California Iron Workers

National Labor Relations Board - Board Decisions

Aug 26, 1998

326 N.L.R.B. 375 (N.L.R.B. 1998)

IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 375
Iron Workers Local Union 377, International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL–CIO and Ronald W. Bry-
ant. Cases 20–CB–8663, 20–CB–8846, and 20–
CB–8991
August 26, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
On December 21, 1993, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified.
Background
In this proceeding, the judge determined, inter alia,
that the Respondent Union violated its duty of fair repre-
sentation by failing to honor employee Ronald W. Bry-
ant’s request that it file a grievance against employer
Alamillo Steel Corporation. The substance of Bryant’s
would-be grievance was that Alamillo improperly re-
fused to accept him as a referral for employment through
the Respondent’s hiring hall for a job that was available
on June 3, 1991. We agree with the judge’s conclusion,
for the reasons stated by him, that by failing to pursue the
grievance, the Respondent violated Section 8(b)(1)(A) of
the Act.
With regard to the appropriate remedy for this viola-
tion, the judge agreed with the counsel for the General
Counsel’s request to apply the provisional make-whole
remedial formula as set forth in Rubber Workers Local
250 (Mack-Wayne Closures) (Mack-Wayne II), 290
NLRB 817 (1988). Consistent with that formula, the
judge ordered the Respondent to take certain, successive
steps. First, he ordered that the Respondent request
Alamillo to: (1) rescind a letter that it had sent to the Re-
spondent which stated that Bryant was barred from em-
ployment with Alamillo, and (2) make Bryant whole for
wages and other benefits he lost as a result of his not
being referred to an Alamillo job on June 3, 1991, be-
cause of the previously described letter. If Alamillo re-
fuses either of these requests, the Respondent must
promptly attempt to initiate and pursue in good faith a
grievance against Alamillo seeking the make-whole re-
lief outlined above. This requires the Respondent to take
the grievance through the arbitration stage and to pay the
reasonable costs of an attorney of Bryant’s choosing to
represent him throughout such proceedings. Finally, if it
is not possible for the Respondent to pursue Bryant’s
grievance and, therefore, the issue cannot be resolved on
the merits, then the Respondent itself must make Bryant
whole for any loss of pay and benefits he suffered as a
result of his not being employed at Alamillo on June 3,
1991.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the absence of exceptions, we adopt, pro forma, the judge’s dis-
missal of the 8(b)(1)(A) allegations concerning the Respondent’s fail-
ure to provide Charging Party Bryant with information he had re-
quested concerning his dispatch history and the Respondent’s letter to
Bryant threatening to deny him dispatches if he failed to pay his sup-
plemental dues; and his dismissal of the 8(b)(2) allegations dealing with
the failure to dispatch Bryant to Alamillo Reinforcing Steel Corpora-
tion. In affirming the judge’s decision, we do not adopt his discussion,
at fn. 7, of the implications of John Deklewa & Sons, 282 NLRB 1375
(1987), relating to the continued appropriateness of multiemployer
bargaining units.
Prior to imposing such liability on the Respondent, the
Mack-Wayne II approach requires a finding of a “nexus
between the unfair labor practice and the make-whole
remedy.”4 That is, a causal link must be shown to exist
between the unlawful act (in this case, the Respondent’s
failure to proceed with Bryant’s grievance) and the injury
suffered by the charging party (the wages and benefits
Bryant lost by not having worked on the June 3, 1991
job). This process is intended to demonstrate the merits
of the underlying grievance insofar as it seeks to estab-
lish some basis for assuming that absent the union’s un-
fair representation, the grievant may have prevailed, and
therefore that the grievant suffered damage from the un-
fair representation, for which he or she should be made
whole.5 Predicating the evidentiary requisites on the
same policy which guided Mack-Wayne I, i.e., that the
party which violated the Act should bear the greater bur-
den, Mack-Wayne II states that this nexus may be estab-
lished by the General Counsel’s initially showing merely
that the grievance was not “clearly frivolous,” thus leav-
ing to the respondent to counter with proof that the
grievance affirmatively lacked merit.
Relying on two clauses in the parties’ collective-
bargaining agreement that provide alternative bases for
3 The Board in Mack-Wayne II ordered this last “provisional” step to
ensure that the aggrieved party is afforded compensation for his injury
and that the ultimate responsibility for remedying the employee’s injury
falls on a “wrongdoer,” i.e., the Union which unlawfully failed to pur-
sue the grievance in the first place. See Mack-Wayne II, 290 NLRB at
817. Thus, it is only when there is some bar to resolving the previously
unpursued grievance through prescribed procedural channels that the
“provisional” aspects of Mack-Wayne apply and that a respondent
union must provide the make-whole compensation.
4 290 NLRB at 818. It is this issue that prompted the Board to re-
consider its first Mack-Wayne decision, reported at 279 NLRB 1074
(1986), referred to as Mack-Wayne I.
5 Id. at. 818–819.
326 NLRB No. 54
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
Bryant’s position,6 the judge determined that the General
Counsel met his threshold burden of demonstrating that
Bryant’s grievance would have had some chance of pre-
vailing. Having found that Bryant’s claim was “out of the
realm of the clearly frivolous,” the judge then determined
that the Respondent had offered no evidence that Bry-
ant’s grievance lacks merit. Noting further that the
Mack-Wayne formula permits a respondent to elect
whether to litigate the merits of the grievance during the
trial of the unfair labor practice or during posthearing
compliance proceedings, the judge concluded that by
failing to litigate the merits of Bryant’s grievance at the
trial, the Respondent had implicitly elected to present its
case during compliance. Accordingly, he declined to
reopen the record to permit the Respondent to affirm this
election and ordered the Respondent to take the remedial
steps outlined above, leaving to compliance the Respon-
dent’s efforts to establish that Bryant’s grievance lacked
merit.
The Respondent has excepted, inter alia, to the appli-
cation of the Mack-Wayne formula, asserting that the
judge erred in finding that the General Counsel had es-
tablished that Bryant’s grievance was not “clearly frivo-
lous,” as well as by finding that it had implicitly elected
to litigate the merits of that grievance during compliance.
The Respondent also contends that the remedy ordered is
improper because it is “punitive rather than restorative.”
Analysis
It is settled that under the essentially remedial scheme
of the Act, affirmative relief that the Board orders under
Section 10(c) must be “remedial, not punitive.”7 After
evaluating the practical implications of the Mack-Wayne
formula and reviewing its reception in the courts, we
now conclude that the formula does not allocate eviden-
tiary burdens appropriately among the parties and there-
fore runs the risk of imposing essentially punitive liabil-
ity on the union and granting a windfall to the griev-
ant/discriminatee. Accordingly, as explained in section
A, below, we have decided to bring our remedies in this
particular area of the duty of fair representation into
greater harmony with the standards followed by courts
adjudicating hybrid duty of fair representation/Section
301 breach of contract actions by requiring the General
Counsel to establish the meritoriousness of the grievance
before we will assess backpay liability against the Union.
As explained in section B, we have also decided to fol-
low the Supreme Court in limiting the Union’s liability
in such circumstances to the portion of the employee’s
damages caused by the Union’s mishandling of the
grievance. Finally, as explained in section C, we have

6 The judge cited two different clauses of the collective-bargaining
agreement which offer support for Bryant’s grievance: the first is sec.
5(I)(7), restricting employers’ in-advance rejections of employee refer-
rals and the second is sec. 5(N), the Equal Employment Opportunity
clause.
7 Carpenters Local 60 v. NLRB, 365 U.S. 651, 655 (1961).
found it advisable to modify the procedure by which it is
determined whether the merits of the grievance should be
litigated in the initial stage of the unfair labor practice
proceeding or at the compliance stage.
A. The Allocation of Burdens
The Mack-Wayne remedial formula rests fundamen-
tally on two propositions: first, that uncertainties should
be resolved against the wrongdoing union; and second,
that the legally significant event which impels the rem-
edy is the respondent-union’s unlawful failure to pursue
the grievance—in and of itself—rather than the ultimate
meritoriousness of the grievance.8 Whatever the surface
appeal of that analysis, we agree with the Respondent
that the resulting allocation of burdens, insofar as it com-
pels the award of a make-whole remedy on a simple
showing of a union’s unlawful handling of the grievance,
ultimately conflicts with the essentially remedial charac-
ter of the Act. Under the current standard, the General
Counsel need show only that the affected employee’s
grievance was “not clearly frivolous” in order to satisfy
his evidentiary burden, while the union must counter
with proof that the grievance actually lacked merit. Only
by proving that pursuit of the grievance would have been
essentially futile may the union escape liability for injury
assumed to have been suffered by the employee because
of the union’s mishandling of the grievance. As a conse-
quence, a mere showing that an employee’s position in
his dispute with an employer was not “clearly frivolous”
could well result in a union’s being required to indem-
nify an employee for a grievance which had only a re-
mote chance of success. This would place the employee
not where he would have been absent the union’s unlaw-
ful conduct, but in a position superior to that which he
would have occupied had the grievance been properly
processed. Such a windfall award is contrary to the
Act’s intent.9
We believe that the Act’s remedial purpose would be
better effectuated by requiring the General Counsel to
carry a heavier burden as to the merits of the unlawfully
handled grievance before backpay liability may be as-
sessed against the union. Under the approach we adopt
today, once the General Counsel has established that a
union has unlawfully breached its duty of fair representa-
tion by failing properly to process an employee’s griev-
ance, then we will provide an appropriate cease-and-
desist order and an order directing the Union to process
8 Because this remedial formula is based on the approach laid out in
Mack-Wayne I and thereafter refined in Mack-Wayne II, the reasoning
and analysis of both of those decisions is at issue in this proceeding
9 The reference to the Supreme Court’s admonishment in Sure-Tan,
Inc. v. NLRB, 467 U.S. 883 (1984), in the Mack-Wayne I dissent is
particularly on-point and worth repeating here, to wit: that “it remains a
cardinal, albeit frequently unarticulated assumption that a backpay
remedy must be sufficiently tailored to expunge only the actual and not
merely speculative consequences of the unfair labor practices.” Sure-
Tan, supra at 900.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 377
the grievance in accordance with its duty. Before we will
require a union to compensate an employee for losses
alleged to have been suffered by the employee as a con-
sequence of the union’s mishandling of the grievance,
however, the General Counsel must also show that the
grievance was one presenting a claim on which the
grievant would have prevailed if the grievance had been
properly processed by the union.
In determining whether the General Counsel has met
that burden, we will take into account the standard that
an arbitrator would have applied had the grievance been
submitted to arbitration pursuant to the contractual griev-
ance-arbitration procedure. If, for example, evidence
shows that the burden of establishing the propriety of the
employer’s action vis-a-vis the grievant would have been
on the employer in the arbitration proceeding, the Gen-
eral Counsel will be required to show that under that
standard, the arbitrator would have found in favor of the
grievant.10 (In other words, in such a case, the General
Counsel would have to show, based on evidence adduced
at the hearing, that an arbitrator would have found that
the employer failed to establish justification for its action
under the contractual standard.) If, on the other hand, the
burden would have been on the union to show that the
employer’s action was in breach of the agreement, we
will require the General Counsel to establish that the
grievant would have prevailed under that standard.
The approach we adopt today is consistent with our
remedial goal of restoring the injured employee, so far as
possible, to the position that he would have been in had
his grievance been properly handled by the union. This is
in keeping with the statutory “requirement that a pro-
posed remedy be tailored to the unfair labor practice it is
intended to redress.”11 The reallocation of the parties’
respective burdens also responds to concerns expressed
by various courts of appeals which have considered—
and uniformly rejected—remedial formulas like that in
Mack-Wayne.
The Mack-Wayne II decision was itself an attempt to
respond to the decision of the Ninth Circuit Court of Ap-
peals in San Francisco Pressmen v. NLRB, 794 F.2d 420
(1986). In that case, the court denied enforcement of a
provisional backpay remedy against a union for failure to
pursue arbitration of a discharge grievance because the
General Counsel had not been required to establish the
merits of the grievance before the Board imposed liabil-
ity on the union.12 While acknowledging the Board’s
discretion in fashioning backpay remedies, the Ninth
Circuit reasoned that it was nevertheless an incorrect

10 Whether the General Counsel successfully makes such a showing
is, of course, to be determined under the normal preponderance-of-the-
evidence standard.
11 Sure-Tan, supra at 900
12 In that case the union had taken a grievance alleging the wrongful
termination of two employees through the initial steps but had declined
to pursue arbitration.
application of the Act to impose backpay liability on a
union for failing to pursue a grievance, absent a finding
that the grievance was founded on an actual contract vio-
lation by the employer. The court found persuasive deci-
sions rendered by the Seventh and Second Circuit Courts
of Appeals, which had considered and rejected the
Board’s position,13 and noted that the Board itself had
once required that a grievance be found meritorious be-
fore backpay liability could be imposed.14 The court
agreed with the reasoning expressed by those tribunals
that the Board’s power to remedy violations of the Act,
though broad, does not extend to imposing what amounts
to punitive and speculative damages for a violation of the
Act. The court concluded that a union’s breach of its
duty to process a grievance alone is an insufficient foun-
dation on which to support an order of financial recov-
ery, which speaks to the merits.
While the decisions of the Ninth, Seventh, and Second
Circuits predated Mack-Wayne II, a more recent, post-
Mack-Wayne II court decision again rejected the Board’s
formula. In Mail Handlers Local 305 v. NLRB, 929 F.2d
125 (1991), the Fourth Circuit Court of Appeals held that
the burden of proving the merits of an unresolved griev-
ance properly rests with the General Counsel and that a
finding that the grievant “would have won on the merits”
if the grievance “was properly pursued” is required be-
fore a backpay order against a union may be supported.
Thus, the Mack-Wayne approach has been rejected by
every circuit which has considered the issue.
The allocation of burdens which we adopt today is in
accordance with the sound guidance of those circuit
courts, and with the reasoned dissents in Mack-Wayne I
and Mack-Wayne II. It is also consistent with the ap-
proach followed by the Federal courts in hybrid duty of
fair representation/Section 301 breach of contract ac-
tions, in which the burden is on the plaintiff to establish
that his grievance is meritorious in order to obtain back-
pay from a union for failing to represent him fairly. See
Hines v. Anchor Motor Freight, 424 U.S. 554, 570-571
(1976).15 We conclude that it represents a more appro-
13 Steelworkers v. NLRB, 692 F.2d 1052 (7th Cir. 1982), and NLRB
v. Electrical Workers UE Local 485, 454 F.2d 17 (2d Cir. 1972).
14 Bottle Blowers Local 106, 240 NLRB 324 (1979).
15 We recognize that the role of the Board in deciding a case alleging
a violation of Sec. 8(b)(1)(A) based on a union’s alleged failure prop-
erly to process an employee’s grievance is not precisely parallel to that
of a court in a hybrid duty of fair representation/Sec. 301 suit. Thus,
unlike the court, which has jurisdiction to decide both the breach of
duty claim against the union and the breach of contract claim against
the employer, the Board has no general jurisdiction to decide breach of
contract issues. Thus, unless the employer’s alleged breach of contract
is also alleged to be an unfair labor practice, the Board ordinarily will
be presented only with the duty of fair representation claim against the
union, and will confront the contract issue only indirectly in assessing
the merits of the grievance for purposes of determining an appropriate
remedy for the union’s unlawful conduct. However, notwithstanding
this difference there is a substantial overlap between the issues pre-
sented in the court action and those presented in the Board action which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
priate exercise of our statutory remedial authority than
our previous approach.
B. Allocation of Damages
In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme
Court held that in a suit where it is proven that a union
breached its duty of fair representation by failing prop-
erly to process a meritorious grievance against the em-
ployer for breach of the collective-bargaining agreement,
the union may not be required to pay damages attribut-
able solely to the employer’s breach of contract. “Though
the union has violated a statutory duty in failing to press
the grievance, it is the employer’s unrelated breach of
contract which triggered the controversy and which
caused this portion of the employees’ damages,” the
Court stated.

