Buchanan v. N.L.R.B.

• Decision Date: 20 April 1979
• Docket Number: I,No. 355,No. 78-1231,355,78-1231
• Citation: 597 F.2d 388
• Parties: 101 L.R.R.M. (BNA) 3142, 86 Lab.Cas. P 11,272 Norman L. BUCHANAN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Truck Drivers, Helpers, Taxicab Drivers, Garage Employees and Airport Employees Local Unionntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 388

597 F.2d 388

101 L.R.R.M. (BNA) 3142, 86 Lab.Cas. P 11,272

Norman L. BUCHANAN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Truck Drivers, Helpers, Taxicab Drivers, Garage Employees and Airport Employees Local Union No. 355, Intervenor.

No. 78-1231.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1979.

Decided April 20, 1979.

Theodore L. Chandler, Jr., Richmond, Va. (Samuel W. Hixon, III, Richmond, Va., on brief), for petitioner.

Michael Murchison, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Janet C. McCaa, N. L. R. B., Washington, D. C., on brief), for respondent.

Luther C. West, Baltimore, Md. (Bernard W. Rubenstein, Carl S. Yaller, Edelman, Levy & Rubenstein, P. A., Baltimore, Md., on brief), for intervenor.

(Christopher G. Gillam, Lawrence D. Levien, Richard N. Appel, Akin, Gump, Hauer & Feld, Washington, D. C., on brief), for amicus curiae Monarch Institutional Foods Co.

Before HALL and PHILLIPS, Circuit Judges, and JACK R. MILLER, Judge, United States Court of Customs and Patent Appeals, sitting by designation.

MILLER, Judge:

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

                notice provision, which was a condition precedent to arbitration, under the Union's collective bargaining agreement with Monarch Institutional Foods ("Monarch").  1  The ALJ directed, Inter alia, that the Union proceed promptly to arbitration, pay reasonable counsel fees so that Buchanan could employ independent counsel to represent him at the arbitration, and make Buchanan whole for loss of earnings for the period November 20, 1975, the date of his discharge, until the Union demanded arbitration.  The NLRB found that the two-week notice provision had "atrophied" and ruled that the Union's efforts to obtain reinstatement of Buchanan satisfied its duty of fair representation, reversed the decision of the ALJ, and dismissed the complaint filed by the GCNLRB.  We affirm
                

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, ² of his immediate discharge because of alleged misconduct in working excessive overtime on the night of November 19, 1975, and because there was an unauthorized passenger on his truck. At all times during the period of his employment, the collective bargaining agreement between the Union and Monarch contained Article 21, which provided as follows:

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, ³ and he had complained several times to the Union's business agent and to Buchanan himself about these matters. Nevertheless, because Buchanan was likeable and because the Union's business agent encouraged the warehouse supervisor to try to work things out, Monarch continued his employment. According 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. ⁴ The warehouse supervisor took the position that Buchanan's past record, failure to report in as directed, and carrying an unauthorized passenger prevented him from reconsidering, but that an appeal could be made to the branch manager. The business agent spoke to the branch manager several times and tried to persuade him that the whole thing was a misunderstanding and that discharge was too harsh a penalty. The Union president also spoke to the branch manager and asked that something be worked out. These efforts were unsuccessful.

to the night supervisor, Buchanan on several occasions left merchandise at the wrong stop and took too much time, so that he was assigned to servicing trucks for one two-week period. The Union's business agent corroborated the warehouse supervisor's statement regarding complaints about Buchanan's performance and testified that he had passed the complaints on to Buchanan. Buchanan denied having received any complaints about his work and declared that on several occasions he had been complimented by management. It appears that he received no written warnings or reprimands.

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.

agent referred Buchanan to another potential job, but Buchanan did not apply.

OPINION

Three threshold issues have been raised: (1) whether, as argued by the Union, this court...