Teamsters Local Union No 528

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No 528, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Walsh Construction Company) and Robert E Johnson. Case 10-CB-3610 17 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 3 June 1983 Administrative Law Judge Law- rence W Cullen issued the attached decision The Respondent Union filed exceptions and a support- ing 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 record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent violated Section 8(b)(1)(A) of the Act by failing to process, in a fair and impartial manner, the grievance of Robert E Johnson concerning his layoff by the Employer, Walsh Construction Company We find merit in the Respondent's exceptions, and for the reasons stated below we find that the Respondent did not breach its duty of fair representation As noted by the judge, employee Johnson was laid off from his employment as a truckdriver for Walsh Construction Company at its Vogtle con- struction site on 1 May 1981 1 Johnson's foreman told him that Johnson and two other drivers were being laid off because there was insufficient work for them Johnson, a black employee, asked the foreman if he had been selected for layoff because he was associating with white females The fore- man replied that Johnson knew why he was being laid off and refused to discuss the matter any fur- ther According to the credited testimony, Johnson called the union office and spoke to business agent James E Moseley on Saturday, 2 May On Monday, 4 May, Johnson visited the union office and talked to Business Agent Moseley He asked Moseley to file a grievance concerning his layoff and Moseley refused to do so Sometime in May, Johnson filed a charge with the Equal Employment Opportunity Commission alleging that the Union had failed to represent him 2 On 3 June Johnson filed the instant unfair 1 All dates hereafter are in 1981 unless otherwise indicated 2 Johnson subsequently withdrew this charge labor practice charge with the Board against the Union 3 On 19 June Moseley accepted Johnson's grievance Moseley warned Johnson that there was no contractual seniority provision and that Walsh Construction Company had virtually unlimited dis- cretion concerning layoffs under the terms of the Vogtle Plant Project Agreement Moseley pre- pared the grievance from a written statement sub- mitted by Johnson In the grievance statement Johnson acknowledged that the Employer had told Johnson he was being laid off for lack of work Johnson alleged, however, that "an employee in- formed me that my layoff was attributed to my so- cializing with a white female" Johnson never iden- tified his alleged informant and he provided no fur- ther details about his claim of race discrimination After mailing Johnson's grievance to Walsh Con- struction Company, Moseley met with the Employ- er's project manager The project manager told Moseley that Johnson and several other employees had been laid off because of a temporary reduction in force and for no other reason Moseley did not undertake any further investigation of Johnson's grievance Subsequently, Moseley wrote to John- son and told him that his grievance was being withdrawn because it lacked merit and had been untimely filed 4 In October, Johnson was referred through the union hiring hall and was reemployed by Walsh Construction Company It is settled that "[a] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bar- gaining unit is arbitrary, discriminatory, or in bad faith" Vaca v Sipes, 386 US 171, 190 (1967) Thus, an employee is subject to the union's discre- tionary power to settle or even abandon a griev- ance, so long as it exercises its discretion in good faith Id at 193 Here there is no evidence of union hostility, discrimination, or other mdicia of bad faith The only issue then is whether the Union's handling of Johnson's grievance was arbitrary We find from the facts in this case that the Gen- eral Counsel has failed to meet his burden of prov- ing that the Union acted arbitrarily, in breach of its duty of fair representation It is undisputed that the project agreement afforded Walsh Construction Company broad discretion over layoffs 5 It is also 3 Johnson also filed unfair labor practice charges against the Employ- er, Walsh Construction Company However, he withdrew those charges when he was reemployed by Walsh in October 1981 4 Moseley admitted at the hearing that Walsh Construction Company had raised no objection about processing Johnson's grievance, even though the contractual filing period had expired 5 We note that the Vogue Plant Project Agreement contains a nondis crimination provision at the end of Article 7, Wage Scales and Fringe Benefits, which prohibits discrimination by any party against any ern ployee or applicant for employment "because of race, religion, sex, na tional origin or age ' 272 NLRB No 6 TEAMSTERS LOCAL 528 (WALSH CONSTRUCTION) 29 undisputed that other employees were laid off at the same time as Johnson because of a reduction in force There is no suggestion that their layoffs were discriminatorily motivated Further, Johnson himself provided the Union with no evidence of racial discrimination He merely stated that an un- identified employee had said that his (Johnson's) layoff was due to his association with white fe- males Such a vague and unsupported allegation did not, in the circumstances of this case, require the Union to press