United Rubber, Cork, Linoleum And Plastic Workers Of America, Local 250, Afl--Cio (Mack-Wayne Closures)

National Labor Relations Board - Board Decisions

May 22, 1986

279 N.L.R.B. 1074 (N.L.R.B. 1986)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Rubber, Cork, Linoleum and Plastic Workers
of America, Local 250, AFL-CIO (Mack-
Wayne Closures) and International Union of
Tool, Die and Mold Makers . Case 22-CB-4927
22 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBER
DENNIS , JOHANSEN , AND BABSON
On 13 April 1984 Administrative Law Judge
Howard Edelman issued the attached decision. The
Respondent filed exceptions.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge 's rulings, findings,' and conclu-
sions and to adopt the recommended Order as
modified.
In this proceeding the judge held that the Re-
spondent Union had breached its duty of fair repre-
sentation to employee David O'Neill by certain ac-
tions which amounted to an arbitrary refusal to
process his grievance. The judge found that, by
this breach, the Respondent had violated Section
8(b)(1)(A) of the Act. We agree with this conclu-
sion. For the following reasons, and contrary to
our dissenting colleague, we enter the provisional
make-whole remedy set out below.
In entering a provisional make -whole remedy,
we are aware that the merits of O'Neill's grievance
are uncertain. This uncertainty, however, derives
in large measure from the Respondent's breach of
its duty to provide fair representation, which pre-
vented resolution of the grievance in the first in-
stance. In the absence of evidence warranting a
finding that the grievance lacks merit,2 and in
order to restore the status quo existing before the
Respondent Union violated the Act by precluding
the grievance's proper resolution, we resolve any
uncertainty in favor of the victim and against the
wrongdoer . Such a remedy in cases in which there
has been a breach of the duty of fair representation
is consistent with fundamental equitable principles
and with longstanding Board precedent. See
Graphic Communications Local 4 (San Francisco
Newspaper), 272 NLRB 899 (1984).
i The judge inadvertently stated that employee O'Neill filed a griev-
ance on 1 July 1983 The record shows he filed the grievance on 1 June
1983
R The Respondent could have adduced evidence at the hearing about
the merits of the grievance to show that even if the grievance had been
fairly processed, an arbitrator would have denied it. The Board has with-
held a make-whole remedy for an 8(bx1XA) violation when the evidence
showed that a grievant, who sought reinstatement from a layoff based on
his seniority, could not prevail in his grievance in any event because he
was a temporary employee who did not accrue seniority. See Teamsters
Local 705 (Associated Transport), 209 NLRB 292, 293 (1974), affd sub
nom Aaron Kesner v. NLRB, 532 F 2d 1169 (7th Cir 1976)
Prior to granting a make-whole remedy in a case
such as this, our dissenting colleague would require
the General Counsel to establish not only a breach
of the duty of fair representation, but also to estab-
lish that the grievant had a meritorious claim
against the employer-a two-pronged requirement.
We believe that such a two-pronged requirement,
however, misapprehends the nature of a breach of
the duty of fair representation , for in this context it
is the failure to process itself which has legal sig-
nificance, not the meritoriousness of the griev-
ance. s Having breached its affirmative obligation
to the grievant, however, an obligation which we
all find is mandated by the Act, the offending
union hardly can be heard to complain about
having to assume the burden of establishing, by
way of defense, that its breach makes no difference
because the grievant would have failed in his cause
anyway. Having determined that the Union failed
to represent O'Neill fairly, we believe the Union
properly bears the risk of its misconduct. Other-
wise, O'Neill's injury would remain unaddressed
and the Union's violation largely undeterred-a
result wholly at odds with the Act's remedial pur-
poses.
