Rubber Workers Local 250 (Mack-Wayne)

RUBBER WORKERS LOCAL 250 (MACK-WAYNE) 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 July 29, 1988 , SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS •AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On May 22, 1986,1 the National Labor Relations Board issued its Decision and Order in this pro- ceeding finding that the Respondent Union violated Section 8(b)(1)(A) of the Act when it took certain actions that amounted to an arbitrary refusal to process David O'Neill's grievance.2 On June 23 the Respondent filed a petition for review with the United States Court of Appeals for the Third Cir- cuit. The General Counsel filed a cross-application for enforcement on July 28. Subsequently, the Board requested the Third Circuit to remand the case to permit the Board to reconsider its ruling in light.. of an intervening decision by the United States-Court of Appeals for the Ninth Circuit.3 The Third. Circuit Court of Appeals granted the Board's request and remanded the case on Novem- ber 17. On December 10 the Board advised the parties that they might file statements of position regarding the issues under reconsideration. The General Counsel and the Respondent filed state- ments of position. In our prior decision, after fording that the Re- spondent had breached its duty of fair representa- tion by arbitrarily refusing to process O'Neill's grievance in violation of Section 8(b)(1)(A), we or- dered the Respondent to remedy its statutory viola- tion by requesting the Employer, Mack-Wayne Closures, to reinstate O'Neill to his former position and, if the Employer refused to do so, to promptly pursue the remaining stages of the grievance proce- dure, including arbitration, in good faith with all due diligence.4 In the event that it was not possible for the Respondent to pursue the remaining stages of the grievance procedure for any procedural or substantive reason, we ordered the Respondent to make whole O'Neill for any loss of pay he may have suffered as a result of the Respondent's un- lawful conduct. We explained that this latter make- 1 All dates are 1986 unless otherwise indicated. I Rubber Workers Local 250 (Mack-Wayne Closures) (Mack-Wayne I), 279 NLRB 1074 (1986). a San Francisco Pressmen Y. NLRB, 794 F.2d 420 (1986). 4 Additionally, we ordered the Respondent to permit O'Neill to be rep- resented 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. Mack-Wayne 1, supra at 1075. 817 whole provision, a provisional or conditional make- whole remedy, was necessary in order to restore the status quo, remedy the injury, and deter the wrongdoer. Acknowledging that the merits of O'Neill's grievance were not certain , we, neverthe- less, found that placing the risk of this uncertainty on the wrongdoer was consistent with fundamental equitable principles and longstanding Board prece- dent.5 After we issued our decision in Mack-Wayne I, the United States Court of Appeals for the Ninth Circuit denied enforcement of a Board order con- taining a similar provisional make-whole remedy. San Francisco Pressmen Y. NLRB, supra. In reject- ing the provisional make-whole remedy ordered in that case, the Ninth Circuit relied on certain deci- sions of the United States Supreme Court in Sec- tion 301 contract cases,6 which require a plaintiff to prove, in order to prevail in a civil action against the union, both that the union breached its duty of fair representation and that the action the employer took against the employee was in breach of the contract. The Ninth Circuit noted that two other circuits had also rejected the Board 's make- whole remedy7 and the court stated that the Board in Glass Bottle Blowers Assn. (Owens-Illinois, Inc.), 240 NLRB 324 (1979), had applied the rule that the court endorsed. The Ninth Circuit analogized duty of fair representation cases to cases involving attor- ney malpractice liability, where the plaintiff must establish both that the duty was breached and that the underlying case could have been won. Thus, the court held that the "[e]mployees must show both a wrongful discharge by the Employer and a breach of duty by the Union to collect backpay from the Union." 794 F.2d at 423-424. We have reconsidered our decision in Mack- Wayne I in light of the Ninth Circuit's decision in San Francisco Pressmen v. NLRB, supra, the deci- sions of other circuits, the General Counsel's and the Respondent's statements of position in this case, and the Board's experience with the duty of fair representation doctrine as developed in Miranda Fuel 8 and its progeny. We find that the Board's a See, e.g., San Francisco Pressmen (San Francisco Newspaper), 267 NLRB 451 (1983), supplemented 272 NLRB 899 (1984), enf denied in part 794 F.2d 420 (9th Cir. 1986); Steelworkers Local 15167 (Memphis Folding Stairs), 258 NLRB 484 (1981), enf. denied 692 F.2d 1052 (7th Cir. 1982); Teamsters Local 559 (Mashkin Freight), 257 NLRB 24 (1981), enfd. without opinion 714 F.2d 115 (2d Cir. 1982); Abilene Area Sheet Metal Contractors Assn. (Abilene Sheet Metal), 236 NLRB 1652 (1978), enfd. in relevant part 619 F.2d 332 (5th Cir. 1980); Electrical Workers UE Local 485 (Automotive Plating), 170 NLRB 1234 (1968), supplemented 183 NLRB 1286 (1970), enf. denied in part 454 F.2d 17 (2d Cir. 1972). e Bowen Y. Postal Service, 459 U.S. 212 (1983); Hines Y. Anchor Motor Freight, 424 U.S. 554 (1976); DelCostello Y. Teamsters, 462 U.S. 151 (1983). s Steelworkers v NLRB, 692 F.2d 1052 (7th Cir. 1982); NLRB v. Elec- trical Workers UE Local 485, 454 F.2d 17 (2d Cir. 1972). s Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d 172 (2d Cir. 1%3). 