The governing principle, then, is to apportion li-
ability between the employer and the union accord-
ing to the damage caused by the fault of each. Thus,
damages attributable solely to the employer’s breach
of contract should not be charged to the union, but
increases if any in those damages caused by the un-
ion’s refusal to process the grievance should not be
charged to the employer. [Id. at 197–198.]

The principle that each party causing damage to an
employee should be held responsible only for the damage
caused by its misconduct was reaffirmed by the Court in
Bowen v. Postal Service, 459 U.S. 212 (1983). There,
the Court held that where an employer has discharged an
employee in breach of the collective-bargaining agree-
ment and the employee’s union has failed properly to
process a grievance on behalf of the employee, both the
employer and the union have caused the injury suffered
by the employee and must bear responsibility for their
respective contributions to the damage:

It is true that the employer discharged the employee
wrongfully and remains liable for the employee’s
backpay. The union’s breach of its duty of fair repre-
sentation, however, caused the grievance procedure to
malfunction resulting in an increase in the employee’s
damages. Even though both the employer and the un-
ion have caused the damage suffered by the employee,
the union is responsible for the increase in damages
and, as between the two wrongdoers, should bear its
portion of the damages. [Id. at 223; citation and foot-
note omitted.]

This principle was underscored again in Del Costello, in
which the Court stated: “We held in Vaca, and reaffirmed
this term in Bowen, that the union may be held liable only
for `increases if any in [the employee’s] damages caused by
the union’s refusal to process the grievance.” (Citations
omitted.) 462 U.S. at 168.

counsels for the adoption of uniform decisional rules. See Del Costello
v. Teamsters, 462 U.S. 151, 170 (1983).
We believe that the Vaca principle of limiting the un-
ion’s liability to the increase in damages caused by its
misconduct should also be applied in unfair labor prac-
tice cases where the union’s mishandling of the em-
ployee’s grievance is alleged to violate Section
8(b)(1)(A). As noted earlier, the issues presented to a
court in a hybrid duty of fair representation/Section 301
breach of contract suit substantially overlap with the is-
sues presented to the Board in a case alleging that the
union’s conduct with regard to the grievance violated
Section 8(b)(1)(A). Thus, our application of the Vaca
apportionment principle to this class of cases contributes
to the uniformity of Federal labor law. It is also consis-
tent with the statutory requirement that our orders be
remedial, rather than punitive, and tailored to the unfair
labor practices they are intended to address. See Sure-
Tan, supra at 900.16
Our colleagues, Member Hurtgen and Member Brame,
in their dissent contend that it is inequitable to apply the
Vaca apportionment principle to unfair labor practice
proceedings because the employee ordinarily will not be
able to name the employer as a respondent in the unfair
labor practice proceeding and thus will not be able to
recover the portion of his damages attributable to the
employer’s breach, while both the employer and the un-
ion may be named as a defendant in hybrid Section 301
16 Unlike the Chairman, we believe it inadvisable to attempt to spec-
ify at this point any particular method of calculating the amount of the
Charging Party’s damages for which the Respondent Union should be
held responsible, should the General Counsel establish entitlement to a
make-whole remedy. The Bowen Court found it unnecessary to decide
whether the lower court’s instructions to the jury on that point were
proper (459 U.S. at 230 fn. 19), and as the 10th Circuit has pointed out,
even those jury instructions did not require any particular method of
apportionment. Aguinaga v. Commercial Workers, 993 F.2d 1463,
1475 (10th Cir. 1993). Rather the instructions left the matter to the
jury’s discretion, while expressly permitting the jury to assess backpay
against the union for the period between the date on which an arbitra-
tion hypothetically would have occurred had the union acted in accor-
dance with its duty of fair representation and the date on which the jury
verdict was rendered. Id. at 1476, citing Bowen, 459 U.S. at 215. In
Aguinaga, the trial court had employed a “proportionate fault” method
that took into account a hypothetical arbitration date but also consid-
ered other factors. The 10th Circuit found this a proper method “under
the circumstances” of that case. Id. at 1477. In short, the appropriate
method may depend on the type of contract violation, the type of
breach by the union, and the nature of the damages suffered by the
employee. It is therefore appropriate to follow the general standard
applicable to gross backpay formulas initially devised by the General
Counsel: such a formula is acceptable if it is “reasonable under the
circumstances” (Churchill’s Supermarkets, 301 NLRB 722, 724
(1991)) or “not unreasonable or arbitrary” (Laborers Local 38 (Han-
cock-Northwest), 268 NLRB 167, 168–169 (1983), enfd. 748 F.2d 1001
(5th Cir. 1984), and cases there cited).
If the General Counsel ultimately sustains his burden in this case of
establishing that Bryant would have prevailed on his grievance if it had
been properly pursued, then the General Counsel can propose a formula
for determining the damages attributable to the Respondent Union’s
breach of its duty of fair representation. If the formula is disputed by
the Respondent, presumably a record will be made on which the appro-
priateness of the formula can be determined. In our view, it is prema-
ture to specify a particular formula now.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 379
actions. We do not regard this as an inequity, but rather
as a simple function of the statutory scheme created by
Congress. Under that scheme, Congress chose to give
general jurisdiction over claims alleging breach of a col-
lective-bargaining agreement to the Federal courts, rather
than to the Board. As a consequence, an employee who
wishes to recover damages resulting from a breach of
contract by his employer can do so only through a Sec-
tion 301 action in Federal court and not—unless the
breach of contract is also an unfair labor practice—
through a Board proceeding. We do not regard it as un-
fair to require an employee who seeks damages caused
by his employer’s breach of contract to proceed against
the employer in what Congress has said is the appropri-
ate forum for resolution of such claims. We do, how-
ever, regard it as unfair to require the union to reimburse
the employee for losses caused by the employer’s wrong-
ful conduct simply because the employee has chosen a
forum in which his claim against the employer cannot be
decided.17
C. Procedural Rules for Litigating the Merits of Unlaw-
fully Handled Grievances
As the Board stated in Mack-Wayne II, the primary
purpose of the Board’s Order in a case where the union
has breached its duty of fair representation with regard to
the processing of an employee’s grievance is to “hold the
union to the terms of the collective-bargaining agreement
that it negotiated with the employer and to permit the
employee to have his or her grievance resolved on its
merits pursuant to the negotiated grievance procedure.”
290 NLRB at 818. The need for a make-whole remedy
against the union arises only if the preferred outcome—
resolution of the grievance through the contractual pro-
17 Our dissenting colleagues cite as support for their position the
statement in Bowen that if an aggrieved employee “does not collect the
damages apportioned against the Union, [the Employer] remains sec-
ondarily liable for the full loss of backpay” (459 U.S. at 223 fn. 12).
We believe it is important to understand the context of that statement.
In reversing the court below, the Bowen Court was rejecting only the
proposition that a union could not be held liable for any lost backpay at
all. Its limited holding was that a union could and should be held liable
for the “increase in the damages” caused by “its wrongful conduct”
(even if that increase is part of the backpay). Id. at 224. The Court was
mindful that damage awards must remain consistent with the “interests
recognized in Electrical Workers v. Foust, 442 U.S. 42 (1979).” 459
U.S. at 227. In Foust, in the course of justifying its holding that unions
should not be liable for punitive damages for a breach of the duty of
fair representation, the Court referred to a need to avoid “compromising
the collective interests of union members in protecting limited funds.”
442 U.S. at 50. The Bowen Court held that requiring “the union to pay
its share of the damages” was consistent with the concerns expressed in
Foust. 459 U.S. at 227 fn. 16 (emphasis added). Finally, it is reasonable
for an employer to remain at least secondarily liable for the entire
amount of backpay, since it is the employer’s initial action against the
employee that initiates the loss, or, as the Court in Vaca noted, it is the
employer’s breach of contract that “trigger[s] the controversy.” 386
U.S. at 197. Of course, as the Court noted (id. at 197 fn. 18), it would
be proper to hold the union jointly liable for all the backpay if it was
responsible for the employer’s breach, but that was not the case in
Vaca, nor is it here.
cedure—cannot be obtained. However, if the General
Counsel, in order to obtain a make-whole remedy, is re-
quired to establish the merits of the grievance at the un-
fair labor practice hearing, the employee’s ability to ob-
tain a subsequent resolution of the grievance through the
contractual procedure will either be foreclosed or seri-
ously complicated.18
The Board resolved this problem in Mack-Wayne II by
adopting a procedure which allows the union the option
of choosing whether to litigate the merits of the griev-
ance at the unfair labor practice hearing, or to postpone
litigation of that issue to a subsequent compliance pro-
ceeding so that it may first attempt to resolve the griev-
ance pursuant to the negotiated procedure. Id. On re-
consideration, we have decided that because of the strong
reasons counseling against having the parties litigate the
merits of the grievance in the Board proceeding when
there is a possibility it may yet be resolved through con-
tractual channels, the merits of the grievance should not
ordinarily be litigated in the initial unfair labor practice
hearing. Rather, the presumption will be that the merits
of the grievance will not be litigated and decided, if at
all, until the compliance stage of the proceeding, after the
union has had an opportunity to attempt to resolve the
grievance through the contractual procedure.
It may be that in some circumstances it would be ap-
propriate to resolve all the issues in the initial unfair la-
bor practice proceeding.19 However, we no longer will
allow this choice to be made at the sole election of the
union. Instead, we will require the agreement of the Gen-
eral Counsel and the charging party or parties, and the
approval of the judge. We will, moreover, require that
this be handled by the judge as a preliminary pretrial
matter, so as to provide all parties adequate notice of the
18 If the Board were to find in the unfair labor practice proceeding
that the grievant would not have prevailed had the grievance been proc-
essed under the contractual grievance procedure, the union could not
logically be ordered nevertheless to process the grievance. The effect
of the Board’s decision would therefore be to foreclose resolution of
the grievance through the contractual procedure. If, on the other hand,
the merits of the grievance were litigated and the Board concluded that
the grievance was meritorious—i.e., that the grievant would have pre-
vailed had the grievance been properly processed—it would seem
anomalous to provide as a remedy an order requiring the union to seek
a de novo determination of the merits of the grievance through the
contractual procedure. Once the merits of the grievance have been
litigated at the unfair labor practice stage, an order requiring the union
to process the grievance would also put the union—which will pre-
sumably have sought to show at the unfair labor practice stage that the
grievance lacked merit—in the position of having to argue the opposite
in the grievance proceeding.
19 This would include circumstances where it is clear that the union
will be unable to obtain a resolution of the grievance through the con-
tractual grievance-arbitration procedure, or where the evidence that will
be introduced in connection with the duty of fair representation issue
also relates directly to the merits of the grievance. It would also include
circumstances where the union has made a proffer of evidence to show
that the grievance is so clearly lacking in merit that an order requiring
the union to attempt to process the grievance would not be appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
issues that will be litigated at each stage of the proceed-
ing.
Under the modified procedure which we adopt today,
we will not provide a remedy requiring the union to
make the grievant whole for losses allegedly suffered as
a consequence of a union’s mishandling of a grievance
unless the General Counsel (1) affirmatively pleads for
this remedy in the complaint and (2) shows not only that
the union breached its duty of fair representation by mis-
handling the grievance but also that the grievant would
have prevailed in the grievance-arbitration procedure had
the union not breached its duty. If the General Counsel
pleads for this remedy he will not normally be required
to establish the merits of the grievance in the unfair labor
practice proceeding. Rather, once the General Counsel
has established that the union acted unlawfully in breach
of its duty of fair representation, we will normally issue
an order directing the respondent union to take such af-
firmative steps as may be necessary, under the facts of
the particular case, to pursue properly the grievance in a
manner consistent with the union’s duty of fair represen-
tation. If the grievance is resolved through the contrac-
tual machinery, no further proceedings will be required.
However, if the union is unable to secure a resolution of
the grievance through the contractual machinery (be-
cause of time bars or other constraints rendering the
process ineffectual), it will then be necessary for the
Board, for the purpose of deciding whether make-whole
relief is appropriate, to determine whether the grievant
would have prevailed on a properly processed grievance.
At that point, in the compliance stage, the burden will be
on the General Counsel to establish that the grievance
was meritorious.20
We believe that removing the litigation of the merits of
the grievance from the initial unfair labor practice pro-
ceeding will ordinarily be the preferable procedure, since
it avoids creating the hazards, which we have noted
above, to proper processing of the grievance through the
normal contractual channels. It also lessons the burden
of trial preparation for all parties and expedites the reso-
lution of the basic underlying issue, which is whether the
respondent union violated the Act by handling the griev-
ance in bad faith or in an arbitrary or discriminatory
manner.
As we have noted, however, there may be circum-
stances in which it would be appropriate to resolve all the
issues in the unfair labor practice proceeding. Accord-

20 In providing for this bifurcated procedure, we are not postponing
litigation of the merits of the unfair labor practice to the compliance
stage. The issue that is deferred to compliance is merely the question
whether the Respondent should have backpay liability for the violation
found in the unfair labor practice proceeding. We note that the policy
of deferring consideration of such factually complex issues that relate
purely to the remedy has been approved by numerous courts as a means
of avoiding unnecessary litigation in the event that no violation is found
in the unfair labor practice proceeding. Holyoke Visiting Nurses Assn.
v. NLRB, 11 F.3d 302, 308 (1st Cir. 1993), and cases there cited.
ingly, if the General Counsel pleads in his complaint for
a remedy requiring the Union to make the grievant whole
for losses allegedly suffered as a consequence of the Un-
ion’s mishandling of a grievance, the Respondent Union
may, in its answer, give notice that it wishes to litigate
the merits of the grievance in the initial unfair labor prac-
tice proceeding. If the judge decides that this is appro-
priate, he should seek the position of the General Coun-
sel and Charging Party or Parties. Only if all are in
agreement will the hearing be expanded to include this
issue.21 This should be handled as a preliminary pretrial
matter, so as to provide all parties adequate notice and
opportunity to prepare fully for the issues to be disposed
of in the proceeding.
D. Application of the Revised Rules to the Issue of the
Respondent’s Handling of the Alamillo Grievance
In this case, the judge reasonably applied the principles
of Mack-Wayne II, since it was then the applicable
precedent. He concluded that the General Counsel had
established that Bryant’s grievance against Alamillo was
“out of the realm of the clearly frivolous,” and he accord-
ingly found that the General Counsel had met the burden
required for a provisional make-whole remedy. The
judge further found that the Respondent Union had
elected to defer litigation of the merits of the grievance to
the compliance phase. The case is thus in the same pro-
cedural posture it would be in had the presumption we
announced today been in effect and the Union failed to
consent to litigating the merits of the grievance in the
initial proceeding. There is, accordingly, no need to re-
open the unfair labor practice proceeding and no injury to
due process rights in failing to do so.
In keeping with our change in the burdens of proof,
discussed in section A above, we will modify the Order
so that it will be clear that, if the grievance cannot be
resolved through the usual contractual channels and the
question of how the grievant would have fared must be
resolved in compliance, a make-whole remedy may be
imposed only if the General Counsel shows that Bryant
“would have won on the merits” if the grievance had
been “properly pursued” by the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Iron
Workers Local Union 377, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL–
21 We disagree with Chairman Gould’s position that this matter
should be left entirely to the judge. We think that this is a matter of
Board policy, and we have set forth policy reasons against litigating the
merits of the grievance in the unfair labor practice proceeding. In addi-
tion, we have provided flexibility by giving the parties the option of
litigating the merits of the grievance in the unfair labor practice pro-
ceeding, subject to approval by the judge. Thus, we believe that we
have provided a sound policy, and that we have built in adequate flexi-
bility.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 381
CIO, San Francisco, California, its officers, agents, and
representatives, shall take the action set forth in the Or-
der, as modified below.
1. Substitute the following for paragraph 2(c).
“(c) In the event that it is not possible for the Respon-
dent to pursue on Ronald W. Bryant’s behalf the griev-
ance that Bryant sought to file concerning Alamillo’s
declared refusal to employ him, and if the General Coun-
sel shows in compliance that a timely pursued grievance
on that issue would have been successful, make Bryant
whole for any increase in damages he suffered as a con-
sequence of the Respondent’s refusal to process that
grievance, together with interest.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT arbitrarily, discriminatorily, or in bad
faith refuse, on request, to process grievances sought to
be processed by employees towards whom we owe a
duty of fair representation.
WE WILL NOT cause or attempt to cause an employer to
discriminate against employee-applicants in violation of
Section 8(a)(3) of the Act by refusing to dispatch the
applicants to employers based on their dues arrearages,
where such refusals are not privileged by, or done pursu-
ant to, a lawful union-security provision in a labor
agreement governing the employment of the applicants.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
in Section 7 of the Act.
WE WILL promptly request Alamillo Reinforcing Steel
Corporation to rescind and withdraw its letter to us de-
claring that Ronald W. Bryant is ineligible for employ-
ment with Alamillo, and that it make Bryant whole for
any wages or other benefits he lost as a consequence of
our refusal, based on that letter, to refer Bryant to em-
ployment with Alamillo on or about June 3, 1991; and if
Alamillo refuses those requests or either of them WE
WILL promptly initiate and pursue in good faith and with
due diligence a grievance on Ronald W. Bryant’s behalf
seeking the same relief, including to arbitration or to any
other disputes-resolution forum established by our labor
agreement with Alamillo that was in effect on June 3,
1991.
WE WILL permit Ronald W. Bryant to be represented
by his own counsel at any grievance proceedings, includ-
ing arbitration or other resolution proceedings that may
follow from our efforts on Bryant’s behalf, and WE WILL
pay the reasonable legal fees of such counsel.
WE WILL, in the event that it is not possible for us to
pursue on Ronald W. Bryant’s behalf the grievance that
he sought to file concerning Alamillo’s declared refusal
to employ him, and if the General Counsel of the Na-
tional Labor Relations Board shows in compliance pro-
ceedings that a timely pursued grievance on that issue
would have been successful, make Bryant whole for any
increases in damages he suffered as a consequence of our
refusal to process that grievance, together with interest.