Our dissenting colleague, in reaching a contrary
conclusion, relies on two circuit court decisions,4
which in turn relied heavily on Section 301 cases in
reaching their conclusions. But Section 301 actions,
such as Hines v. Anchor Motor Freight,5 which is
cited by the dissent, involve suits based on con-
tract-matters which clearly require a showing of
contract breach, i.e., merit, prior to recovery. And
although the liability of a union in Section 301
action in some sense may derive in part from the
statutory requirements to fairly represent, such
contract cases simply are not statutory cases like
the one before us today. DelCostello v. Teamsters, 6
also cited by the dissent, would be a long shoehorn
indeed if it could be used to incorporate the ele-
ments of a contract action into a claim of statutory
violation like the one here.7
8 Of course , there must be, as here , a nexus between the unfair labor
practice and the remedy
* NLRB v. Electrical Workers UE Local 485, 454 F.2d 17 (2d Cir
1972); Steelworkers v NLRB, 692 F 2d 1052 (7th Cir 1982).
s 424 US 554 (1976)
103 S.Ct. 2281 (1983).
7 We note also that in neither of the two circuit court decisions cited
by our colleague was the court analyzing the precise type of provisional
make-whole remedy we enter here today in which the Respondent Union
will only have to pay backpay if there is no resolution of O'Neill's griev-
ance on the merits. Moreover, neither court had as extensive an analysis
before it of the reasons behind a remedial order , entered here, which re-
flects the basic premise that a wrongdoer should bear the burden of
showing that no ill effects flowed from its wrongdoing
Member Johansen agrees that Sec 301-suit remedies flow from the
contract while remedies under our statute flow from Sec 10(c)
279 NLRB No. 165
RUBBER WORKERS LOCAL 250 (MACK-WAYNE CLOSURES)
We reiterate that the absence of evidence regard-
ing the merits of the grievance in issue should not
be confused with the fundamental question of who
has the burden of adducing such evidence. We do
not quarrel with the fact that no evidence of merit
appears in this record. We simply adhere to the
traditional view that the wrongdoer should bear
the burden of demonstrating that its breach of its
duties to the employee, which breach itself stands
as an independent violation of the Act, was a mon-
etarily harmless one because the employee would
have lost anyway. The failure of the Respondent to
demonstrate that its breach was monetarily a
"harmless" one does not result in a speculative
award. It results in a proper disposition of the equi-
ties against a wrongdoer in furtherance of the re-
medial purposes of the Act.
In this case, we shall enter an order and remedy,
as set out in San Francisco Newspaper, supra, rather
than the remedy given by the judge. Thus, we shall
order the Respondent to ask O'Neill's employer to
rescind the third warning and discharge and to re-
instate him to his former position of employment.
If the Employer refuses to do so, then the Union
shall promptly pursue the remaining stages of the
grievance procedure, including arbitration, in good
faith and with all due diligence. We shall also
order that O'Neill be permitted to be represented
by his own counsel at the remaining stages of the
grievance procedure and at the arbitration proceed-
ing and that the Union pay the reasonable legal
fees of such counsel. And if for any procedural or
substantive reason the Respondent is unable to
pursue the remaining stages of the grievance proce-
dure, resulting in the inability to resolve O'Neill's
grievance on the merits, then the Respondent shall
be required to provide appropriate backpay. We
shall revise the judge's order herein to so provide.
ORDER
The National Labor Relations Board orders that
the Respondent, United Rubber, Cork, Linoleum
and Plastic Workers of America, Local 250, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing any employee in the
exercise of rights guaranteed by Section 7 of the
Act by failing to process in good faith, and with
due diligence, grievances or by arbitrarily refusing
to consider and process grievances.
(b) Restraining or coercing any employees in any
like or related manner.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Request Mack-Wayne Closures to reinstate
David O'Neill to his former position of employ-
1075
merit and, if it refuses to do so, promptly pursue
the remaining stages of the grievance procedure,
including arbitration, in good faith with all due
diligence.
(b) Permit David O'Neill to be represented by
his own counsel at the remaining stages of the
grievance procedure and at the arbitration proceed-
ing, and pay the reasonable legal fees of such coun-
sel.
(c) In the event that it is not possible to pursue
the remaining stages of the grievance procedure,
resulting in the inability to resolve the grievance of
David O'Neill on the merits, make O'Neill whole
for any loss of pay he may have suffered as a result
of its unlawful conduct in processing his grievance
in an arbitrary or perfunctory manner, by payment
to him of the amount he would normally have
earned from the date of his discharge until he ob-
tained substantially equivalent employment, less his
net earnings during the backpay period, together
with interest.