290 NLRB No. 90 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provisional make-whole remedy as set out in Mack- Wayne I effectuates the policies and administration of the Act and we will adhere to that remedy, as modified below. In so doing, we find it necessary to summarize our approach to this issue and our ra- tionale in detail. Further, to ensure that a union that is alleged to have breached its duty of fair rep- resentation is not presented with an inequitable "Hobson's Choice," as described below, we shall modify our procedural application of the provision- al make-whole remedy to allow the union, at its election, to litigate the merits of the grievance at the underlying unfair labor practice hearing or to defer the issue to the compliance stage. 1. THE PROVISIONAL MAKE-WHOLE REMEDY In Miranda Fuel, supra, the Board adopted the view that a union's breach of its duty of fair repre- sentation constituted a violation of Section 8(b)(1)(A). We reasoned that the union's statutory obligation under Section 9(a) to fairly and impar- tially represent all employees gave rise to a corre- sponding employee Section 7 right to fair represen- tation by the union.9 Since our Miranda Fuel deci- sion, we have consistently found that a union's ar- bitrary failure or refusal to process an employee's grievance, or a union's processing of a grievance in a perfunctory manner, violates the union's duty of fair representation and Section 8(b)(1)(A). Having identified the union's unlawful conduct, we have fashioned appropriate remedies in the context of the specific case before us in order to remedy the unfair labor practice. These remedies have been ap- proved by the courts.10 Thus, in addition to our usual cease-and-desist order and notice posting re- quirement, we have required the offending union to request the employer to consider reinstating the grievant or to consider the grievance on the merits, to take the grievance to arbitration pursuant to the applicable bargaining agreement," and (if neces- sary) to file a Section 301 action to compel arbitra- tion.12 We have also required the union to permit the affected employee to be represented by counsel of his or her own choice at any grievance proceed- ing and to reimburse the employee the reasonable fees of counsel.13 9 See also 2C Morris, The Developing Labor Law at 1308 (2d ed. 1983). 10 See, e.g., San Francisco Pressmen v. NLRB, supra; Abilene Area Sheet Metal Contractors v. NLRB, supra; Teamsters Local 559 (Mashkin Freight), supra. 11 See, e .g., San Francisco Pressmen v. NLRB, 794 F.2d at 423, enfg. in relevant part 267 NLRB 451 (1983); Groves-Granite, 229 NLRB 56, 66 fn. 48 (1977), supplemented 232 NLRB 381 (1977). 12 Cf., e.g., San Francisco Pressmen Y. NLRB, supra. Groves-Granite, 232 NLRB at 381 (noting the respondent 's failure to file a Sec. 301 action to compel arbitration was a failure to comply with the Board's prior order to process grievance). 13 See San Francisco Pressmen v. NLRB, supra. These remedial provisions share a common ob- jective. They are all designed to restore the parties to their preunfair labor practice posture to the maximum extent possible. They are intended to hold the union to the terms of the collective-bar- gaining agreement that it negotiated with the em- ployer and to permit the employee to have his or her grievance resolved on its merits pursuant to the negotiated grievance procedure. In cases, however, where the employer is not before the Board as a party and resolution of the grievance pursuant to the agreed-on procedure becomes impossible, then we have concluded that the union must make the employee whole or the employee will be left with- out an adequate remedy for the union's unlawful refusal to process the grievance. Prior to ordering a provisional make-whole remedy, however, we have either explicitly or im- plicitly required an affirmative showing of a nexus between the unfair labor practice and the make- whole remedy. See Mack-Wayne I, supra at 1074 fn. 3. Some of our prior decisions speak of this nexus in terms of the employee's grievance not being "clearly frivolous." 14 Although other deci- sions have not specifically discussed the "merits" of the grievance, analysis of those decisions reveals that an initial showing of some merit has been a consistent (albeit implicit) prerequisite to a make- whole remedy.15 When we have found that a union breached its duty of fair representation by failing to process a grievance but that the employ- ee's grievance was, nevertheless, without merit, we have refused to order a make-whole remedy. 