Intl Un Auto Arosp v. NLRB ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 1, 1999 Decided February 26, 1999
No. 98-1252
International Union,
United Automobile, Aerospace and
Agricultural Implement Workers of America, (UAW),
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Michael B. Nicholson argued the cause for petitioner.
With him on the brief was Leonard R. Page.
Charles Donnelly, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Linda Sher, Associate General Counsel, and
John D. Burgoyne, Acting Deputy Associate General Counsel.
David S. Habenstreit and Steven B. Goldstein, Attorneys,
entered appearances.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: This case presents a narrow ques-
tion: Does a union commit an unfair labor practice by deny-
ing an employee, based solely on the employee's status as a
non-union member, the right to appeal a decision not to
pursue the employee's grievance to the final step of a contrac-
tual grievance procedure, where a successful appeal would
result in reinstatement of the employee's grievance?
The instant dispute arose in connection with the represen-
tation afforded Jerry V. Kirby by the International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America ("UAW" or "Union") with respect to
Kirby's employment at Ford Motor Company. Kirby was
discharged by Ford for alleged misconduct; a grievance was
then filed on his behalf under the UAW-Ford collective
bargaining agreement. Subsequently, Union officials de-
clined to pursue the grievance to arbitration, assertedly for
lack of merit. Kirby sought to challenge the Union's decision
through an appeal pursuant to an internal Union review
process. Ford has an agreement with the UAW providing
that a grievance will be reinstated for further consideration
under the parties' contractual grievance/arbitration proce-
dures if it has been successfully appealed in the internal union
process. Nonetheless, the UAW refused to process Kirby's
appeal solely because, at the time when it was raised, Kirby
was no longer a member of the Union.
Kirby then filed an unfair labor practice charge with the
National Labor Relations Board ("NLRB" or "Board"). The
Board determined that the Union's refusal to allow Kirby to
pursue an appeal, based solely on Kirby's membership status,
violated s 8(b)(1)(A) of the National Labor Relations Act
("NLRA" or "Act"). The Union now petitions for review of
the NLRB's order and the Board cross-petitions for enforce-
ment of that order.
This case appears to raise an issue of first impression.
However, the question at hand is not difficult and the
Board's judgment is eminently reasonable, thus warranting
enforcement. On the facts here, it is clear that the Union's
purportedly "internal" appeal process effectively establishes
an additional step in the UAW-Ford contractual grievance
procedure. Because Ford has agreed that a successful ap-
peal to the Union will result in reinstatement of an employ-
ee's grievance, access to the appeal process may directly
affect an employee's job status, by supplying the last avail-
able channel to keep a grievance alive in the hope of a
favorable resolution. Under these circumstances, the Board
reasonably concluded that availability of this process on a
members-only basis unlawfully restrains and coerces employ-
ees under s 7 of the Act.
I. Background
A. The Facts
The relevant facts are essentially undisputed. Jerry Kirby
began his employment with Ford in 1977. On March 31,
1994, Ford discharged Kirby, assertedly for "being under the
influence of alcohol, absenteeism and threatening manage-
ment." Summary Report of William C. Schaub, Jr., NLRB
Regional Director (Feb. 13, 1996) ("Summary Report"), re-
printed in Joint Appendix ("J.A.") 68. The local representa-
tive of the UAW, the designated collective bargaining agent
for employees at Ford, immediately filed a grievance with the
company on Kirby's behalf.
Pursuant to the collective bargaining agreement between
the UAW and Ford, the processing of an employee grievance
follows a four-step procedure. See Agreements Between
UAW and Ford Motor Company (Sept. 15, 1993), reprinted in
J.A. 181-93. The first three steps, with increasing degrees of
formality, involve processes for dispute resolution at the
company level. See id. at 182-85. If a grievance is not
settled, withdrawn, or otherwise resolved in the first three
steps, the National Ford Department of the International
Union may appeal the matter to impartial, binding arbitra-
tion. See id. at 186.
