Plumbers Local 195 (Bethlehem Steel)

PLUMBERS LOCAL 195 (BETHLEHEM STEEL) 571 Pipe Fitters Local Union No 195 of the United As sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Bethle hem Steel Corporation ) and Phillip E Long Case 23-CB-2436 November 4 1988 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 9 1983 Administrative Law Judge Frank H Itkin issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the judge s decision The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions 1 and briefs and has decided to affirm the judge s rulings findings and conclusions as modified but not to adopt the recommended Order We agree with the judge that the Respondent Union violated Section 8(b)(1)(A) by threatening Phillip Long that it would not fairly and impartial ly represent him in processing his three predis charge grievances unless he became a union member and by refusing to process those griev ances and represent him because he was not a union member We also agree that the Union vio lated Section 8(b)(1)(A) by failing to represent Long fairly regarding his discharge grievance However contrary to the judge we find that the Union s failure to represent Long fairly regarding his discharge grievance commenced on September 8 1980 the date when Long first requested union representation on his discharge grievance 2 REMEDY The Respondent has engaged in unfair labor practices and we shall order it to cease and desist and take affirmative action designed to effectuate the purposes of the Act Sufficient evidence has I The Respondent Union has excepted to some of the judge s credibil ity findings The Board s established policy is not to overrule an adminis trative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand and Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 2 Long filed his discharge grievance directly with the Employer on July 15 1980 but he did not send a copy to the Union While the judge found that Long repeatedly sought union representation the record shows that Long first requested union representation on his discharge grievance about September 8 1980 in a letter to Union Business Manag er P L Ellis been presented to establish that Long s grievances were not clearly frivolous Grievance Nos 1-3 (G C Exhs 3-5) set forth circumstances that if found to be true would warrant consideration in accord with the grievance procedure 3 Testimony regarding Long s July 9 1980 discharge 4 the sub ject of grievance No 4 (G C Exh 6) indicates that Wesley Smith Long s supervisor personally had no problems with Long prior to his discharge that he did not threaten or warn Long about the possibility of discharge on July 9 and that he did not previously suspend Long Smith also conceded that on July 9 Long complained that the pipe he was to weld was not properly prepared and that Long may have told Smith that Long needed some equipment to prepare the pipe We find that the General Counsel has established that Long s griev ances were not clearly frivolous The General Counsel having met the initial burden of demonstrating that Long s grievances were not clearly frivolous the burden of proof shifts to the Respondent to establish that Long s grievances were not meritorious The Respondent may attempt to prove that Long s grievances lack merit at either the unfair labor practice hearing or at the compliance stage See Rubber Workers Local 250 (Mack Wayne Closures) 290 NLRB 816 (1988) (Mack Wayne II) 5 Accordingly we will remand this case to the judge so that the Respondent may elect to litigate the merits of Long s grievances now or at the compliance stage Should the Re spondent elect to litigate the merits now the judge shall convene a hearing for the purpose of taking evidence and upon conclusion of the hearing the judge shall prepare and serve on the parties a sup plemental decision Should the Respondent elect to litigate the merits issue at the compliance stage then the judge shall recommend that the Respond ent be ordered to comply with provisional make whole and other remedies similar to those set out in Rubber Workers URW Local 250 (Mack Wayne Closures) 279 NLRB 1074 (1986) (Mack Wayne I) 3 Although grievance Nos 1-3 of themselves may not result in a monetary remedy it can be inferred that the incidents that are the sub Jects of these grievances had some relation to Long s discharge 4 Long was discharged for causing trouble and for failing to follow [a supervisor s] instructions 5 Member Cracraft agrees with her colleagues unfair labor practice findings However Member Cracraft in accordance with her partial dis sent in Mack Wavne II would place the burden of proof on the General Counsel to establish that Long s grievances were meritorious before the Board may assess backpay liability against the Union As Member Cra craft s dissent would change the burden of proof in these cases and as the General Counsel would not have been on notice of this change Member Cracraft would remand the case to the judge to allow the par ties to present evidence on the issue of whether the grievances were met itorious with the burden on the General Counsel to establish that they were 291 NLRB