116 The requirement that the employee's grievance not be "clearly frivolous" can be considered as the General Counsel's burden of proving a nexus be- tween the unfair labor practice and the provisional make-whole remedy. Of course, the General Coun- sel may elect to forgo the provisional make-whole remedy and seek the traditional cease-and-desist order, posted notice, and other remedies. The Gen- eral Counsel is not required to show that the griev- ance was not "clearly frivolous" in order to estab- lish the appropriateness of those remedies. By es- 14 Service Employees Local 579 (Beverly Manor), 229 NLRB 692, 696 (1977); Massachusetts Laborers (Manganaro Masonry), 230 NLRB 640, 643 (1977); but see Steelworkers Local 15167 v. NLRB, 692 F.2d 1052 (7th Cir. 1982), enf. denied 258 NLRB 484 (1981) (where court denied enforce- ment to a Board decision which found that since the grievance was "not clearly frivolous" it was presumed meritorious). "See, e.g., Lea Industries, 261 NLRB 1136 (1982) (where a similarly situated employee was actually reinstated when the union filed a griev- ance on her behalf); Operating Engineers Local 139 (C. F. Kalupa, Inc.), 256 NLRB 535 fn. 2 (1981) ("on the face of it there is every indication that Reifs grievance was meritorious"). Electrical Workers IBEW Local 2088 (Federal Electric), 218 NLRB 396 (1975) (similar grievance granted). 16 Teamsters Local 705 (Associated Transport), 209 NLRB 292, 293 (1974), enfd. sub nom. Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976), cert. denied 429 U.S. 983 ( 1976). RUBBER WORKERS LOCAL 250 (MACK-WAYNE) 819 tablishing that the employee's grievance is not "clearly frivolous," however, the General Counsel has shown that some damage or injury flows from the union's unfair labor practice, if only the loss of the employee's right to "test" the employer's case. Having shown that some injury flows from the union's statutory violation, we have allowed the union to come forward with proof that its conduct did not ultimately "cause" any further injury by es- tablishing that the employee's grievance was not meritorious." In practical effect, the burden of proof regarding the merit (or lack of merit) of the employee's not "clearly frivolous" grievance shifts to the wrongdoing union. We believe that the union should bear this shift- ed burden of proof. Admittedly, absent a determi- nation on the merits pursuant to the agreed-on pro- cedure, the outcome of the employee's grievance cannot be certain. This uncertainty, however, is due directly to the fact that the union violated its statutory duty. In keeping with traditional equita- ble principles that the wrongdoer shall bear the risk of any uncertainty arising from its actions,18 the union must bear the ultimate risk of any uncer- tainty regarding the "merits" of the grievance. Strong policy considerations support this view, especially in the context of an employee's dis- charge grievance, a grievance as the one we deal with here. As we have noted, part of the injury that an employee suffers when his or her union un- lawfully refuses to process a grievance is the denial of the opportunity for a fair hearing; the right to challenge the employer's decision; and the right to argue that, even if the employer had "just cause" for discharge, mitigating circumstances support a reduced penalty- 19 In a disciplinary arbitration proceeding, the burden of establishing the propriety of the employ- ment decision will generally be on the employer .2 0 Where, as here, the Union caused the grievance process to malfunction, a union should assume this burden, the burden of establishing that the employ- 17 See Teamsters Local 705, supra; Security Personnel (Church Charity Foundation), 267 NLRB 974, 980 (1983). 's Bigelow v. RKO Pictures, 327 U.S. 251, 265 (1946). Contrary to the Respondent's contention, we find Bigelow's principles to be applicable here. We have already concluded that the Union's unfair labor practice has resulted in some injury; the grievance process has malfunctioned as a result of the Union's unlawful conduct. Thus, we are here concerned with the scope or "amount" of mjury. 19 This "mitigation" consideration is particularly relevant in this case since O'Neill was a toolmaker for the Employer and toolmakers were ap- parently in short supply. In fact, the record shows that it was only when Shop Steward Ferry attempted to make this very argument to the Em- ployer that Union President Huther interrupted, "lost his cool," and stated that they were there "to fire the guy." so Elkouri & Elkouri, How Arbitration Works at 661, 663 (4th ed. 1985); Fairweather, Practice and Procedure in Labor Arbitration at 254-256 (2d ed. 1983); Baer, Discipline and Discharge under the Labor Agreement at 32-36 (1972). ee's grievance would have been denied or that the discharge was justified. If the Board were to impose on the General Counsel the burden of prov- ing that the employee would have won the griev- ance, then the employee would be deprived of a significant procedural and tactical advantage avail- able to him in the grievance process, the right to sit back and force the employer to "make its case." To permit the employee to be deprived of this ad- vantage