Article 33 of the UAW constitution provides, inter alia,
that a "member [of the Union] shall have the right under this
Article to appeal any action ... or refusal to act" on the part
of the Union. Constitution of the International Union, art.
33, s 1 (June 1995), reprinted in J.A. 114. Under this
provision, if the Union opts not to pursue a member's griev-
ance to arbitration, the affected employee may appeal that
decision to the Union's appellate bodies for reconsideration.
The Union and Ford have a "letter of understanding," pursu-
ant to which the company has agreed that, following a suc-
cessful Article 33 appeal, an employee's grievance will, at the
Union's request, be reinstated at the same level in the
grievance procedure at which it was originally settled or
withdrawn. See Letter from Robert M. Middlekauff, Di-
rector, Ford Labor Relations Planning Office, to Ken Bannon,
Vice President, International Union, UAW (Oct. 5, 1976),
reprinted in J.A. 65-66. The letter explicitly provides that
reinstatement under this agreement will not expose the com-
pany to liability for any back pay that accrued during the
period from the original disposition to the reinstatement. See
id. at 65.
On January 30, 1995, Kirby's grievance was denied at the
third step of the contractual procedure. At that point, the
Union's local representative notified Kirby that his grievance
was being transferred to the International Union for possible
appeal to arbitration. See Notice from UAW Local 36 to
Kirby, reprinted in J.A. 50. On May 16, however, an Inter-
national Union representative orally informed Kirby that his
grievance would not be pursued to arbitration, assertedly for
lack of merit. See Stipulation of Facts at 3, p 12, reprinted in
J.A. 47; International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
AFL-CIO (Mar. 31, 1998) ("NLRB Decision and Order"),
reprinted in J.A. 200 n.1. This constituted the final resolu-
tion of Kirby's grievance.
On June 1, 1995, Kirby filed an appeal with the Union to
contest the refusal to submit his grievance to arbitration. On
June 26, the UAW's president wrote Kirby to acknowledge
his appeal, see Letter from Stephen P. Yokich, UAW Presi-
dent, to Kirby (June 26, 1995), reprinted in J.A. 63, but on
July 28, he again wrote Kirby, this time denying Kirby's right
to appeal. See Letter from Yokich to Kirby (July 28, 1995),
reprinted in J.A. 64. The president's letter stated that
Article 33 of the UAW constitution grants a right of appeal to
Union members only, and that Kirby was not entitled to
invoke this procedure, because his membership had lapsed
since his discharge. See id. The letter further explained
that Article 16 of the UAW constitution provides that a Union
member will retain member status for six months following a
discharge, without any requirement of paying dues. Howev-
er, the member must then notify the Union within the last ten
days of that six-month period that he or she wishes to remain
a member. Because Kirby had not availed himself of that
procedure, he did "not have the status of a member to make
an appeal." Id. Prior to receiving this letter, Kirby appar-
ently was unaware that his membership had lapsed. See
Transcript of Hearing Before Administrative Law Judge
(Dec. 18, 1996) ("Tr.") at 29, reprinted in J.A. 35.
B.Board Proceedings
On October 12, 1995, Kirby filed a charge with the NLRB,
alleging that the Union's withdrawal of his discharge griev-
ance violated its statutory duty to fairly represent him, and
that its refusal to permit Kirby to appeal that decision based
solely on his membership status constituted an unfair labor
practice. Following an investigation, the Board's Regional
Director declined to issue a complaint on Kirby's first claim,
finding "insufficient evidence that [the Union] failed to prop-
erly represent [Kirby] in violation of [its] duty of fair repre-
sentation regarding the processing of his discharge griev-
ance." Summary Report, reprinted in J.A. 67-68. However,
the Regional Director determined that the "portion of the
charge that involve[d] the [Union's] refusal to consider [Kir-
by's] appeal ... because [he was] no longer a member of the
union remain[ed] in full force and effect." Id. at 67.