the employee's grievance beyond the initial stage at which the Company un- equivocally denied any discriminatory motive for Johnson's layoff As the Third Circuit has stated, "[T]he union has an obligation in exercising its power as bargaining agent to act fairly under the collective bargaining agreement and not to assert or press grievances which it believes in good faith do not warrant such action" Bazarte v United Transportation Union, 429 F 2d 868, 872 (3d Cir 1970) Accordingly, we shall dismiss the complaint herein 6 ORDER The complaint is dismissed o In view of our dismissal of the complaint, we find it unnecessary to reach the remedial issues raised by the Judge s proposed backpay order DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge This case was heard before me on September 1 and De- cember 9, 1982, at Augusta, Georgia The hearing was held pursuant to a complaint issued by the Acting Re- gional Director for Region 10 of the National Labor Re- lations Board on July 14, 1981 The complaint is based on a charge filed by Robert E Johnson, an individual, on behalf of himself on June 3, 1981 The complaint al- leges that Respondent Teamsters Local 528, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Respond- ent or Union) has violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act (the Act), "by failing and re- fusing to process a grievance by Robert E Johnson pur- suant to a collective-bargaining agreement between Re- spondent and Walsh Construction Company, at a time when Johnson was employed by Walsh in a job classifi- cation included within the collective-bargaining agree- ment executed between Respondent and Walsh Con- struction Company effective from October 31, 1979, to October 31, 1981, and containing a grievance and arbitra- tion provision" The complaint is joined by the answer of Respondent wherein it denies the commission of the alleged violation of the Act On the entire record in this proceeding including my observation of the witnesses who testified herein, and after due consideration of the positions of the parties and briefs filed by the General Counsel and counsel for Re- spondent, I make the following' FINDINGS OF FACT AND ANALYSIS I JURISDICTION The complaint as amended at the hearing alleges that Walsh Construction Company (Walsh) is and has been at all times material a Delaware corporation, with an office and place of business located at Waynesboro, Georgia, where it is engaged in the building and construction in- dustry as a general contractor and that "during the past 12 months, which period is representative of all times material herein, provided services valued in excess of $50,000 to the Georgia Power Company in Waynesboro, Georgia," and that "Georgia Power Company, in turn, purchased and received at [its] Georgia facilities goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of Georgia," and that "Walsh is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act" The General Counsel adduced evidence through the testimony of Jack Oliver Durra, assistant construction project manager of adminis- trative operations for Georgia Power Company at its Plant Vogtle operation, who testified that during the past 12 months, Georgia Power Company's gross revenues have exceeded over $500,000 and during that period Georgia Power Company purchased goods and supplies valued in excess of $50,000 from points located outside the State of Georgia for receipt at its Georgia facilities Frederick Robert McCarty, project manager for Walsh at the Georgia Power Company's Plant Vogtle construc- tion project site near Waynesboro, Georgia, testified that Walsh is a division of the Guy-Fackersen Corporation which is incorporated in Nevada He testified that Walsh's principal office and place of business is in Darien, Connecticut, and that Walsh maintains an office and place of business at the Vogtle plant construction site where it performs services as a civil structural con- tractor for Georgia Power Company pursuant to a con- tractual agreement and requisitions and receives materials for work on the project from Georgia Power Company and receives compensation for its services from Georgia Power Company which compensation exceeded an aver- age of $8 million a month during the preceding 12 months On the basis of the foregoing unrebutted testi- mony of Durra and McCarty, I find that Walsh Con- struction Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 ' The following includes a composite of the testimony of the witnesses at the heanng, which testimony is hereby credited except Insofar as spe- cific credibility resolutions are hereinafter made 2 Welfare Pension & Vacation Funds Local 29, 256 NLRB 1145 (1981) 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent, General Teamsters Local Union 528, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE On May 1, 1981 (a Friday), Charging Party Robert E Johnson, a black, was laid off from his employment as a truckdriver for Walsh at the Vogtle construction site Johnson testified that at the time of his layoff he spoke to his foreman Jim Cloud in Walsh's office, that Cloud told Johnson three men were to be laid off, Johnson in- quired of Cloud whether he was selected for layoff "be- cause I was associating with white females and he told me I knew why he was laying me off and he didn't want to talk to me period and so I left" Johnson testified that the next day (May 2, 1981—a Saturday) he telephoned the