IRON WORKERS LOCAL UNION 377, INTER-
NATIONAL BROTHERHOOD OF BRIDGE, STRUC-
TURAL AND ORNAMENTAL IRON WORKERS, AFL–
CIO

CHAIRMAN GOULD, concurring in part and dissenting in
part.
I join the majority opinion on the determination of al-
location of burdens and damages in cases where it has
been established that the union breached its duty of fair
representation by mishandling an employee’s grievance
and the General Counsel seeks a make-whole remedy. I
write separately to express additional reasons for aban-
doning the provisional make-whole remedial formula set
forth in Rubber Workers Local 250 (Mack-Wayne Clo-
sures), 290 NLRB 817 (1988), and to set forth my view
on the appropriate method of limiting the union’s liabil-
ity in such cases. I dissent only on the procedural issue
of requiring the agreement of all parties and the approval
of the judge on the question of whether to litigate the
merits of the grievance in the unfair labor practice hear-
ing or at the compliance stage of the proceedings. For
the reasons set forth below, I would leave that choice
solely to the discretion of the judge.
In my judgment, our decision today is consistent with
principles long-established by the Supreme Court con-
cerning the accommodation of statutory schemes involv-
ing labor and employment issues1 and the importance of
a uniform national labor policy.2 Thus, in Southern
Steamship, the Court admonished the Board to recognize
the purpose of other employment legislation and to ad-
minister the Act in a manner which accommodates other
statutory schemes. The Court stated:

[T]he Board has not been commissioned to effectuate
the policies of the Labor Relations Act so single-
mindedly that it may wholly ignore other and equally
important Congressional objectives. Frequently the en-
tire scope of Congressional purpose calls for careful
accommodation of one statutory scheme to another,
and it is not too much to demand of an administrative

1 Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942).
2 Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
body that it undertake this accommodation without ex-
cessive emphasis upon its immediate task. [Id. at 47.]

Here, as was discussed in section A of the analysis sec-
tion of the majority opinion, the Federal courts have de-
termined in duty of fair representation cases in the Sec-
tion 301 context that the burden of proving the merits of
an unresolved grievance rests with the plaintiff and that a
finding of merit is required before a backpay order can
be imposed on a union. While the duty of fair represen-
tation in Section 301 suits and in Section 8(b)(1)(A) ac-
tions is not the same, the Supreme Court has noted their
similarity. In Del Costello v. Teamsters, 462 U.S. 151,
170 (1983), the Court stated: “[T]he family resemblance
[between the duties of fair representation under Sec. 301
and Sec. 8(b)(1)(A)] is undeniable, and indeed there is a
substantial overlap.”
Given the similarity of the two areas of law, it makes
little sense for the Board to strike out on a separate
course vastly different from that taken by the courts. In-
deed, under the rationale of Southern Steamship, supra,
such a separate course would appear to be an example of
the single-mindedness the Court cautioned against. It is
more in keeping with the Court’s teaching for the Board
to take the course it announces today of using the body
of Federal labor law concerning the duty of fair represen-
tation in the Section 301 context as a model for allocat-
ing burdens of proof in 8(b)(1)(A) cases.
The approach we adopt today also is consistent with
the Supreme Court’s interest in uniform Federal labor
law. The Court has demonstrated such an interest in a
variety of contexts over a substantial period of time.
Certainly, the Court’s demand in Southern Steamship,
supra, that the Board attempt to accommodate other em-
ployment legislation was born, in part, from the interest
in maintaining harmony and uniformity among various
statutory schemes. The Court expressed a similar inter-
est in Lincoln Mills, supra. There, the Court construed
Section 301(a) as authorizing Federal courts to fashion a
body of Federal law for the enforcement of collective-
bargaining agreements rather than construing the section,
as some courts had, as simply jurisdictional and not a
source of substantive law. The Court found that the sub-
stantive law to be applied in suits under Section 301 is
“federal law which the courts must fashion from the pol-
icy of our national labor laws.”3
So great has been the Court’s interest in uniformity of
Federal labor law that it departed from the norm of look-
ing to state law for the borrowing of a statute of limita-
tions in a Section 301 suit, and looked, instead, to the
National Labor Relations Act for the statute of limita-

ce.
3 353 U.S. at 456. See also Mine Workers v. Pennington, 381 U.S.
657 (1965), involving labor issues in the antitrust context. There, the
Court’s primary concern was to harmonize the antitrust policies of the
Sherman Act with the national labor policy of promoting the settlement
of industrial disputes through collective bargaining.
tions. In Del Costello, supra, the Court noted that it
normally looks to state law for the borrowing of statutes
of limitation in Federal causes of action where there is no
express statute of limitations. In determining that it was
more appropriate to borrow from Federal labor law in a
Section 301 suit, the Court cited Justice Stewart’s con-
curring opinion in United Parcel Service v. Mitchell, 451
U.S. 56, 70–71 (1981):

“[t]he need for uniformity” among procedures followed
for similar claims, ibid., as well as the clear congres-
sional indication of the proper balance between the in-
terests at stake, counsels the adoption of [Section] 10(b)
of the NLRA as the appropriate limitations period for
lawsuits such as this. [Citations and footnote omitted.]

Abandoning the Mack-Wayne remedial formula and
looking to the Federal labor law concerning the alloca-
tion of burdens of proof in duty of fair representation
cases in the Section 301 context, contributes to the uni-
formity of national labor law, and is, therefore, consistent
with the Supreme Court’s teaching.
All of these reasons also support our determination, set
forth in section B of the Analysis section of the majority
opinion, to follow the Supreme Court in limiting the Un-
ion’s liability to the portion of the employee’s damages
caused by the Union’s breach of the duty of fair
representation in mishandling the grievan
Having determined that the Union’s liability should so
be limited, I would also address the appropriate method
of limitation. In Bowen v. U.S. Postal Service, 459 U.S.
212 (1983), the district court instructed the jury that it
could apportion liability on the basis of a hypothetical
arbitration decision which would have reinstated Bowen
if the union had fulfilled its duty. It suggested to the jury
that the employer could be liable for damages before that
date and the union for damages after the date. 459 U.S. at
215. The Court expressly found it unnecessary to decide
whether the district court’s instructions were proper be-
cause the union had not objected to the method of appor-
tionment. Id. at 230 fn. 19. There is, accordingly, no
guidance from the Court on this matter.
Some district courts have adopted the approach taken
by the Bowen district court. See, e.g., Caputo v. Letter
Carriers, 730 F.Supp. 1221, 1236 (E.D.N.Y. 1990).
However, in Aguinaga v. Commercial Workers, 720
F.Supp. 862 (D. Kan. 1989), the district court noted some
problems raised by this approach. It observed that using
a hypothetical arbitration decision date would require an
amount of guesswork to arrive at dates when various
stages of the grievance procedure would have been com-
pleted. The court also observed that such an approach
might result in a union bearing a majority of the backpay
award even though it did not initiate the misconduct and
was not the primary wrongdoer. The court concluded
that it would use a different method of apportionment. It
chose to apportion damages on a percentage basis which
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 383
would allow the court to assess less than 50 percent of
the fault against the union if the evidence so warranted.
I find that the percentage basis used in Aguinaga is an
appropriate method for limiting liability in 8(b)(1)(A)
cases involving the union’s breach of its duty of fair rep-
resentation by mishandling a grievance. It not only
avoids the speculation concerning stages of the griev-
ance-arbitration procedure, but also more closely assures
that the union will be assessed, in accord with the princi-
ple of Vaca, only for the increase of damages caused to
the employee by its breach of the duty of fair representa-
tion.
Finally, I dissent from my colleagues’ decision to re-
quire the agreement of the General Counsel and the
Charging Party and the approval of the judge to chose
whether to litigate the merits of the grievance in the un-
fair labor practice proceeding or at the compliance stage
of the proceeding. I would, instead, leave that choice
solely to the discretion of the judge. In my opinion, the
judge is better situated to decide the issue based on his
assessment of the most efficient litigation that is possible
without prejudicing the rights of the parties, while re-
maining mindful of the Act’s preference for private reso-
lution of contractual labor disputes. I find my col-
leagues’ approach particularly inappropriate because it
permits the union, whose misconduct is at issue, to pre-
clude the litigation on the merits of the grievance at the
unfair labor practice hearing.
I would not adopt standards regarding when it is ap-
propriate for the judge to defer litigation on the merits of
the grievance to compliance, since this must be decided
with regard to the facts and circumstances of each case.
Relevant factors include: the extent to which the rights of
the respondent union and the charging party will be
prejudiced by litigating the merits issue at the unfair la-
bor practice hearing; whether the employer is willing to
waive procedural bars such as that the grievance was not
timely filed; the Act’s preference for the private resolu-
tion of contractual labor disputes; the efficient admini-
stration of the Board’s resources; and the extent to which
duty of fair representation issues have produced evidence
directly relevant to the merits of the grievance. In such
cases, it may be particularly appropriate to litigate the
merits issue in the unfair labor practice proceeding in
order to conserve the Board’s resources and avoid dupli-
cative litigation. Another often reoccurring circumstance
under which it may be appropriate to resolve the merits
issue in the unfair labor practice proceeding is where
contractual time limits bar resolution of the grievance
through negotiated procedures.4

4 In such cases the judge should first confirm that the parties have at-
tempted to obtain a waiver of the limitations period from the employer
before proceeding to litigate the merits issue. Experience shows, how-
ever, that most employers will not waive time limits because they fear
it will create considerable employee pressure for a waiver in every
grievance in which the problem arises. See W. Gould, The Supreme
In all other respects, I join the majority opinion.

MEMBER HURTGEN AND MEMBER BRAME, dissenting
in part.
We join in the majority’s decision, except for section
B in which our colleagues decide that a full make-whole
remedy for the aggrieved employee shall no longer be
available to rectify the type of 8(b)(1)(A) violation which
was committed by the Respondent Union here. Because
we would adhere to the well-established Board policy of
seeking full relief for the victims of unfair labor prac-
tices, we dissent from the majority’s awarding “half-a-
loaf” relief to one class of unfair labor practice victims.
Under Section 10(c) of the Act, the Board must fash-
ion an appropriate remedy for the unfair labor practices
committed by respondents. In carrying out this responsi-
bility, the Board has traditionally been guided by the goal
of restoring the status quo ante and fashioning a remedy
which will eradicate the consequences of the unfair labor
practice which it has found. Significantly, except for the
majority’s decision here, we know of no area in which
the Board has established a stated goal of giving less than
a full make-whole remedy for employee losses resulting
from unfair labor practices.
In the instant case, the employee’s grievance would
have been processed but for the Union’s unfair labor
practice. And, assuming that the General Counsel can
meet the burden imposed on him in this case, the em-
ployee would have prevailed on the grievance. Despite
this, our colleagues leave the employee with something
less than he would have secured through a grievance
victory. The situation is therefore anomalous. If the
employee had been wronged only by the Employer, i.e.,
if the Union had processed the grievance, he would get a
full remedy. But, because the Employer breached the
contract and the Union committed an unfair labor prac-
tice, he gets only a partial remedy.
Our colleagues attempt to justify this inequitable result
by attempting to analogize this situation to the damage
apportionment followed in “hybrid” duty of fair repre-
sentation/Section 301 breach of contract suits. Accord-
ing to our colleagues’ reasoning, this new found partial
remedy for an employee who has suffered losses due to
an 8(b)(1)(A) violation is appropriate because it is con-
sistent with the remedy granted in these “hybrid” cases.
That view depends entirely on the appropriateness of our
colleagues’ analogy to Section 301 remedies but, as here-
inafter shown, that analogy is fundamentally flawed.
Bowen v. Postal Service, 459 U.S. 212 (1983), and the
other court decisions relied on by the majority differ con-
siderably from an unfair labor practice case involving a
breach of the union’s duty of fair representation. In the
typical Section 301 hybrid lawsuit, the aggrieved em-
ployee may name as defendants and seek relief from two

Court’s Labor and Employment Docket in the 1980 Term: Justice
Brennan’s Term, 53 U. Colo. L. Rev. 1, 28–37 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
wrongdoers, the union and the employer, and a single
defendant may seek to include the other actors pursuant
to Rule 14 or 19 of the Federal Rules of Civil Procedure.
Bowen resolved the question of how much each wrong-
doer must pay the employee after liability has been de-
termined and the loss measured. Rather than applying
joint and several liability to the defendants before it, the
Court allocated the loss among them. Although losses
are thereby shared, Section 301 recovery is full. The
Supreme Court further stated that if the aggrieved em-
ployee “does not collect the damages apportioned against
the union, [the Employer] remains secondarily liable for
the full loss of backpay.” Id. at fn. 12.1 Thus, the Court’s
apportionment of damages between the two wrongdoers
before it does not require the demise of full recovery for
the aggrieved employee in an 8(b)(1)(A) unfair labor
practice proceeding.
By contrast, in the typical 8(b)(1)(A) “refusal-to-
process” context, the union is the only party that has
committed the unfair labor practice. That is, the em-
ployer’s breach of contract, even if shown, is not an un-
fair labor practice. Thus, unlike the courts in Section 301
cases, the Board in 8(b)(1)(A) cases is not presented with
two wrongdoers. Instead, the Board has one wrongdoer,
the union, which committed the unfair labor practice. But
for the union’s unfair labor practice, the employee would
have secured a complete victory in the grievance pro-
ceeding.2 Unlike our colleagues, we would here give the
employee the full fruits of that grievance victory and
restore him to the position he would have been in if the
union had processed his grievance..3