No 92 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that the record in this proceeding is reopened and remanded to Administrative Law Judge Frank H Itkin for the purpose of allowing the Union to elect whether to present evidence on the merits of the grievances at a hearing or at a subsequent compliance stage If the Union elects to present evidence on the merits of the grievances at the compliance stage then the judge shall recommend an appropriate Order that shall contain provisional make whole and other remedies including a cease and desist order See Mack Wayne I supra If the Union elects to present evidence on the merits of the grievances at this time Judge Itkin shall convene a further hearing for the purpose of taking evidence in accordance with this decision and on the hearings conclusion Judge Itkin shall prepare and serve on the parties a supplemental de cision containing findings of fact conclusions of law recommendations and an appropriate Order Following service of the supplemental decision on the parties the provisions of Section 102 46 of the Board s Rules and Regulations shall govern Robert Levy II Esq for the General Counsel Robert Rickard Esq for the Respondent Union Michelle Mehaffy Esq for the Charging Party DECISION FRANK H ITKIN Administrative Law Judge An unfair labor practice charge was filed in this case on August 1 1980 and a complaint issued on October 16 1980 An amended complaint later issued on July 15 1982 and a hearing was conducted in Beaumont Texas on October 12 1982 The General Counsel alleges that Respondent Union violated Section 8 (b)(1)(A) of the National Labor Relations Act by making certain coer cive statements to employee Phillip E Long and by fail ing and refusing to process employee Long s grievances and properly represent him Respondent Union denies that it has violated the Act as alleged On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by counsel I make the following FINDINGS OF FACT Bethlehem Steel Corporation is admittedly an employ er engaged in commerce and Respondent Union is admit tedly a labor organization Bethlehem Steel and the Union at all times pertinent here were parties to a col lective bargaining agreement covering an appropriate unit of the Employers pipe department workers includ ing Charging Party Phillip E Long The collective bar gaining agreement contained grievance and arbitration procedures (See G C Exh 2 ) Employee Long testified that he started working for Bethlehem Steel on January 1 or 2 1980 1 that about 6 months later on June 27 and July 2 he was reprimanded by the Employer because of his lack of production and that on July 3 he requested Union Steward E L Wilson to file and prepare three written grievances on his behalf pertaining to the reprimand (See G C Exhs 3 4 and 5) Wilson then asked Long Are you planning on joining the Union? Long explained that he was not really satisfied with certain of the Union s activities and procedures Wilson apprised Long If you are going to file these grievances you ought to join the Union be cause you will have a better chance of getting something accomplished Wilson added that he [Wilson] felt as though [Chief Steward] Emmette Newland would not act in [Long s] better interest if [he] was not a Union member About 6 days later on July 9 employee Long as he further testified went to speak to Chief Steward New land in an attempt to file his grievances Newland then asked Long if he was a union member Long acknowl edged that he had planned to join this past Monday but wasn t able to make the meeting Newland stated to Long Why don t you wait until you join before [you] file these grievances Long explained that he can t wait contracts time limitations Newland ap pnsed Long If [Long] didn t join the Union [he] would have a problem getting whatever [he] was asking in the grievances accomplished Long protested to Newland that the right to work law is supposed to guarantee me the same rights as the Union member Newland replied I know about the right to work law bring me the grievances Newland however warned Long I [Newland] am [a] 100 percent Union man I will determine what is right or wrong concerning Company matters I will determine what the Union will do and it is tough for anybody who didn t like it Long then went to his locker picked up his three typewritten grievances (G C Exhs 3 4 and 5) and re turned to Newland Newland after briefly looking over the three documents stamped General Counsels Exhibits 3 and 4 as received Newland however claimed that one of the grievances General Counsels Exhibit 5 con sisting of 1 1/2 pages of typewritten material was too lengthy to process to shorten it up Newland therefore refused to accept General Counsels Exhibit and handed it back Long recalled that Newland later spoke with Compa ny Foreman Billy Smith that same day July 9 about Long s grievances (G C Exhs 3 and 4) Long could not hear the entire conversation between Newland and Smith however he overhead Smith say to Newland This is a bunch of hog wash lies and untruths or some things like that All dates are in 1980 unless otherwise stated PLUMBERS LOCAL 195 (BETHLEHEM