solely as a result of the union 's wrongful conduct conflicts with our congressional mandate to effectuate the policies of the Act and remedy the union's unfair labor practice. It is important to stress that the Board does not impose a punitive remedy here, 21 nor do we estab- lish an irrebuttable presumption of merit or a per se entitlement to backpay. The Board takes an ex- ceedingly small step by placing the ultimate burden of proof regarding the merits of a grievance on the union. Only in those cases where a union has been unable to secure consideration of a not "clearly frivolous" grievance whose merits are uncertain will this allocation of proof have any effect on the outcome of the case . In these limited circum- stances, it is appropriate for any uncertainty to fall on the wrongdoer and not the innocent victim. In general civil litigation, the burden of establish- ing a particular matter will often be placed on the party with special knowledge regarding that matter.22 As between the General Counsel and the union, the union obviously has more particular knowledge regarding the merits of the underlying grievance than does the General Counsel. The union, not the General Counsel, has a continuing collective-bargaining relationship with the employ- er. Thus, the union, not the General Counsel, has direct knowledge of the "common law of the shop," the parties' past practice, the bargaining his- tory of the contract, the location and availability of witnesses and evidence, and the particular facts of the relevant grievance. Finally, the union, not the General Counsel, is aware of the particular needs of the employer and whether those needs might themselves mitigate against discharge of the em- ployee.23 Si Carpenters Local 60 Y. NLRB, 365 U.S. 651 (1%1), is not contrary to our decision. In Carpenters, the Supreme Court held that, in order to re- quire the union to reimburse dues and fees collected pursuant to an illegal agency shop clause, the General Counsel must establish that a union's membership was induced to pay fees and dues they would not otherwise have paid if not for the illegal agency shop clause. Here, however, it is clear that but for the Union's violation of its duty of fair representation O'Neill's grievance would have been heard on its merits. as McCormick, Handbook of the Law of Evidence, § 337 at 787 (2d ed. 1972). sa See fn. 19, supra. We note that here we are not shifting the burden of establishing a prima facie case from the General Counsel to the Union, Continued 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shifting the burden of proof regarding the merits of the grievance from the General Counsel to the wrongdoer when required by public policy is not without precedent under the Act or other employ- ment-related Federal statutes. Once the General Counsel has established a prima facie case that an employer has discharged or refused to hire an indi- vidual based on illegal considerations, the burden of proof shifts to the employer to establish that the discriminatee would have been fired or would not have been hired for legitimate reasons in the ab- sence of the illegal motivation.24 A civil plaintiff and defendant have analogous burdens of proof in Title VII proceedings as well.25 We are cognizant of conflicting courts of ap- peals' decisions on this matter .26 Representative of decisions contrary to our approach is the decision of the Ninth Circuit Court of Appeals in San Fran- cisco Pressmen, supra. The Ninth Circuit suggested that the burden of proof in duty of fair representa- tion cases under the Act should follow the rule in attorney malpractice cases. San Francisco Pressmen, supra at 425 fn. 11. A plaintiff in such a case must show not only that there was a breach of duty, but also that the claim otherwise could have prevailed. We find, however, that the special character of the grievance-arbitration process, where the employee is in effect "presumed" to be "innocent,"27 distin- guishes duty of fair representation proceedings from attorney malpractice actions. In an attorney malpractice case, the plaintiff has the additional burden of proving that the underlying claim was meritorious because, in the absence of the attor- only shifting the burden regarding establishing the appropriateness or in- appropriateness of a provisional backpay remedy. Compare Aqua-Chem, Inc., 288 NLRB 1108 (1988) (where a Board majority, Member Johansen dissenting, rejected the view that the respondent's initially superior knowledge of the relevant facts regarding the unfair labor practice allega- tions alone justified shifting the burden of proving or disproving a viola- tion of the Act). Member Johansen does not agree with this characteriza- tion of Aqua-Chem. 54 Wright Line, 251 NLRB 1083 (1980). Although Wright Line estab- lished an analytical framework for resolving whether an employment de- cision was motivated by illegal consideration, that approach is analogous to the our approach here because it focused on causation issues, was de- veloped in response to conflicting courts of appeals' decisions, and was in part a "recognition of the practical reality that the employer is the party with best access to proof of its motivation." Id. at 1088. 