of the remaining officers, brought unfair labor practice charges against the union. A three-member majority of the NLRB held that the Union's "elimination of the department stewards was a good-faith effort to reduce its representational size to correspond with the decrease in unit size. . . ." Id. However, the majority stated that it was the role of the union personnel, not their ratio to the workers, which entitled them to the presumption that their superseniority was lawful. Id. at 1130 n.4, 96 LRRM at 1110 n.4. Two dissenting members of the NLRB found the superseniority of the officers discriminatory within the meaning of 29 U.S.C. §§ 158(a)(3), 158(b)(2) (1947), because it had not been shown that the officers were involved in grievance processing at the plant level; those board members believed that was necessary for valid superseniority.
In American Can Co. the NLRB ruled 3-2 that the United Steelworkers of America had committed an unfair labor practice when it requested the employer to retain or recall a guard and a trustee with contractual superseniority but not involved in contract administration when there were layoffs of employees with greater regular plant seniority. American Can Co., 244 NLRB 736, 102 LRRM 1071 (1979).
Mr. Klieman's memorandum of February 18, 1982 (Ex. D-1) cited American Can Co. for the proposition that superseniority may be invoked for a "reasonable number" of union officials. However, this limitation was suggested only by a passing use of the phrase "a reasonable number of union officers and grievance committeemen" in the dissent in American Can Co., 244 NLRB at 740, 102 LRRM at 1074. (Fanning, Ch., dissenting). The contrary rule was stated by the majority of the NLRB in Otis Elevator Co., 231 NLRB at 1130 n.4, 96 LRRM at 1110 n.4 (it is the role not the ratio of union functionaries that determines legitimacy of superseniority).
Mr. Klieman's interpretation of the "reasonable number" concept seems to have been based upon a somewhat questionable reading of the rulings of the NLRB. The applicability of the Klieman memoranda in to Mr. Kintsche's case is even more questionable. The memorandum of February 12, 1982 (Ex. D-1) in context postulates the "reasonable number" limit on the number of union " officials " or " officers " who can be given superseniority; it does not appear to apply that rule to grievance committee members and stewards. This interpretation is supported by the statement in Mr. Klieman's March 25, 1983 memorandum (Ex. P-A) that: "In light of Gulton Electro-Voice, we have taken the position that as a rule superseniority for Presidents and Vice Presidents as well as grievance committee members can probably be sustained under the new Board law on the grounds that they do perform representation duties on the job."
Mr. Brean nevertheless formed the belief that if a disproportionately or unreasonably large number of union officers or stewards had superseniority in times of significantly reduced employment this might constitute pro-union discrimination subjecting the union to potential unfair labor practice charges under 29 U.S.C. § 158(b)(2) (1947). He conveyed this legal opinion to Mr. Kurkowski and (directly or indirectly) to Mr. Woodard, and they relied upon Mr. Brean's assessment and advice in assessing and responding to Mr. Kintsche's claim to superseniority both before and after Mr. Kintsche's layoff.
Even if Mr. Brean's opinion of superseniority law was erroneous, the court cannot find that it was formed or conveyed arbitrarily, discriminatorily, or in bad faith. Mr. Klieman's memoranda stated a sincere belief shared by Mr. Brean that rulings of the NLRB were steadily decreasing the scope of lawful contractual superseniority. Although Mr. Woodard and Mr. Kurkowski were not lawyers, they were experienced union officials and shared Mr. Brean's fear of unfair labor practice charges.
Ordinary negligence by a union in handling an employee's grievance does not constitute a breach of the duty of fair representation. Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970); Larry v. Penn. Truck Aids, Inc., 567 F. Supp. 1410, 1414 (E.D.Pa. 1983). Therefore, even if Mr. Brean negligently formed or conveyed his legal opinion and advice, plaintiff cannot prevail. Such conduct simply is insufficient to make out a breach of the duty of fair representation. Defendants are therefore entitled to judgment in their favor.
Defendants urge as an alternative ground for judgment in their favor that Lansdowne did not breach the collective bargaining agreement by laying off Mr. Kintsche. The contract provided for superseniority for " up to six (6) shop stewards. . . ." Collective Bargaining Agreement, Article VIII, § 43 (June 5, 1980) (emphasis added). It did not mandate the selection of six shop stewards.
When the Union and Lansdowne negotiated the contract in 1980 there were approximately 200 to 270 employees at Lansdowne's Morton plant working in three shifts. The local Union subsequently elected six shop stewards, two for each shift. In April, 1982, when there were three shifts of workers, Mr. Kintsche was elected to serve as a shop steward by the day shift workers. During April, 1982, the eleven members of the local Union, including Mr. Kintsche, were told that the shop steward then elected would have superseniority.
The parties agree that Mr. Kintsche enjoyed superseniority from his election until January 4, 1984. Furthermore, although the size of the Morton workforce varied greatly after the collective bargaining agreement became effective, until Mr. Kintsche was laid off, no shop steward was ever denied the benefit of superseniority, even when the workers were reduced to a single shift. The Union's position that there was no breach of contract in reducing the number of shop stewards having superseniority is incorrect.