STEEL) 573 Smith also told Newland that he Smith didn t have time to read the grievances and instructed Newland to give them back to the job steward on the second shift Newland in turn returned General Counsel Exhibits 3 and 4 to Long and told Long to take these to steward Wilson Still later that same day July 9 Long as he further testified was instructed by management to go to the pipe office There Company Supervisor Wesley Smith informed Long We are terminating you for causing trouble and for failing to follow [supervisors] instructions Long asked for a written termination slip Long in ad dition requested Steward Wilson to join him in the office Long explained to Wilson that he was being ter minated Wilson asked Foreman Billy Smith why Long recalled that Billy Smith replied Mr Newland suggested we fire the man for caus mg trouble and for failing to follow supervisors in structions Following Long s firing on July 9 Wilson asked Long if he was going to file a grievance as a conse quence of his termination Long stated that he would file such a grievance Wilson responded You have seven days to file your grievance Long at the same time ex plained to Wilson that he had some grievances to hand you [Wilson] or to give back to you Long handed Wilson his written grievances (G C Exhs 3 4 and 5 ) Wilson stated that he would take them to the executive board and see what I can get done Thereafter on July 10 or 11 Long as he further testi feed telephoned Wilson and asked him what had been done with my grievances Wilson responded he hadn t taken them [G C Exhs 3 4 and 5] to the executive board yet and that he would see what he could do Long also asked Wilson What can be done about my being discharged Wilson reminded Long I told you to file a grievance within seven days Long identified General Counsels Exhibit 6 as his written grievance pertaining to his July 9 discharge This document is dated July 15 and was according to Long mailed to the Employer registered mail In General Counsels Exhibit 6 Long protested his discharge claim mg inter aha that I was refused my right to submit in writing my formal complaints [grievances] and further that his termination was actually due to my attempt to file these three written complaints Thereafter by letter dated July 30 Company Supervisor Wesley Smith ap prised Long (G C Exh 7) On July 23 1980 we received in the mail a letter from you dated July 15 1980 which apparently is intended to be a grievance The allegations contained in the grievance are denied It is Managements position that you were justly discharged on July 9 1980 for declining to follow your supervisors instructions and being an unsatisfactory employee The grievance is denied 2 Long secured the assistance of the East Texas Legal Services An attorney from East Texas Legal Services wrote the Employer on August 13 concerning Long s grievances and discharge On August 29 H K Jordan the Employers superintendent of industrial relations re sponded to East Texas Legal Services (G C Exh 8) stating that pursuant to the cited terms of the existing collective bargaining agreement Only the aggrieved or departmental steward has the authority to appeal the discharge grievance of Mr Long to Step No 2 within the prescribed 7 calen dar day period Therefore because you have no contractual authority to appeal the discharge gnev ance on behalf of Mr Long your appeal cannot be honored Furthermore any appeal at this time would be outside the 7 calendar day period and would be untimely Jordan added however without prejudice to the above position of the Com pany concerning the appeal of Mr Longs dis charge grievance we would consider an appeal of his discharge grievance to Step No 2 if such appeal is made by the aggrieved or the Union de partmental steward within 7 calendar days from the date of receipt of this letter Further Jordan noted In respect to your reference to grievances No 1 2 and 3 [G C Exhs 3 4 and 5] we have no record that any such grievances were ever submitted to the Company by the aggrieved or the Union depart mental steward In any event submission of such grievances at this time would be untimely and would not properly be in the grievance procedure 3 Long on or about September 8 wrote Company Rep resentative Jordan thanking him for allowing me this extra time to make another appeal on my behalf and ex plaining how on July 9 as recounted above he had at tempted to file and process his three grievances (See G C Exh 10) Long on this same day also wrote Union Business Manager P L Ellis explaining how he had at tempted to file his three grievances on July 9 and As you will plainly see by the contents of my griev ances and the misrepresentation by Mr Newland I was unjustly discharged Long further noted to Ellis I have sent a registered letter to Mr Jordan asking him for an appeal I further ask that L U 195 repre 2 Copies of the Employers letter as shown on G C Exh 7 were also sent to Union Representatives Wilson and Newland (I note that G C Exh 7 was received in evidence without objection ) 2 Copies of this letter were also sent to Union Representative P L Ellis (I note that G C Exh 8 was received in