1 Our colleagues fail to appreciate the purpose of our reference to the
above-quoted language. Thus, as noted above, we emphasize that the
typical Sec. 301 hybrid lawsuit differs considerably from a breach of
the duty of fair representation unfair labor practice proceeding. Our
reference to Bowen merely makes the point that the payment scheme
which the Court devised for the defendants to follow in the Sec. 301
context never impinged on the Court’s explicit recognition of a full
remedy for the aggrieved employee. In fact, the Court gave added
protection to the employee’s full remedy by imposing secondary liabil-
ity on the defendant employer.
2 For example, in the instant case there is no allegation that Alamillo
Reinforcing Steel Corporation’s alleged breach of the contract—i.e., its
refusal to accept Charging Party Bryant as a referral for a June 3, 1991
job—violated the Act. The Respondent Union committed the unfair
labor practice when it arbitrarily failed to process Bryant’s grievance
against Alamillo. Assuming arguendo that the General Counsel can
show in subsequent compliance proceedings that Bryant “would have
won on the merits” if his grievance had been “properly pursued” by the
Union, Bryant would have secured a grievance victory warranting a full
remedy.
3 Not unlike an attorney who has accepted, but failed to carry out, a
representation, the union should not be excused from making whole the
losses suffered because of its unlawful action on the ground that the
initial loss was caused by a nonparty’s act. Unlike legal counsel who
must answer in damages caused by negligence, we require that the
union’s actions be wrongful. But, like counsel, whose fault was the
immediate and proximate cause of the loss, the union should have to
restore its victim to the position he would have had but for the wrongful
decisions.
The majority also asserts that aggrieved employees can
be made whole if they file a hybrid lawsuit rather than a
charge with the Board. However, few, if any, employees
would understand that there is a remedial difference be-
tween a “hybrid” lawsuit and an NLRB charge. And, by
the time that the Board orders the partial remedy, it will
be too late for the employee to begin a “hybrid” lawsuit.4
Further, even if employees somehow learn the difference
between Board and court remedies, they may be forced
by economic circumstances to seek only NLRB relief. A
Section 301 lawsuit can be an expensive proposition for
a single individual who proceeds against an employer
and a union, two institutions that are likely to have far
more resources available to them than the employee.
Furthermore, the more the Board forces aggrieved em-
ployees to a different forum to achieve a full make-whole
remedy, the more we impair the full rights Congress af-
forded them under the Act and the more we diminish the
likelihood of seeking resort to the Board’s processes to
protect the full spectrum of Section 7 rights.5

Jonathan J. Seagle, Esq., for the General Counsel.
Barry E. Hinkle, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respon-
dent.
Ronald W. Bryant, pro se, of San Francisco, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
these consolidated unfair labor practice cases in trial on June 7,
1993, in San Francisco, California.1 They trace from a series of
charges and amended charges that Ronald W. Bryant filed in
1991 and 1992 against Iron Workers Local Union 377, Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (the Respondent or Respondent Union).
After investigating these charges, the Regional Director for
Region 20 issued a series of complaints and amended com-
plaints against the Respondent in 1992 and 1993.2 Taken to-
4 See Del Costello v. Teamsters, 462 U.S. 151 (1983) (the 6-month
statute of limitations of Sec. 10(6) of the Act also governs Sec. 301
lawsuits).
5 In addition, a full make-whole remedy avoids the calculation prob-
lems that our colleagues readily acknowledge exist under their damage
apportionment approach.
1 I originally opened the trial record on November 19, 1992, then
granted counsel for the General Counsel’s motion to postpone proceed-
ings indefinitely, to permit the General Counsel to seek enforcement of
certain subpoenas in a United States District Court.
2 In Case 20–CB–8663, Bryant filed a charge on April 25, 1991, and
the Regional Director issued a separate complaint on June 7, 1991. In
Case 20–CB–8846, Bryant filed an original charge on November 22,
1991, and an amended charge on January 2, 1992. The Regional Direc-
tor issued a separate complaint in that case on January 7 1992, and an
amended complaint on June 7, 1993. (The Regional Director issued an
order consolidating Cases 20–CB–8663 and 20–CB–8846 on January 7,
1992.) In Case 20–CB–8991, Bryant filed an original charge on April
7, 1992, and an amended charge on May 28, 1992. The Regional Di-
rector issued a separate complaint in that case on June 1, 1992, and an
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 385
gether, the several complaints charge that in 19913 the Respon-
dent violated Section 8(b)(1)(A) and, in some instances, Sec-
tion 8(b)(2) of the Act by (1) refusing in April and May to al-
low Bryant to review hiring hall referral records; (2) refusing in
June to dispatch Bryant to a job with Alamillo Reinforcing
Steel Corporation (Alamillo); (3) refusing thereafter to initiate a
grievance against Alamillo for refusing to employ Bryant; (4)
refusing in November to dispatch Bryant to a job with Kimmins
Abatement Corporation (Kimmins); and (5) telling Bryant in a
December 30 letter that he owed “supplemental dues,” and
“threaten[ing]” that it would “possibly refuse” to dispatch Bry-
ant if he did not pay up on those supplemental dues. The com-
plaints further allege that the Respondent acted in all but the
latter instance for reasons which were “arbitrary,” and as to
items (1) and (3), that it also acted for reasons which were “un-
fair,” “invidious,” and “a breach of the fiduciary duty owed the
employees whom it represents.” The Respondent denies all
claims of wrongdoing.
.At the trial, counsel for the General Counsel rested his case-
in-chief after introducing certain documentary exhibits, and
calling three witnesses—Kimmins’ agent, Dan Hoffner, the
Respondent’s business agent, Randall Oyler, and Charging
Party Bryant. The Respondent called no witnesses of its own
and did not otherwise challenge the testimony presented by the
General Counsel’s witnesses, but rested its own case after in-
troducing copies of its Local bylaws, and the constitution of the
International Union with which it is affiliated. The General
Counsel and the Respondent thereafter filed posttrial briefs.4
I have studied the entire record, the parties’ briefs, and the
authorities they invoke. Based on the following findings and
reasoning, I will sustain the complaints in certain respects and
dismiss them in others.
FINDINGS OF FACT AND LEGAL ANALYSES
I. JURISDICTION
Section 8(b)(1)(A) and (2) of the Act make unlawful certain
actions by “labor organizations,” elsewhere defined in Section
2(5) of the Act. The Respondent admits the legal conclusion
pleaded in the complaint that it is a labor organization within
the meaning of Section 2(5) of the Act. I so find, based on
record evidence incidentally showing, as required by Section
2(5), that the Respondent is an organization in which employ-
ees participate, and that it exists in part for the purpose of deal-
ing with employers of ironworker employees working within its
territorial jurisdiction (roughly, the city of San Francisco) con-
cerning their grievances, labor disputes, rates of pay, hours of
employment, or conditions of work.
Under established interpretations of the United States Consti-
tution and of the Act, not worth retracing here, the Board’s
statutory jurisdiction cannot be invoked unless the General
Counsel can show that the actions of the labor organization (the
Union) targeted by a complaint have more than de minimis
impact on commerce between and among the States. This is
usually established by proof that the union’s actions in some
manner implicate the operations of an employer over whom the

amended complaint on June 9, 1992. (The Regional Director issued an
order consolidating the latter case with the first two on June 1, 1992.)
3 All dates below are in 1991 unless I specify otherwise
4 Briefs were originally due on July 16, 1993, but the deadline was
extended to August 3, 1993, on the joint application of the General
Counsel and the Respondent.
Board would assert jurisdiction. In apparent recognition of
these considerations, the complaints make several assertions of
fact concerning the existence of labor agreements between the
Respondent and certain businesses and business groups, and
concerning the operations of those businesses or business
groups. (The latter allegations are calculated to show that the
businesses or business groups meet the Board’s “discretionary”
tests for asserting jurisdiction over “non-retail” enterprises, i.e.,
the $50,000 “direct or indirect inflow or outflow” tests.) Fo-
cusing on those elements of the complaints, these are my find-
ings and conclusions:
The record shows that during all times material to the com-
plaints, the Respondent was a party to labor agreements with
many construction industry businesses. One such agreement—
apparently governing the employment relationship between
employees represented by the Respondent and the largest num-
ber of the construction firms they work for—was one negoti-
ated between the District Council of Iron Workers of the State
of California and Vicinity (the District Council), on behalf of
its Local Union affiliates,5 and an association of businesses
called Iron Worker Employers, State of California and a Por-
tion of Nevada (the Association).6 This “Master Agreement”
was effective from July 1, 1989, through June 30, 1992. The
Respondent has admitted complaint counts alleging that in
calendar year 1991, the employers bound by the Association’s
actions to the Master Agreement “collectively purchased and
received at their California facilities and jobsites products,
goods, and materials valued in excess of $50,000 directly from
points outside the State of California for use within the State of
California.” I so find, although I question what real jurisdic-
tional significance such facts may hold.7
5 The District Council is composed of various local unions represent-
ing ironworkers, including the Respondent, and the record shows that
the District Council likewise exists in part for the purpose of represent-
ing those local unions and their respective employee constituents in
labor relations dealings with employers. For what it is worth, the Re-
spondent admits and I find that the District Council is likewise a 2(5)
labor organization.
6 The Association negotiated on behalf of certain subsidary associa-
tions and their member-employers.
7 The General Counsel has not explained why the “collective” opera-
tions of the Association’s members have any jurisdictional significance
to this case. The question is nevertheless pertinent in the aftermath of
John Deklewa & Sons, 282 NLRB 1375 (1987), which, among other
major revisions in the interpretation of the law applicable to the con-
struction industry, left in doubt whether multiemployer bargaining units
in that industry would in the future be considered appropriate ones.
(See especially 282 NLRB at 1385 fn. 42.) And seemingly, if a mul-
tiemployer group did not create a single, appropriate multiemployer
bargaining unit, then it would be irrelevant for jurisdictional purposes
to aggregate the collective operations of those employers. However, as
we shall see, there are only two counts in the complaints which might
rely on the collective operations of the Association’s members as the
basis for asserting jurisdiction: (a) the count in Case 20–CB–8663,
alleging that the Respondent unlawfully denied Bryant access to hiring
hall records; and (b) the count in the complaint in Case 20–CB–8991
alleging that the Respondent unlawfully threatened to possibly refuse to
dispatch Bryant in the future based on his dues delinquencies. (Thus, in
each of those cases, the alleged violations are not linked to the opera-
tions of any specific employer, but presumably implicate the operations
of all the Association members bound to the Master Agreement.) I will
dismiss those counts on their legal merits, and therefore I will not find
it necessary to decide whether, after Deklewa, it was legally permissible
for jurisdictional purposes to aggregate the interstate volumes of busi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
More pertinently, as the General Counsel now concedes in
amended pleadings, neither of the two employers specifically
named in the complaints—Alamillo and Kimmins—had dele-
gated their bargaining rights to the Association for purposes of
binding them to the Master Agreement, and therefore they can-
not in any case be considered to be part of the multiemployer
group supposed to be commonly bound to the Master Agree-
ment. However, I find from the pleadings or from undisputed
evidence that Alamillo and Kimmins were bound by separate
agreements with the District Council to honor the terms of the
Master Agreement. Thus, insofar as the complaints charge that
the Respondent’s actions implicated the operations of Alamillo
and Kimmins, jurisdiction will attach if the record shows that
those operations were each operations over which the Board
may assert jurisdiction.
The pleadings establish and I find that Alamillo is a corpora-
tion engaged as a contractor in the construction industry with
offices in Benicia, California; that in calendar year 1991,
Alamillo purchased and received goods worth more than
$50,000 directly from points outside California; and that it also
performed more than $50,000 worth of services for Granite
Construction, an enterprise within California which itself per-
formed more than $50,000 worth of services to businesses and
governmental entities outside California. Thus, even under the
Board’s discretionary (i.e., not constitutionally mandated) tests
for asserting jurisdiction, Alamillo clearly meets one or more of
the direct or indirect inflow or outlfow tests, and therefore it
was at material times an employer “in commerce” or “af-
fect[ing] commerce” within the meaning of Section 2(6) and (7)
of the Act.
The Respondent has denied complaint allegations describing
Kimmins’ operations. The undisputed evidence introduced by
the General Counsel shows that Kimmins is a Delaware corpo-
ration with headquarters in Tampa, Florida, and operating of-
fices in Niagara Falls, New York, from which it entered into
contracts with the California Department of Transportation
(Caltrans), a State of California agency, to perform services on
a freeway construction job in San Francisco. In calendar year
1991, Kimmins performed more than $50,000 worth of services
for Caltrans on that freeway job. Based on those facts, I find
that Kimmins, too, was an employer whose operations at mate-
rial times involved the direct transfer across state lines of at
least $50,000, and therefore that Kimmins, too, was an em-
ployer within the meaning of Section 2(6) and (7) of the Act.
Therefore, given that the Respondent is a statutory labor or-
ganization, and that Alamillo and Kimmins are each employers
over whom the Board may take jurisdiction, I find that the
Board’s jurisdiction is properly invoked with respect to the
Respondent’s complained of actions specifically associated
with those two employers.
II. BACKGROUND: LEGAL SETTING
A. Main Personalities: Their Relationships
Charging Party Bryant became a member of the Respondent
in 1979 and achieved journeyman ironworker status in 1981.
He was eventually dropped from the Respondent’s membership
rolls in 1992, after admittedly failing to pay up on certain sup-

