Machinists Union Local 2699 (Miller Brewing Com-Pany)

1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Machinists Union Local 2699 (Miller Brewing Com- pany) and Walter Whitehead Case 10-CB-4999 February 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 14, 1988, Administrative Law Judge J Pargen Robertson issued the attached decision The General Counsel filed an exception and a sup- porting brief 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 exception and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order 1 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Machinists Union Local 2699, Albany, Georgia, its officers, agents, and representatives, shall take the action set forth in the Order MEMBER CRACRAFT, dissenting in part In the absence of any exceptions to the judge's finding that the Respondent violated Section 8(b)(1)(A) by refusing to take Whitehead's griev ance to arbitration, I agree with my colleagues that the Respondent violated the Act as alleged How- ever, in accordance with my partial dissent in Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 816 (1988) (Mack-Wayne II), I would place ' We note that the Respondent has not filed exceptions to the judge s decision Notwithstanding the General Counsels exception we find that the judge s recommended Order is consistent with the Board s provision al make whole remedy ordered in Rubber Workers Local 250 (Mack Wayne Closures) 279 NLRB 1074 (1986) (Mack Wayne I) However we disavow the judge s discussion of the remedy insofar as it suggests that the Respondent must make Whitehead whole even if it is able to process his grievance If the grievance is processed Whitehead will either win or lose If he wins he will be made whole by the employer pursuant to the terms of the arbitration if he loses no make whole relief will be in order In either event it would be improper to require the Respondent to reimburse Whitehead for any loss of earnings he may have suffered as a result of his discharge Thus under Mack Wayne I the Respondent can be liable for the make whole relief only if it is unable to process the grievance 279 NLRB 1074 1075 fn 7 Subsequent to our decision in Rubber Workers Local 250 (Mack Wayne) 290 NLRB 816 (1988) (Mack Wayne II) the Respondent filed a motion requesting that the Board either remand this case to the judge or defer to compliance the remedial issues concerning the merits of the un derlying grievance The General Counsel filed a response in opposition to the Respondents motion We leave to the compliance stage the remedial issues raised by the Respondents motion and direct that should a subse quent compliance hearing be necessary in this case Judge Robertson pre side at the hearing if available the burden of proof on the General Counsel to es tablish that Whitehead's grievance was meritorious before assessing backpay liability against the Re spondent Although it appears that the merits of the grievance were litigated to some extent at the underlying unfair labor practice hearing and that the General Counsel has not met the burden I would place on her, in recognition of the change in the burden of proof necessitated by my position in Mack-Wayne II and the fact that the General Counsel was not on notice of this change, I would remand the case to the judge to allow the parties to present evidence on the issue of whether the grievances were meritorious, with the burden on the General Counsel to establish that they were E Walter Bowman III Esq, for the General Counsel J D Crow Esq for the Respondent John M Capron Esq, for the Employer Chevine B King Jr Esq, for the Charging Party DECISION STATEMENT OF THE CASE J PARGEN ROBERTSON, Administrative Law Judge This case was heard in Albany, Georgia on 11 August and 2 and 3 September 1987 The complaint which issued on 29 June 1987 based on a charge filed on 19 May 1987, alleged that the Respondent violated Section 8(b)(1)(A) of the Act FINDINGS OF FACT I JURISDICTION In its answer Respondent admitted the commerce alle gations regarding the Employer, Miller Brewing Compa ny, at its facility in Albany Georgia that Respondent is a labor organization at all times material Respondent has been the exclusive collective bargaining representative for the employees in the unit described below, and at all times material Respondent and the Employer have main tained in effect collective bargaining agreements cover ing wages hours, and the terms and conditions of em ployment, including procedures for the processing of grievances through arbitration The bargaining unit is de scribed as All production and maintenance employees em ployed by Miller at its Albany, Georgia brewing fa cilities, but excluding all office clerical employees, plant chemical employees, professional employees quality control analysts instrumentation technicians, material coordinators dispatchers, schedulers in ventory systems coordinators, nurses, guards, and supervisors as defined in the Act It is further admitted that Walter Whitehead was an employee in the bargaining unit until his discharge 2 February 1987 and that since 9 May 1987 Respondent 292 NLRB No 134 MACHINISTS LOCAL 2699 (MILLER BREWING) 1223 has failed and refused to process through arbitration the grievance regarding Walter Whitehead s discharge The General Counsel contends that Walter White head's grievance was not processed to arbitration be cause Whitehead resigned his membership in the Union A Whitehead s Relationship with the Respondent Walter Whitehead worked for Miller Brewing in Albany, Georgia, from 13 November 1979 until 2 Febru ary 1987 After the Union was voted in, around 1980, Walter Whitehead joined the Union When the Respondent first organized the Albany facility, Whitehead was one of its shop stewards However, according to undisputed testimony from Walter Whitehead, which I credit, a number of black employees became disenchanted with the way Respond ent s newly elected president, James Payne, was treating black employees That disenchantment occurred during the first year James Payne was in office Whitehead was unsure when Payne was first elected Several black em ployees tried to resign from the Union but were unsuc cessful at that time because of Respondents constitution al time prohibitions against resigning Whitehead testified that he was vocal in a meeting held by the Union regarding efforts by black employees to get out of the Union In 1986, [m]aybe March or April, Whitehead and other employees carried around a list asking people to sign to withdraw from the Union On 20 May 1986 Whitehead submitted a written letter of resignation to Respondent Since that date Whitehead has not been a member of Respondent B Whitehead's Discharge Walter Whitehead was discharged on 2 