United Steelworkers of America, Local Union 2610

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, Local Union 2610 (Bethlehem Steel Corporation) and Foster A. Lew- is.' Case 5-CB-1671 June 29, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On November 5, 1975, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, United Steelworkers of America, Local Union 2610 (hereinafter called the Respondent) and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith.2 The relevant facts as we view them, are these: On December 16, 1974, Charging Party Lewis and fellow employee Graves were given an assignment involving the movement of certain materials. They complained that such work required a third man, but were told that no extra man was available, that they would have to do the best they could, and that they should take their time and do the job as safely as possible. Assistant Grievance Committeeman Harmon was convinced by Lewis' foreman that the employees could do the job safely, taking as much time as they needed. Harmon agreed that there was nothing wrong in doing the job with two men. Lewis then called Parrish, staff representative of the Internation- al Union, and was advised to do the work under pro- test . At the end of the workday, Lewis complained to Grievance Committeeman Ranalli that Harmon had sided with the Employer and had said he would not file a grievance on Lewis' behalf. Lewis asked Ranalli to handle the grievance. That same evening, there was a union meeting at which the union membership, including Harmon, voted to dismiss internal union charges which had i Bethlehem Steel Corporation was permitted to intervene at the hearing 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3 , 1951) We have carefully examined the record and find no basis for reversing his findings been brought by Lewis' brother against an assistant grievance committeeman. The following day, before the start of work, Lewis was complaining to fellow employees in the locker- room that Harmon had sided with the Company. Harmon overheard the conversation but went down- stairs while Lewis went to his locker.' Remembering that he had left his locker open, Harmon returned to the lockerroom. There is a conflict of testimony as to exactly what transpired, and we adopt the Adminis- trative Law Judge's resolution that Lewis made sev- eral remarks to Harmon and due to the personally disparaging nature of these remarks Harmon struck Lewis in the face. Lewis reported the incident to Foreman Haack who called the police, sent Lewis to the dispensary, and, despite Lewis' protestations that he had done nothing wrong, sent Lewis home. Haack also apoke to Harmon, who also was sent home. Shortly thereaf- ter, Lewis went to the union office and spoke to Spedden. By then, Harmon had already spoken to Spedden and given his version of the incident. Lewis told Spedden that Harmon had come over and said he was going to punch Lewis in the eye if he kept on running his mouth, that he told Harmon to feel free, and that Harmon struck him. Four days later, Lewis was recalled to work. Harmon was suspended for 25 days. Both Lewis and Harmon filed grievances over the suspensions. Lewis' grievance was processed to the second step, where Spedden withdrew the griev- ance. However, Spedden processed Harmon's griev- ance through step three, where the 25-day penalty was reduced to a 14-day suspension. The Administrative Law Judge states that "the real issue relative to Respondent's withdrawal of the Lewis grievance is whether by withdrawing it Re- spondent failed to accord Lewis the fair representa- tion to which he was entitled." We agree that this is the relevant issue, but we disagree with the finding of the Administrative Law Judge that Respondent vio- lated Section 8(a)(1)(A) of the Act when Spedden withdrew Lewis' grievance. In Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953), the Supreme Court in discussing the obliga- tion of the collective-bargaining representative stated that "the complete satisfaction of all who are repre- sented is hardly to be expected. A wide range of rea- sonableness must be allowed a statutory bargaining representative in serving the unit it represents, sub- ject always to complete good faith and honesty of J Graves testified that he passed Harmon and Lewis on the way to his locker and, while dressing, heard Lewis say "you sold me out " He further testified that the locker separated him from the men who were speaking and he did not see or hear any altercation because his locker was "around the other way " Accordingly, we do not find that Graves made any remark to Harmon immediately preceding the altercation 225 NLRB No. 54 UNITED STEELWORKERS OF AMERICA , LOCAL UNION 2610 311 purpose in the exercise of its discretion." According- ly, we must consider whether the evidence reveals that Respondent did not act in good faith and hones- ty of purpose within "this wide range of reason- ableness." We find that it does not so indicate. After the incident on December 17, 1974, Spedden spoke first with Harmon and later with Lewis. Al- though the stories were conflicting in part, it was clear that in the altercation between the two of them, initiated by Lewis' verbal attack upon Harmon, the latter struck Lewis. Lewis testified that, in relating the incident