(d) Post in all places where notices to employees,
applicants for referral, and members are posted
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to 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.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER DENNIS, dissenting in part.
I agree with my colleagues that the Respondent
violated Section 8(b)(1)(A) of the Act by breaching
its duty of fair representation to employee David
O'Neill, but disagree that a make-whole remedy is
warranted. For the following reasons, I believe
that as part of her case the General Counsel should
prove the grievance is meritorious before the
Board may assess backpay liability against the
Union.
On 30 May 1983 the Company informed O'Neill
that because he had three written warnings he
would be discharged. O'Neill filed a grievance
8 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the third warning. The judge held that the
Respondent breached its duty of fair representation
by refusing to advocate O'Neill's grievance after
agreeing to represent him. Citing Board precedent,
the judge concluded that a make-whole remedy
was appropriate because there was no evidence
that the grievance was without merit.
In Section 301 suits the burden is on the plaintiff
to establish that his grievance is meritorious in
order to obtain backpay from a union for failing to
represent him fairly. Hines v. Anchor Motor Freight,
424 U.S. 554, 570-571 (1976). Section 301 cases of
the Hines type are closely analogous to Board fair
representation cases. DelCostello v. Teamsters, 103
S.Ct. 2281 (1983). DelCostello, which held that the
10(b) 6-month period rather than state law estab-
lishes the limitation period for employee actions
under Section 301, suggests that similarity of result
in Section 301 suits and parallel 8(b)(1)(A) cases is
desirable.' Circuit courts, relying on Section 301
precedent, have denied enforcement of Board deci-
sions assessing backpay liability against unions for
breach of the duty of fair representation if there
was no showing that the underlying grievances had
merit, because without such a finding a backpay
award "might well be speculative and punitive and
a windfall to [the employee]," and thus "at odds
with the remedial aims of the Act." Steelworkers v.
NLRB, 692 F.2d 1052, 1057 (7th Cir. 1982); NLRB
v. Electrical Workers UE Local 485, 454 F.2d 17 (2d
Cir. 1972).2
In its recent Sure-Tan opinion, the Supreme
Court reviewed the Board's authority under Sec-
tion 10(c) to remedy unfair labor practices and
stated 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, Inc. v.
NLRB, 104 S.Ct. 2803, 2813-2814 (1984) (emphasis
in original). The Court held that a minimum award
of 6 months' backpay for each discriminatee "does
not lie within the Board's own powers" because it
"is not sufficiently tailored to the actual, compensa-
ble injuries suffered by the discharged employees."
Id.
i See also Self v Teamsters Local 61, 620 F 2d 439 (4th Car 1980), St
Clair Y Teamsters Local 515, 422 F 2d 128 (6th Car 1969)
2 Consistent with this view , other courts have held that a make-whole
remedy is appropriate when the union's breach caused the loss of the em-
ployees' jobs , Teamsters Local 860 v NLRB, 652 F 2d 1022 (D C Car
1981), and when the record established that the employer unlawfully dis-
charged the employee and the union thereafter unlawfully failed to repre-
sent him NLRB v Pacific Coast Utilities Service, 638 F 2d 73 (9th Cir
1980) ("Given the determination that discharge was wrongful , it follows
that the failure of the union to represent the employee was damaging to
him and a contributing factor to his loss of pay ")
In the instant case, there is no evidence concern-
ing the merits of O'Neill's grievance. The backpay
award is based instead on a "presumption" that
O'Neill's grievance, if fully and fairly processed,
would have been found meritorious. See, e.g., Serv-
ice Employees Local 579 (Beverly Manor Convales-
cent Center), 229 NLRB 692, 696 (1977), which the
judge cited in his decision's remedy section. Such a
presumption has no factual basis and rests on noth-
ing more than sheer speculation. On the present
record, we simply do not know whether the Re-
spondent's misconduct damaged O'Neill. Absent
proof that O'Neill's grievance had merit, the back-
pay award lacks the necessary tailoring "to ex-
punge only the actual, and not merely speculative,
consequences of the unfair labor [practice]." Sure-
Tan, supra. The result in this case is a windfall for
O'Neill at Respondent's expense.