On February 29, 1996, the Board's General Counsel issued
a complaint, alleging that, by "refus[ing] to allow [Kirby] to
appeal, pursuant to [the Union's] Constitution, a decision by
[the Union] not to submit his discharge grievance to an
umpire," and by basing that refusal on the fact that Kirby
"was not a member of [the Union]," the Union "ha[d] been
restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(b)(1)(A) of the Act." Complaint and Notice of
Hearing at 2, pp 8-10 (Feb. 29, 1996), reprinted in J.A. 6.
Subsequently, the matter was heard by an administrative law
judge ("ALJ") on the sole question of whether the Union
violated the NLRA by denying Kirby the right of appeal.
See Tr. at 8-9, reprinted in J.A. 16-17. Because the only
issue before the ALJ was the legality of the Union's refusal to
hear Kirby's appeal, the ALJ refused to hear evidence re-
garding the merits of Kirby's grievance. See id. at 34, reprinted in J.A. 40.
At the conclusion of the hearing, the ALJ held that the
Union had violated s 8(b)(1)(A) of the Act by denying Kirby
the right to appeal solely because of Kirby's non-member
status. See International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW), AFL-CIO (Aug. 5, 1997) (ALJ Decision) at 4, re-
printed in J.A. 195. The ALJ found that the availability of
the Union's internal appeal process affects an individual's
status as an employee by enhancing his or her chance to
remain employed. See id. Therefore, in the ALJ's view,
[t]he privilege accorded a member, namely the right to
appeal an adverse decision, has the coercive effect on
unaffiliated employees to join the union. Section 7 of the
Act provides that employees shall have the right to join a
union and the right to refrain from any such activity. It
follows that article 33 in the context of the grievance
process contravenes the statutory labor policy inherent
in Section 7 of the Act. This is particularly so because
the grievance procedure is at the heart of labor policy.
Id. (citations and internal quotation marks omitted). Al-
though acknowledging that the Union was not required to
provide the internal appeal mechanism as an added benefit
for those pursuing grievances under the contractual proce-
dure, the ALJ nonetheless concluded that "the Act requires
that if such an opportunity is provided it must be offered
equally to everyone whom the [Union] represents." Id. Ac-
cordingly, the ALJ recommended that the Union be ordered
to cease and desist from "[r]efusing to allow [Kirby] or any
other non-member to appeal, pursuant to its constitution, a
decision not to submit the discharge grievance to an umpire."
Id. The ALJ also recommended that the Union be ordered
affirmatively to "[r]evise or interpret article 33 of its constitu-
tion so as to permit nonmembers the same rights of appeal as
members in grievance matters, and allow [Kirby] to appeal
the decision not to submit his discharge grievance to an
umpire." Id.
The Board affirmed the ALJ's findings and conclusions,
and adopted the recommended order with one important
modification. See NLRB Decision and Order, reprinted in
J.A. 200. In particular, the Board made it clear that its
holding was limited to a situation, as with the UAW and Ford,
in which the employer agrees that any successful appeal in
the Union process will result in reinstatement of an employ-
ee's grievance under the parties' contractual grievance/arbi-
tration procedures. The Board did not address the legality of
a "members-only" internal union appeal process that does not
implicate the employer or the employee's job status. See id.
at 1-2, reprinted in J.A. 200-01.
II. Analysis
There is no dispute here that the Union denied Kirby the
right of appeal under its constitution for one reason and one
reason alone: Kirby was not a member of the Union. There
is also no dispute that, had the Union permitted Kirby to
appeal its decision, and had Kirby prevailed before the Un-
ion's appellate bodies, Ford would have reinstated Kirby's
grievance, giving Kirby an opportunity to pursue his claim in
arbitration. The question is whether, under these circum-
stances, the Union's policy of limiting access to its Article 33
appeal mechanism to only Union members constitutes an
unfair labor practice.
We will "uphold the Board's determination unless it has
'acted arbitrarily or otherwise erred in applying established
law to the facts at issue.' " Pittsburgh Press Co. v. NLRB,
977 F.2d 652, 654 (D.C. Cir. 1992) (quoting North Bay Dev.
Disabilities Servs., Inc. v. NLRB, 905 F.2d 476, 478 (D.C.