ness done by the separate businesses comprising the Association’s
membership.
plemental dues arrearages the Respondent claimed he owed.8
At all relevant times, Gene Vick was the Respondent’s business
manager and financial secretary and its chief paid executive.
Randall Oyler was its business agent, working under Vick’s
supervision, with responsibilities which included dispatching
jobseekers to jobs from the Respondent’s San Francisco hiring
hall.
In the years before Bryant filed the three charges in the in-
stant cases, he had filed four other unfair labor practice charges
against the Respondent. He withdrew one of these, and two
others were dismissed by the Regional Director for Region 20,
but the fourth charge resulted in the Regional Director’s issu-
ance of a complaint, which was thereafter resolved in some
undisclosed manner without litigation. In addition, both before
and during the period covered by the complaints, Bryant had
regularly lodged complaints against the Respondent with the
San Francisco Human Rights Commission, claiming in one way
or another that the Respondent was discriminating against him-
self and other African-Americans in its handling of job refer-
rals.9
Despite this history of challenges, Bryant had admittedly re-
ceived hundreds of dispatches to jobs through the Respondent’s
hiring hall. And even if we might presume that Bryant’s chal-
lenges were unwelcome to the Respondent, the record holds no
direct evidence that the Respondent’s agents were hostile to-
wards Bryant because of those challenges, or because Bryant
was black. The only evidence of any affirmative hostility
shown towards Bryant, which I shall find equivocal in its im-
port, is in Bryant’s uncontested description of an angry ex-
change between himself and Vick during a membership meet-
ing sometime in January 1991. It happened when Vick an-
nounced to the membership that work was going to be good.
Bryant interrupted with the question, “Who was work going to
be good for?” Vick replied, “Fuck you Ronald,” and Bryant
rejoined in like terms. The Respondent’s president then threat-
ened to have the sergeant-at-arms remove Bryant from the
meeting, and things soon quieted down.
B. The Labor Relations and Hiring Hall Schemes
Implicit in the Master Agreement
The recognitional and representational arrangements in-
tended by the Master Agreement are complex and to some ex-
tent inexplicit. It appears that employers bound to the Master
Agreement have effectively recognized the District Council and
its Local Union affiliates (including the Respondent) as the
joint exclusive collective-bargaining representatives of their
employees working in defined “Iron Worker . . . job classifica-
tions” within the territorial jurisdiction of the District Council,
with the local union affiliates having the primary representative
role when it comes to administering and enforcing the Master
Agreement on jobs within their respective local territorial juris-
dictions.10
8 The complaints do not challenge the Respondent’s 1992 dropping
of Bryant from membership.
9 Bryant explained that, typically, his charges with the San Francisco
Human Rights Commission were resolved by the Respondent’s agree-
ing to dispatch him to a job.
10 At sec. 1, p. 3 of the Master Agreement, “the Union” is defined as
“any of the Local Unions affiliated with the District Council.” It is on
this basis that I infer that a “joint representation” scheme is contem-
plated by the Master Agreement.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 387
Section 5 of the Master Agreement recites that “when an in-
dividual employer requires workmen to perform any work cov-
ered by this Agreement he shall hire applicants to perform such
work in accordance with this Agreement.” And section 5 con-
tains a detailed body of rules governing employment of work-
ers,11 intended “to maintain an efficient system of production in
the industry, to provide for an orderly procedure for the referral
of applicants for employment, and to preserve the legitimate
interests of employees in their employment.” These rules pro-
vide generally that the employers bound to the Master Agree-
ment must obtain journeymen from the rolls of registrants in
the hiring hall operated by the local union having territorial
jurisdiction over the work to be performed.12
However, section 5 contains exceptions to this general rule;
it allows employers “to employ directly a minimum number of
key employees who may include a General Foreman and a
Foreman[,]” and as well, “to employ directly on any job in the
locality in which the individual employer maintains a principal
place of business all employees required on such job or jobs,
provided such employees are regular employees of the individ-
ual employer who have been employed by him fifty per cent
(50%) of the working time of the applicants during the previous
twelve (12) months.”13 In addition, it allows employers to “em-
ploy applicants from any source[,] if the . . . Local Union [is]
unable to fill the requisition of an individual employer for em-
ployees within a forty-eight (48) hour period after such requisi-
tion is made by the individual employer (Saturdays, Sundays,
and holidays excepted)[.]”14 Finally, section 5 guarantees that
employers have the right “to reject any applicant referred by the
appropriate Local Union.”15
C. The Applicability of the Duty of Fair Representation;
the Arbitrariness Standard
As previously noted, the complaints allege that the Re-
spondent acted “arbitrarily” against Bryant in all but one
instance, and in two instances also acted “for reasons
which are unfair, invidious and a breach of the fiduciary
duty owed the employees it represents.” By salting the
complaints with such words, the prosecution is obviously
alleging that the Respondent owed and violated a statu-
tory duty of fair representation vis a vis Bryant, as that
duty was recognized and discussed in similar terms by
the Board in Miranda.16 (In this regard, I note that in

11 At sec. 1, p. 3 of the Master Agreement, “the Union” is defined as
“any of the Local Unions affiliated with the District Council.” It is on
this basis that I infer that a “joint representation” scheme is contem-
plated by the Master Agreement.
12 As to “journeymen,” see sec. 5,C, Master Agreement, p. 5. How-
ever, in California, the employment of apprentices is specifically ex-
empted from the provisions of sec. 5, and is controlled instead by an
“Apprenticeship Standards Agreement approved by the Department of
Industrial Relations of the State of California.” Id. at subsec. K, pp.
22–23.
13 Id. at subsec. B-1, p. 12.
14 Id. at subsec. L, p. 23.
15 Id. at subsec. E, p. 15. And see also sec. 4, dealing generally with
union security, which provides at subsec. E (pp. 11–12), that “[t]he
individual employer shall be the sole judge of the qualifications of all
of his employees and may on such grounds discharge any of them.”
16 Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d
172 (2d Cir. 1963). (Although it denied enforcement of the Board’s
Miranda decision, the Second Circuit later affirmed that a breach of the
more recent cases, the Board has adopted the formulation
of the duty of fair representation used by the Supreme
Court in Vaca,17 and thus holds that “[a] breach of the
duty of fair representation occurs only when the repre-
sentative’s conduct is `arbitrary, discriminatory, or in bad
faith.”’18
In a case like this one, where a union is alleged to have vio-
lated its duty of fair representation in its operation of a hiring
hall, it is the General Counsel’s burden at the threshhold to
establish that the hiring hall is an “exclusive” one; for absent
that showing, the duty of fair representation does not attach.19
From the cases, it appears that the definition of “exclusive” for
these purposes is not strict, or literal, and that the Board will
find that the union’s duty of fair representation exists even
where there are shown to be exceptions to the exclusive nature
of the hiring hall operation.20 Here, too, I find that despite the
limited allowances for the “direct employment” of employees
by employers in certain circumstances, the Master Agreement
has effectively established the Local Unions party to it includ-
ing the Respondent as the normal and customary hiring and
referral sources for journeymen employees, like Bryant, used
by employers bound to the Master Agreement.21 Therefore I
conclude that, when acting under the Master Agreement as the
employee referral medium to employers bound to the Master
Agreement, including Alamillo and Kimmins, the Respondent
operated under a statutory duty of fair representation.
It is worth commenting at this introductory point about the
General Counsel’s current focus in alleging that the Respondent
breached its duty of fair representation towards Bryant, and my
own focus in testing these allegations: Despite some of the
terms of opprobrium used in the complaints to describe the
Respondent’s motives in the complained of instances, the Gen-
eral Counsel does not now claim that the Respondent acted
against Bryant for specifically hostile or other “invidious” rea-
sons; rather, the prosecutor argues on brief that the Respon-
dent’s actions must be seen as unlawful even if not based on
personal hostility.22 In any case, the record is too spare to allow

duty of fair representation violates Sec. 8(b)(1)(A) of the Act. See
NLRB v. Teamsters Local 282, 740 F.2d 141, 145–146 (2d Cir. (1984).)
17 Vaca v. Sipes, 386 U.S. 171, 190 (1967). See also Ford Motor Co.
v. Huffman, 345 U.S. 330, 338 (1953).
18 See, e.g., Sheet Metal Workers Local 49 (Aztech International),
291 NLRB 282, 283 (1988); Teamsters Local 528 (Walsh Construc-
tion), 272 NLRB 28 (1984).
19 Teamsters Local 460 (Superior Asphalt Co.), 300 NLRB 441
(1990).
20 See, e.g., Morrison-Knudsen Co., 291 NLRB 250, 258–59 (1988),
and authorities cited; and Teamsters Local 328 (Blount Bros.), 274
NLRB 1053, 1057 (1985). Cf. Teamsters Local 174 (Totem Bever-
ages), 226 NLRB 690 (1976). In none of those cases, however, can I
discern the precise standard being employed for determining the point
at which “exceptions” to actual exclusivity are enough to render the
hiring hall a “non-exclusive” one for purposes of the duty of fair repre-
sentation.
21 Specifically, mindful of the Board’s teachings and clarifications in
Teamsters Local 460 (Superior Asphalt), supra, I find that the hiring
hall arrangement here leaves the Respondent with substantial “power to
put jobs out of the reach of workers” (id. at 441), and that in the com-
plained of instances involving dispatches to Alamillo and Kimmins, the
Respondent clearly had power and exercised it to put those jobs outside
Bryant’s reach.
22 Counsel for the General Counsel stresses on brief that the unfair
labor practice counts alleging unlawfully “arbitrary” failures by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
a finding that personal antagonism towards Bryant tainted the
Respondent’s treatment of Bryant in the complained of in-
stances.23 For both of these reasons, therefore, my focus below
will be on the question whether the Respondent’s actions were
unlawfully arbitrary, which is itself a notion that eludes clear
definition in the cases.24 But the authorities are at least in har-
mony about one thing when it comes to “arbitrariness” ques-
tions: For a union’s alleged arbitrariness to rise to the level of a
violation of Section 8(b)(1)(A) or (2), it must be shown to in-
volve “something more than mere negligence on the union’s
part.”25
III. ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to Grant Bryant’s April Request for
Dispatch Records
Relying on Bryant’s testimony, I find that sometime in April,
Bryant approached Oyler at the hiring hall (apparently while
Oyler was dispatching workers to jobs), and asked to see the
Respondent’s dispatch records for the past 6 months. Bryant
explained to Oyler that he wanted to develop a “chronology” of
his own work history during that period. Oyler told Bryant that
he would not let Bryant have the dispatch slips to look through,
but would instead make his own review of those records and
“would develop that chronology for [Bryant] and then give
[Bryant] copies of the dispatch slips.”26 Bryant does not de-

Respondent to refer Bryant to Alamillo and to Kimmins do “not require
a showing of animus on the part of Respondent toward Bryant.” I take
this to mean in context that the General Counsel does not abandon any
claim that the Respondent acted “arbitrarily” in each instance.. But I
interpret it as a substantial abandonment of any claim that the Respon-
dent acted against Bryant out of personal hostility
23 It is true that Vick showed personal hostility towards Bryant in the
January union meeting. But union meetings are frequently unruly
affairs, involving the trading of taunts and barbs and other kinds of
angry flareups between and among members and the union leadership.
And it is entirely unclear on this record what it was that triggered
Vick’s hostile statement to Bryant. (Was it Bryant’s interruption of
Vick? Was it Bryant’s prior history of charges against the Respondent?
We simply cannot know.) In any case, the single incident of animosity
between Bryant and Vick in a union meeting does not reliably establish
that the Respondent harbored an abiding resentment of Bryant. Much
less does it reliably establish that, in taking the later actions in April
through December challenged by the complaint, the Respondent was
motivated by “unfair,” or “irrelevant,” or “invidious” motives, such as
Bryant’s race, or because he filed charges with the Board or the San
Francisco Human Rights Commission. Therefore, my analysis will not
be influenced by the January exchange between Vick and Bryant.
24 As Chairman Stevens noted in the context of a dissenting opinion,
“‘Arbitrariness’ has been the most vexing and difficult of the duty of
fair representation inquiries.” Sheet Metal Workers Local 49 (Aztech
International), 291 NLRB 282, 283 (1988), citing Robesky v. Qantas
Empire Airways, 573 F.2d 1082 (9th Cir. 1978).
25 Teamsters Local 692 (Great Western), 209 NLRB 466, 447–448
(1974); Office Employees Local 2, 268 NLRB 1353, 1354–1356 (1984),
affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851, 854 (1985); and
Sheet Metal Workers Local 49 (Aztech International), supra at 282.
26 While Bryant’s descriptions of this transaction potentially invite a
variety of interpretations, I think the most natural understanding of
what Bryant was describing was that Oyler was not willing to turn over
the entire body of the Respondent’s dispatch records for the past 6
months, but was willing to pull from those records and give to Bryant
those slips showing dispatches Bryant had received in the recent 6-
month period. I observe that this was seemingly enough to accommo-
date Bryant’s announced reason for wanting to review the records, i.e.,
to develop a personal chronology of his work history.
scribe any further exchanges with Oyler on the point, and there-
fore I infer that Bryant acceded to Oyler’s suggestion, thereby
effectively narrowing his request for access to those records
which would presumably suffice to establish the personal work
chronology he was nominally seeking. However, Oyler never
thereafter followed through even on his more narrow offer.
Before analyzing the legal significance of these facts, one
other circumstance is worth mentioning: Bryant apparently
never pursued his April request for access to the Respondent’s
referral records, not even after Oyler clearly had defaulted on
his offer. It is true that Bryant filed an unfair labor practice
charge in Case 20–CB–8663 on April 25, and in that charge
made several accusations against the Respondent in generalized
terms, but nowhere did his charge put the Respondent on notice
of any dispute about Bryant’s access to hiring hall records.27
Relatedly, I note that the June 7 complaint in that case—limited
to an allegation of unlawful denial of access to records—
includes claims that Bryant did pursue his request for access to
the referral records after his April encounter with Oyler (and
that Vick, too, was involved in a subsequent refusal to give
Bryant such access).28 But these particular claims were never
proved.29 Thus, the record holds no substantial evidence of any
post-April attempt by Bryant to pursue access to the Respon-
dent’s referral records with the Respondent.30
I31Turning now to the merits: The legal principles associ-
ated with an employee’s right of access to a union’s referral
records are well-known. As an element of its duty of fair repre-
sentation, “[a] union has an obligation to deal fairly with an
employee’s request for job referral information and . . . an
employee is entitled to access to job referral lists to determine
his relative position to protect his referral rights.”31 Therefore,
“[a] union breaches its duty of fair representation in violation of
Section 8(b)(1)(A) of the NLRA when it arbitrarily denies a
member’s request for job referral information, when that re-
quest is reasonably directed towards ascertaining whether the
27 Bryant’s April 25 charge, alleging 8(b)(1)(A) and (2) violations,
stated:
During the preceding six month period, the above named labor
organization . . . has discriminated against Ronald W. Bryant ap-
plying unfair hiring hall practices and theatening Bryant in an at-
tempt to discourage him from exercising his Section 7 rights. Addi-
tionally, the above named labor organization . . . has unlawfully at-
tempted to cause Employers to discriminate against . . . Bryant.
28 The complaint in Case 20–CB–8663 alleged that Bryant requested
“Respondent on both April 30 and May 28 to “permit him to review its
dispatch records,” and that “since on or about April 30 . . . by Oyler
and June 3 . . . by Vick,” the Respondent has “failed and refused to
allow Bryant access to its dispatch records.”
29 This record contains no evidence of a “May 28” request by Bryant
regarding review of dispatch records, nor of any “June 3” refusal on
Vick’s part of such a request.
30 Bryant elliptically suggested at one point that he may have revived
his original April request to Oyler in a letter to the Respondent. How-
ever, no such letter was produced, and after I noted this fact at trial,
counsel for the General Counsel disclaimed any reliance on any such
letter, stating that he was relying solely on the verbal exchange between
Bryant and Oyler in April. In all the circumstances, I infer that Bry-
ant’s vague reference to a letter in this context was simply mistaken,
and that Bryant did not, in fact, ever pursue the request he made to
Oyler in April.
31 Teamsters Local 282 (AGC of New York), 280 NLRB 733, 735
(1986). See also Operating Engineers Local 825 (Building Contrac-
tors), 284 NLRB 188, 189 (1987).
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 389
member has been fairly treated with respect to obtaining job
referrals.”32
The threshhold question is whether Bryant’s request to ex-
amine the Union’s referral records was made for any of the
protected purposes recognized by the foregoing authorities, i.e.,
“to protect his referral rights,” or “to ascertain whether [he had]
been fairly treated with respect to obtaining job referrals.” The
record is confusing and leaves ground for doubt on this point. It
is true that in explaining from the witness stand his original
request to Oyler, Bryant testified that he wanted to “be able to
show that there were jobs available over that six-month period
of time that I had been denied that I was fully qualified for.”
But this explanation is to some extent inconsistent with what
Bryant said to Oyler in April (merely that he wanted to develop
a personal work “chronology,”33) and seemingly inconsistent, as
well, with Bryant’s behavior in acquiescing in Oyler’s offer to
provide Bryant only with his own dispatch slips for the last 6
months.34 Despite these apparent inconsistencies, I will assume
for purposes of this decision that Bryant sought access to the
records for the reasons he advanced on the witness stand. I will
further assume that, because Bryant’s initial request was (at
least subjectively) directed towards “ascertaining whether [he
had] been fairly treated with respect to obtaining job referrals,”
it was one that triggered on the Respondent’s part a statutory
duty not arbitrarily to deny Bryant’s request.
Here, the evidence shows that Oyler’s offer to pull out Bry-
ant’s job referral slips for the past 6 months was apparently
acceptable to Bryant, but that for some reason, never explained
by the Respondent, Oyler failed to follow through, and for
some reason, never explained by the prosecution, Bryant did
not further pursue his request even after Oyler had failed to
follow through. I judge that this evidence is ultimately equivo-
cal on the critical question whether Oyler’s failure to follow
through was or was not the product of mere negligence or for-
getfulness. As I have previously discussed, union actions fal-
ling in the latter category do not implicate the statutory duty of
fair representation.35 And the Board has expressly placed on
the General Counsel the burden of “demonstrat[ing] that `some-
thing more than mere negligence’ occurred to justify a finding
of arbitrariness and, therefore, a breach of the union’s statutory
duty.”36
The evidence does not satisfy the General Counsel’s burden
of showing that something more than negligence animated the