In accordance with the above-cited court author-
ity, I would place the burden on the General
Counsel to establish not only the 8(b)(1)(A) viola-
tion, but also that the underlying grievance is meri-
torious.3 If the grievance is not meritorious, a
make-whole remedy is inconsistent with the funda-
mental requirement that the Board restore only
actual losses.4
Recognizing that my position is a departure from
precedent that the parties could not anticipate, and
that it is the Board's responsibility to fashion reme-
dies that effectuate the policies of the Act, I would
exercise the Board's discretion and remand for fur-
ther hearing.
9 The General Counsel may choose to allege the 8(b)(1)(A) violation,
but forgo a make-whole remedy
4 My position finds further support in Taracorp Inc, 273 NLRB 221
(1984), in which the Board discussed its authority to order make-whole
remedies Taracorp recognized that a make-whole remedy is appropriate
if an employee is discharged for exercising Sec 7 rights , or if the dis-
charge, though apparently for a legitimate reason, is the result of an act
that was an unfair labor practice, such as failure to bargain over a sub-
contracting decision The Board rejected a make-whole remedy in Tara-
corp, however, when the employer violated an employee's Sec 7 right to
union representation in an investigatory interview , but discharged the em-
ployee for "cause" (a term signifying the absence of a prohibited reason)
Taracorp held that when an employee is discharged for "cause," Sec
10(c) precludes the Board from imposing a make-whole remedy, even
though the employer violated the employee's statutory right to union
representation
Here , there was no showing that O 'Neill's discharge was for engaging
in Sec 7 activity , was the result of an act that was an unfair labor prac-
tice, or was otherwise wrongful Compare the cases cited in In 2, supra
Accordingly, as in Taracorp, the Board lacks authority under Sec 10(c)
to order a make-whole remedy, even though the Union violated O'Neill's
statutory right to fair representation
RUBBER WORKERS LOCAL 250 (MACK-WAYNE CLOSURES) 1077
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
A brief was filed by counsel for the General Counsel.
Respondent made an oral argument at the conclusion of
its case . On consideration of the entire record, the brief,
the oral argument, and my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce any employee
in the exercise of rights guaranteed by Section 7 of
the Act by failing to process in good faith, and
with due diligence , grievances or by arbitrarily re-
fusing to consider and process grievances.
WE WILL NOT in any like or related manner re-
strain or coerce employees.
WE WILL request Mack-Wayne Closures to rein-
state David O'Neill to his former position of em-
ployment and, if it refuses to do so, WE WILL
promptly pursue the remaining stages of the griev-
ance procedure, including arbitration, in good faith
with all due diligence.
WE WILL permit David O'Neill to be represent-
ed by his own counsel at the remaining stages of
the grievance procedure and at the arbitration pro-
ceeding, and WE WILL pay the reasonable legal fees
of such counsel.
WE WILL make David O'Neill whole, with inter-
est, for any loss of pay he may have suffered as a
result of our failure to fairly process his grievance
concerning his third warning and discharge by
Mack-Wayne Closures if his grievance concerning
his discharge cannot be processed through the re-
maining stages of the grievance procedure.
UNITED RUBBER , CORK , LINOLEUM
AND PLASTIC WORKERS OF AMERICA,
LOCAL 250, AFL-CIO
Marta Figueroa, Esq., for the General Counsel
Howard A. Goldberger, Esq. (Goldberger, Siegel & Finn),
for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on January 23 and 24, 1984
On August 15, 1983, the International Union of Tool,
Die and Mold Makers (the Union) filed a charge against
United Rubber, Cork, Linoleum and Plastic Workers of
America, Local 250, AFL-CIO (Respondent), alleging
that Respondent refused to represent David O'Neill, an
individual, in violation of Section 8(b)(1)(A) of the Act.