February 1987 He was alleged to have violated the Employers attend ance program by having seven unexcused absences within a 12 month period According to the Employers records, Whitehead had unexcused absences on 14 February 7 March 24 April 5 and 9 May and 29 August 1986 and on 13 January 1987 The 13 January 1987 absence triggered the Em ployer's discharge procedure However, before the pro cedure developed to the point of notifying Whitehead of his discharge he had two additional unexcused absences on 16 January and 27 January 1987 C The Third Step Grievance Meeting On 2 February 1987 after his discharge, Whitehead signed a grievance form prepared by Respondents shop steward Michael Murray In accord with the collective bargaining agreement, Whitehead s discharge grievance proceeded directly to the third step The Respondent's efforts at that step are not in question The record shows that Respondents rep resentatives sought recision of Whitehead s discharge by presenting documentation regarding some of Whitehead s absences Two doctor excuses were presented Those documents from Dr William S Hutchings II were both dated 5 February 1987 Both documents referenced Walter Whitehead One stated, Please excuse for 5/5/86, the other, Please excuse on 4/24/86 " Additionally a letter was presented from a small bust ness assistant program director asking that Whitehead be excused because he attended small business administra tion work sessions in Atlanta on 28 September 1986 and 13 January 1987 That letter was dated February 4 1987 According to unrebutted testimony the Employer re fused to accept the above mentioned documentation as excusing any of Walter Whitehead s absences The Em ployer contended that all three documents were submit ted over 48 hours after the respected absences in viola tion of its published attendance program Moreover, the doctor s notes did not comply with the attendance pro gram requirement that doctors certificates contain 1 The nature of the illness or injury 2 A Statement that the employee was unable to work 3 The dates that the employee could not work 4 The date that the employee can return to work Regarding the letter from the small business director, the Employer contended that it was against its policy to excuse absences for personal business The Employer rejected Whitehead's grievance at the third step D The Union Decides Against Arbitration At the 9 May 1987 regular meeting of union members, consideration was given to arbitration of three discharge grievances, Walter Whitehead Jerel Hines, and Wayne Quimby According to the testimony of Respondent s grand lodge representative, George Hooper, which I credit Respondent's grievance review committee recom mended to the membership that they vote to arbitrate only the grievances of Jerel Hines and Wayne Quimby In agreement with the grievance review committee the members voted to arbitrate Hines and Quimby s griev ances The members voted against arbitration of the Walter Whitehead grievance The testimony is disputed regarding the actual words used but the record clearly shows that before the vote on Whitehead one member questioned whether Walter Whitehead was a union member Another member spoke up that it was not proper to consider that question that only the merits of the grievances should be considered The record shows that the discussion regarding White head s grievance was heated E The General Counsel's Argument The General Counsel argues that the record shows the Respondent refused to arbitrate Whitehead's discharge grievance because of Whitehead s actions against the Union including his resignation In support of his posi tion, the General Counsel points to evidence that agents of the Union said they would not assist Whitehead be cause he was not in the Union, evidence showing dispari ty in the Union s selection of grievances for arbitration and evidence showing that Whitehead's lack of member 1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ship in the Union was a telling factor in the member ship s decision not to arbitrate his grievance on 9 May 1987 There is record evidence supporting all the General Counsels points To determine the ultimate issues, it is necessary to examine the law and to determine the full extent of credible evidence supporting both the General Counsel and the Respondent F The Evidence conversation as occurring around the time he got out of the Union Whitehead resigned on 20 May 1986 At the hearing Whitehead testified the conversation with Tynes occurred somewhere around December 1986 or January 1987 I am also concerned with conflicts between the testi mony of Walter Whitehead and Gregory Nealis and Mi chael Murray However those conflicts do not involve Whitehead s testimony regarding Ed Tynes 1 Threats by Respondents representatives As shown above one of the premises behind the Gen eral Counsels case is its contention that Respondent s representatives said they would not represent Walter Whitehead a Ed Tynes Walter Whitehead testified that he had an arguement with one of Respondents shop stewards Ed Tynes, some time after he resigned from the Union regarding Tynes not returning to his job in time to permit White head to take his break Whitehead had temporarily re placed Tynes to permit Tynes to attend to union busi ness When Whitehead complained that Tynes had taken too long to file a grievance Tynes replied It don t make no difference I was on Union busi ness We am t representing none of you all scabs no way So you am t got no problem If you got a problem have it with the supervisor The above testimony of Walter Whitehead was not re butted Ed Tynes was not called Discussion I found Walter Whitehead to be a generally credible witness Although he demonstrated strong feelings re garding the circumstances of this case his factual testi mony was substantially supported by the record as a whole For example his testimony regarding the tele phone call from Respondents grand lodge representa tive, George Hooper is similar to that relayed by Hooper Both Whitehead and Hooper agreed that White head refused to consider reinstatement without backpay I did find that Whitehead s expressions regarding fears and conclusions were not well founded For example, his belief that the absence of both Respondents president and vice president from his discharge interview illustrat ed a disposition by Respondent not to lend him assist ance was actually explained to have been the standard procedure at that time due to a change in the collective bargaining agreement However that testimony did not involve alteration of factual perception As to facts rather then conclusions Whitehead appeared to testify fairly accurately in most instances Therefore to the extent his testimony is