to Spedden, he told him that "Harmon came over there and said that he was going to punch me in the eye if I kept on running my mouth; I said that I told him to feel free and he did that." As there were no other eyewitnesses to the incident, Spedden had no certain way of precisely apportioning blame for the incident or of then determining whether the Company's disciplinary decisions were appropriate in the circumstances. Subsequently, Lewis was returned to work in 4 days and Harmon was returned to work after 25 days. Grievances were filed and Spedden withdrew Lewis' grievance at the second step, but processed Harmon's grievance through the third step. In con- sidering Spedden's treatment of Lewis' grievance, we do not find that Spedden acted unreasonably. Ac- cording to Lewis' testimony, on the morning of De- cember 17, he accused Harmon, who is black, of sup- porting a white man (Spedden) over a black man (Lewis). Spedden testified that Lewis was a constant problem at the union hall, was given to using racial epithets, and had admitted to calling Harmon "a few racial names" in the lockerroom. Harmon, however, had a clean record and was known to be calm by nature. Spedden testified that he determined, based upon listening to both men, that Lewis was as aggres- sive and equally blameworthy for the altercation as Harmon. Of importance to our finding that Spedden acted reasonably in withdrawing Lewis' grievance is the testimony of General Shop Foreman Haack that the penalty of 4 days for a fracas was "very mini- mal." Spedden testified that he believed the 4-day penalty was justified and told Lewis he was fortunate to receive a penalty of only 4 days. Spedden was also obligated to consider Harmon's grievance. It appeared to him that there had been an argument, Lewis had spoken angrily to Harmon, and Harmon struck Lewis. Spedden testified that, since there was an honest dispute, both men should be treated equally. Since there were no other parties who could supply eyewitness testimony to what hap- pened, Spedden attempted to resolve the large differ- ences in punishment by seeking to reduce Harmon's penalty of 25 days without pay.4 Whether Spedden's handling of Lewis' grievance is considered solely on its own merits or in comparison to Spedden's handling of Harmon's grievances, we find that the decision to withdraw Lewis' grievance and process Harmon's grievance in an effort to equalize Company-imposed discipline for the alterca- tion, for which both men in discussion with Spedden had accepted some responsibility, has not been shown to be an unreasonable way of resolving the matter. We do not agree that Spedden's testimony that Lewis was constantly harassing him, that he was a constant problem on the floor at union meetings, and that Lewis had used racial epithets against Spedden and threatened his life and safety "belies any claim that he acted in good faith in withdrawing Lewis' grievance." As a general proposition, it is not unrea- sonable for a grievance representative to consider a grievant's general reputation for engaging in conduct of the kind giving rise to the disciplinary action in considering whether the grievance is worth pursuing. The General Counsel has not shown or attempted to show, either through Lewis or other witnesses, that Spedden inaccurately attributed such conduct to Lewis. In these circumstances, we may accept Spedden's testimony as reflective of Lewis' reputa- tion for engaging in the sort of conduct attributed to him by Harmon, conduct which Lewis himself tacitly conceded to Spedden and admitted, on the record herein, he had engaged in. We do not believe that Lewis can claim unfair treatment because his reputa- tion for engaging in such conduct may have played a part in Spedden's decision that Lewis was not with- out blame for the physical altercation with Harmon, and that the Company's discipline of Lewis for his part in the altercation should not be challenged. The fact that Spedden was himself the object of such treatment by Lewis, and may well have resented it, does not alter the result in the absence of a showing that Spedden was motivated by his feelings of resent- ment or that his resolution of the grievance was so lacking in justification as to demonstrate that such feelings played a determinative part in the resolution of the grievance.' Lewis can hardly complain of a judgment rendered in part on the basis of his own relevant past conduct, even though that conduct was directed to a union official now required to use his best efforts to fairly resolve a grievance filed by Lew- is. Based on the foregoing, we conclude that the Gen- eral Counsel has not demonstrated that Spedden act- 4 After the grievance was processed to step three , the penalty was reduced to a 14-day suspension 5 See Local No 1268, United Automobile, Aerospace and Agricultural Im- plement Workers of America (Chrysler Corporation), 193 NRLB 898 (1971) 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed unreasonably in withdrawing Lewis' grievance and processing Harmon's grievance in an effort to obtain some degree of equality in Company-imposed discipline of the two men for the altercation between them. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This case involves allegations that the above-named Union violated Section 8(b)(1)(A) of the Act by reason of a physical as- sault upon Foster Lewis, the Charging Party, and by rea- son of its refusal to process a grievance on his behalf. The proceeding was initiated by a charge filed on February 12, 1975, pursuant to which complaint issued on June 30, 1975. On August 21, 1975, hearing was held in Baltimore, Mary- land. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT A. The Facts Bethlehem Steel Corporation is a Delaware corporation with a plant at Sparrows Point, Maryland, where it is en- gaged in the manufacture, sale, and distribution of steel.[ At all times material herein, the Respondent has been rec- ognized as the exclusive bargaining representative of Bethlehem's employees in a production and maintenance unit and Respondent and Bethlehem have been parties to a collective-bargaining agreement which includes detailed provisions for the adjustment of complaints and griev- ances. Foster Lewis has been employed by Bethlehem about 20 years and was employed as a winch truckdriver in the elec- trical repair shop at the times relevant herein. He is a mem- ber of Respondent. On December 16, 1974, Lewis and fel- low employee Melvin Graves were given an assignment involving the movement of certain materials and equip- ment (e.g., motors and reels of wire). Being of the opinion that a third man was required to do the job, they went to Shop Foreman Earl Curban to request a third man. After checking into the availability of additional help, Curban Jurisdiction is not in issue The complaint alleges, the answer admits, and I find that Bethlehem meets the Board's $50,000 direct outflow stan- dard for the assertion of jurisdiction told Lewis and Graves that there was no extra man to put on the job, that they would have to do the best they could; to take their time and do the job as safely as they could. Lewis' foreman, Jay Williamson, was present and he said the night shift did such work with two men and they could do it too. Assistant grievance committeeman James Har- mon had been alerted by Lewis and Graves of their com- plaint and was present when it was explained to them that they could do the job safely taking as much time as they needed, and he agreed with Curban and Williamson that there was nothing wrong in doing the job with two men. Lewis and Graves left Curban's office. Lewis then called Bernard Parrish, staff representative of the International union, and described the problem. Parrish advised him to do the work under protest and not to invoke article XIV of the contract.2 Lewis and Graves performed the work with- out incident At the end of the workday, Lewis complained to grievance committeman Norman Ranalli that Harman had sided with the Company and had said he would not file a grievance on his behalf. He asked Ranalli to handle his grievance. Ranalli said he would check into it. The following day, before the start of work, Lewis was telling fellow employees in the locker room that at a meet- ing with the Company the day before Harmon had sided with the Company and had sold him down the road, when Harmon came into the locker room, approached Lewis, and asked him if he was talking about him. Lewis said, "You were the shop steward at the meeting the other day." Graves joined them at that moment and said, "Yeah you sold us down the road yesterday. You took sides with the Company." 3 Harmon then left and went downstairs while Lewis went to his locker. Harmon returned a few minutes later, came up to Lewis and said, "If you don't shut [your] damn mouth, I will punch you in the eye." Lewis told him to be free to do so, and he accused Harmon of not representing him, of selling him every time he filed a grievance, men- tioning, in particular, a lack of overtime. Lewis accused Harmon of beingjust like Harry Spedden, chairman of the grievance committee, except that Spedden was white, whereas Harmon was black, like Lewis. As Lewis was put- ting on a coat, Harmon struck him in the eye and ran from the locker room. Lewis reported the incident to General Foreman Chester Haack who called the police at Lewis' request. He was sent to the dispensary and later sent home by Haack. Lewis protested that he had done nothing wrong, but Haack nev- ertheless sent him home. Haack also spoke to Harmon who admitted there were words, but denied any physical con- tact. He was also sent home. Lewis went to the Union's office shortly thereafter and 2 Under sec 5 of this article, an employee may refuse to perform work he believes unsafe, however, it does not appear an employee has that right unless the grievance committeeman agrees with him, and, in any event, an employee who refuses to perform work for such reason does so at the peril of loss of time, at least 3 Graves testified, but he was not asked whether or not he said anything to Harmon He testified that he heard that remark being made and he assumed Lewis made it to Harmon I can perceive no reason for Lewis to attribute falsely to Graves the remark quoted above and I conclude that both Lewis and Graves made similar remarks about being sold down the road at separate moments preceding the sinking of Lewis UNITED STEELWORKERS OF AMERICA, LOCAL UNION 2610 313 spoke to Harry Spedden. By then, Spedden had already spoken to Harmon. Lewis told Spedden that they (mean- ing, apparently, he and other