32 NLRB v. Carpenters Local 608, 811 F.2d 149, 152 (2d Cir. 1987).
33 Clearly, Oyler knew that Bryant wanted to compile a chronology
of his referrals in the past 6 months, but Oyler was not told how Bryant
intended to use that chronology. Thus, Oyler could not know if Bryant
intended to use the chronology to protect his referral rights, or perhaps
instead intended it for some purpose unrelated to any concerns about
the fairness of the referral system, or the fairness of his own treatment
within it, such as for income tax reporting purposes.
34 Clearly, if Bryant wanted (as he testified) to show that he had been
unfairly bypassed for referrals in the preceding 6 months, he would
need to review all the records of dispatches and referrals made by the
Respondent during that period, not just his own chronology of referrals.
And therefore if Bryant subjectively intended to seek out evidence of
bypassing, I would have expected him to resist in some way Oyler’s far
more limited offer. Yet he apparently did not so resist or object.
35 And see Operating Engineers Local 18 (Ohio Pipeline Construc-
tion), 144 NLRB 1365, 1368 (1965); and Teamsters Local 692 (Great
Western), 209 NLRB at 447–448.
36 Office Employees Local 2, 268 NLRB at 1355, citing Teamsters
Local 692 (Great Western), 209 NLRB at 447–448.
Respondent’s failure to satisfy Bryant’s request because it is
just as likely than not on this record that Oyler, interrupted in
his normal dispatching duties when Bryant raised his request,
simply forgot about the request and his own offer after he went
back to his regular duties. Moreover, in assessing whether
Oyler’s failure to follow through on his offer to Bryant was
unlawfully arbitrary, I treat as a mitigating circumstance that
Bryant was himself somewhat misleading in identifying his
purpose to Oyler for wanting access to the referral records.
Thus, absent any proof that Oyler had some special reason to
believe that Bryant was seeking to vindicate his statutory right
to fairness in referrals, I find it plausible that Oyler’s failure to
follow through on Bryant’s request involved, at most, a kind of
negligent forgetfulness.37 In addition, by failing to pursue his
request after Oyler had defaulted on his offer, Bryant, too,
“must bear some portion of the responsibility for sleeping on
[his] rights.”38 Because it is fatal to the complaint that the evi-
dence does not permit a finding that something more than mere
negligence informed Oyler’s default, I will dismiss the com-
plaint in Case 20–CB–8663 in its entirety.
B. Refusal to Dispatch Bryant to Alamillo; Refusal to Grieve
Alamillo’s Refusal to Employ Bryant
The complaint in Case 20–CB–8846 alleges as distinct viola-
tions that the Respondent, “since on or about June 3,” has re-
fused to dispatch Bryant to Alamillo, and has refused to process
a grievance against Alamillo over the latter’s refusal to hire
Bryant. These are the facts commonly relevant to both counts.
Bryant had worked for Alamillo on a job at the Moscone
Center in San Francisco in September 1990. He admittedly
“walked off that job . . . quit that job,” apparently in the same
month, after sensing from remarks made by Alamillo’s general
foreman, Pete Hills, that Hills intended to give him punitively
difficult work assignments.39 On June 3, Bryant was registered
for referral and was present in the hall when Oyler called out a
reinforcing iron job for Alamillo at the Moscone Center. Bry-
ant was the only one to respond, but when he appeared at the
dispatch window and tendered his dues receipt to claim the job,
Oyler said he would not dispatch Bryant to Alamillo because
Bryant “had worked there in the past and the company had sent
a letter stating that they did not want [Bryant] to return to that
project.” Oyler then showed Bryant a copy of Alamillo’s letter,
one apparently bearing a September 1990 date.40 (Bryant in-
37 Compare Oyler’s conduct to Union Agent Sheridan’s in Office
Employees Local 2, supra, where the Board found no violation because
“Sheridan’s inability to provide a substantial justification for his failure
to notify Eichelberger means nothing more than that Sheridan was
negligent.” 268 NLRB at 1356.
38 Id.
39 Bryant had earlier worked under Hills on a different job at the
Fillmore Center when both he and Hills were employed by a different
employer, not Alamillo, and Bryant felt that he had received discrimi-
natorily harsh assignments from Hills on the Fillmore Center job.
40 Although there is no dispute that Alamillo sent a letter to the Re-
spondent in some manner indicating that it would not accept Bryant as
an employee, the letter itself was not introduced into this record, even
though, as I narrate below, Bryant soon was shown another copy of it
by an agent of the San Francisco Human Rights Commission, and no
showing was made that the letter was unavailable to the General Coun-
sel. Under the best evidence rule (codified in Fed.R.Evid. 1002 and
1004), the contents of this writing should not have been proved by
testimony. But absent objection from the Respondent’s counsel, who
seemed to accept Bryant’s descriptions of the letter’s contents, I accept
Bryant’s descriptions as roughly accurate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
sists that he was unaware of Alamillo’s position regarding his
rehire until Oyler showed him the letter.) Bryant protested to
Oyler that “there should be no reason why I couldn’t go to
work on that project because the general foreman who I’d had a
problem with in the past [referring to Hills] was no longer on
the project.” Oyler was apparently unmoved by this, for he did
not give Bryant the dispatch.41
Later on June 3, Bryant conferred with an agent at the offices
of the San Francisco Human Rights Commission, who showed
Bryant a copy of Alamillo’s letter that the Commission had
likewise received, somehow. Still later, at about 2 p.m., after
he had returned home, Bryant called Vick at the Respondent’s
offices. He told Vick he wanted to file a grievance against
Alamillo because Alamillo’s letter amounted to an attempt to
bar him from employment, which, Bryant argued, was a viola-
tion of the Equal Employment Opportunity section of the Mas-
ter Agreement.42 Asked by the General Counsel, “What was
Mr. Vick’s response?” Bryant testified, at this time,”I believe
Mr. Vick said that he would file a grievance.”43
That same day, Bryant composed a handwritten letter to
Vick, which the Respondent apparently received on June 11.
Bryant said in that letter, in pertinent part:

There was a job order placed for Alamilleo [sic] Steel
this morning at 7:30 am. Randy Oyler was dispatcher. I
was denied the job because I had been dispatched to to this
jobsite before.
I have seen and read this letter today. I beleave [sic] it
is in violation of the Agreement’s Section 5 Employment
#(7) page 22.[44] This letter states that I have been banned
from all their jobs. It also violates the E.E.O Section.
As I stated to you during our conversation Regarding
[sic] this matter, I want a grievance filed Against [sic] this
contractor. I have done nothing to deserve this treatment
for so long a time.

On September 13, Bryant signed and transmitted another let-
ter to Vick, this one typed, which Vick apparently received the
same day. In this second letter, Bryant stated pertinently,

41 The record does not show how, if at all, Alamillo’s job call was
filled, only that Bryant did not get the job.
42 Subsec. N of sec. 5 of the Master Agreement, captioned Equal
Employment Opportunity, recites pertinently,
The Employers and the Union recognize they are required
by law not to discriminate against any person with regard to
employment or union membership because of race, religion,
age, color, sex, national origin or ancestry and hereby declare
their acceptance and support of such laws. This shall apply
to hiring, placement for employment, training during em-
ployment, rates of pay or other forms of compensation, selec-
tion for training including apprenticeship.
43 Bryant’s reply here seemed uncertain and somewhat improvised,
and it contradicts an out-of-court averral Vick made in a letter to Bryant
on September 13, quoted infra. Vick’s averral in the September 13
letter is inadmissible hearsay as to what Vick told Bryant on June 3.
Therefore, despite doubts about the quality of Bryant’s recollection
here, it stands uncontradicted, and I will assume that Bryant recalled
Vick’s June 3 reply accurately.
44 Bryant was referring to provision 7, under subsec. I of sec. 5 of the
Master Agreement. Provision 7 states,
No individual who is rejected by the individual employer shall
be rereferred to such individual employer with respect to the same
request pursuant to which he was initially referred.

On or about June 11, I submitted a letter requesting
that a grievance be filed against Alamillo Steel because
they sent you a letter banning me from employment on all
of their projects.
On June 3, 1991 I saw that letter for the first time. I
contacted you by phone and informed you that I wanted a
grievance filed against that company. You informed me
you would file a grievance.
Why hasn’t a grievance been filed yet? I expect a reply
from you within ten (10) days.

Vick replied in a letter to Bryant the same day. In what was
apparently his last word on the subject, he said in that letter,

In reference to your letter of Sept. 13, 1991, as I told you
when discussing this matter in early June of this year, this lo-
cal union does not honor Alamillo’s request as contended in
their letter to Local #377; thus no reason to file a grievance
seems apparent.

Analyzing these facts in their totality, I observe at the outset
that Oyler’s and Vick’s respective statements to Bryant on June
3 and September 13 are difficult to harmonize rationally. In-
deed, taken together, these statements evoke the mood of Alice
in Wonderland, or Catch 22. (The Respondent, through Oyler,
effectively declared on June 3 that he would not dispatch Bry-
ant to Alamillo because he was persona non grata at that com-
pany, thereby seemingly “honoring” Alamillo’s letter. But the
Respondent, through Vick, declared contrarily on September 13
that because the Respondent “does not honor” Alamillo’s re-
quest, there was no reason for a grievance over Alamillo’s
blackballing of Bryant.) And the Respondent made no attempt
at trial or on brief to harmonize or otherwise explain these in-
consistent statements. Thus, it is easy to liken the Respondent’s
interposing of two incompatible explanations for its respective
actions on June 3 and September 13 to that of a rider trying to
straddle two horses galloping in opposite directions. Predicta-
bly, the effort has left the Respondent astride of neither mount,
and vulnerable to charges of unlawfully arbitrary behavior in
each challenged instance, as I explain below. However, for
reasons also noted below, I cannot entirely embrace the General
Counsel’s theories of violation, and will find only that Vick’s
dismissal of Bryant’s grievance request violated the Act.
Focusing first on Oyler’s refusal to refer Bryant to Alamillo,
I agree with the General Counsel that an appropriate starting
point for analysis is the Board’s summary of prior holdings in
Operating Engineers Local 406 (Ford, Bacon & Davis Con-
struction), 262 NLRB 50 (1982), enfd. 701 F.2d 504 (5th Cir.
1983). There, the Board said,

The Board has held that any departure from established exclu-
sive hiring hall procedures which results in a denial of em-
ployment to an applicant falls within that class of discrimina-
tion which inherently encourages union membership,
breaches the duty of fair representation owed to all hiring hall
users, and violates Section 8(b)(1)(A) and (2), unless the un-
ion demonstrates that its interference with employment was
pursuant to a valid union-security clause or was necessary to
the effective performance of its representative function.[45]

The General Counsel, relying on this summary, argues on brief:

45 262 NLRB at 51, citations omitted.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 391
The record evidence establishes that Respondent’s refusal to
dispatch Bryant to Alamillo on June 3 involved a departure
from established contractual hiring hall procedures. The con-
tractual provisions make clear that an employer has no right
to prohibit the dispatch of employees by Respondent in ad-
vance of the dispatch.[46]

I cannot agree that the provisions of the Master Agreement
speak clear[ly] to the question of the right of an employer to
reject a potential applicant in advance. Although referring to
“contractual hiring hall procedures,” the General Counsel calls
my attention to only one clause in the Master Agreement, i.e.,
the provision cited by Bryant in his June 3 letter to Vick, supra
(sec. 5,I,7: “No individual who is rejected by the individual
employer shall be rereferred to such individual employer with
respect to the same request pursuant to which he was originally
referred”). I remain unpersuaded. This provision is hardly
“clear” as to whether or not an “employer has [a] right to pro-
hibit the dispatch of [an employee] in advance of the dis-
patch.”47 Much less does this provision define the duties of the
Respondent when an employer has declared in advance that a
certain employee will not be accepted. Rather, the provision
invoked by the General Counsel provides, at best, an arguable
basis for supposing that predispatch rejections by an employer
are not permitted. And the General Counsel’s construction of
this clause has additional pitfalls, given other provisions, supra,
generally ceding to employers the right to discharge employees,
and specifically granting employers the right to reject any ap-
plicant referred by the appropriate Local Union.
Elaborating the latter point, I observe that if the General
Counsel were correct in his arguable interpretation of the Mas-
ter Agreement as prohibiting in-advance rejections, it would
seem to follow that the parties to the Master Agreement in-
tended unions and employers to go through a seemingly useless
ritual: Thus, under the General Counsel’s understanding of the
Master Agreement, the referring union, even when pre-advised
by an employer needing a worker that an applicant otherwise
in-line for the referral will be rejected by the employer (which
the employer has an undisputed right to do), would nevertheless
be obliged to issue a dispatch to the disfavored applicant, and
the employer, in turn, would then be obliged to reject the appli-
cant on his or her arrival at the jobsite, and send him or her
back to the hiring hall. And only after the union and the em-
ployer had thus completed this dance might the union then send
an acceptable applicant to the employer. Clearly, a whole day
or more might be lost in the observance of this ritual, a period
in which the employer would be without the services of an