unrebutted I credit Whitehead s testimony I am persuaded by conflicts in his affidavit and testi mony at the hearing that Whitehead did not have a pre cise recollection regarding the date of his conversation with Ed Tynes In his affidavit Whitehead recalled the b James Payne George Waters Respondents second shift shop stew and testified that he talked to Respondents president James Payne about Walter Whitehead s grievance over his discharge Waters testified Q Okay More about that later Now who else was it that you inquired about the status of White head s grievance? A The president James Payne Q When was that? A A few days after the termination Q Where did that occur? A Right outside - Q Well, just give us the circumstances and what was said A Right outside the break room one day I in quired of how was things going with Walter s case And he said to me Well you know Walter s not a Union member As far as I in concerned the case is closed James Payne denied making this statement attributed to him by Waters Payne admitted that Waters asked about Whitehead s grievance at a steward meeting in April or May 1987 Payne testified that he told Waters that he had withdrawn Whitehead s grievance but that Grand Lodge Representative George Hooper had gotten an extension of time on the Whitehead grievance Discussion George Waters testimony was critical to Walter Whi tehead s case Waters admitted that he is a friend of Whitehead However Waters is also a union steward Waters demeanor at the hearing revealed that he felt Walter Whitehead had been wronged by Respondent Nevertheless Waters testimony was generally in line with that of other witnesses except that of James Payne For example as discussed below, Waters testimony regarding the 9 May 1987 membership meeting was sup ported by testimony from witnesses for Respondent to the extent all agreed that in discussing Walter White head s grievance a member brought up the question re grading whether Whitehead was in the Union Waters was also supported by admissions from others that a heated discussion developed regarding the Whitehead grievance There was disagreement regarding precise language (e g , whether the word scab was used) and as to identity of all the particular speakers However there was also disagreement among Respondents witnesses re garding the 9 May meeting MACHINISTS LOCAL 2699 (MILLER BREWING) Additionally I was impressed that even though Waters illustrated his feelings that Whitehead had been wronged, he also appeared to concern himself with the true facts On the other hand, I was not impressed with the de meanor of James Payne regarding his conversation with Waters Payne too, illustrated biasness in his testimony but unlike Waters, Payne was obviously evasive in some of his answers For example, when Payne was asked if Whitehead s nonmembership was discussed with the grievance review committee Payne replied Once the meeting was called to order and that s when everybody was in the room there was not any discussion concerning his status as a member On cross examination Payne testified that he could not say whether Whitehead s nonmembership was ever men tioned at the grievance review committee meeting i On consideration of the above the demeanor and the entire record, I credit the testimony of George Waters and, to the extent there is conflict, I discredit the testimony of James Payne c John McGrath The third incident in which an agent of Respondent revealed that Respondent would not help Whitehead be cause he was not a member also involved unrebutted tes timony Walter Whitehead testified that he phoned the boss of all the union agents in the area Roll Spencer at the Union s office in Dallas, Texas Whitehead was re ferred to John McGrath because Spencer was not in the office Whitehead was acquainted with John McGrath 2 Whitehead testified Okay What I explained to him, what had hap pened-which he knew anyway I could tell by the way some of the things he was saying He s saying Well, what you expect the Union to do? You got out of the Union I said Well I can remember back when you were going with Judy Goosby and she told the su pervisor she wasn t going to work, but you got her job back I said All those people out there on the special absentee program' I said You re going to tell me that I wasn t entitled to my job like the rest of the people I Other testimony reveals that Whitehead s nonmembership was men tioned in the grievance review committee meeting One member of the grievance review committee shop steward Freddie Banks on being called by Respondent testified A I don t remember who-the one who said something but the president told us to take into consideration that whether he was in the Union or not didn t have anything to do with what we decide whether we were going to arbitrate the case or not President said that don t have anything to do with it Don t have any reference to whether we-how we represent him Say we all got to represent him whether he s in the Union or not That s what the president said 2 Grand Lodge Representative George Hooper confirmed that White head had phoned Roll Spencer who is general vice president for the International Union and that Whitehead actually talked with Spencer s administrative assistant John McGrath 1225 He said, Well I don t want to get into all that He said, Well, anyway, George is down that way in that area I said, George? He said Yeah, George Hooper So he said Well, 111 see what I can find out That s what John McGrath told me I credit the above testimony of Walter Whitehead Therefore, the credited evidence shows that on three occasions representatives of Respondent made comments connecting Whitehead s nonmembership with the Re spondent s willingness to offer him assistance 2 The Respondents decision not to arbitrate a Grievance review committee meeting Only witnesses for Respondent were in a position to testify about the Respondents grievance review commit tee meeting Nevertheless there was evidence that Walter Whitehead s nonmembership was brought up when his grievance was discussed As shown above tes timony of grievance review committee member and shop steward Freddie Banks revealed that President Payne told the committee that Whitehead s nonmembership should not be considered as a basis to reject arbitration Vice President Floyd Beck testified to the contrary that there was no mention of Whitehead s nonunion status at the grievance review committee meeting James Payne s testimony in that regard was evasive Because of Banks admission I credit his testimony showing that Whitehead s nonmembership was men tioned The testimony of Payne, Beck, and Hooper shows that the grievance review committee recommended against arbitrating Whitehead s grievance At the same meeting the grievance review committee recommended that dis charge grievances of employees Jerel Hines and Wayne Quimby should be submitted to arbitration b Payne withdraws the grievance By letter dated 9 April 1987 Respondents president James Payne, withdrew a number of grievances includ ing the grievance over Whitehead s discharge Subse quently Grand Lodge Representative George Hooper persuaded the Employer to permit reinstatement of Whi tehead s grievance c The 9 May membership meeting Under the Respondents procedure the recommenda tion of the grievance review committee is submitted to the membership No membership meeting was held in April The discharges of Whitehead Quimby and Hines were considered in the May membership meeting Shop steward George Waters testified on behalf of the General Counsel regarding that membership meeting Q The vice president A Vice president Q Did Mr -do you recall if Mr Beck made his view known- A Yes he did Q -on the Quimby grievance? 