evidence without objec tion) 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sent me and act in my better interest [See G C Exh 9] On or about September 10 as Long testified Compa ny Representative Jordan telephoned Long to notify him that we are setting up a step two meeting at 4 p in on September 15 Long asked Jordan can I have my lawyers with me or at least my brother? Jordan replied No the Union will be there that will be plenty enough representation for you Subsequently on September 15 this meeting was held as scheduled Long recalled that among others Union Chief Steward Emmette Newland and Business Agent Jimmy Hulett were present Long asked Newland Are you here to represent me? Newland responded We are partially here or something to that effect Company Representative Jordan announced at the open ing of this meeting that the Company wasn t waiving its defense con cerning my discharge that they allowed us this time to set up an appeal meeting [and] that I was fired for failing to follow supervisor instructions and for causing trouble Jordan restated the Employer.. position in full Then Long stated his position Long was asked Did anybody from the Union speak at this meeting? He testified Mr Newland he then stood up and he said - he directed his attention to me and he said do you re member that day you were fired? He said you told Mr - he said you said that you weren t going to weld that pipe the way Mr Wesley Smith wanted you to weld it I said no that am t what I said I said I said I couldn t weld the pipe the way it was prepared to be welded And he [Newland] said well that am t the way I heard it And about this time business agent or business manager [Hulett] he was sitting there and he just shook his head and he said I have heard enough concerning this matter of your termination of the evidence that the Company has presented against you He said if the Company don t want you the Union don t want you either [Hulett] told me not to bother contacting the Union any further because this is all they were going to do for me and there wasn t nothing they could do to help me And I said okay fine I thanked them all and we left the meeting Long further recalled that between July 9 and Septem ber 15 no union representative had discussed with hin- why he was fired or what [his] side of the story was or anything like that Thereafter by letter dated September 22 (G C Exh 11) the Employer notified Long that without preju dice to its contention that his grievance appeal was un timely you [Long] did not convince Management at the meeting that you were unjustly discharged and I should be further noted that Management made it clear that any other grievances that you had would be untimely Union Business Agent Jimmy Hulett testified that he had no records or minutes of any meeting wherein any grievance concerning Phillip E Long was discussed Hulett also did not have any records of meetings be tween the Union and the Company concerning Long Hulett was asked Am I correct in my understanding that the Union did have one grievance submitted by Long? Hulett replied We had one letter there that was in the folder (G C Exh 6) Hulett then claimed I am not really familiar that familiar with this case The only time I got involved in it is the other day on the thing - the meeting of September 15 Hulett generally denied inter alia statements attributed to him by Long at the September 15 meeting Emmette Newland testified that he was the Union s chief steward during the above sequence of events New land claimed that on or about July 9 I had filed a couple of grievances for Long and he [Long] had a bunch of complaints and stuff that he was talking to me about wanting to know this and that and [he] kind of got a little out of hand in my opinion Of course I still handled it like I was supposed to do and I told him I was going to represent him Elsewhere Newland recalled that later that same day July 9 after Long was terminated I [Newland] asked nim if he wanted me to file a grievance for him for his termination He called me a son of a bitch He told me he didn t want a son of a bitch like me handling none of his business and that was it that he would take care of it Newland added He didn t want me handling his grievances and so therefore I didn t I got off of it after he told me that Newland acknowledged that he subsequently received a telephone call from Long wanting to know how his grievances were doing and I informed him at that time that I didn t have any grievances in process with him no more Newland claimed however that his supe nors at the Union informed me to go ahead and try to see if I could set up a meeting to try to help him out The Company then agreed to a September 15 meeting And Newland attended that meeting According to Newland at the September 15 meeting we went over the problems and ultimately the Em ployer denied the grievance On cross examination Newland testified in part as follows Q Well let s take them in order if we can The first conversation that you had with Mr Long is that the time when he said something about griev ances and you said something about having already filed them? Is