Int'l Union v. Nat'l Labor Relations Bd., s. 15-2305/2478

• Decision Date: 21 December 2016
• Docket Number: Nos. 15-2305/2478,s. 15-2305/2478
• Citation: 844 F.3d 590
• Parties: International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Petitioner (15-2305), International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700, Petitioner/Cross–Respondent (15-2305/2478), v. National Labor Relations Board, Respondent/Cross–Petitioner (15-2305/2478).
• Court: U.S. Court of Appeals — Sixth Circuit

844 F.3d 590

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Petitioner (15-2305),International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700, Petitioner/Cross–Respondent (15-2305/2478),

v.National Labor Relations Board, Respondent/Cross–Petitioner (15-2305/2478).

Nos. 15-2305/2478

United States Court of Appeals, Sixth Circuit.

Argued: September 28, 2016

Decided and Filed: December 21, 2016

ARGUED: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700. Jared D. Cantor, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: John R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent UAW Local 1700. Jared D. Cantor, Usha Dheenan, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

Before: GILMAN, GIBBONS, and STRANCH; Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which GILMAN and STRANCH, JJ., joined. STRANCH, J. (pg. 605), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700 (Local 1700) was charged with violating its duty of fair representation in processing the grievance of Aretha Powell, a Local 1700 member, who was terminated from her position as an automotive plant janitor after threatening a fellow employee. The charge stemmed from the allegations that Margaret Faircloth, Powell's union steward, had submitted a false statement against Powell and was subsequently involved in Powell's grievance process. After an Administrative Law Judge dismissed the charge, the National Labor Relations Board (the Board) reversed, finding that Local 1700 had violated its duty of fair representation to Powell by acting arbitrarily or in bad faith. The Board emphasized that it was relying on three facts, taken together, to support its finding: (1) Faircloth had submitted a statement against Powell that was partly false; (2) Faircloth had represented Powell in the first stage of the grievance process without disclosing the fact that she had submitted a statement; and (3) Powell was unaware of Faircloth's statement throughout the grievance process. Because we conclude that the Board's finding regarding the falsity of Faircloth's statement is not supported by substantial evidence, and that there is an insufficient basis to find that Local 1700 breached its duty of fair representation, we grant the petition for review, deny the cross-application for enforcement, and vacate the portion of the Board's decision addressing the breach of the duty of fair representation.

I.

A.

Caravan Knight Facilities Management, LLC (Caravan Knight) performs janitorial services for Chrysler Automotive at its Sterling Heights Assembly Plant (the Plant). International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the International Union), through its Local 1700 affiliate (Local 1700, collectively, the Union) represents Caravan Knight janitors who work at the Plant. Caravan Knight and the Union were parties to a collective bargaining agreement (CBA) that ran from December 1, 2009 to November 30, 2012.

Aretha Powell, the charging party, was hired by Caravan Knight as a janitor on September 2, 2008. At the same time, she joined the bargaining unit represented by Local 1700. Powell's employment at Caravan Knight was not without incident. In early May 2012,¹ Powell told a group of employees that she wanted to fight Faircloth and then offered to pay one hundred dollars to anyone else who would also fight Faircloth. Powell later apologized to Faircloth when she found out that Faircloth had learned of her statements. On May 10, Powell 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 in the day on May 10, Powell got into a fight at the Plant with Dishan Longmire, her ex-boyfriend and a fellow Caravan Knight employee. The fight was likely related to Longmire's involvement with a third employee, Balinda Tanner.

The next day, prior to the start of her shift, Powell threatened Tanner while they were in the cage area. Powell told Tanner, "I see I'mma have to tear into your motherfucking ass."² Tanner Hr'g Tr., JA 938. Tanner immediately reported the comments to Faircloth and LeVaughn Davis, Local 1700's union chairperson for the Plant. Tanner and Faircloth then submitted statements to Shaun Walle, Caravan Knight's site manager, indicating they were present when the threat occurred.³ Faircloth later testified that she reported the May 10 incident with Tanner because she believed Powell's behavior was escalating. Walle proceeded to investigate the allegations by interviewing several employees, among them, Nathaniel Hudson, a janitor working on the day of the incident. On May 12, Powell met with Walle, Faircloth, and Davis to submit her statement about the incident with Tanner. During that meeting, Walle suspended Powell pending an investigation. Caravan Knight terminated Powell four days later on May 16.