9e Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) (once discrimination is shown, the plaintiff is entitled to backpay unless the defendant can prove by clear and convincing evidence that the plaintiff would not have been hired, promoted, etc., even if there had been no discrimination). Sig- nificantly, the D.C. Circuit Court of Appeals concluded that policy con- siderations similar to those articulated here mandated this result. se San Francisco Pressmen v. NLRB, supra; Steelworkers Local 15167 v. NLRB, supra; NLRB v. Electrical Workers UE Local 485, supra. But see Abilene Area Sheet Metal Workers v NLRB, supra; and Teamsters Local 559, supra ss See generally Baer, Discipline & Discharge under the Labor Agree- ment at 32-33. ney's malpractice, the plaintiff would still have had to prove the merits of the underlying claim.28 Contrary to certain courts, we also think that it is inappropriate to rely on cases decided under Sec- tion 301 for the proposition that the General Coun- sel must bear the burden of proof concerning the merits of the underlying grievance . Even though Section 301 cases may involve a corresponding duty of fair representation claim against the union, the underlying claim , a breach of contract claim, remains the essence of the Section 301 suit. A typi- cal breach of contract action does not present any compelling policy reasons to justify altering tradi- tional common law burdens of proof. Significantly different policy considerations come into play where, as here, the Board has been charged with advancing what Congress has "declared to be the policy of the United States." NLRA Section 1. Since we established that a breach of a union's duty of fair representation was an unfair labor practice, we have applied to the judicially created duty of fair representation doctrine our own unique institutional and policy consideration. We find that shifting the burden of proof from the General Counsel to the union is required to administer our resources, comply with our congressional mandate, and give a meaningful remedy in duty of fair repre- sentation cues .29 To summari ze, we hold that in an 8(b)(1)(A) case where the union has breached its duty of fair repre- sentation with regard to the processing of an em- as Contrary to the Ninth Circuit's indication, the Board in Glass Bottle Blowers Ass,,. (Owens-Illinois Inc.), 240 NLRB 324 (1979), did not apply the rule the court ascribes to it. There, the judge ordered the respondent union to pay the charging party and his brother the wages they lost from the period beginning with the abrogation of their operator seniority until there was a fair resolution of their grievance. Thus, the judge ordered the union to make the employees whole even if the union were able to compel the employer to consider the grievance on the merits and the grievance was determined to have been without merit . It was this latter per se backpay award that we rejected when we ruled that to "now" re- quire the union to pay the grievants' back wages "might" be punitive. See 240 NLRB at 325. Nothing in Glass Bottle Blowers compels a con- trary result to the one we reach here. =a We do not read the Court's decision in DelCostello Y. Teamsters, 462 U.S. 151 (1983), as compelling a different result from our decision in this case. In De/Castello, a case involving a private party's claim against a union, the Court was not addressing the same policy concerns that we must address in this case, a case involving a claim by the General Coun- sel that the Union violated the Act . Although the source of a union's duty of fair representation may be the same in both cases, the judicial and administrative mechanism used to resolve these cases is very different. The former case is governed by court rule and common law. The latter case is governed by our own procedural rules and rules of decision. In- terestingly, the Supreme Court in Del Castello expressly rejected the argu- ment that Sec. 301 duty of fair representation lawsuits were governed by state statutes of limitations governing legal malpractice claims. Inter ells, the court stated that the analogy between legal malpractice claims and claims like the one before us "suffers from objections peculiar to the re- alities of labor relations and litigation." Id. at 167. As the Supreme Court in DelCostello, we too find that a duty of fair representation claim has "no close analogy in ordinary state law." Id. at 165. Member Johansen additionally notes that the Board's remedial authority is based on Sec. 10(c), not on the contract. RUBBER WORKERS LOCAL 250 (MACK-WAYNE) 821 ployee's grievance, the General Counsel has an ini- tial burden of establishing that the employee's grievance was not clearly frivolous in order to be entitled to a provisional make-whole remedy. If the General Counsel establishes that nexus between the union's unlawful conduct and the remedy, the burden of proof shifts to the union to establish that the grievance was not meritorious. We shall apply these rules to all cases where the union violates