that the first time that you are speak ing with Mr Long on July 99 A Earlier that morning yes sir That conversa tion had come up PLUMBERS LOCAL 195 (BETHLEHEM STEEL) 575 Q Is that the first time on that day that you were speaking with Mr Long? That is what I am trying to find out from you A As I recall it yes sir It has been two years Itis- Q What grievances had you filed that day sir for Mr Long? A I had - I don t remember what his griev ances stated but all my grievances filed have my signature and date received stamp from the pipe shop Q General Counsel Exhibit 3 is that one of them sir? A Yes sir this is one of them This is a step one I wrote it right here dated it 7/9 and my signs ture Q Is at the bottom righthand portion of the page? A Right Yes sir Q General Counsel Exhibit 4 is that one of them? A This is also one of them yes sir My signature is her There is something - Q The date is wrong A Yes Q Okay A Because this was - I done both of these in one day I think Q Okay General Counsel Exhibit 5 is that one of them? A I have never seen this one before to my recollection Q You have never seen that one before Okay The first two that I showed you General Counsel Exhibit 3 and General Counsel Exhibit 4 what did you do with those grievances Mr Newland A I filed them Q And what did you do after filing those two grievances as far as handling those grievances Mr Newland? A There is a 7 or 15 day - it is in the grievance procedure in the book - waiting period There is nothing you can do after you file a grievance except wait for the dates to come up Q So Mr Long had been fired before the period had gone by? A Yes sir Q What did you do after that if anything? A Well the day he got fired he told me he didn t want me handling them so I didn t do any thing with them anymore Q Is it your testimony that Mr Long told you I don t want you to handle those grievances that you filed for me or words to that effect? A He didn t want me handling anything of his to that effect Q I see So you did nothing further regarding those grievances which you say you filed A Yes sir I didn t do anything any further with them The man told me not to Newland later claimed on cross examination that there wa., several grievances he [Long] brought off on he second shift I don t even know if they were filed or not because it was the second shift steward E L Wilson 4 Newland was asked Who made the decision that the Union would not go to step 3 regarding Mr Longs termination after the September 15 meeting? Newland responded We were informed that he was going to take care of it that day We really had no buss ness going to step 2 Later Newland claimed Since the man was going through the Labor De partment [NLRB] we decided not to go any fur ther with it Then Newland claimed We didn t know what to do because we couldn t contact or find Mr Long Clarence Pearson previously employed by Bethlehem Steel and an alternate steward for the Union claimed that on July 9 he heard Long say to Newland in my [Pearson s] own words that he [Long] didn t want anybody like him [Newland] or anybody of his kind han dling any type of paperwork himself or something to that effect Pearson was asked Do you recall any specific language that Mr Long used? Pearson replied It was loudly spoken but as far as any specific words no I can t James Adams previously employed by Bethlehem Steel and a union member also claimed that on July 9 he heard Long tell Newland that I don t want [a son of a bitch] like you filing nothing for me Adams was uncertain what Newland was saying at the time Long in his testimony denied telling Newland that he did not want the Union handling his grievance or call ing Newland a son of a bitch Wesley Smith testified that he is not retired that he worked for Bethlehem Steel during the pertinent period as a supervisor that he has been a member of the Union for about 40 years and that employee Long worked for him the day he got fired Long apparently had com plained to Pipe Foreman Billy Smith why he [Long] wasn t on the heli arc work Pipe Foreman Billy Smith then instructed Supervisor Wesley Smith to put him [Long] on the heli arc welding and Long assertedly did not make any welds that day Consequently Supervi sor Wesley Smith assertedly heard Chief Steward New land tell Long that day that if he [Long] refused to do a job that was enough to get discharged over Supervi sor Wesley Smith acknowledged that prior to July 9 the day Long was fired he personally had no problems with Long Supervisor Wesley Smith also acknowledged that he did not threaten or warn Long about the possibil ity of discharge on July 9 that he did not previously sus pend Long and that the Employer did have a form of progressive discipline in operation at the time although you could fire any employee for refusing to perform his job Further Supervisor Wesley Smith acknowledged that on July 9 Long complained to him that the pipe that was to be welded wasn t prepared properly Supervi sor Wesley Smith also testified on cross examination 4 E L Wilson did not testify in this proceeding 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q Did Mr Long tell