On September 29, 1983, a complaint alleging that Re-
spondent violated Section 8(b)(1)(A) of the Act in a
manner consistent with the charge issued.
Mack-Wayne Closures (the Employer), is a New
Jersey corporation with an office and place of business in
Wayne, New Jersey. The Employer is engaged in the
manufacture, sale, and distribution of plastic products
The Employer annually sells and ships in the course of
its normal business operations products valued in excess
of $50,000 directly to points located outside the State of
New Jersey
It is admitted, and I find, that the Employer is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6) and (7) of the Act.
It is also admitted, and I find, that Respondent is a
labor organization within the meaning of Section 2(5) of
the Act
Respondent and the Employer are parties to a collec-
tive-bargaining agreement which was entered into on
November 22, 1982, and expires on November 26, 1985.
The agreement encompasses a unit of production and
maintenance employees The agreement, also contains
grievance arbitration provisions
O'Neill was hired by the Employer on March 1982 as
a machinist in the toolshop. Pursuant to the union-securi-
ty provisions of the collective-bargaining agreement, he
became a member of Respondent. Sometime during the
summer of 1982 he became a shop steward
In April 1982, O'Neill became instrumental in organiz-
ing the toolroom employees on behalf of the Union in
connection with a proposed craft severance Sometime
during the beginning of this campaign, Joe Huther, presi-
dent of Respondent and an admitted agent within the
meaning of Section 2(13) of the Act, approached O'Neill
during working hours and advised him that he was
aware of his activities on behalf of the Union.
On August 30, 1982, the Union filed a petition for an
election in a unit of tool employees. On October 8, 1982,
the petition was dismissed.
During the fall of 1982, O'Neill, in his capacity as
shop steward, filed a grievance on behalf of Eileen Reily,
a unit employee According to O'Neill's credible and un-
contradicted testimony, he referred the grievance to
Huther. i Thereafter, O'Neill, who evidently had taken a
personal interest in the Reily grievance, spoke to Huther
at various times to determine Respondent's position and
the present stage of the grievance. According to
O'Neill's credible and uncontradicted testimony, he got
into repeated arguments over the manner in which Re-
spondent was proceeding on the grievance On other oc-
casions when O'Neill would question Huther the state of
' I found O'Neill to be a credible witness I was impressed with his
overall demeanor His testimony was candid and forthright on both
direct and cross-examination His recollection of facts was good Addi-
tionally, his testimony was corroborated by both Respondent and em-
ployer witnesses Joe Huther was not called as a witness by any party to
this proceeding
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his business. Sometime during the late fall of 1982, as
a result of his dissatisfaction with the way Respondent
was handling the Reily grievance, O'Neill resigned his
position as shop steward.
About December 15, 1982, O'Neill was discharged by
the Employer for leaving the plant during working
hours. He filed a grievance with Respondent concerning
his discharge. On December 21, Respondent's representa-
tives, including Huther, met with O'Neill and employer
representatives During this meeting it was agreed that
O'Neill would be reinstated with full backpay The Em-
ployer, as part of the settlement, wanted the incident re-
duced to a written warning to be placed in O'Neill's per-
sonnel file. O'Neill objected to this, and the issue was
tabled
International Respondent Representative John Mc-
Gowan, who was present at the O'Neill grievance meet-
ing, credibly testified that later that same night (Decem-
ber 21), he spoke to Huther over the phone and agreed
with Huther to accept the written warning in complete
settlement of the grievance. O'Neill was not informed by
either Respondent or the Employer of this resolution at
the time but learned of it some time later from employer
representatives
About December 30, 1982, O'Neill received a written
warning for leaving work early. It appears the Employer
later changed this to a written warning wihout so in-
forming O'Neill
Sometime in May 1983, O'Neill received a written
warning for poor work performance. On May 30, he met
with Employer Representative John Quinn and Phil Co-
langelo and then Respondent Shop Steward Al Ferry.
During this meeting, Quinn advised O'Neill that he had
three written warnings and that pursuant to the Employ-
er's established policy he would be discharged. O'Neill
denied that he had received three written warnings and
suggested that Quinn check it out. Quinn agreed to do
so.