employees) were talking about the Union and Harmon came over and said he was going to punch him in the eye if he kept on running his mouth; that he told Harmon to feel free and he did. Lewis did not indicate what Spedden said. After speaking to Spedden, Lewis was told that Harmon wanted to see him. Lewis found Harmon in the parking lot. Harmon told Lewis he had been wrong in running his mouth in the locker room and said, `One of these days when I get back to work I am going to punch you in the eye and take a knife or a gun and shut you up." Lewis again invited him to feel free. Harmon said, "He'd be back to work the next day and that the Union was on his side." Four days later, Lewis was recalled to work and was told that the suspension was his penalty, and that the incident was being entered on his record. He was reminded that this was the second time he had been involved in an incident, and any further incident would result in discharge. Lewis protested to no avail. At some unspecified time thereafter, Lewis spoke to Ra- nalli about filing a grievance Ranalli told him he had been at fault and kept putting him off. At some unspecified time later, Lewis spoke to Parrish about filing a grievance over his suspension. During their conversation, Parrish asked Lewis if he wanted to see Harmon lose his job and Lewis said no. Parrish said he would not like for Lewis to testify for the Company. He said, "Lewis, please don't testify against Harmon for the Company." Lewis told him he wouldn't and Parrish instructed Ranalli to file grievances on behalf of both, Harmon and Lewis. Later, Lewis filed grievances on the safety incident and his 4-day suspension. Later yet, Lewis asked Ranalli to hold the grievances in abeyance because he would be away from work for a period because he was entering the hospi- tal. Upon his release from the hospital a few weeks later, Lewis contacted Spedden about the grievances and Sped- den told him he had withdrawn the grievance over the 4- day suspension "because I have a list of men here testified against you in arbitration on the third step and I am not going to discuss the grievance in the second step." Spedden also said (whether in this conversation or another one is not clear), "This is your second time in an incident, in a fight . . . and he wasn't going to represent me." Thereafter, Lewis filed intraunion charges against Har- mon and Spedden for failing to represent him. At a union meeting, the membership voted against Lewis' position and rejected the charges. B. Analysis and Conclusions 1. The alleged assault Respondent's defense to the complaint allegation rela- tive to the assault is two-fold: there was no assault by Har- mon and Lewis' verbal abuse was not protected activity. The assertion that there was no assault is predicated on the testimony of Harmon, who denied striking Lewis. Ac- cording to Harmon, on the morning of December 17, he overheard Lewis talking about him and he asked him to get off his back. Lewis kept hollering and making a disturb- ance, so Harmon left. However, he had forgotten his wal- let and returned to get it and Lewis resumed his verbal assault, stating, among other things which Harmon did not describe, that Harmon's mother had a white man's child. Then Lewis reached for Harmon's throat. In self-defense, Harmon threw up his hands, pushing Lewis' hands away. Harmon admitted that in the process his fingers may have struck Lewis in the eye; he denied punching Lewis. In addition, according to Harmon, the subject matter of Lewis' remarks was not Harmon's handling of the safety grievance on December 16, but Harmon's vote at a union meeting on the night of December 16, in support of a white committeeman who had been brought up on charges with- in the Union by Lewis' brother and other Bethlehem em- ployees. According to Harmon, at that meeting Lewis called him such names as a "white man's nigger" and "Un- cle Tom," and the following morning in the locker room Lewis continued calling him practically the same names and harping on Harmon's failure to support his brother. Harmon could not remember any mention by Lewis of the safety grievance. If the facts were as described by Harmon, the complaint allegation regarding an assault could be disnussed summa- rily. However, I do not credit Harmon. His demeanor did not impress me favorably. Moreover, it is noteworthy that immediately after the incident, when called to the office by Foreman Haack, Harmon denied there was any physical contact. It was not until late January in a hearing on his grievance over his suspension that he described the inci- dent as he did above.5 His explanation that he told Haack nothing had happened to protect both himself and Lewis is on its face incredible. He had to have known that Lewis had reported an incident and that the matter could not be avoided by simply telling Haack nothing had happened. Moreover, had Lewis been the aggressor it appears to me he would not have been likely to report the incident to the Company and the police. In addition, there is the fact that Harmon attributed his conduct to his having witnessed an earlier incident in which Lewis was involved, but according to Lewis, in that incident he had not even defended himself against several blows, and evidently this was the case as he In the foregoing, I