you that he needed some equipment to be able to prepare the pipe? A If he did I don t remember it Q He may have and he may not you just don t know one way or another9 A That is right Supervisor Wesley Smith also could not recall the full conversation between Long and Newland during the above incident on July 9 - I [Smith] don t know what he told Newland Supervisor Wesley Smith was admit tedly not called in on September 15 1980 to attend Long s grievance proceeding Finally on redirect exami nation Supervisor Wesley Smith was asked was there anything unusual about the job assigned to Long on July 99 Supervisor Wesley Smith answered Well yes it was to be an x ray weld It was a high pressure weld I credit the testimony of employee Long as recited above His testimony was substantiated in large part by uncontroverted documentary evidence His testimony was also substantiated in part by admissions of Union Representatives Newland and Hulett I note also that Union Representative Wilson did not testify Insofar as the testimony of Long conflicts with the testimony of Newland and Hulett I find on this record the detailed and complete account of this sequence by Long to be more reliable and trustworthy than the testimony of Newland and Hulett Long impressed me as a trustwor thy and candid witness On the other hand Newland and Hulett did not impress me as forthright and credible wit nesses Their testimony was at times vague evasive in complete and contradictory Likewise I do not believe the related assertions of Pearson and Adams to the effect that Long told Newland on July 9 not to process his grievances or act on his behalf These assertions were unclear incomplete and contrary to the credible testi mony of Long Finally insofar as Wesley Smith s testi mony conflicts with the testimony of Long I find here the testimony of Long to be more detailed and reliable Smith in my view was attempting to justify his summa ry firing of Long on July 9 Smith a union member for some 40 years was also attempting to support and bol ster Respondent Union s version of this sequence Discussion It is clear that a union violates the proscription of Sec tion 8(b)(1)(A) of the Act when it refuses to accept file or otherwise process bargaining unit employee griev ances or to fairly and impartially represent such employ ees because they are not members of the union Like wise threats to withhold such fair and impartial repre sentation also tend to impinge on employees Section 7 rights in further violation of Section 8(b)(1)(A) of the Act See generally Lea Industries 261 NLRB 1136 (1982) The credible evidence of record as detailed supra shows here that Respondent Union by its agents Wilson Newland and Hulett violated Section 8(b)(1)(A) as alleged Thus as found above on July 3 employee Long dis cussed with Union Steward Wilson the filing of his three grievances Union Steward Wilson warned Long If you are going to file these grievances you ought to join the Union because you will have a better chance of get ting something accomplished - [Chief Steward] New land would not act in [Long s] better interests if [he] was not a Union member Thereafter on July 9 when Long attempted to file his three typewritten grievances with Chief Steward Newland Newland warned Long If [Long] didn t join the Union [he] would have a problem getting whatever [he] was asking in the grievances ac complished Long however insisted on his statutory right to be fairly and impartially represented Newland in turn accepted only two of the grievances rejecting the third as too lengthy Newland thereupon briefly conferred with Company Representative Billy Smith and returned the two typewritten grievances to Long to take these to Steward Wilson Long in fact did take his three typewritten grievances (G C Exhs 3 4 and 5) to Steward Wilson on that same day Wilson thereupon agreed to take them to the executive board and see what I can get done Later on July 10 or 11 Long asked Wilson what had been done with my grievances and Wilson again responded he would see what he could do Neither the Company nor the Union has any record of these three grievances (See G C Exhs 8 and 11 And as noted Wilson did not testify here) Long was summarily discharged on July 9 He at tempted to process a further grievance pertaining to this discharge (See G C Exh 6) The Union claims howev er that Long did not want its assistance in processing this fourth grievance as well as processing the prior three grievances I have discredited this and related as sertions as contrary to the credible evidence of record Long repeatedly sought union representation and union assistance during the above sequence and it was with held because he was not a union member Long finally obtained private counsel and then the Union agreed to appeal the denial of Long s step one dis charge grievance The Employer participated in this appeal without prejudice to its claim that such appeal was untimely The Employer as noted had no record of Long s three prior grievances And at this appeal on September 15 Union Representative Newland did not only withhold assistance from Long but he instead spoke up in support