On July 1, 1983, O'Neill filed a grievance concerning
the May warning letter
On June 2, a Respondent-Employer meeting was held
to discuss O'Neill's grievance. Present at this meeting
were O'Neill, Employer Representatives Quinn and Co-
langelo, and Respondent Representatives Ferry and
Huther Ferry testified as follows 2
The meeting started off by Mr. Quinn stating to the
effect that he had three written warnings in front of
him and the last one being for supposed poor work
and this could not go on and that the reason that he
called the meeting, directing the question to Dave
O'Neill, was to see what he had to say, if anything,
for himself
At this point, Dave started to say something, but
Joe Huther jumped up and said, "Wait a minute,
wait a minute. I'm the Union president. We're here
to fire the guy and that's it And at this point I
asked Mr. Huther to lower his voice because he
was literally screaming and ranting and raving, like
2 At the time of the trial of this case Ferry was Respondent ' s presi-
dent
I really didn't believe especially in front of the com-
pany officers. He said pointedly, "You two guys are
nothing but trouble makers and I 'm not going to
have anything to do with it. I'm the Union presi-
dent We're here to fire the guy and it is my job to
see that it's done, and that's it." O'Neill's testimony
corroborates that of Ferry. Quinn conceded that
Huther "lost his cool" at the meeting . He testified
that Huther hollered that he was going to run this
meeting, not Ferry and O'Neill, and that if O'Neill's
work was bad he would have to be fired just like
anyone else He did not specifically deny the testi-
mony of O'Neill and Ferry concerning Huther's
statements about being present at the meeting for
the purpose of firing O'Neill. I credit the testimony
of O'Neill and Ferry 3 After Huther's outburst,
Quinn calmed him down Ferry then spoke up in
O'Neill's defense pointing out that experienced tool-
makers like O'Neill were hard to find. Quinn and
Colangelo left the meeting room to caucus. They
returned in a few minutes and Quinn stated the Em-
ployer had decided that O'Neill would be terminat-
ed, effective immediately. Thus, the meeting ended
Analysis and Conclusions
It is well settled law that a labor organization which
enjoys the status of exclusive collective-bargaining repre-
sentative has an obligation to represent employees fairly,
in good faith, and without discrimination against any of
them on the basis of arbitrary, irrelevant, or invidious
distinctions Vaca v. Sipes, 386 U.S 171 (1966), Miranda
Fuel Co, 140 NLRB 181 (1962).
Once a union commits itself to the prosecution of a
grievance on behalf of an employee, the union is under a
duty to present the grievance most favorably to the em-
ployee. Such duty requires the union to act as the advo-
cate for the grievant Teamsters Local 705 (Associated
Transport), 209 NLRB 292 (1974), affd Aaron Kesner v.
NLRB, 532 F.2d 1169 (7th Cir. 1976)
Applying these legal principles to the instant case, it is
crystal clear that Respondent utterly failed to fulfill its
obligation to act as the advocate for O'Neill. In this con-
nection the grievance meeting opened with employer
representatives pointing out that O'Neill had three writ-
ten warnings, the last warning was for poor work, and
he wanted to hear O'Neill's position on the matter.
Before O'Neill could respond, Huther, Respondent's
president, who should have been O'Neill's principal ad-
vocate, commenced his tirade against O'Neill stating that
"We're here to fire the guy [O'Neill] and that's it."
Thereafter he accused O'Neill of being a "trouble
9 As set forth above, I found O'Neill to be a credible witness I also
found Ferry to be a credible witness His demeanor impressed me very
much He was most candid and forthright throughout both direct and
cross-examination Further, he displayed an excellent and concise recol-
lection of the facts Moreover, he was Respondent shop steward at the
time of the meeting and Respondent's president at the time of the trial
and therefore his testimony constitutes an admission against Respondent
As set forth above, Huther did not appear as a witness during the course
of this trial
RUBBER WORKERS LOCAL 250 (MACK-WAYNE CLOSURES)
maker ."4 Huther thereafter concluded his tirade by stat-
ing "I 'm the union president . We're here to fire the guy
and its my job to see that its done ." A clearer case of
failing to act as O'Neill's advocate cannot be imagined.