1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A Yes he did Q What was said? A He thought that we had-that he had a good case because the company had previously accepted this grievance-I mean this excuse And he didn t understand why they didn't accept it the second time And Wayne was still an active member of this Union and we should do whatever we should do to try to save his job, even if we take it to arbitration Q Are you quoting Mr Beck? A Not quoting, but those were the-not verba tim, but those were the things that he said Q Was there a motion or recommendation made with respect to the Quimby grievance? A Yes, there were Waters testimony continued Q Thirdly do you recall if the Watler White head grievance was reported by the grievance com mittee A Yes, they were Q Are you able to recall how the Whitehead matter was brought up? A Yes, sir Very much so Q Tell us who said what and what was said about the Whitehead grievance from the beginning as best you remember A At one point, when Walters name came up, Ed Wimberly asked was he still a Union member And Tom Peters stopped him and said That s not the issue And Ed said, When did you or any body start-we start helping scabs? And that s the word they use when a person get out the Union And I told him-after they had had a few back and back words One was saying that we shouldn t because he was a scab And we shouldn t be spend ing our money on scabs And that was Ed Wimber ly Q Do you recall who was saying these things? A Ed Wimberly made most of those statements about not arbitrating this case [Discussion among parties ] Q (By Mr Bowman) Now who is Tom Peters? A Tom Peters also is a steward on the second shift in the warehouse Q And Mr Wimberly? Ed Wimberly? A He s on first shift Q He s a member? A Yes he is Q Do you recall what if anything further was said about Mr Whitehead s membership? A During the discussion the question was raised did he have a case And vice president Floyd Beck said he didn t have a case Then I intervened and I told him What happened to the excuses that I gave him? At that point he said the company did not accept those excuses They were outdated And we had a little argument to that point Because they were not outdated and I told him to refer back to them He said at the time he didn t have them Q Were there any commnets about Mr White head or his grievance from anyone other than Wim berly, Peters, yourself and Beck? A There were several commments made Most of them were that he was not a member And the three of us that felt that that shouldn t be an issue was trying to fight those comments Q Do you recall anything said about the expend iture of Union funds? A Ed Wimberly said that we d be wasting money to try to arbitrate a scab case Q Do you recall if anything was said about Mr Whitehead s status at any time in the past? A I made a comment to that point I told them that Walter got out of the Union for personal rea sons-I mean for a reason that-at one time, all of us tried to get out of the Union All of us blacks tried to get out of it because we didn t feel that we were getting honest representation And most got out just to reject the presidents decisions that he was making And he had also signed a Petition to get back in before this happened First shift steward Michael Murray was called by Re spondent Murray testified about the 9 May membership meeting A When his case was brought up there were two other cases All three of them were read out by Mr Beck For the grievance committee, their rec ommendation on those cases They got to Mr Whitehead s Ed Wimberly made the statement that there was a rumor that Mr Whitehead was not in the Union At that point I said That s not the issue here I said, We re not here to decide membership or non membership And that ended that discussion We then proceeded to go through the grievances in order Started back cause his was the last-Mr Whitehead s was the last grievance on the agenda And started back up Started arguing them all in sequence the way we usually-you know usually do Q Is that the way you usually do it? A Yes sir That s the way we-it s an arguing process unfortunately It s a lot of bickering People-you have personal feelings involved You know somebody might like this guy and some body-and you know there s always a lot of heated discussion on any grievance that goes to arbitration There s always a lot of discussion on them Q Well when it got to Mr Whitehead s case and when Mr Wimberly said that he had heard a rumor about Mr Whitehead s Union status, was there any other comments or discussion about whether or not he was a Union member or not? A That was it That was all the discussion that was-Mr Wimberly made that one statement and I made my statement and that ended that discussion [Discussion among parties ] MACHINISTS LOCAL 2699 (MILLER BREWING) 1227 Q (By Mr Crow) Did you hear Mr Wimberly make a statement that the Union don t need to be wasting their money on scabs9 A No sir Q Did you hear the word scab mentioned in this meeting at any time 9 A No sir Ed Wimberly and Respondents vice president, Floyd Beck, also called by Respondent , testified about the 9 May membership meeting Wimberly and Beck testified in subtantial accord with Michael Murray Wimberly elaborated regarding the tone of the discussion A No sir The only thing I recall is bedlam broke loose during the report from the grievance review committee Q About Whitehead? A About all three of them Q Oh, they were all controversial? A No, sir Q Which ones were controversial? A Mr Whitehead s Q Okay A Mr Hines Q Okay Not Mr Quimby s9 A No, sir Wimberly agreed that his comment regarding the rumor of Whitehead not being in the Union did generate controversy during the membership meeting He also tes tified that George