By its plain terms, the collective bargaining agreement required Lansdowne to grant superseniority to "up to six shop stewards" during layoffs. Collective Bargaining Agreement, Article VIII, § 43 (June 5, 1980). If this provision of the contract was not unlawful, the Union attempts to establish by parole evidence that Lansdowne had authority under the contract to lay off shop stewards during layoffs. This is directly contrary to the plain meaning of the agreement; the court cannot accept such an assertion, particularly since it is also entirely inconsistent with the practices of Lansdowne and the Union from 1980 until the layoff of January 4, 1984. See Hoh v. Pepsico, Inc., 491 F.2d 556, 557-58 n.2 (2d Cir. 1974) (parol evidence may not be used to vary plain meaning of collective bargaining agreement). Cf. Flintkote Co. v. Textile Workers Union of America, 243 F. Supp. 205, 209-10 (D. N.J. 1965) (parol evidence may be admitted to assist interpretation of collective bargaining agreement but not to vary or supplement its terms).
Defendants also argue that the collective bargaining agreement was definitely interpreted, modified, or superceded by the layoff "guideline" proposed by Emory Woodard, Jr., at the November 1, 1983 Union-management meeting and adopted by Lansdowne. Mr. Woodard was the representative of the international Union responsible for the Lansdowne Morton plant. The international Union and Lansdowne are the contracting parties of the collective bargaining agreement. It was the practice of Lansdowne and the Union to hold "cooperative" meeting regarding labor-management problems, such as the meeting of November 1, 1983.
The "guideline" proposed by Mr. Woodward could not modify or supercede the collective bargaining agreement in any way. Adopting it did not comply with the contract modification requirements of 29 U.S.C. § 158(d) (1947). It is also clear that Lansdowne and the Union did not intend at their November 1, 1983 meeting to modify or supercede the labor contract. Even if Mr. Woodard and the President and Vice President of Lansdowne had reached a joint interpretation of the collective bargaining agreement, the court is not bound by their conclusion. The collective bargaining agreement did not provide for its conclusive interpretation except as provided by the grievance procedure. Collective Bargaining Agreement, Article VI, § 23 (June 5, 1980).
Mr. Yocum, president of the local Union, vehemently disagreed with Mr. Woodward's interpretation or construction of the collective bargaining agreement. Furthermore, Mr. Woodward's recommendations were influenced at least in part by a questionable understanding of the legal limits on superseniority established by rulings of the NLRB. In these circumstances, the court will not accept the November 1, 1983 "guideline" as a definitive or a valid interpretation of the collective bargaining agreement. The court reaches its decision in favor of defendants solely on its conclusion that Mr. Woodward and the Union did not breach their duty to Mr. Kintsche of fair representation because even if wrong they clearly acted in good faith rather than arbitrarily or discriminatorily against Mr. Kintsche.
To the extent that the foregoing Discussion contains findings of facts and conclusions of law in addition to those expressly set forth under their respective headings, they are deemed to constitute findings of fact and conclusions of law as if separately set forth.
III. CONCLUSIONS OF LAW
Plaintiff has properly invoked the jurisdiction of this court under 29 U.S.C. § 185 (1947) in this suit for breach of the duty of fair representation by the defendant union official and Union.
Plaintiff's suit is not barred by failure to exhaust either contractual or internal Union remedies. He brought his grievance as far as he could under the collective bargaining agreement and there are no internal Union remedies which he failed to exhaust. Cf. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. at 163-64, 103 S. Ct. at 2290, 76 L. Ed. 2d at 488-89 (exhaustion of contractual remedies excused where Union breached duty of fair representation); Clayton v. U.A.W., 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981) (discussing where exhaustion of internal union remedies is required).
Plaintiff's suit was filed within the applicable six months' limitations period. See Taylor v. Ford Motor Co., 761 F.2d 931 (3d Cir. 1985).
To prevail against the Union in a suit under 29 U.S.C. § 185 (1947) for breach of the duty of fair representation the plaintiff-employees must show not only breach of the collective bargaining agreement by the employer but also breach of that duty by the Union. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. at 165, 103 S. Ct. at 2290-91, 76 L. Ed. 2d at 489.
A representative Union does not breach the duty of fair representation unless it treats a member of the collective bargaining union in a manner that is arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. at 190, 87 S. Ct. at 916, 17 L. Ed. 2d at 857; Starks, 760 F.2d at 54; Findley, 639 F.2d at 957.
Even if their interpretation of the collective bargaining agreement and federal labor law was in error, the defendant Union and union officials made a reasonable, good faith effort both before and after plaintiff's layoff to evaluate and apply rulings of the NLRB to plaintiff's claim of superseniority. Mere negligence in processing a grievance does not violate the duty of fair representation. Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970); Larry v. Penn Truck Aids, Inc., 567 F. Supp. 1410, 1414 (E.D.Pa. 1983).
Defendants are entitled to judgment in their favor.
AND NOW, this 20th day of November, 1985, for the reasons set forth in the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Judgment is entered in favor of defendant Emory Woodard, Jr. and against plaintiff Carl J. Kintsche.
2. Judgment is entered in favor of defendant United Steel-workers of America and against plaintiff Carl J. Kintsche.
© 1992-2004 VersusLaw Inc.