Cir. 1990)). Likewise, we will "accord[ ] particular weight" to
the Board's construction of the statute it is charged with
administering. Id. at 655 (citing Chevron USA, Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).
Bearing these principles in mind, we conclude that the Board
reasonably interpreted and applied the NLRA in finding that
the Union committed an unfair labor practice.
The key statutory provisions in this case are familiar.
Section 7 of the NLRA guarantees employees, inter alia, "the
right to ... form, join, or assist labor organizations ... and
... to refrain from any or all of such activities." 29 U.S.C.
s 157 (1994). Section 8(b)(1)(A) of the Act, in turn, imple-
ments this guarantee, by making it an unfair labor practice
for a union to "restrain or coerce" employees in the exer-
cise of their s 7 rights. Id. s 158(b)(1)(A). However,
s 8(b)(1)(A) also contains an important proviso, i.e., that
nothing in the section shall be construed to "impair the right
of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein." Id.
These provisions are generally understood to protect the
right of employees to participate in or refrain from organized
union activities, while preserving the authority of unions to
govern their internal affairs without running afoul of the Act.
See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195
(1967). Therefore, a rule may be shielded from the Act's
proscription if it "reflects a legitimate union interest, impairs
no policy Congress has imbedded in the labor laws, and is
reasonably enforced against members who are free to leave
the Union and escape the rule." Scofield v. NLRB, 394 U.S.
423, 430 (1969).
It is undisputed here that the union would have committed
an unfair labor practice if, instead of denying non-members
access to the Union appeal process, it had discriminated
between members and non-members in the processing of
grievances under the UAW-Ford collective bargaining agree-
ment. See Oil, Chem. and Atomic Workers Int'l Union,
Local No. 5-114, 295 N.L.R.B. 742 (1989) (holding that dispa-
rate treatment of non-union employee in connection with
grievance procedure was unlawful); cf. National Treasury
Employees Union v. FLRA, 721 F.2d 1402, 1406 (D.C. Cir.
1983) (holding that union policy of furnishing only its mem-
bers with legal counsel in connection with grievances under
collective bargaining agreement violated union's duty of fair
representation under Federal Service Labor-Management
Relations Statute).
The coercive effect of such discrimination would be mani-
fest, for as the designated collective bargaining agent for
Ford employees, the Union has exclusive authority to press
Kirby's grievance--on which his future job status depends--
with the company. See Agreements Between UAW and Ford
Motor Company (Sept. 15, 1993) at 44, reprinted in J.A. 182.
Moreover, such discrimination would not be insulated from
the Act's proscription, because it does not fall within the
scope of internal Union affairs. Rather, contractual griev-
ance procedures deal directly with employees' terms and
conditions of employment, and these are hardly matters that
are strictly "internal" union affairs. See Branch 6000, Nat'l
Ass'n of Letter Carriers, 232 N.L.R.B. 263, 263 (1977) (finding
that exclusion of non-members from a vote directly affecting
their working conditions did not pertain to matters "exclu-
sively within the internal domain of the Union," and was
therefore unlawful), enforced, 595 F.2d 808 (D.C. Cir. 1979).
Indeed, even counsel for the Union conceded at oral argu-
ment that discrimination affecting access to contractual griev-
ance procedures would violate the NLRA.
This case is really no different from a case in which a union
discriminates between members and non-members in the
processing of grievances under a collective bargaining agree-
ment. To be sure, the principal agreement between the
UAW and Ford does not establish the appeal mechanism at
issue as a step in the parties' contractual grievance proce-
dure. However, the cited letter of understanding allowing for
the reinstatement of grievances effectively amends the princi-
pal agreement to allow an extra step in the grievance proce-
dure. Under Article 33, once a grievance is reinstated, the
Union and Ford will resume processing of that grievance in
accordance with the prescribed grievance/arbitration proce-
dures. In other words, the appeal mechanism provided for in
the Union constitution merely represents an additional step in
the process by which an employee has access to a favorable
grievance disposition. And Ford is bound by agreement to
accept any favorable disposition in the Union process, wheth-
er it agrees or not, thus affording an employee an appeal to
arbitration that would otherwise be denied.