Waters was basically the only one that was pushing for arbitration of the Whitehead griev ance Discussion I credit the testimony of George Waters regarding the membership meeting on 9 May 1987 except that I credit the testimony of Respondents witnesses that the term scab was not used in the meeting George Waters admit ted that he did not use that expression in his pretrial affi davit to the Regional Office I also credit testimony showing that Michael Murray , rather then Tom Peters as recalled by Waters responded that Whitehead s mem bership or nonmembership was not the issue The credited testimony of George Waters does show that the issue of Whitehead s resignation from the Union was presented to the membership at the 9 May meeting A heated discussion followed and the members voted not to arbitrate Walter Whitehead s grievance 3 Merits of Whitehead s grievance This particular premise of the General Counsels argu ment will be discussed below 4 Conclusion Section 8(b)(1)(A) of the Act provides in part It shall be an unfair labor practice for a labor or ganization or its agents to restrain or coerce em ployees in the exercise of the rights guaranteed in Section 7 Section 7 of the Act provides Employees shall have the right to self organization to form loin, or assist labor organizations to bar gain collectively through representatives of their own choosing, and to engage in other concerted ac tivities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au thorized in section 8(a)(3) [section 158(a)(3 ) of this title] In view of my findings and fact , the records shows that by implying on three occasions-once by a shop steward once by the local president , and once by the International vice president 's administrative assistant- that it would not help Walter Whitehead because he was not in the Union , Respondent was telling unit employees that its assistance to employees would be affected by em ployees exercise of Section 7 rights, i e , the right to join (or not to join) labor orgainzations By subsequently refusing to arbitrate Whitehead s dis charge, under circumstances that included heated discus sions about Whitehead s being out of the Union Re spondent contributed more fuel to the message that it would not help Whitehead because he had resigned from the Union The Respondent counters the above by arguing that Whitehead s resignation did not contribute to its decision not to arbitrate and, in any event , Whitehead s arbitra tion clearly lacked merit and would have failed if pre sented The specific words of Section 8(b)(1)(A) make it ques tionable whether either of Respondents arguments present a valid defense in this particular case Statements to two employees that Whitehead would not be helped because of his resignation followed by Respondents de termination not to arbitrate Whitehead s discharge griev ance illustrated to all unit employees the dangers of a defiant resignation from the Union Regardless of wheth er Respondents true motive was or was not tainted by Whitehead s resignation and regardless of whether Whi tehead s grievance possessed or lacked merit the implica tions from the statements by its agents and the contro versy in a decisive membership meeting remain the same-i e Whitehead would not be helped because he resigned from the Union Nevertheless, this case presents conflicting issues On the day before his seventh absence Walter Whitehead questioned the Employers labor relations representative Gregory Nealis, whether Whitehead could qualify for unemployment benefits if he quit work When Nealis re plied that he did not think so, Whitehead asked What if I get fired Nealis replied that he was not sure Gregory Nealis told the Union about the above con versation with Whitehead when the Employer and Re spondent met for the third step of Whitehead s discharge meeting 1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover Gregory Nealis testified that Walter White head had a poor work record and a bad attendance record That testimony was documented in the record by the submission of portions of Walter Whitehead s person nel file On an earlier occasion 9 September 1986 the Employer rescinded a discharge of Walter Whitehead even though Whitehead had seven unexcused absences within 12 months On that occasion, after Whitehead argued he had missed work due to his mother s illness which had been previously excused the employer point ed out that regardless of the reason for an absence Whitehead was required to provide adequate documenta tion within 48 hours of each absence On that occasion the Employer decided to give Whitehead another chance after his steward3 argued that Whitehead had not under stood that acceptable documentation was required on the occasion of each absence Further confusion is added when the General Counsel argues that there was disparity in the Union s handling of grievances for arbitration For example, the Union sub mitted the grievances of Jerel Hines and Wayne Quimby to arbitration following the 9 May 1987 membership meeting when Whitehead s grievance was terminated Both Quimby and Hines like Whitehead had seven un excused absences in the 12 month period From the testimony of James Payne it appears that Quimby missed work because he was in jail However the Respondent argued that the Employer had previous ly accepted documentation from the judge and excused a similar absence Jerel Hines was in the Employers spe cial attendance program because his total absences, ex cused and unexcused exceeded 10 percent of his total available workdays Therefore, the record calls into question whether either Quimby or Hines presented better cases for arbitration than did Walter Whitehead Moreover records received in evidence illustrated that Respondent has previously been successful in obtaining the reinstatement of discharged employees with attend ance records similar to Whitehead s In summation it appears that the Walter Whitehead controversy presents a complex legal question Does the Union violate Section 8(b)(1)(A) by refusing to process a discharge grievance to arbitration under circumstances showing, (1) that the Union s agents expressed the intent of the Union not to help the discharged employee be cause he had resigned from the Union (2) that the em ployee s resignation from the Union was discussed in the meetings in which the decision was made not to arbi trate, and (3) that the grievance appeared no less merito rious than some cases that the Union took to arbitration and other cases in which the Union successfully obtained reinstatement for the affected employees However it must also be considered the record evidence shows (1) that the grieving employee may have intentionally sought discharge to receive unemployment