Section 8(b)(1)(A) by failing to properly process an employee's grievance and, to the extent any of our prior decisions may conflict with this decision, we overruled then to the extent of the inconsistency. II. PROCEDURAL APPLICATION OF THE SHIFTING BURDEN OF PROOF that evidence at the unfair labor practice hearing and it makes little sense to force the union to defer the issue to the subsequent compliance stage. We, therefore, hold that, in the context of this class of cases only, 32 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 prac- tice hearing, the union must have made an unam- biguous election to litigate the merits of the griev- ance at the unfair labor practice hearing or at the compliance stage. III. THE INSTANT DISPUTE Any provisional make-whole remedy 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. The primary goal of the Board's order is to return the parties to their preunfair labor practice posture and to have the employee's grievance considered pursuant to the agreed-on procedure. Resolving grievances pursuant to the parties' agreed-on process leads to greater industrial peace and stability. Thus, a provi- sional make-whole remedy only becomes important if the grievance cannot be resolved pursuant to the agreed-on process. We recognize, however, that there are circum- stances when the union and the employee may be faced with a difficult and inequitable "Hobson's Choice." For example, if the union alleged to have violated its duty of fair representation is attempting to process the grievance while the unfair labor practice hearing is pending, or if there exists a real- istic possibility that the employer will consider the grievance on the merits if the union is later ordered to process it, then it may be unfair to the union and the employee for the Board to require the union to attempt to prove in the unfair labor practice case that the grievance lacks merit.S° In this and similar cases, it seems more appropriate to allow the union to first pursue the grievance and, if it cannot be re- solved pursuant to the negotiated procedure, then to argue the merits of the grievance at a subsequent compliance proceeding.31 On the other hand, if the union has in its possession at the unfair labor prac- tice hearing substantial evidence that the grievance lacks merit, then the union may wish to present so See, e.g., Tubari Ltd., 287 NLRB 1273 fn. 8 (1988). 5t We have recognized this problem in the past and have resolved it by retaining jurisdiction over the can in its unfair labor stage, pending the outcome of the grievance process. See, e.g., Electrical Workers UE Local 485 (Automotive Plating), 170 NLRB 1234 (1968); Groves-Granite, supra. This retention of jurisdiction approach has not proved to be satis- factory. Applying the above standards to the instant dis- pute, we find that the General Counsel has present- ed sufficient evidence to establish that O'Neill's grievance was not clearly frivolous. O'Neill testi- fied that, at a hearing before the Equal Employ- ment Opportunity Commission (EEOC) in January 1983, the Employer agreed to reduce one of his two written warnings to an oral warning . Accord- ingly, when O'Neill received a "third" written warning that subjected him to discharge in May 1983, he claimed that he had only two written warnings. Although there is conflicting evidence regarding the Employer's agreement to reduce one of the written warnings to an oral warning, this material fact is in issue, and it demonstrates that O'Neill's grievance was not clearly frivolous.33 Having met the initial burden of demonstrating that O'Neill's grievance was not clearly frivolous, the burden of proof shifts to the Respondent to es- tablish that O'Neill's grievance was not meritori- ous. The Respondent may attempt to prove that O'Neill's grievance lacks merit either at the unfair labor practice hearing or at the compliance stage. In its statement of position, the Respondent points out that it attempted to raise the merits of O'Neill's grievance at the unfair labor practice hearing. Ar- guably, the Respondent was prevented from fully litigating this issue. Accordingly, we will remand this case to the judge so that the Respondent may elect to litigate the merits of O'Neill's grievance now or at the compliance stage. Should the Re- spondent elect to litigate the merits issue now, the judge shall convene a hearing for the purpose of as By "class of cases," we mean complaints alleging a violation of Sec. 8(bx1XA) based on the respondent's alleged failure or refusal to properly process an employee's grievance whew the General Counsel is seeking a provisional make-whole remedy. 93 The record contains other evidence bearing on the written versus oral nature of O'Neill's warnings, but the evidence cited above is suffi- cient to meet the General Counsel's burden of proof. 