Petition to enforce an order of the National Labor Relations Board finding that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America breached its duty of fair representation and violated section 8(b)(1)(A) of the National Labor Relations Act by failing to notify affected members of an arbitration award affecting their recall and employment rights. Petition granted.
Before: FRIENDLY, Circuit Judge, WINTER, Circuit Judge, and LASKER, District Judge.*fn*
This petition to enforce an order of the National Labor Relations Board ("NLRB" or "the Board") directed at respondent-appellant Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, involves the question of whether a union breaches its duty of fair representation when it provides inadequate notice of an arbitration award affecting many of its members. For the reasons set forth below, we conclude that it does and enforce the Board's order in full.
Transit-Mix Concrete Corporation ("Transit-Mix") is a major supplier of ready-mix concrete in the New York metropolitan area and employs drivers to deliver concrete to construction sites throughout the region. On February 13, 1976 the company announced that it had agreed to purchase the assets of Colonial Sand and Stone Co., Inc. ("Colonial"), a competitor. While the record is not entirely clear, it appears that at the time Transit-Mix and Colonial respectively employed 72 and 237 truckdrivers on separate seniority lists. Both companies had individually entered into a collective bargaining agreement with Local 282 which made the union the exclusive bargaining agent for its drivers. Transit-Mix elected to treat its purchase for Colonial's assets as a "buy-out" which meant, according to section 9 of the bargaining agreement, that Colonial's drivers were to be placed at the bottom of the Transit-Mix seniority list.*fn1
On the evening of February 13, about 200 Colonial drivers attended a meeting held to explain the effect of the buy-out upon them. Jim Geohagan, then president of Local 282, explained to the assembled group that Colonial's drivers were going to be placed at the bottom of the Transit-Mix seniority list and would be called back to work according to their seniority ranking. Edward Halloran and Alvin Chattin, president and vice-president of Transit-Mix, told the meeting that all Colonial drivers not hired immediately would be called back as business conditions warranted, that in the meantime they would be placed on indefinite layoff, that new drivers would not be hired until the expanded seniority list was exhausted, and that the laid-off drivers would not have to "shape-up," or report to a designated place for possible hire, until they received a registered letter in the mail. The latter point was consistent with section 15 of Local 282's agreement with Transit-Mix and Colonial, which provided that employees laid off due to lack of employment need not shape regularly in order to preserve their seniority rights. In response to several questions from the Colonial drivers at the meeting, both Transit-Mix and Local 282 officials repeatedly assured them that their right to be recalled according to their seniority rankings would remain in effect indefinitely.
Transit-Mix also asked the assembled Colonial drivers to report to its Bronx barn for shape-up the following morning to allow it to ascertain the number of drivers who would be offered immediate employment and the number who would be placed on indefinite lay-off. The next day, Transit-Mix offered jobs to drivers listed at number 76 and above on the Colonial seniority list. Over the next three years, from 1976 through 1978, Transit-Mix recalled additional Colonial drivers, contacting those drivers ranked at number 138 and above on the Colonial seniority list. Not all recalled drivers responded to Transit-Mix's recall letters or accepted the company's offer of employment, and others worked for Transit-Mix only on an intermittent basis.
Early in 1979, a dispute arose over Transit-Mix's obligation to continue to recall drivers from the Colonial seniority list. Transit-Mix, concerned about the size of its seniority list, took the position that Colonial drivers who had not shaped or contacted the company since 1976 had abandoned their jobs and should be removed from its list. Local 282 disagreed and, pursuant to section 23 of the union's 1978-82 collective bargaining agreement with the company, the issue was submitted to the Joint Labor-Management Disputes Panel, composed of an equal number of labor and management representatives, for resolution. Deadlock ensued and, again pursuant to section 23, the matter was submitted to an impartial arbitrator, Herbert Lippman, to determine: "What is the reasonable length of time within which an employee of the Company must shape up, call or contact the Company to remain part of the Company work force and retain his seniority?"*fn2 Lippman's arbitration award, dated June 27, 1979, held that "an employee who does not shape up, call or contact [Transit-Mix] for work for a period of one year, shall be deemed to have abandoned his position with the Company and shall no longer be considered an employee of the Company."*fn3
Robert Sasso, Local 282's secretary-treasurer, testified at a hearing before NLRB Administrative Law Judge D. Barry Morris ("ALJ") that when he learned of the award in July of 1979 he told Louis Ambrosio, the union's master steward, and Albert Martelli, steward for the Bronix, "to get the word out to the men what had transpired as far as the Arbitration Award was concerned."*fn4 Sasso must have known that the terms of the arbitration award contradicted the representations made to the Colonial drivers at the time of the buy-out because he also testified that he had participated at the February 13, 1976 meeting of the drivers in his capacity as an official of the union.*fn5 Martelli testified before the ALJ that he followed Sasso's instructions and the next day told those drivers who appeared for morning shape-ups (who did not include about 150 drivers who had not received recall letters and who had not shaped in the three years since the buy-out*fn6) that all drivers had to shape at least once per year to maintain their seniority. The union took no further steps to publicize the award or to notify affected drivers who were not present in the Bronx for shape-ups on that day.
Ted Katsaros, the intervenor, is a laid-off Colonial driver who held number 152 on the Colonial seniority list. In late 1979 or early 1980, he noticed that Transit-Mix had hired new drivers to work on its trucks on a regular basis. Katsaros then wrote to Transit-Mix to ask about his seniority status and, by letter dated March 13, 1980, was informed by a company official that an arbitration award had been issued. Katsaros eventually learned of the terms of the award in May of 1980 when the union allowed him to examine it in its offices. In June of 1980 he filed with the NLRB an unfair labor practice charge with asserted that the union, in complicity with Transit-Mix, violated the rights of Colonial drivers under section 7 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 157 (1982) by contriving a fraudulent arbitration proceeding that was intended to deny persons on the Colonial seniority list their seniority rights, and (2) by deceiving Colonial drivers into thinking that their seniority rights were protected and withholding information about the arbitration award for more than six months in order to prevent dissatisfied drivers from seeking an NLRB order reinstating their seniority rights.*fn7
On March 18, 1981, the NLRB filed its complaint against Local 282 charging that the union had breached its statutory duty of fair representation under section 8(b)(1)(A) of the NLRA, 29 U.S.C. § 158(b)(1)(A)(1982), by failing to inform all affected drivers of the terms of the arbitration award. The ALJ conducted a hearing on this matter in January of 1982 and, in a decision dated March 30, 1982, held that Local 282 had not engaged in any unfair labor practices. Accordingly, he dismissed the complaint.
The Board reversed the ALJ in a decision and order dated August 26, 1983. It held that Local 282 had breached its statutory duty of fair representation under section 8(b)(1)(A) of the Act by arbitrarily failing to notify the employees it represented of the terms of the arbitration award which significantly altered their seniority rights. The union was ordered to take a number of remedial measures, among them: (1) to request a reopening of the arbitration to provide for notice to affected employees and a retroactive grace period; (2) to post notice of the award at its offices and meeting halls and publish the award in its monthly newspaper; and (3) to ...