benefits, and (2) that serious questions were raised as to the likelihood of success of arbitration Although the Union is afforded wide discretion in de termining whether to take a greivance to arbitration s The steward admittedly acted on his own without the knowledge of Respondent s officials Unions have the responsibility of representing the inter est of all the employees fairly impartially and in good faith Steele v Louisville & Nashville Railroad Co, 323 U S 192 203 (1944) A union is prohibited from actions when its conduct toward a member is arbitrary dis criminatory, or in bad faith Vaca v Sipes, 386 U S 171 190 (1967) Furthermore a union must represent fairly the inter est of all bargaining unit members during the negotiation administration and enforcement of collective bargaining agreements Electrical Workers v Foust 442 U S 42, 47 (1979) The Unions duty extends to all persons within the bargaining unit whether or not union members Elec trical Workers IBEW Local 2088 (Federal Electric) 218 NLRB 396 (1975) Also in Vaca v Sipes supra, the Supreme Court said that a union may not arbitrarialy ignore a meritorious grievance or process it in a perfunctory fashion The language in Vaca noted above raises the question to what extent the merits of the grievance determinative of whether a union s actions in denying arbitration may constitute a violation of the Act In that regard the Fifth Circuit held that a breach of the fair representation duty cannot be based on the trail court s view regarding the probability of success on the merits of a grievance Freeman v 0 Neal Steel 609 F 2d 1123 (5th Cir 1980) In one case the Board adopted the findings of an ad ministrative law judge of no violation on determining notwithstanding the Union s hostility to nonmembers, that the Union would still have refused to accept and process Ruchs grievance without regard to his lack of membership Electrical Workers IBEW Local 2127 (Sieman Allis) 271 NLRB 885 889 (1984) In another case the Board found Where as here a union undertakes to process a grievance but decides to abandon the grievance short of arbitration the finding of a violation turns not on the merit of the grievance but rather on whether the union s disposition of the grievance was perfunctory or motivated by ill will or other invidious considerations Bottle Blowers Local No 106 240 NLRB 324 (1979) Should Respondent be able to defend the unfair labor practice allegations by showing that the Whitehead grievance lacked merit or, alternatively limit its remedial obligations by showing the grievance lacked merit In that regard substantial evidence was offered through the employer Miller Brewing Company The Employers labor relations representative Gregory Nealis offered documentation That evidence showed that Whitehead actually missed more then seven times with out excuse from 2 February 1986 to 2 February 1987 A number of those absences were overlooked by the Em ployer and on one occasion 9 September 1986 the Em ployer processed Whitehead's discharge for having seven unexcused absences during the 12 month period As shown elsewhere in this decision, the employer decided to excuse Whitehead s seventh absence and that dis charge was rescinded Also Whitehead had two addi MACHINISTS LOCAL 2699 (MILLER BREWING) tional unexcused absences between 13 January 1987 and his 2 February 1987 discharge Nealis testified that Whitehead was not a good em ployee The record shows that Whitehead has received several disciplinary actions including verbal and written warnings and one 3 day suspension since 1980 for in fractions other than absenteeism Those infractions in cluded unauthorized absences from his work area and ne glect of duty From 1980, Whitehead received one 3 day suspension for leaving his assigned work area, one writ ten warning for neglect of duties two written warnings for leaving assigned work area and four verbal warnings for misuse of time or leaving assigned work areas White head has received several additional warnings and one suspension for absenteeism problems since 1980 Nealis also testified that on 12 January 1987 White head asked about unemployment benefits should White head quit or be fired In consideration of the above as it regards Walter Whitehead, the record also shows that Whitehead worked for the employer from 13 November 1979 Al though Nealis characterized Whitehead as a poor em ployee the stated grounds for Whitehead s discharge was limited to seven unexcused absences within the preceding 12 months The employer never alleged the existence of additional grounds for discharge Moreover there was showing that the employer was considering disciplinary action against Whitehead for any reason before 13 Janu ary 1987-the date of Whitehead s seventh unexcused ab sence The Respondent offered one arbitrators decision for the proposition that arbitrators do not generally view discharges for absenteeism with favor That offer was re jected Respondent offered documentation of several other discharge cases In the first of those discharge cases offered by Re spondent, the employee was discharged for five failure to report off' absences within 1 year That case went to arbitration Employees are required to phone in at least 1 hour before work to report their absence This is a dif ferent rule infraction from the one involved in White heads case The arbitrators decision which is in evi dence in finding the discharge was for good cause found no disparity in treatment He also found that the discharged employee had the worst attendance record of any mentioned by the Union-from 1982 through 1984 16 unexcused absences, 13 tardy/leave early, and 5 fail ures to report off Regarding unexcused absences, Respondents Exhibit 14 includes one corrective action on an unidentified em ployee marked received 27 July 1984 showing the em ployee was charged with six unexcused absences and re ceived a final written warning The document shows however that the employee missed 4 days in his third occurrence for a total of nine absences Another dated 25 July 1984 shows eight unexcused absences within 1 year resulted in only a written warning Another under Respondent's Exhibit 16, dated by the supervisor 1 May 1986, shows eight unexcused absences with two occa sons of consecutive days absent That employee was charged with six unexcused absences and issued a final 1229 written warning There are other documented examples of the employers handling of consecutive misses as a single occurrence of unexcused absences The above examples show that the employer did not uniformly follow a hard line in administering its attend ance rules In fact by letter dated 13 February 1987, the Employer agreed to rescind a discharge after discussion with the Respondents