At oral argument, Union counsel suggested that the Article
33 appeal process should be exempt from scrutiny under
s 8(b)(1)(A), because it emanates from the Union constitution,
not from the UAW-Ford collective bargaining agreement.
The flaw in this argument is obvious: Article 33 is not
completely divorced from the parties' agreement, because
Ford has embraced it in an enforceable letter of understand-
ing, which effectively modifies the principal agreement. An
employee who prevails under Article 33 has clear rights
under the parties' collective bargaining agreement to pursue
his or her grievance claim to arbitration.
The Union's alternative tack, to which it devotes the bulk of
its brief to this court, fares no better than its first argument.
The Union essentially contends that Kirby's thwarted appeal
was nothing more than a statutory fair representation claim,
because Kirby sought a finding that the Union unfairly
represented him when it withdrew his grievance short of
arbitration. See Brief of Petitioner at 10. The Union points
out that, under its constitution, the applicable standard for
reviewing members' challenges to "the representational fair-
ness of any withdrawal of a grievance ... mirrors the duty of
fair representation standard as it has been elaborated by the
federal courts." Id. at 5. The Union also asserts that, with
respect to such statutory fair representation claims, the Un-
ion is not the exclusive representative of the employees it
otherwise represents, for those employees may seek redress
on their own from the Board, as Kirby did here, or the courts.
See id. at 20. Relying primarily on National Treasury
Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986),
the Union concludes that "it is entirely proper for the Union
to discriminate between members and non-members as to the
resolution of such non-contractual, statutory claims." Brief of
Petitioner at 19.
The Union's argument, while clever, is analytically flawed
in at least two important respects. First, merely because the
Union purports to embrace the "duty of fair representation"
standard in its private appeal process, it does not follow that
the process becomes, or is even equivalent to, a public forum.
The Union is surely free to import the statutory standard as a
means of judging its own cases. See Constitution of the
International Union, art. 33, s 4(i), reprinted in J.A. 119. It
is also free, however, to use any other lawful standard it
wishes. Indeed, the Union's appellate bodies may interpret
the language of the constitutional standard in a manner that
differs from judicial interpretations of the statutory standard.
Cf. American Postal Workers Union, AFL-CIO v. United
States Postal Serv., 789 F.2d 1, 6 (D.C. Cir. 1986) (declining
to disturb arbitrator's construction of the Miranda standard
in connection with collective bargaining requirement that
employer comply with "applicable laws," because arbitrator's
decision simply "reflected his interpretation of the contract").
Second, even if the substantive standards employed in the
private and public fora are the same, the remedies afforded
are not coterminous. In a case of this sort, success in an
Article 33 appeal principally results in reinstatement of an
employee's grievance and another chance to pursue his or her
grievance claim. On the other hand, "[t]he appropriate reme-
dy for a breach of a union's duty of fair representation must
vary with the circumstances of the particular breach." Vaca
v. Sipes, 386 U.S. 171, 195 (1967). A court may impose
monetary or injunctive relief solely against a union. Or, in
the case of a "hybrid" breach of contract/duty of fair repre-
sentation suit against an employer and a union under s 301 of
the Labor Management Relations Act, 29 U.S.C. s 185 (1994),
a court may issue an order compelling arbitration or resolving
the merits of the underlying grievance. See Vaca, 386 U.S. at
196; see also Bowen v. United States Postal Serv., 459 U.S.
212, 223-24 (1983).
In any event, we are unpersuaded by the Union's argu-
ments. At bottom, this case involves a Union rule that
blatantly discriminates between members and non-members
in the processing of grievances under the UAW-Ford con-
tractual grievance/arbitration procedures. There is no basis
for this court to overturn the Board's determination that the
disputed rule violates s 8(b)(1)(A) of the NLRA.
III. Conclusion
For the foregoing reasons, the Union's petition for review
is denied and the Board's cross-petition for enforcement is
granted.
So ordered.