of the Employers summary firing of the employee In like vein Union Representative Hulett announced to the Employer and employee Long at this appeal I have heard enough concerning this matter of your termination if the Company doesn t want you the Union don t want you either not to bother contacting the Union any further because this was all they were going to do The Union had made no attempt previously to interview Long and find out his version of the events culminating in his discharge on July 9 the subject of this appeal Long s appeal was subsequently denied by the Employer The Union by the foregoing conduct of its agents threatened employee Long that it wold not fairly and impartially represent him in filing and processing his grievances unlless he became a union member The Union later refused to accept file and process Long s PLUMBERS LOCAL 195 (BETHLEHEM STEEL) 577 grievances and to fairly and impartially represent him be cause he was not a member of the Union in violation of Section 8(b)(1)(A) of the Act 5 CONCLUSIONS OF LAW 1 Respondent Union is a labor organization as alleged 2 Bethlehem Steel is an employer engaged in corn merce as alleged 3 Respondent Union violated Section 8(b)(1)(A) of the Act by threatening employee Long that it would not fairly and impartially represent him in filing and process ing his grievances unless he became a member of the Union and by refusing to accept file and process Long s grievances and to fairly and impartially represent him because he was not a member of the Union 4 The violations found above affect commerce as al leged REMEDY Having found that Respondent Union violated Section 8(b)(1)(A) of the Act it will be directed to cease and desist from engaging in such conduct or like or related conduct and to post the attached notice Further be cause of Respondent Unions unlawful conduct it is un s The amended complaint alleges inter aba that since on or about September 15 1980 Respondent Union has failed and refused to accept and process Long s grievance pertaining to his discharge The amended complaint also alleges inter alia that since on or about July 3 1980 and continuing to date Respondent Union has failed and refused to accept and process a grievance concerning Long s earlier reprimand Counsel for Respondent now argues in his brief (p 3) that despite the limited scope of the complaint the General Counsel seemed to be contending at the hearing that the (discharge grievance) violation extended back in time as far as the date of the discharge itself-July 9 1980 This record makes clear that the full sequence commencing on or about July 3 and running through the September 15 grievance appeal hearing was fully litigated by all parties The date variations cited between pleadings and proofs in the context of this full sequence are not material here and cer tainly are not prejudicial to Respondent Moreover on this record these cited date variances fully litigated would not preclude an adequate and full remedy pertaining to the discharge grievance violation as found above certain here whether employee Long s grievances would have been found meritorious Where resolution of that uncertainty is required for the determination of monetary responsibility the Board has deemed it proper to resolve the question in favor of the injured employee and not the wrongdoer The Board has presumed for the purposes of remedy that the employees grievances in such a case if properly filed and fairly and impartially processed would have been found to be meritorious and would have resulted in reinstatement Cf Lea Industries 261 NLRB 1136 (1982) Indeed here it may also be pre sumed that if employee Longs initial three grievances had been properly filed and fairly and impartially proc essed Long would not have been summarily fired on July 9 Cf Lea Industries supra and Bowen v US Postal Service 459 U S 212 (1983) Respondent Union s backpay liability will therefore be limited to any loss Long suffered as a result of its refusal to accept file and process Long s grievances and to fairly and impartially represent him Here as in Lea In dustries supra processing of Long s grievances appears to be time barred under the collective bargaining agree ment but Respondent Union may be able to prevail upon Bethlehem Steel to waive these time limits as to all such grievances (G C Exhs 3 4 5 and 6) Respondent Union will be directed to make employee Long whole for any loss of earnings he may have sustained from July 9 1980 the date when the Union unlawfully refused to accept file and process Long s grievances and to fairly and im partially represent him and the day as noted he was summarily discharged until one of the following occurs Respondent Union secures consideration of Long s griev ances by Bethlehem Steel and thereafter pursues them in good faith and with all due diligence or Long is reinstat ed by Bethlehem Steel or obtains substantially equivalent employment Backpay shall be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) and interest thereupon as set forth in Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962) [Recommended Order omitted from publication I