have presented Lewis' version of the events which led to his filing of the charge herein and on which the complaint allegations are predicated. These alle- gations are that Respondent violated Section 8(b)(1)(A) of the Act by Harmon's assault on Lewis on the morning of December 17 and by the refusal of Spedden to process Lewis' grievance over his 4-day suspension arising out of the altercation with Harmon.' The complaint also alleged an 8(b)(1)(A) violation by reason of Parrish's request that Lewis not testify against Harmon General Counsel contended at the hearing that implicit in such request was that Lewis' agreement not to testify was a condition to filing a grievance on his behalf In my judgment, Lewis' testimony did not support such a construction of Parrish's remarks and, accordingly, I granted a motion to dismiss at the hearing Upon a review of the record, I am still of the same view 5 According to Spedden, Harmon told him the same story on December 17 1 do not credit Spedden who impressed me more by his glibness than his candor 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had received no disciplinary action of any kind. In my judgment, the earlier incident was seized upon here by Harmon to support a contrived version of what happened on December 17. As to the December 16 union meeting, I do not credit Harmon's description of what transpired. It is noteworthy that there was no one to corroborate him except Spedden and Ivory Dennis, president of Respondent, and even they did not corroborate him on any specifics; rather, they testi- fied in general terms. Apart from that, both Spedden and Dennis conveyed a sense of strong bias against Lewis and I am persuaded their testimony is not deserving of cre- dence. Upon consideration of all the testimony, I am persuaded and find that the subject matter of Lewis' remarks to Har- mon on December 17 was his dissatisfaction with the rep- resentation he had received from Harmon on the safety grievance and generally, including dissatisfaction with Harmon's vote at the union meeting. I also find he was assaulted by Harmon. However, this finding does not end the inquiry into the matter. The question yet remains whether Respondent may be held to have violated the Act by reason of Harmon's conduct. As noted earlier, Respon- dent contends that Lewis' verbal abuse did not constitute protected activity. Although this contention is predicated in large part on an ac eptance of Harmon's version of the December 17 incident, and I have not accepted it, the con- tention nevertheless requires consideration in light of Lew- is' own testimony concerning the incident. Thus, he admit- tedly accused Harmon of selling him down the river and injected a racial issue into the discussion by accusing Har- mon of supporting a white against a black. This was not the express "Uncle Tom" charge attributed to him by Har- mon, but an implied one. General Counsel contends that Lewis was engaged in protected activity on the morning of December 17 in crit- icizing the manner in which his grievance had been han- dled and that such remarks as he may have made were not so offensive or egregious to remove him from the protec- tion of Section 7 of the Act. I have serious doubts that Lewis' conduct on the morning of December 17 constitut- ed protected activity. This was not criticism of union poli- cies at a union meeting seeking to reverse union policy as in Local 485, International Union of Electrical, Radio & Ma- chine Workers, AFL-CIO (Automotive Plating Corp.), 170 NLRB 1234 (1968). This was criticism of Harmon to other employees for some undisclosed purpose. Nevertheless, as- suming arguendo that the criticism constituted protected activity, a finding is not warranted that Respondent is lia- ble for Harmon's assault. Here, unlike the situation in Pa- cific Maritime Association, 192 NLRB 338 (1971), where the union agent was engaged in the performance of his duties as dispatcher when he assaulted the union member, at the time of the assault herein, Harmon was just another em- ployee in the locker room preparing to go to work. His assault on Lewis was not in furtherance of the Respondent's interests as in (Edward Kraemer & Sons, Inc.), 203 NLRB 739 (1973), or Freight Drivers and Helpers Local Union No 557 (Liberty Transfer Company, Inc.), 218 NLRB 1117 (1975); rather, in light of the racial reference admittedly used by Lewis, I am persuaded that the assault was attributable to the personal nature of Lewis' remarks and was not intended to coerce Lewis in his exercise of protected activity." Accordingly, I shall recommend dis- missal of the allegation of the complaint based on the as- sault.7 2. The refusal to process Lewis' grievance It is undisputed that Lewis filed a written grievance over his 4-day suspension and that at step 2 it was withdrawn on January 14, 1975, by Spedden. (For some unexplained rea- son, the date of the event complained of appears as De- cember 26 on the appeal form. I see no significance in the discrepancy.) Harmon had lost 25 days of work as a result of the December 17 incident and it is undisputed that his grievance was processed to step 3, where the penalty was reduced from what had been a 25-day suspension to a 14- day suspension.' General Counsel contends that by refusing to process Lewis' grievance