O'Neill's fate at the hands of the Employer was sealed
by Huther' s opening statements . As the Seventh Circuit
stated in Aaron Kesner v. NLRB, supra at 1175.
It is one thing for a grievant to attempt to pursue
his remedy without assistance and opposed only by
one adversary. When that situation is compounded
by two opponents , one of whom is supposedly his
"own people ," the bearing on the likelihood of his
success assumes substantial significance . When the
one's own representative who has been willing to
assume that status proclaims a lack of merit, it is
indeed likely to be coup de grace to the claim.
I conclude Huther 's actions and statements were tanta-
mount to an arbitrary refusal to process O'Neill's griev-
ance
Respondent counsel contended in his oral argument
that assuming that Huther made the statements attributed
to him , the effect of such statements was overcome by
Ferry's presentation of O'Neill's grievance. However,
Huther was Respondent 's president , its highest official
representative . Ferry, at the time, was merely a shop
steward, the lowest in authority, of Respondent's repre-
sentatives . It was Huther who had the final authority to
determine Respondent 's position concerning a grievance
and in the instant case he set forth his position unmistak-
ably. Accordingly , I reject Respondent counsel 's conten-
tion
Respondent counsel further contends that O 'Neill, fol-
lowing his discharge , never filed a grievance alleging an
improper discharge by the Employer . However , the evi-
dence established that , during the meeting on May 30,
Quinn advised O'Neill that with this last warning con-
cerning his alleged poor work , he had in his file three
written warnings and, pursuant to its policies, the Em-
ployer intended to fire him It was after being notified of
the Employer's intention to discharge him that O'Neill
filed his grievance concerning the last warning Al-
though the grievance did not specifically set forth the
Employer's intention to discharge him, such issue was
necessarily implied . Moreover , in view of the nature and
extent of Huther 's statements during the June 2 meeting,
filing of an additional grievance by O'Neill would have
been senseless Accordingly , I reject Respondent coun-
sel's contention.
4 I conclude this reference to O'Neill as a " trouble maker" was a refer-
ence to O'Neill' s participation in organizing for a craft severance on
behalf of the Union and his participation in connection with the Reily
grievance
1079
I therefore conclude, based on the above discussion,
that Respondent breached its duty to fairly represent
O'Neill and thereby violated Section 8(b)(1)(A) as al-
leged.
CONCLUSIONS OF LAW
1. The Employer is an employee engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to advocate O'Neill' s grievance during
the June 2, 1983 Employer-Respondent grievance meet-
ing in a manner favorable to O'Neill , Respondent
breached its duty of fair representation and thereby re-
strained and coerced O'Neill in the exercise of rights
guaranteed in Section 7 of the Act and thereby violated
Section 8(b)91)(A) of the Act.
4 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Affirmatively, I shall recommend that Respondent
process, or attempt to process, if time-barred by the col-
lective-bargaining agreement between Respondent and
the Employer, O'Neill's grievance in good faith and with
all due diligence, and that Respondent shall make O'Neill
whole for any loss of earnings he may have suffered as
the result of his discharge on June 2, 1983, until the earli-
er of the following occurs: Respondent processes
O'Neill's grievance in good faith with all due diligence,
or O'Neill is reinstated by the Employer or obtains other
substantially equivalent employment Backpay shall be
computed with interest in a manner set forth in Florida
Steel Corp., 231 NLRB 651 (1977) See generally Isis
Plumbing Co., 138 NLRB 716 (1962); F. W. Woolworth
Co., 90 NLRB 289 (1950).
Such affirmative remedy is appropriate unless the facts
establish that the grievance was without merit . Associated
Transport, supra ; Grover-Granite, 229 NLRB 56 (1977);
Service Employees Union Local 579, 229 NLRB 692
(1977) In the instant case there is no evidence relating to
the merits of the third warning which was the subject of
the grievance , much less evidence to establish that such
grievance was without merit . Accordingly, I conclude
such affirmative relief is justified
[Recommended Order omitted from publication.]