46 G.C. Br. at 11; emphasis added. It also deserves emphasis that in
attempting to show that the Respondent “depart[ed] from established
exclusive hiring hall procedures,” the General Counsel has focused here
on what he believes the “contract” provides. This focus is understand-
able, given that the record is otherwise devoid of any evidence of the
Respondent’s pre-June 3 “practice,” if any, when confronted with an
employer’s “in-advance” rejection of a specific worker.
47 The General Counsel distractingly argues (Br. at 11; emphasis
added) that “[t]his clause demonstrates that there is no basis for the
contention that Alamillo could prohibit the dispatch of Bryant to any of
its projects.” This may arguably be so, but the Respondent has never
made any such “contention,” and therefore the General Counsel appears
to be swatting at a straw man. More fundamentally, the General Coun-
sel’s claim here is beside the point sought to be proved by the General
Counsel, which was that Alamillo had “no right to prohibit the dispatch
of employees . . . in advance of the dispatch.”
acceptable worker, and a worker acceptable to the employer
would be without work or pay. This may be what the parties to
the Master Agreement intended, but if so, it would be hard to
square such a procedure with other provisions in the Master
Agreement, most notably the preamble to Section 5, which
recites that the hiring procedures are intended, inter alia, to
“maintain an efficient system of production in the industry,”
and “to provide for an orderly procedure for the referral of
applicants.”
For these reasons, if the only evidence of “established proce-
dure” were the provision cited by the General Counsel, I would
be hard-pressed to find that Oyler “depart[ed] from established
exclusive hiring hall procedure” in refusing to refer Bryant to
Alamillo.48 Rather, absent some further indication that the Re-
spondent generally deemed itself bound to perform the ritual
dance described above, I would find it not at all “arbitrary” on
Oyler’s part that he refused to dispatch Bryant to Alamillo,
when such a dispatch would be apparently futile, given an em-
ployer’s unquestioned right to reject any referred applicant, and
would potentially deprive another, “acceptable” out-of-work
applicant of a day’s or more pay.49 And I would therefore read-
ily dismiss the refusal-to-refer-to Alamillo count in the com-
plaint if only these facts were before me.
But these are not the only facts, and the General Counsel
does not limit himself entirely to arguments dubiously linked to
section 5,I,7 of the Master Agreement. Thus, the General Coun-
sel also states (although seemingly as a mere “moreover” ob-
servation), “It is also significant that Vick’s letter of September
13 to Bryant recognized that the Union was not obligated to
honor Alamillo’s request.” Here, I find no basis for the General
Counsel’s apparent assumption that Vick’s statement in the
September 13 letter was specifically grounded in an interpreta-
tion of section 5,I,7, or of any other contract provision for that
matter. But I think the General Counsel gets closer to the mark
in making this observation; for it is at least possible to infer that
when Vick asserted that the Respondent does not honor
Alamillo’s request, he was implicitly suggesting that Oyler
should not have honored that request on June 3. Thus, it is with
Vick’s September 13 statements in mind that I might find that
Oyler’s June 3 refusal to dispatch Bryant involved some depar-
ture at least from Vick’s declaration of the Respondent’s policy
concerning Alamillo’s letter.
Does it follow from Vick’s statement that Oyler’s action on
June 3 was unlawfully arbitrary, and therefore a violation of
Section 8(b)(1)(A) and (2), as alleged? I think not, although it
is tempting to so conclude, particularly where the Respondent
has never attempted to rationalize Oyler’s actions in the light of
Vick’s later statement. But such a conclusion, however tempt-
ing, strikes me as an artificial one on this record. I have already
suggested reasons grounded in the contract and in the inherent
probabilities why it was not unlawfully arbitrary for Oyler to
have refused to go through the seemingly futile and wasteful
action of issuing a dispatch slip to Bryant. Therefore, it is eas-
ier for me to suppose on this record that it was Vick—not
48 Operating Engineers Local 406, supra. And see, e.g., Plumbers
Local 598 (Mechanical Contractors of Washington), 276 NLRB 487,
488 (1985).
49 Ford Motor Co. v. Huffman, supra: “[A union’s] statutory obliga-
tion to represent all members of an appropriate unit requires [it] to
make an honest effort to serve the interests of all of those members,
without hostility to any.” 345 U.S. at 337. “The complete satisfaction of
all who are represented is hardly to be expected.” Id. at 338.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
Oyler—who acted arbitrarily, i.e., perfunctorily, and without
rational basis, when he claimed falsely that the Respondent
“does not honor” Alamillo’s letter, and used this false claim as
the basis for refusing to honor Bryant’s grievance request.
Thus, when Vick invoked a reason for not advancing a
grievance on Bryant’s behalf that was nonsensical, given
Oyler’s earlier action, he plainly ignored Bryant’s interest in
getting to the bottom of a very real problem for Bryant—
Alamillo’s September 1990 declared refusal to employ Bryant
in the future. This was a refusal that Bryant had specifically
challenged on two independent contractual grounds after he
learned of it (1) that the Master Agreement barred Alamillo
from rejecting applicants in advance of referral; and (2) that in
any case, Alamillo’s rejection of Bryant violated the Equal
Employment Opportunity provisions of the contract.50 Vick’s
letter facially suggests that he gave no consideration to the
merits of either point; indeed, so far as this record shows, Vick
did not conduct even the semblance of an inquiry into Bryant’s
claim that Alamillo’s refusal to reemploy him involved contrac-
tually proscribed race discrimination. Instead, in a classic ex-
ample of obscurantism that carries its own indicia of bad faith,
Vick merely evaded the issues raised by Bryant’s grievance
request by pretending that Alamillo’s letter presented no real
problem for Bryant.
In summary, I would not rely on Vick’s later statement to
find that Oyler’s June 3 refusal to dispatch Bryant to Alamillo
was unlawfully arbitrary, and I find no other grounds for con-
cluding that Oyler’s action involved a departure from estab-
lished exclusive hiring hall procedures. I will therefore dismiss
the complaint in Case 20–CB–8846 insofar as it alleges that
Oyler’s action violated Section 8(b)(1)(A) and/or Section
8(b)(2). But because Vick dismissed Bryant’s grievance request
perfunctorily, and in apparent bad faith, I conclude that the
Respondent violated its duty of fair representation towards
Bryant, and thereby violated Section 8(b)(1)(A), as alleged.
C. Refusal to Dispatch Bryant to Kimmins
The complaint in Case 20–CB–8991, as significantly
amended on June 9, 1992, alleges that the Respondent arbitrar-
ily refused to refer Bryant to Kimmins on November 27, in
violation of Section 8(b)(1)(A) and (2). As we shall see, the
claim in the complaint that the refusal to refer Bryant to Kim-
mins was arbitrary is simply distracting makeweight, for the
theory of violation argued by the General Counsel depends not
at all on a fair representation analysis; rather, the General
Counsel relies entirely on the Board’s 1981 holding in Iron
Workers Local 118 (Pittsburgh Des Moines Steel Co.),51 re-
stricting a construction industry union’s right to refuse dispatch
to dues delinquent members to those situations where the mem-
ber’s delinquency arose while working within the same bar-
gaining unit to which the member now seeks a dispatch. For

50 At p. 12 of his brief, the General Counsel now defines Bryant’s
grievance narrowly, as raising only a single issue, namely, the existence
of discrimination on the part of Alamillo with respect to the hiring of
Bryant. This is curious, and seemingly arbitrary on the General Coun-
sel’s part, given his previously mentioned claims that Alamillo’s in-
advance rejection of Bryant was contractually unprivileged, and given
that Bryant’s June 3 letter raised the same point, in addition to the
claim that Alamillo’s refusal to hire him violated the E.E.O provisions
of the Master Agreement. Thus, I do not adopt the General Counsel’s
narrow interpretation of the issue raised by Bryant’s grievance request.
51 257 NLRB 564, 566–567 (1981).
reasons I elaborate below, I will not need to reach the theory
advanced by the General Counsel under Iron Workers Local
118, but will find on other grounds that the Respondent’s re-
fusal to dispatch Bryant to Kimmins was not demonstrated by
the Respondent to have been done pursuant to a valid union-
security clause.
The central facts are not complicated: On November 27, at
the Respondent’s hiring hall, Bryant responded to Oyler’s call
for a certified welder on a Kimmins job at the Hayes Street
Freeway project. Another registrant, Sam Cole, likewise an-
swered this job call. Bryant had been registered on the Respon-
dent’s out-of-work list since August 27, but Cole, according to
Bryant’s uncontradicted testimony, had a more recent out-of-
work date. For this reason, Bryant normally would have been
entitled to dispatch preference over Cole.52 However, Bryant
admittedly had not yet paid a “supplemental” dues amount
owing for “November.” And when Bryant tendered to Oyler his
most recent dues receipt, which apparently reflected this argu-
able arrearage, Oyler excused himself, saying that he had to
talk with Vick, and left the dispatch window. Minutes later,
Oyler returned, saying that Vick had ordered that Bryant would
have to pay “at least one more month’s dues to be eligible for
the dispatch,” apparently referring to a $100 amount. Bryant
replied that he didn’t have the money. Oyler suggested that
Bryant pass the hat in the hall to get the money. Bryant de-
clined to do this. Oyler then gave the dispatch to Cole.
These facts are enough to establish, prima facie, a violation
of Section 8(b)(1)(A) and (2), i.e., a “denial of employment” to
Bryant by the Respondent within the meaning of Operating
Engineers Local 406 (Ford, Bacon & Davis), supra. However,
as that case further instructs, the Respondent may escape a
finding of violation if it “demonstrates that its interference with
employment was pursuant to a valid union-security clause or
was necessary to the effective performance of its representative
function.” The Respondent’s counsel on brief invokes only the
union-security provisions of the Master Agreement by way of
defense. The provision identified by the Respondent states in
pertinent part (emphasis added):

Every person performing work covered by this Agreement
who is a member of the Union[53] and in the employment of
an individual employer covered by this Agreement . . . shall,
as a condition of employment, or continued employment, re-
main a member in good standing in the Union in the appro-
priate Local Union of the Union.[54]

The Respondent’s argument on brief is vague, superficial,
and quite summary in character.55 But it is implicit in that ar-
gument that the Respondent would have me find at the start that
the union-security clause in the Master Agreement was what, in
fact, animated Oyler’s refusal to dispatch Bryant to Kimmins.
52 Thus, testifying about general referral practices, Oyler stated:
A job order’s called in you may have one or more . . . workers
interested in the particular job. At that point . . . we look at the
list to see their position on the list, and the person with the highest
position on the list would be offered the job.
53 Here, it is useful to recall again that at sec. 1, p. 3 of the Master
Agreement, “the Union” is defined as “any of the Local Unions affili-
ated with the District Council.”
54 The Respondent’s counsel on brief has misquoted in several re-
spects the phrases following the words, “as a condition of employ-
ment. . . .”
55 R. Br. at 5–6.

IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 393
However, even this implicit threshhold claim is not supported
by any affirmative evidence; rather, all that the record shows is
that Oyler refused to give Bryant the dispatch because Bryant
refused to come up with another $100 in supplemental dues
money. Whether or not Oyler (or Vick, who had apparently
instructed Oyler) had in mind the specific provisions of the
union-security clause is simply a matter for speculation. Never-
theless, that omission of proof perhaps might be overlooked,
because our experience tends to condition us to assume that
when a union agent demands that a registrant pay dues before
issuing a dispatch, the agent probably believes that the union
has some lawful basis for imposing that requirement, and a
union-security clause in a governing labor agreement is nor-
mally the basis on which such a right is secured to a union.
Thus, despite the absence of any affirmative evidence as to
Oyler’s (or Vick’s) specific reasoning in refusing to dispatch
Bryant to Kimmins, I will assume, arguendo, that the refusal to
dispatch was supposed by Oyler (or Vick) to be justified by the
union-security clause.
But the Respondent also failed to introduce any evidence
whatsoever tending to show that Bryant was not in compliance
with the union-security clause its counsel now relies on. Spe-
cifically, the Respondent has failed to show that Bryant was not
a “member in good standing . . . in the appropriate Local Un-
ion” at the time Oyler refused to dispatch him. I recognize that
the definition of “member[ship] in good standing” is normally
located in a union’s constitution or bylaws. And true, the Re-
spondent’s lawyer summarily invokes the Respondent’s bylaws
and the International’s constitution in his argument on brief.
But I wonder if the Respondent’s counsel looked up the defini-
tions of “member in good standing” to be found in those docu-
ments; for if he had, he would have discovered that each of
them plainly allow a member to be “in arrears” for up to one
month before being subject to classification as “not in good
standing.”56 Thus, while Bryant’s testimony might allow a find-
ing that he was “in arrears” on a supplemental dues obligation
to the Respondent as of November 27, his same testimony (the
only evidence on the point) also indicates that he was not “more
than one month” in arrears as of that date. Therefore, his arrear-
age was not enough under the Respondent’s bylaws nor under
the International constitution to take him out of the category of
“member in good standing.”57
It is on this basis that I conclude that the Respondent has
failed to demonstrate that its interference with Bryant’s em-
ployment with Kimmins was “pursuant to a valid union secu-
rity clause.” Indeed, so far as this record shows, as of Novem-
ber 27, Bryant was a “member in good standing” within the
meaning of the union-security clause and the Respondent’s

56 The Respondent’s bylaws (R. Exh. 2) contain only a single refer-
ence to “good standing,” at art. I, sec. 1, dealing with “Regular Meet-
ings.” (Id. at p. 2). There, at subpar. (C),(1), the bylaws state:
Only members who are in good standing (not more than one
(1) month in arrears with payment of dues and/or assessments)
shall be permitted to attend any meeting of this Local Union.
The International’s constitution (R. Exh. 1) is seemingly irrelevant
to this issue, because the union-security clause at issue expressly refers
to “member[ship] . . . in the . . . Local Union.” But it provides no
support for the Respondent either. Art. II, sec. 7 of the constiution,
dealing with “Continuous Good Standing,” (id. at p. 6), states:
[A] member shall not be considered in good standing who is more
than one (1) month in arrears in payment of dues.
57 In this regard I further recall that the Respondent did not drop
Bryant from membership until an uncertain point in 1992.
governing bylaws. Therefore, I find it unnecessary to reach the
General Counsel’s theory of violation, which presumes under
Iron Workers Local 118, supra, that the Respondent was
obliged to give Bryant a new grace period of work for Kimmins
before invoking the union-security clause as a basis for seeking
his discharge, or preventing his further dispatch to Kimmins.58
D. Vick’s December 30 Letter to Bryant
The complaint in Case 20–CB–8991 further alleges as a
separate violation of Section 8(b)(1)(A) that the Respondent, in
a letter from Vick to Bryant on December 30, threatened that
Vick would “possibly refuse” to dispatch Bryant, if he did not
pay up on certain supplemental dues claimed to be owed. The
record shows that this happened.59 What is lacking is any
statement by the General Counsel of a theory as to why this
hypothetical threat by Vick violated Section 8(b)(1)(A), as
alleged. Indeed, the General Counsel’s brief does not even
make a factual reference to Vick’s December 30 letter, much
less does it advance a theory of violation. In the circumstances,
I presume that the General Counsel has abandoned any conten-
tion that Vick’s letter broke the law, and I will not speculate as
to what theory might have originally inspired the complaint in
this respect. It suffices to observe that it is not necessarily un-
lawful for a union to threaten to possibly refuse to dispatch a
dues delinquent employee. On the contrary,

a valid union-security clause can be enforced at the hiring
hall level by a refusal to dispatch an employee whose dues
are in arrears, so long as the employee has already worked
for the statutory grace period in the bargaining unit to which
the collective-bargaining agreement containing the union-
security clause applies.[60]