As an elected union steward for Local 1700, Faircloth's duties included processing grievances for terminated employees. Under the CBA, grievances were processed in a series of steps. First, the employee or a representative submitted a written grievance to her immediate supervisor that was signed by a union committee person (Step 1). If the grievance was not resolved at Step 1, Caravan Knight and Local 1700 representatives would meet to attempt to resolve the dispute (Step 2). If the grievance could not be resolved in this meeting, representatives from Caravan Knight, the International Union, and Local 1700 would meet to attempt to resolve the grievance (Step 3). If this was unsuccessful, either party could take the matter to binding arbitration (Step 4).

On May 18, Faircloth submitted a grievance on Powell's behalf to satisfy Step 1. She met with Walle to submit the grievance but did not offer any arguments on Powell's behalf.⁴ Caravan Knight denied the grievance at Step 1. Local 1700 then proceeded to Step 2 of the grievance procedure, with Davis now representing the Union and Powell. Davis and Caravan Knight negotiated a settlement that would allow Powell to return to work without back pay. In exchange, Powell would be required to complete an anger-management course, drop all pending claims before the Board, and sign a ninety-day last-chance agreement. These terms were consistent with a recent settlement agreement in a grievance based on similar facts. Davis testified that a settlement was proposed within 48 hours of the grievance moving to Step 2.

Davis informed Powell of the proposed settlement on May 23. Powell rejected it.⁵ The Union and Caravan Knight, nevertheless settled the grievance under the agreed-upon terms. Powell received a letter confirming the disposition of her grievance on July 26.

Between May 16 and August 14, Powell filed a series of charges against Caravan Knight, the International Union, and Local 1700, alleging violations of Sections 8(a)(1), (a)(3), (b)(1)(A), and (b)(2) of the National Labor Relations Act (NLRA). After charges were filed, Caravan Knight interviewed employees, asking about their interactions with Board investigators. Powell testified that she did not learn of Faircloth's statement about the May 11 incident until the Board informed her of it in early June.

B.

On August 21, the Board's Regional Director consolidated Powell's charges and issued a single complaint against all three parties. This consolidated complaint alleged that Caravan Knight violated Sections 8(a)(1) and (a)(3) of the National Labor Relations Act (NLRA) by imposing onerous working conditions on Powell, changing her job duties, disciplining her, suspending her, and discharging her because she engaged in protected activity. The complaint also alleged that Caravan Knight violated Section 8(a)(1) of the NLRA by coercively interrogating employees about their communications with a Board investigator. The complaint alleged that the Union's refusal to proceed to arbitration on Powell's grievance was arbitrary, discriminatory, or bad-faith conduct constituting a breach of the union's duty of fair representation to Powell, in violation of Section 8(b)(1)(A) of the NLRA. The complaint further alleged that Local 1700 caused Caravan Knight to discriminate against and discharge Powell because of her protected activity, in violation of Section 8(b)(2).

An Administrative Law Judge (ALJ) held a hearing on these allegations. On April 3, 2013, the ALJ issued a Decision and Order dismissing the complaint in its entirety. With respect to Caravan Knight, the ALJ found an insufficient causal connection between Powell's protected activity and the disciplinary action. The ALJ also found that a totality of the circumstances established that Caravan Knight's subsequent interviews with employees were not unlawfully coercive. The ALJ dismissed all charges against the International Union because the legal distinction between the International Union and Local 1700 precluded any derivative duties on the International Union and there was no indication that International Union officials were involved in Powell's grievance process.

In considering the claims against Local 1700, the ALJ found it undisputed that there was a strained relationship between Powell and the three local union officials—Davis, Faircloth, and Tanner—all of whom were involved in her grievance process. The ALJ, however, recognized that these Local 1700 officials still filed a grievance on Powell's behalf and negotiated a settlement for Powell's reinstatement consistent with a recent settlement for another employee in a similar situation....