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD taking evidence and, on conclusion of the hearing, the judge shall prepare and serve on the parties a supplemental decision. Should the Respondent elect to litigate the merits issue at the compliance stage, then we will give effect to the remedy or- dered in Mack- Wayne I and will order the Re- spondent to attempt to process O'Neill's grievance. ORDER It is ordered that the record in this proceeding is reopened and remanded to Administrative Law Judge Howard Edelman for the purpose of allow- ing the Union to elect whether to present evidence on the merits of the grievance at a hearing or at a subsequent compliance stage. If the Union elects to present evidence on the merits of the grievance at the compliance stage, it is further ordered that the remedy and the order provided in Mack-Wayne I shall be given full effect. If the Union elects to present evidence on the merits of the grievance at this time, Judge Edelman shall convene a further hearing for the purpose of taking evidence in accordance with this decision; and on the hearing's conclusion Judge Edelman shall prepare and serve on the parties a supplemen- tal decision containing findings of fact, conclusions of law, and recommendations . Following service of the supplemental decision on the parties, the provi- sions of Section 102.46 of the Board's Rules and Regulations shall govern. MEMBER CRACRAFT, concurring in part and dis- senting in part. Although I agree with my colleagues that this proceeding should be remanded, I disagree with their allocation of the burden of proof on remand. Before assessing backpay liability against the Union, I would require that the General Counsel prove that employee O'Neill's grievance was meri- torious. I In order to obtain backpay in a Section 301 fail- ure to fairly represent suit, the burden of proof is on the plaintiff to establish that his or her griev- ance was meritorious. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-571 (1976). This is the burden of proof that I would utilize in 8(b)(1)(A) cases involving breaches of the duty of fair repre- sentation. My placement of the burden of proof is based on a rationale rejected by my colleagues: because the duty of fair representation is a court-created doc- trine belatedly incorporated by the Board in Sec- ' Former Member Dennis also espoused this view in Rubber Workers Local 250 (Mack-Wayne Closures) (Mack-Wayne I), 279 NLRB 1074, 1075-1076 ( 1986). 1 agree with her dissent and adopt it. tion 8(b)(1)(A),2 the burden of proof in 8(b)(1)(A) duty of fair representation cases is most appropri- ately placed in accordance with the burden of proof in Section 301 suits.3 Although acknowledging the parallels between the duties of fair representation in Sections 8(b)(1)(A) and 301, my colleagues, nevertheless, reject application of the Section 301 burden of proof placement in 8(b)(1)(A) actions for policy reasons. They note in particular that the essence of a Section 301 action is a breach of contract claim. However, as the Supreme Court noted in Yaca v. Sipes, 386 U.S. 171, 181-183 (1967), the duty of fair representation was an essentially court-created doc- trine that was implied from Federal labor law and not based merely on contract. In light of the devel- opment of the statutory duty of fair representation, I am not persuaded that we are free to place a heavier burden on the union simply because our basis for liability is solely statutory rather than stat- utory and contractual.4 My colleagues further find that the heavier burden of proof is required "in order to administer our resources, comply with our congressional man- date, and give a meaningful remedy in duty of fair representation cases." I disagree with these justifi- cations. 2 Vaca v. Sipes, 386 U.S. 171, 181-183 (1967). B Indeed, the Supreme Court has relied on the similarities in the duty of fair representation in 301 suits and 8 (b)(1)(A) actions in determining the appropriate statute of limitation applicable in a 301 action. DelCostello v. Teamsters, 462 U.S. 151 (1983). "[T]he family resemblance [between the duties of fair representation under Sec 301 and Sec. 8(b)(1)(A)] is un- deniable, and indeed there is a substantial overlap. . . . [D]uty of fair rep- resentation claims are allegations of unfair , arbitrary, or discriminatory treatment of workers by unions-as are virtually all unfair labor practice charges made by workers against unions. . . . Similarly, it may be the case that alleged violations by an employer of a collective-bargaining agreement will also amount to unfair labor practices ." Id. at 170. See also United Parcel Service Y. Mitchell, 451 U.S. 56 (1981): "Yet the two claims [in a Sec. 301 suit for breach of contract and the duty of fair representa- tion] are inextricably interdependent . 'To prevail against either the com- pany or the Union . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union." Id. at 66-67 (Stewart, J., concurring in the judgment), quoting Hines v. Anchor Motor Freight, 424 U.S. at 570-571. 