Respondent violated Section 8(b)(1)(A) of the Act. General Counsel argues that Lewis' grievance was meritorious and that, as it arose out of discipline to which the Union subjected him because of his protected activi- ties, the Respondent may not rely on its right to be selec- tive in its processing of grievances. Vaca v. Sipes, 386 U.S. 171 (1967). I reject this contention. Whether or not Lewis' grievance was meritorious depends on company policy and practice in situations such as the December 17 incident and the record does not permit a determination of how Lewis' grievance would have fared. Bethlehem could have be- lieved Harmon's version of the incident, or, accepting Lew- is', concluded that he contributed to it. Moreover, Lewis' grievance did not apse out of discipline to which Respon- dent subjected him. It arose out of Bethlehem's action in response to an altercation between two employees. The real issue relative to Respondent's withdrawal of the grievance is whether by withdrawing it Respondent failed to accord Lewis the fair representation to which he was entitled It is, by now, settled law that a union enjoying exclusive representative status owes a duty of fair represen- tation to all unit employees breach of which constitutes a violation of Section 8(b)(1)(A) of the Act and, under cer- tain circumstances, Section 8(b)(2) of the Act. Miranda Fuel Company, Inc., 140 NLRB 181 (1962). Respondent does not dispute this principle; rather, Respondent con- tends that the record supports a finding that it acted in good faith and within the limits of discretionary power vested in it in deciding to withdraw the Lewis grievance. In support of its position, Respondent adverts to Lewis' 6 General Building Laborers' Local Union No 66, Laborers International Union of North America, AFL-CIO (Courier & Company, Inc), 198 NLRB 125 (1972), Brewers and Maltsters Local Union No 6, et a! (Falstaff Brewing Corporation), 141 NLRB 448 (1963) 7 As described earlier, Harmon also threatened Lewis with bodily harm in the parking lot at the Respondent's office on December 17 This threat was not alleged to have been violative of the Act In any event, in my j udgment, it buttresses my conclusion that the conflict between Lewis and Harmon is a gersonal one Fortuitously, Harmon assertedly performed services for Respondent as chairman of an incentive award committee for 10 of those days for which he was paid the equivalent o. 10 days' wages UNITED STEELWORKERS OF AMERICA, LOCAL UNION 2610 315 prior involvement in a fracas and that he was known to the Company as being a problem and provocative and a chronic grievant. It argues that the facts surrounding the incident on December 17 were unclear because there were no independent witnesses and, as the penalty was light, Spedden made a good-faith judgment to let well enough alone. In pursuing Harmon's grievance, all that Respon- dent did was seek even justice. The record does not support Respondent's assertions in several particulars, or, where it does, the assertions are ir- relevant. The assertion that Lewis was a "problem" and "provocative" is based on testimony to that effect by Fore- man Williamson and General Foreman Haack. Such testi- mony is meaningless unless there is some indication on what it is based and in what respects Lewis was either a problem or provocative. Actually, it appears that the testi- mony may have been based on the fact that Lewis had filed many grievances. Individuals who do that frequently ac- quire a reputation as problem employees and provocative individuals. However, the filing of grievances is a Section 7 right and there is no showing here that in filing many griev- ances Lewis exceeded the rights guaranteed under Section 7 of the Act. Moreover, the fact that he had filed many grievances in the past is irrelevant to the fairness of his representation on the grievance over his 4-day suspension. That grievance was hardly frivolous and Lewis was entitled to a fair assessment of the grievance on its merits. On that point, there is substantial evidence to support a finding that Spedden, who made the decision not to pro- cess Lewis' grievance, bore animus against Lewis which belies any claim that he acted in good faith in withdrawing Lewis' grievance. For example, Spedden accused Lewis of `constantly harassing me and the AGCS," "constant prob- lem on the floor" at union meetings, "has used racial epi- thets . . . at me," "has threatened my life and safety," "threatened to beat me up in the Union Hall," and "threat- ened to spit in my face and called me no good white trash." On January 7, 1975, only 1 week before withdrawing Lew- is' grievance, in a letter to the district director of the Inter- national, Spedden complained of the conduct of Staff Rep- resentative Parrish because of an alleged interest Parrish had in certain black employees, including holding meetings with Lewis. The duty of fair representation is "in a sense fiduciary in nature," 9 and the animosity which Spedden entertained against Lewis is completely antithetical to the fiduciary concept. Were this a Collyer 1 or Spielberg ii situ- ation, the Board would not defer to arbitration if Spedden had been Lewis' representative.l2 In my judgment, the fact of Spedden's animosity against Lewis is alone sufficient to conclude that