NLRB Advice Memoranda, Chicago and Midwest Regional Jt. Bd. (Detroit Athletic Club), National Labor Relations Board, (May 5, 2022)

The Region submitted this case for advice on whether the Union breached its duty of fair representation by failing to investigate and pursue a grievance at a time it was considering disclaiming interest in the bargaining unit. For the reasons discussed below, we conclude that the instant charge should be dismissed, absent withdrawal.

Charging Party was laid off in ​     ​ 2020, the apparent result of the COVID pandemic. When the Employer resumed artial opera ions approximately ​     ​ months later, it offered Charging Party reinstatement, but ​     ​ did not accept it, instead advising the Employer ​     ​ was interested inreturning to work a a ater date. That followed with a January 2021 te rom the Employer to all laid off workers advising that current staffing levels were sufficient but that if that should change, it would look to bring employees back based on seniority.

There is a dispute as to whether the Employer attempted to reach Charging Party in January 2021 to offer ​     ​ work in a different bar aining unit represented by a different union, the Employer claiming it left ​     ​ two messages and ​     ​ asserting ​     ​ never got them. In April, 2021, Charging Party went to the facility to pick up some personal items and in ​     ​ 2021 received a letter informing ​     ​ of ​     ​ termination. Several days later ​     ​ saw ​     ​ job posted on Indeed, prompting ​     ​ to reach out to the Union, whose agent indicated ​     ​ would have to look into it and asked ​     ​ to send ​     ​ certain information. ​     ​ also advised the Union agent that employees with less seniority than ​     ​ were working. Around the end of June, 2021, the Union agent contacted Charging Party and said that there was nothing morel ​     ​ could do for ​     ​; that boss told not to discuss anything else with the Employer's employees. The Union explains that the Union agent's communication to Charging Party was in error, a product of ​     ​ misunderstanding of ​     ​ superior's directions to ​     ​

Even assuming the Union had an obligation to continue to advocate for Charging Party once ​     ​ refused an initial offer of reinstatement, the charge nevertheless has no merit because the Union's failure to pursue a grievance after the Charging Party's termination constitutes mere negligence not arbitrary or perfunctory conduct. Thus, the Union did not act arbitrarily when the ​     ​ interpreted ​     ​ superior's statement not to pursue negotiations for a new bargaining agreement because the Union might disclaim interest as meaning that that ​     ​ should not process any grievances pending the disclaimer of interest. Rather, absent evidence the superior actually told the ​     ​ to refrain from processing grievances or to otherwise stop representing the unit employees prior to the anticipated disclaimer of interest, the ​     ​ simply acted negligently by misinterpreting the meaning of the suserior's statement. [1] Nor was the Union's conduct perfunctory given that the ​     ​ discussed the termination with the Charging Party, asked ​     ​ to provide relevant informa ion, and suggested that, absent further assistance from the Union, ​     ​ should contact the Regional Office.

This email closes the case in Advice as of today. Please feel free to contact us with any questions or concerns.

Thanks,

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1. The Union asserts it disclaimed interest concurrent with the expiration of the parties' collective bargaining agreement in late July 2021. There is no evidence the Union acted inconsistent with the disclaimer any time after that. Thus, the fact that the disclaimer was not memorialized to writing until October 2021 is insignificant in this context.