4 The majority further justifies establishing a burden of proof different from Sec. 301 suits by distinguishing grievance -arbitration procedures from other proceedings. Specifically, the majority asserts that an employ- ee is presumed innocent in grievance arbitrations . Initially, I disagree with this generalization because it assumes that all arbitrations uniformly apply the same burdens or standards of proof. Further, a grievant is pre- sumed innocent if the employer burden of proof is to establish "beyond a reasonable doubt" that the grievant engaged in the conduct resulting in discipline. Although arbitrators do tend to use this standard if the alleged offense involves criminal intent or moral turpitude, many arbitrators do not use this standard in other types of cases . In cases not involving crimi- nal intent or moral turpitude, arbitrators often will look merely at wheth- er the grievant is guilty and whether the offense justifies the discipline. See Elkouri & Elkouri, How Arbitration Works at 663 (4th ed. 1985). Ac- cordingly, I do not believe that the "special character" of grievance-arbi- tration proceedings justifies placing the burden of proof on the union. RUBBER WORKERS LOCAL 250 (MACK-WAYNE) Administration of our resources: Our resources will not be conserved by application of my col- leagues' procedural framework. My colleagues hold that before the end of the unfair labor prac- tice hearing the Respondent Union may announce whether it elects to present evidence on the merits of the grievance during the unfair labor practice proceeding or at the subsequent compliance stage. Because the Union need not state when it will present the evidence on the merits, the General Counsel will have no way of predicting the extent, if any, to which she should prepare evidence and witnesses for the hearing. Defending against the Union's case that the grievance was not meritori- ous obviously requires preparation on a much more extensive basis than simply showing the grievance was "not clearly frivolous." Moreover, my col- leagues' bifurcation of the liability proceeding will often require backpay proceedings before court en- forced liability is a certainty or, alternatively, court enforcement before backpay liability is a certainty. Our congressional mandate: The Board's congres- sional mandate to advance the statutorily declared labor policies of the United States as set forth in Section 1 of the Act is the same mandate advanced by the courts in interpreting Section 301 of the Act.5 Accordingly, I reject my colleagues' reliance on this congressional mandate to distinguish be- tween the court and administrative interpretations of the duty of fair representation. Meaningfulness of remedy: Finally, my colleagues declare that the shifting burden of proof provides a meaningful remedy in duty of fair representation cases. I disagree. The General Counsel's burden to show that the grievance was "not clearly frivo- lous" establishes only that the grievant lost the ° Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448, 456 (1957). ° Although it is not perfectly clear, it appears that a grievance is "not clearly frivolous" if there exists any theory on which the grievance could have prevailed. 823 opportunity to test his or her grievance. This showing that a grievance is "not clearly frivolous" provides only a nexus to the grievant's opportunity to test the grievance. However, if the General Counsel establishes that the grievance is not clearly frivolous, under my colleagues' analysis the Gener- al Counsel has without more carried the burden of establishing that full backpay is due the grievant. I would not conclude that this showing of nonfrivo- lousness justifies a speculative and/or punitive backpay award.7 Application of the burden of proof that I espouse leads me to concur in my colleagues ' decision to remand this case for further evidence. It appears that the parties were precluded from litigating the merits of the grievance. As the record now stands, the General Counsel has not met the burden of proof that I would place on her to establish that the underlying grievance was meritorious. I agree, however, that she has established that the Re- spondent Union has failed to fairly represent the Charging Party in processing his grievance. Nor- mally, under these circumstances , I would find a violation and order the Union to pursue the re- maining stages of the grievance procedure, includ- ing arbitration and payment of reasonable attor- ney's fees should the Charging Party desire to be represented by counsel of his own choosing. For the reasons I have stated, however, I would not order the Respondent to pay backpay without the General Counsel's sustaining her burden of proof in showing merit. r Given the speculative nature of an award absent a showing of merit, arguments concerning the Union's superior knowledge of the relevant facts are irrelevant in placing the burden of proof. Moreover, I dispute the majority's generalization that information regarding the grievance may be more attainable or particularly within the knowledge of the Union as justifying their placement of the burden of showing that the grievance lacked merit on the Union . The grievant usually has greater personal knowledge of the events leading up to the receipt of discipline than the Union. With the grievant-Charging Party's assistance, the Gen- eral Counsel would be sufficiently armed with the information necessary to meet the burden of proof that I would allocate to her.