Respondent de- nied Lewis fair representation when it permitted Spedden to withdraw his grievance. But it is clear that that animosi- ty affected the way in which Lewis' grievance was handled. Thus, Spedden prejudged Lewis' culpability as shown by 9 Miranda Fuel Company, Inc, supra, 189-190 10 Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971) ii Spielberg Manufacturing Company, 112 NLRB 1080 (1955) i2 Kansas Meat Packers, a Division of Aristo Foods, Inc, 198 NLRB 543 (1972) his statement to Lewis when he reported the incident "you have been in this kind of trouble before." As noted earlier, Lewis was completely innocent in the earlier incident. Spedden did not make the slightest effort to ascertain the truth about the incident, including not conferring with the Company to find out on what it based its different treat- ment of Lewis and Harmon. Although it was Lewis who had publicized the incident not only by going to the Com- pany, but also by preferring criminal charges against Har- mon,13 and Harmon admittedly lied about the incident to both Haack and the policeman, it is clear that Spedden did not consider these circumstances in trying to decide who was telling the truth. To the contrary, he accepted Harmon's version without even talking to Lewis about it. His only conversation with Lewis about the grievance, af- ter his initial conversation on December 17, was to tell Lewis the grievance had no merit. If the foregoing were the only circumstances in the case, a finding that Lewis was not accorded fair representation would be warranted. But the case is aggravated by the ad- ditional circumstance that the incident involved a member and agent of Respondent and Spedden was making a deci- sion as between the two. While this might be permissible where there was no dispute about the facts, it appears to me that fair dealing requires that where the facts are in dispute a disinterested party be appointed to resolve the conflict.14 In this case, Spedden was not required to resolve the dispute. He could have processed both grievances and permitted an impartial determination. In failing to do so and withdrawing Lewis' grievance, Spedden denied Lewis the fair representation to which he was entitled and Re- spondent thereby violated Section 8(b)(1)(A) of the Act.I5 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of Bethlehem Steel Cor- poration as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent engaged in certain unfair labor practices it will be recommended that it be ordered to cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Specifically, it is recommended that Respondent be or- dered to process and take Lewis' grievance to aribtration, if 13 Harmon was placed on probation without verdict on March 21 The parties could not agree on the meaning of such a disposition , but I deem the disposition a matter of no significance in reaching a decision 41 do not view the action of the membership in rejecting Lewis' charge against Spedden as the action of a disinterested party The membership were not given any facts on which to base their votes i5 Whether Respondent also violated Sec 8(b)(2) of the Act need not be decided as the complaint did not allege a violation of Sec 8(b)(2) and the remedy provided for the 8(b)(1)(A) violation includes all the affirmative relief that would be appropriate for a violation of Sec 8(b)(2) 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary. Furthermore, Respondent shall be ordered to process Lewis' grievance in an impartial manner, includ- ing, if necessary, assignment of the task of representation to an agent who entertains no bias or animus against Lew- of the incident on his record and the possibility of such record being used against him in the future. Accordingly, in processing Lewis' grievance Respondent shall be re- quired to seek the removal of the incident from Lewis' per- sonnel record. is. It is possible that Lewis' grievance may be rejected by Bethlehem on the ground that it was withdrawn and a re- quest to process further is untimely. In such event, Lewis would have been deprived of a determination on the mer- its. As this result would be attributable to Respondent's failure to accord him fair representation in the processing of his grievance, it should be presumed that Lewis' gnev- ance, if processed, would have been found mentorious.16 Accordingly, Respondent shall be ordered to make him whole by payment to him of the 4 days' wages which he lost as a result of his suspension with interest at the rate of 6 percent per annum. A further element of the discipline of Lewis is the entry 16 Cf Local Union No 2088, International Brotherhood of Electrical Work- ers, AFL-CIO (Federal Electric Corporation), 218 NLRB 396 (1975) CONCLUSIONS OF LAW 1. Bethlehem Steel Corporation is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Steelworkers of America , Local Union 2610, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing to process Lewis' grievance in violation of its duty to accord him fair representation , Respondent has engaged in, and is engaging in, an unfair labor practice within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. 4. Respondent did not violate Section 8(b)(I)(A) of the Act by reason of Harmon's assault upon Lewis. [Recommended Order omitted from publication.]