance meeting.
. The NLRB’s decision and order were entered on June 7, 1977. Buchanan’s petition to this court was filed on April 13, 1978, pursuant to section 10(f) of the National Labor Relations Act (29 U.S.C. § 160(f)), which permits “[a]ny person aggrieved by a final order of the Board” to petition an appropriate court of appeals for review of the order.
. We note that the GCNLRB has not raised threshold issues (1) and (2).
. Section 2107 (“Time for appeal to court of appeals”) provides in pertinent part:
In any action, suit or proceeding in which the United States or an officer or agent thereof is a party, the time as to all parties [for appeal to a court of appeals from any judgment, order or decree entered in a civil action] shall be sixty days from such entry.
. In NLRB v. Pool Mfg. Co., 339 U.S. 577, 70 S.Ct. 830, 94 L.Ed. 1077 (1950), an interval of two-and-a-half years was deemed not unreasonable where the NLRB petitioned for enforcement of its order. However, in NLRB v. Norfolk Shipbuilding & Drydock Corp., 172 F.2d 813, 816 (4th Cir. 1949), this court indicated that an interval of over two years in filing a petition for enforcement “might well be sufficient ground for denying enforcement” unless no substantial harm resulted from the delay. Amicus cites this court’s statement in the maritime case of Giddens v. Isbrandtsen Co., 355 F.2d 125 (4th Cir. 1966), that prejudice may be inferred where the period of delay exceeds that of an analogous statutory limitation. Amicus suggests that section 2107, with its sixty-day period, is analogous to the instant proceeding. However, we do not agree that section 2107 is analogous to the “no time limit” found in the National Labor Relations Act. Also, we note that this court, in Giddens v. Isbrandtsen, supra at 127-28 confined its statement to personal injury actions and specifically excluded “other spheres of maritime litigation, such as suits involving contracts.”
. The business agent also testified that the two-week notice provision was in all wholesale grocery contracts and that he did not know of any other application of the provision; that he had worked under such contracts since 1952. However, there is no evidence that, prior to becoming business agent at Monarch in 1967, he had been in a position to be informed whether there had been application of the provision.
. Petitioner argues that the statement about “theft” in the letter of discharge from Monarch’s warehouse manager (note 2, supra) shows that Monarch was trying to avoid the two-week notice provision in Article 21 of the collective bargaining agreement, thus recognizing that the provision had not atrophied. The GCNLRB disputes such an interpretation. However, in view of the conclusion just stated, we need not resolve this dispute.
. Section 8(b)(1)(A) provides:
(b) It shall be an unfair labor practice for a labor organization 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 ....
Section 157 provides, inter alia, that employees shall have the right “to bargain collectively through representatives of their own choosing.”
. In its opinion, the NLRB noted that there was “no contention of bad faith or hostility toward Buchanan” and that the “key question” is whether the Union engaged in “arbitrary conduct.”
. In Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953), the Supreme Court declared:
A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.