representatives concerning an em ployee who was treated for substance abuse The record does show that the Employer has normally administered its attendance program in accord with its specific terms The Employer regularly disciplined em ployees for violating its attendance policy Those disci plinary actions have in the past included oral and written warnings suspensions and discharges However, the record also shows that the Employer has occasionally deviated from the strict terms of its attendance program by ignoring or not counting all absences and by rescind mg and amending disciplinary actions including dis charge The record also shows that the Union has occa sionally been successful in influencing the Employer to adjust its action in a manner favorable to the employee involved The arbitrator in the one decision offered regarding unit employees , considered the issue of disparity Here, there is evidence showing that Whitehead s absentee record was no worse than some other employees More over the record shows that the Employer has excused previous unexcused absences in some cases and has re scinded discharges on evidence of mitigating circum stances Both those areas provide grounds through which Walter Whitehead could possibly prevail in an arbitra tion case Nevertheless the bulk of the documentation received through the testimony of the Employers labor relations representative shows that Walter Whitehead s grievance may fail if it proceeds to arbitration Whitehead s record with the Employer was not above average He has, as shown above regularly received disciplinary actions from the Employer and his attendance record has con sistently included enough unexcused absences to justify disciplinary action since 1980 Moreover Whitehead s at tendance record appears to have worsen in 1985 1986 and 1987 Additionally the bulk of the documentation regarding other employees shows that the employer routinely dis charged employees for offenses similar to the absentee infractions of Walter Whitehead Should the Board decide to apply the test of Wright Line 251 NLRB 1083 ( 1980) enfd 662 F 2d 899 ( 1st Cir 1981), cert denied 455 U S 989 (1982), to 8(b)(1)(A) cases? In Siernen Allis supra the Board approved an ad ministrative law judge s application of Wright Line to an 8(b)(1)(A) situation There the question was possed as would the union have processed the employees griev ance to arbitration absent the employees protected ac tivities Of significance regarding the Siemen Allis question is a comparison between Walter Whitehead s record with the records of the two union members the membership de cided to defend through arbitration on 9 May 1987 As 1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shown above, the record evidence shows that White head s case appears to possess as much or more merit then the cases of Jerel Hines and Wayne Quimby Re gardless of how weak Walter Whitehead s case may be in comparison with prior actions by the Employer, it is difficult to justify action in pursuing the two grievances for union members to arbitration, while rejecting Walter Whitehead s in light of the language of Section 8(b)(1)(A) The respondent in Rubber Workers Local 250 (Mack Wayne Closures), 279 NLRB 1074 (1986), failed to offer evidence as to the merits of the grievance As shown above, Respondent here actually offered evidence re garding the merits of Whitehead s grievance However, the entire record illustrated that Whitehead s work record compared favorably with the records of other employees who have been represented by Respondent through arbitration The Board in Local 250 found, inter alia In entering a provisional make whole remedy we are aware that the merits of 0 Neill s grievance are uncertain This uncertainty, however, derives in large measure from the Respondents breach of its duty to provide fair representation, which prevent ed resolution of the grievance in the first instance In the absence of evidence warranting a finding that the grievance lacks merit, and in order to restore the status quo existing before the Respondent Union violated the Act by preah ding the grievance s proper resolution, we resolve any uncertainty in favor of the victim and against the wrongdoer Such a remedy in cases which there has been a breach of the duty of fair representation is consist ent with fundamental equitable principles and with longstanding Board precedent See Graphic Commu nications Local 4 (San Francisco Newspaper) 272 NLRB 899 (1984) Prior to granting a make whole remedy in a case such as this our dissenting collegue would require the General Counsel to establish not only a breach of the duty of fair representation but also to estab lish that the grievant had a meritorious claim againt the employer-a two pronged requirement We be lieve that such a two pronged requirement howev er misapprehends the nature of a breach of the duty of fair representation for in this context it is the failure to process itself which has legal signifi cance, not the meritoriousness of the grievance Having breached its affirmative obligation to the grievant however an obligation which we all find is mandated by the Act, the offending union hardly can be heard to complain about having to assume the burden of establishing by way of defense that its breach makes no difference because the grievant would have failed in his cause anyway Having de termined that the Union failed to represent 0 Neill fairly we believe the Union properly bears the risk of its misconduct Otherwise 0 Neill s injury would remain unaddressed and the Union s violation large ly undeterred-a result wholly at odds with the Act s remedial purposes Our dissenting collegue in reaching a contrary conclusion relies on two circuit court decisions which in turn relied heavily on Section 301 cases in reaching their conclusions But Section 301 actions, such as Hines v Anchor Motor Freight, which is cited by the dissent , involve suits based on con tract-matters which clearly require a showing of contract breach, i e , merit prior to recovery And although the liability of a union in Section 301 action in some sense may derive in part from the statutory requirements to fairly represent , such con tract cases simply are not statutory cases like the one before us today DelCostello v Teamsters, also cited by the dissent, would be a long shoehorn indeed if it could be used to incorporate the ele ments of a contract action into a claim of statutory violation like the one here We reiterate that the absence of evidence regard ing the merits of the grievance in issue should not be confused with the fundamental question of who has the burden of adducing such evidence We do not quarrel with the fact that no evidence of merit appears in