Here, the General Counsel has not attacked the abstract va-
lidity of the union-security clause in the Master Agreement, and
the record will not allow a finding that Vick’s threat to “possi-
bly refuse” to dispatch Bryant in the future was a threat to take
action which would not be privileged under that union-security
clause. Accordingly, where the General Counsel has abandoned
his original attack on Vick’s letter, and where the record lacks
any basis for finding that Vick’s letter necessarily intended an
58 The General Counsel relies on two facts; first, Kimmins was an
“individual signatory to a contract with Respondent,” and second, Bry-
ant had never before worked for Kimmins. Based on those facts, the
essence of the General Counsel’s legal theory is that Kimmins’ em-
ployees constituted a separate bargaining unit, governed by a different
contractual union-security clause than the union-security clause govern-
ing the “multi-employer bargaining unit” in which the General Counsel
supposes (without record basis) that Bryant had been previously em-
ployed, and in which the General Counsel supposes (without record
basis) that Bryant’s dues delinquency arose.
59 Thus the record shows that, in the context of a five-paragraph let-
ter to Bryant on December 30, Vick told Bryant, inter alia, that Bryant
now owed the Respondent a “Supplemental Dues debt of $272.84,”
reminded him that the Respondent needed this money in order to be
able to “operate,” and that it was Bryant’s “responsibility to pay these
dues on time and it is my responsibility to collect them if they are de-
linquent.” “Therefore,” stated Vick,
[I]f your financial responsibility to this Local isn’t kept, be assured
I’ll keep mine by taking the necessary action to collect the amount
owed in full by removing you from employment if employed, or
possibly refusing dispatch, based on not being current on your
dues.
60 Iron Workers Local 118, supra, 257 NLRB at 566; emphasis
added; citations omitted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
unlawful application of the union-security clause, I will dismiss
the complaint in Case 20–CB–8991 insofar as it alleges that
Vick’s letter violated the Act.
CONCLUSIONS OF LAW
Based on the foregoing findings and analyses, I reach these
conclusions of law:
1. The Respondent did not violate the Act when, on or after
an uncertain date in April, it failed to give Bryant access to the
referral records he had once sought to review.
2. The Respondent did not violate the Act when it refused to
dispatch Bryant to Alamillo on June 3.
3. When Vick on September 13 dismissed Bryant’s request
to grieve Alamillo’s declared refusal to hire Bryant, the Re-
spondent violated its statutory duty of fair representation to-
wards Bryant, and thereby restrained or coerced Bryant in the
exercise of the rights guaranteed in Section 7 of the Act, and
thereby violated Section 8(b)(1)(A) of the Act.
4. When Oyler refused to dispatch Bryant to Kimmins on
November 27, the Respondent caused or attempted to cause an
employer to discriminate against Bryant in violation of Section
8(a)(3) of the Act, and thereby violated Section 8(b)(2) of the
Act, and derivatively, Section 8(b)(1)(A) of the Act.
5. The Respondent did not violate the Act when Vick threat-
ened in a letter to Bryant on December 30 that he would possi-
bly refuse to dispatch Bryant in the future if Bryant did not cure
his dues arrearage.
THE REMEDY
Having found that the Respondent in certain respects vio-
lated Section 8(b)(1)(A) and (2) in its treatment of Bryant, I
shall order that the Respondent cease and desist from these
unlawful actions or from like or related actions, and that it take
certain affirmative steps necessary to restore the status quo ante
its unlawful actions, including by posting an appropriate notice
and by taking the following additional remedial steps:
A. Unlawful Dismissal of Bryant’s Grievance;
Mack-Wayne Remedy
As to the Respondent’s unlawful dismissal of Bryant’s
grievance request, counsel for the General Counsel in his brief
“submits that a Mack-Wayne Closures remedy is warranted.”
He is referring to the Board’s Supplemental Decision and Order
in Rubber Workers Local 250 (Mack-Wayne Closures), 290
NLRB 817 (1988) (Mack-Wayne II). He does not identify with
greater particularity how that case might inform the remedial
order, and as I discuss below, some details of its application are
less than certain. Nevertheless, for the reasons I note below, I
agree that a “provisional make-whole remedy” of the type pre-
scribed in Mack-Wayne II is appropriate.
1. The holdings of Mack-Wayne I and Mack-Wayne II
In its original decision (Mack-Wayne I),61 the Board found
that the union had violated Section 8(b)(1)(A) by taking certain
actions that amounted to an arbitrary refusal to process em-
ployee O’Neill’s grievance over his discharge, and ordered the
union to request the employer to reinstate O’Neill, and if the
employer refused, to promptly pursue the remaining stages of
the grievance procedure, including arbitration, in good faith
with all due diligence. Additionally, the Board ordered the un-

61 Rubber Workers Local 250 (Mack-Wayne Closures), 279 NLRB
1074 (1986).
ion to permit O’Neill to be represented by his own counsel
during the remaining stages of the grievance procedure and at
any arbitration proceeding, and to pay the reasonable legal fees
of such counsel. Finally, the Board entered a provisional make-
whole remedy, that is, it ordered that in the event that it was not
possible for the union to pursue the remaining stages of the
grievance procedure for any procedural or substantive reason,
the union must make O’Neill whole for any loss of pay he may
have suffered as a result of the union’s wrongful conduct. Ex-
plaining this, the Board said that any uncertainty about the un-
derlying merits of O’Neill’s grievance was traceable to the
union’s own violation in failing to give O’Neill fair representa-
tion at the stage when the grievance was submitted for consid-
eration by a joint union-employer panel, and therefore, such a
provisional make-whole remedy was “necessary in order to
restore the status quo, remedy the injury, and deter the wrong-
doer.”62
In Mack-Wayne II, decided by the Board after seeking and
obtaining a remand from the Third Circuit, where Mack-Wayne
I was then pending the Board’s application for enforcement, the
Board clarified its original reasoning and order, “in the light of
the Ninth Circuit’s decision in San Francisco Pressmen v.
NLRB.”63 Thus, the Board conceded that a make-whole remedy
is appropriate only where there exists a “nexus between the
unfair labor practice and the make-whole remedy,” i.e., some
basis for supposing that absent the union’s unfair representa-
tion, the grievant would have prevailed, and therefore some
basis for supposing that the grievant suffered “damage” from
the unfair representation for which he or she should be made
whole.64 However, adhering to its view in Mack-Wayne I that
the “wrongdoer” union should bear the principal consequences
of any uncertainty over the merits of the grievance, the Board
fashioned an allocation-of-burden scheme under which the
General Counsel would establish the necessary “nexus” for the
make-whole remedy simply by showing that the grievance was
“not ‘clearly frivolous.’” And where the General Counsel met
this threshhold burden, it would be left to the union to establish
that the grievance in any case lacked merit; and therefore, that
its unfair representation did not “cause” the grievant any “fur-
ther injury.”65
The Board stressed that “[a]ny provisional make-whole rem-
edy we order will only take effect if the union has failed or has
attempted and been unable to have the employer consider the
grievance on its merits. Thus, a provisional make-whole rem-
edy only becomes important if the grievance cannot be re-
solved pursuant to the agreed-on process.”66 In addition, the
Board “recognize[d] that there are circumstances when the
union and the employee may be faced with a difficult and ineq-
uitable ‘Hobson’s Choice making it unfair . . . to require the
union to attempt to prove in the unfair labor practice case that
the grievance lacks merit.’”67 With this recognition in mind, the
Board held that,

62 My characterizations of the Board’s holding in Mack-Wayne I bor-
row substantially from the Board’s own characterizations of that hold-
ing in Mack-Wayne II. 290 NLRB at 817.
63 290 NLRB at 817, referring to the Ninth Circuit’s decision re-
ported at 794 F.2d 420 (1986).
64 290 NLRB at 818–819.
65 Id. at 819.
66 Id. at 821; emphasis added.
67 Id.
IRON WORKERS LOCAL 377 (ALAMILLO STEEL CORP.) 395
in the context of this class of cases only, the union should be
given the option of litigating the merits of the employee’s
grievance at either the unfair labor practice hearing or at the
subsequent compliance stage. We will not allow the union,
however, to litigate this issue twice. Prior to the close of the
unfair labor practice hearing, the union must have made an
unambiguous election to litigate the merits of the grievance at
the unfair labor practice hearing or at the compliance stage.[68]

Finally, in the portion of Mack-Wayne II that I will find the
most difficult to apply to this case, the Board remanded the
case to the judge to give the union the opportunity to make the
“election” in question, directing that, should the union elect to
litigate the merits issue now, the judge should “convene a hear-
ing for that purpose,” and thereafter prepare a “supplemental
decision.”69
2. Application to this case
Did the General Counsel establish that Bryant’s grievance
was “not ‘clearly frivolous?’” Exactly how one shows this in a
given case is doubtful; proving a negative is always problem-
atic, and the Mack-Wayne cases provide no real guidance on the
point. But seemingly, it takes next to nothing to establish this
negative proposition, i.e., only that there was some arguable
basis for the claims in Bryant’s grievance. I have previously
noted that Bryant’s grievance raised two discrete claims first,
that section 5,I,7 barred Alamillo from rejecting him in ad-
vance; and second, that Alamillo’s rejection of him in any case
violated the Equal Employment Opportunity requirements of
the Master Agreement. I have already observed that, despite its
seemingly impractical implications, section 5,I,7 provides some
arguable basis for barring in advance rejections; therefore, Bry-
ant’s claim in this respect was not clearly frivolous. As to Bry-
ant’s second claim, I note (a) that Bryant is black, and (b) that
Alamillo rejected him from reemployment. Whether or not this
pair of facts makes out a prima facie case of race discrimination
by Alamillo in violation of the Equal Employment Opportunity
clause is not the question; the only question is whether or not
these facts take Bryant’s claim out of the realm of the “clearly
frivolous.” I find that they do. Therefore, I find that the General
Counsel made out the (minimal) threshhold case required to
establish the presumptive appropriateness of a provisional
make-whole remedy under Mack-Wayne II.
Did the Respondent attempt at the unfair labor practice hear-
ing to meet its burden of coming forward to demonstrate that
Bryant’s grievance was unmeritiorious, and therefore that its
unlawfully unfair dismissal of his grievance did not cause him
any damage warranting a make-whole remedy? Clearly not;
indeed, the Respondent failed utterly to introduce any testi-
mony or other evidence tending to show that either of the two
claims advanced in Bryant’s grievance were meritless. And
neither can Vick’s September 13 letter to Bryant be taken as an
attempt by the Respondent to show lack of merit to Bryant’s
grievance; at most, that letter seemed to claim (quite spuri-
ously), that Alamillo’s rejection of Bryant was simply not a
problem for Bryant.
Does this mean that the Respondent effectively “elected” not
to litigate the merits of Bryant’s grievance at the unfair labor
practice trial stage, but rather to defer such litigation to the

68 290 NLRB at 821.
69 Id. at 822.

compliance stage, if necessary? I think so, but this is the ques-
tion about which I find the greatest basis for doubt. An alterna-
tive way of understanding what happened is that the Respon-
dent made no election whatsoever, given that it was not until
the General Counsel submitted his brief that it became clear
that the prosecution was seeking a Mack-Wayne II remedy. And
if this alternative view were to control, it would seem to follow
that I would be required to reopen the record to give the Re-
spondent an opportunity to make such an election, and, if the
Respondent opted now to litigate the merits of Bryant’s griev-
ance, that I convene yet another hearing on this matter before
issuing any decision in these cases (or, alternatively, that I
sever a portion of these cases and decide all but the refusal-to-
grieve elements, while awaiting further word from the Respon-
dent as to its election).
These latter alternatives would obviously cause substantial
delays in the disposition of all or part of these cases, and they
are not clearly called for by Mack-Wayne II. When this case
was tried, Mack-Wayne II had been on the books for nearly 5
years; and clearly, the Respondent cannot claim ignorance of its
holdings, and of its right to have litigated the merits of Bryant’s
grievance at the unfair labor practice hearing stage, if it so de-
sired. What Mack-Wayne II requires is that the Respondent
have been given the “option” to conduct such litigation during
this trial; and obviously, it had exactly that option, which it
apparently chose to forgo. Neither does it call for a different
result that the General Counsel did not affirmatively put the
Respondent on notice before the instant trial that it was seeking
a Mack-Wayne II remedy for the Respondent’s unlawful dis-
missal of Bryant’s grievance request. Mack-Wayne II does not
affirmatively require the General Counsel to provide a union
such notice; indeed, it implicitly gives the General Counsel the
option of conducting litigation in such a way as to either estab-
lish a “not clearly frivolous” basis for the grievance, or to
“forgo” such proof.70 Seemingly, therefore, the Board allows
the form of the General Counsel’s litigation efforts to signal the
type of remedy that will be sought. In addition, I deem it sig-
nificant that, months after the General Counsel submitted his
brief, seeking a Mack-Wayne II remedy, the Respondent has not
requested me to reopen the record for purposes of litigating the
merits of Bryant’s grievance. In all the circumstances, there-
fore, I find that the Respondent, by failing to litigate the merits
of Bryant’s grievance at the instant trial, has implicitly elected
to conduct such litigation only at the compliance stage, if nec-
essary. And I would not reopen this record at this stage simply
to give the Respondent yet one more opportunity to explicitly
affirm an election that it has implicitly made already.
Accordingly, consistent with Mack-Wayne II, I will enter a
provisional make-whole order that substantially conforms to the
one entered by the Board in Mack-Wayne I.71 Specifically, with
the unique facts of this case in mind, I will require the Respon-
dent not only to promptly request that Alamillo rescind its letter
to the Respondent barring Bryant from employment, but further
request that Alamillo make Bryant whole for the wages and
benefits he lost as a consequence of his failure to be referred to
Alamillo on June 3 which failure to be referred was in turn a
70 290 NLRB at 818–819.
71 In Mack-Wayne II, the Board said it would give effect to the rem-
edy ordered in Mack-Wayne I, if the union did not elect, after remand,
to litigate the merits of O’Neill’s grievance at the unfair labor practice
stage. Id. at 822.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
foreseeable consequence of Alamillo’s letter. (Recall here that I
have found that it was not unlawfully arbitrary for the Respon-
dent to have honored Alamillo’s letter on June 3.) If Alamillo
fails to honor both requests, or either of them, my order re-
quires the Respondent to pursue both requests, or either of
them, as the case may be, through the grievance procedure
established by the Master Agreement, including to arbitration
or other form of resolution available under the Master Agree-
ment, all in good faith and with due diligence. And I will re-
quire the Respondent to bear the reasonable costs of an attorney
of Bryant’s choosing to represent him at any grievance pro-
ceedings, including arbitration, that may take place. Finally, in
the event the Respondent is unable to obtain the requested relief
from Alamillo voluntarily, or in the event the Respondent is
unable for any reason to pursue Bryant’s grievance to a resolu-
tion on its merits, then my order contemplates that the Respon-
dent make Bryant whole directly for his losses, in the manner
provided in Mack-Wayne I.
B. Refusal to Dispatch Bryant to Kimmins; Conventional
Make-Whole Remedy
As to the Respondent’s unlawful refusal to dispatch Bryant
to Kimmins, I will provide the conventional remedy for that
type of violation, i.e., that it make Bryant whole for any losses
of earnings or benefits he may have suffered, with backpay to
be computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended72
ORDER
The Respondent, Iron Workers Local Union 377, Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Arbitrarily, discriminatorily or in bad faith refusing, on
request, to process grievances sought to be processed by em-
ployees towards whom it owes a duty of fair representation.
(b) Causing or attempting to cause an employer to discrimi-
nate against employee-applicants in violation of Section 8(a)(3)
of the Act by refusing to dispatch the applicants to employers
based on their dues arrearages, where such refusals are not
privileged by, or done pursuant to, a lawful union-security pro-
vision in a labor agreement governing the employment of the
applicants.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Promptly request Alamillo Steel Reinforcing Company to
rescind and withdraw its letter to the Respondent declaring that
Ronald W. Bryant is ineligible for employment with Alamillo,
and to make Bryant whole for any wages or other benefits he
lost as a consequence of the Respondent’s refusal, based on that

72 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
letter, to refer Bryant to employment with Alamillo on or about
June 3, 1991; and if Alamillo refuses those requests, or either of
them, promptly initiate and pursue in good faith and with due
diligence a grievance on Bryant’s behalf seeking the same re-
lief, including to arbitration or to any other disputes-resolution
forum established by the Respondent’s labor agreement with
Alamillo that was in effect on June 3, 1991.
(b) Permit Ronald Bryant to be represented by his own coun-
sel at any grievance proceedings, including arbitration or other
resolution proceedings, and pay the reasonable legal fees of
such counsel.
(c) In the event that it is not possible for the Respondent to
pursue a grievance on Ronald Bryant’s behalf, resulting in the
Respondent’s inability to resolve on their merits the grievances
raised by Bryant against Alamillo’s declared refusal to employ
him, make Bryant whole for any loss of pay or benefits he may
have suffered as a consequence of his failure to be employed by
Alamillo on or about June 3, 1991, by paying him the amount
he would have earned from Alamillo from that date, together
with interest, less his net earnings during the backpay period.
(d) Make Ronald Bryant whole for any losses of pay or bene-
fits he suffered as a consequence of the Respondent’s refusal to
dispatch Bryant to Kimmins Abatement Company on or about
November 27, 1991, by paying him the amount he would have
earned from Kimmins from that date, together with interest,
less his net earnings during the backpay period.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all dis-
patch and referral records, and all other records it may possess
that are necessary or useful to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its un-
ion office and its hiring hall in San Francisco, California, cop-
ies of the attached notice marked Appendix.73 Copies of the
notice, on forms provided by the Regional Regional Director
for Region 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees and/or members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(g) Sign and return to the Regional Director sufficient copies
of the notice for posting by Alamillo Steel Reinforcing Com-
pany and Kimmins Abatement Company, if willing, at all
places where notices to employees are customarily posted.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaints are dismissed in-
sofar as they allege violations of the Act not specifically found.

73 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”