this record We simply adhere to the tra ditional view that the wrongdoer should bear the burden of demonstrating that its breach of its duties to the employee, which breach itself stands as an in dependent violation of the Act, emphasis added was a monetarily harmless one because the employee would have lost anyway The failure of the Re spondent to demonstrate that its breach was mone tarily a harmless one does not result in a specula tive award It results in a proper disposition of the equities against a wrongdoer in furtherance of the remedial purposes of the Act It is important to recall that Wright Line involved an 8(a)(3) and ( 1) complaint The issue posed by the Board in Wright Line reflects the unique language in Section 8(a)(3) i e whether an employees employment condi tions were adversely affected by his or her engaging in union or other protected activities (251 NLRB 1083 (1980) Section 8(a)(3) prohibits Discrimination in regard to hire or tenure of employment Section 8(b)(1)(A) on the other hand prohibits a labor organization from restraining or coercing employees in the exercise of rights guaranteed in Section 7 Perhaps in a discharge case such as the case of Walter Whitehead consideration should be given to the scope of the remedy in a fashion similar to the standard proposed in Wright Line However oftentimes the question of remedy must be considered separately from the unfair labor practice issue I find that when the issues are examined against the language of Section 8(b)(1)(A) or when the Wright Line test is applied in the manner of Siemen Allis the result must be a finding that Respondent violated Section 8(b)(1)(A) Although it is questionable whether Walter Whitehead s grievance would prevail at arbitration it is clear that Respondent restrained and coerced employees by threatening to withhold and actually withholding its services because of Whitehead s resignation MACHINISTS LOCAL 2699 (MILLER BREWING) CONCLUSIONS OF LAW 1 The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent is a labor organization within the mean ing of Section 2(5) of the Act 3 By refusing to process to arbitration Walter White head's grievance, Respondent breached its duty of fair representation and thereby restrained and coerced Walter Whitehead in the exercise of rights guaranteed in Section 7 of the Act and thus violated Section 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act It is apparent that only by taking the Walter White head grievance to arbitration may the Respondent remedy its unlawful acts However, due to the lapse of time delays reflected in the collective bargaining agree ment the Employer who is not party to these proceed ings, may elect to refuse to permit arbitration Neverthe less, that delay was generated by Respondents unlawful action To restore the status quo existing before the Re spondent Union violated the Act we resolved any uncertainty in favor of the victim and against the wrong doer Local 250 supra Therefore I shall recommend that Respondent proc ess or attempt to process, Walter Whitehead s grievance in good faith with all due diligence through arbitration and that Respondent shall make Whitehead whole for any loss of earnings he may have suffered as a result of his discharge on 2 February 1987, until the earlier or the following occurs Respondent processes Whitehead s grievance in good faith with all due diligence through arbitration or Whitehead is reinstated by the Employer or obtains other substantially equivalent employment Service Employees Local 579 (Beverlyn Manor) 229 NLRB 692 (1977) with interest to be computed in the manner prescribed in New Horizons for the Retarded 283 NLRB 1173 (1987) 4 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed5 4 In accordance with the Board s decision in New Horizons for the Re tarded 283 NLRB 1173 (1987) interest on and after 1 January 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set at in the 1987 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 5 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses ORDER 1231 The Respondent, Machinists Union Local 2699, Albany, Georgia, its officers, agents, and representatives, shall 1 Cease and desist from (a) Restraining or coercing any employee in the exer cise of rights guaranteed by Section 7 of the Act by fail mg to process in good faith and with due diligence, grievances, or by arbitrarily refusing to consider and process grievances, to arbitration where appropriate (b) In any like or related manner restraining or coerc ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Request Miller Brewing Company to reinstate Walter Whitehead to his former position of employment and, if it refuses to do so take all actions within its power to promptly pursue the remaining stages of the grievance procedure, including arbitration, in good faith with all due diligence (b) In the event that it is not possible to pursue the re maining stages of the grievance procedure, resulting in the inability to resolve the grievance of Walter White head on the merits, make Whitehead whole for any loss of pay he may have suffered as a result of its unlawful conduct in failing to process his grievance, by payment to him of the amount he would normally have earned from the date of his discharge until he obtains substan tially equivalent employment, less his net earnings during the backpay period, together with interest (c) Post at all places where notices to employees ap plicants for referral and members are posted copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 10 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 8 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency Of The United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act give employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT restrain or coerce any employee in the exercise of rights guaranteed by Section 7 of the Act by failing to process in good faith with due diligence griev ances or by arbitrarily refusing to consider and process grievances to arbitration where appropriate WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act We will request that Miller Brewing Company rein state Walter Whitehead to his former position of employ ment and if it refused to do so, we will promptly seek to process Whitehead s grievance through the remaining stages of the grievance procedure, including arbitration, in good faith with all due diligence WE WILL make Walter Whitehead whole, with inter est for any loss of pay he may have suffered as a result of our failure to fairly process his grievance concerning his discharge by Miller Brewing Company if his griev ance concerning his discharge cannot be processed through arbitration MACHINISTS UNION LOCAL 2699