union office and talked to Union Business Agent James E Moseley 3 and inquired whether there was any work available in the area and that Moseley informed him that he had Just referred out three drivers on the day of Johnson's layoff Johnson tes- tified that the following Monday he went to the Union's office and discussed the filing of a grievance' concerning his layoff with Moseley Johnson testified that Moseley told him that he could not file a grievance and that he (Johnson) then inquired of Moseley whether "he couldn't or Just wouldn't (file a grievance) " Johnson tes- tified he returned to the union office "maybe a couple of weeks later" and again talked to Moseley concerning his grievance and that Moseley then told him that he would "fill out the forms and send them to me, for me to sign and date and send them back" Johnson testified he did not receive the grievance forms in the mail Johnson tes- tified he then sent a letter to the Union 5 3 I find on the basis of the testimony of Moseley at the hearing con cerning his responsibilities for representing the Union's members and ad ministering the collective bargaining agreement between Walsh and the Union that Moseley was, at all times material an agent of the Union within the meaning of Sec 2(13) of the Act 4 The project agreement between Georgia Power Company, its con tractors and subcontractors and the International and Local Unions affili ated with the Building and Construction Trades Department AFL-CIO and General Teamsters having jurisdiction over the Augusta (Georgia) area to which Walsh and the Respondent Union were signatories con tamed a referral procedure whereby applicants for employment are to be accepted for registration and referred "for employment without discrum nation against any applicant by reason of race, " Art 9 of the agreement also contains a grievance procedure with a provision for bind ing arbitration (G C Exhs 6 and 7, U Exh I) 5 G C Exh 3 is a letter addressed to the Union directed to Moseley from Johnson and contains allegations by Johnson that his layoff of May 1 1981, was discriminatory on the basis of race, "an employee Informed me that my layoff was attributed to my socializing with a white female A portion of the writing on the letter, including the date of 5/24/81, is written in a different colored ink from the main portion of the letter Johnson testified on cross examination that the letter contained no date at the time he initially sent it and that G C Exh 3 is a copy he retained Johnson was unable to recall the date that the letter was sent, but testi fled he mailed it prior to filing charges with the Labor Board Johnson testified he received no reply from the Union to this letter and he then filed a charge with the Equal Employment Opportunity Commission against the Union for failing to represent him Johnson testified he later, "two or three weeks later, or maybe a week or so," re- turned to the union office and talked to the secretary (Jessie Barnard), in the absence of Moseley at that time, and inquired about his grievance and asked for a copy and was told by Barnard that a copy has been made but was in the possession of Moseley On June 3, 1981, John- son filed a charge against the Union on which the com- plaint in this case is based On June 19 a grievance was prepared by Moseley and signed by Johnson concerning his layoff of May 1, 1981, and alleging that he was in- formed by his foreman "Jim Claude" that his layoff was because of "lack of work" and that he (Johnson) was dis- criminatorily laid off because of his race as "an employee informed me that my layoff was attributed to my social- izing with a white female Union Business Agent James E Moseley was called by the General Counsel and testified as follows Johnson came to his office concerning his layoff of May 1, 1981, approximately 6 weeks after he was laid off, and filed a grievance The grievance was processed after a charge had been filed by Johnson with the National Labor Rela- tions Board The grievance form (G C Exh 2) was pre- pared from a written statement brought to the office by Johnson A determination was made concerning John- son's grievance that Johnson had been laid off as a re- duction in work force as "Mr Johnson was laid off to reduction in work force Nothing more" As a result of the determination, he did not pursue the grievance fur- ther Moseley wrote to Johnson (G C Exh 4) advising Johnson that the grievance had been processed with the Employer and was being withdrawn as a result of lack of merit and having been untimely filed The grievance was in fact withdrawn Moseley admitted that the Employer had not taken the position that it would not process the grievance because it was untimely and had accepted the grievance when the Union had filed it Moseley did not recall whether there had been any discussion between himself and the Employer's representative concerning whether the grievance was timely Moseley testified that once he received the grievance from Johnson he mailed it to Walsh Construction and approximately 3 or 4 days later met with Project Manager McCarty who informed him that Johnson had been laid off as a result of a reduc- tion in work force as well as other employees Moseley did not take a written statement from Johnson concern- ing the facts surrounding the basis for the filing of the grievances Moseley did not interview any witnesses on Johnson's behalf in processing the grievance Moseley's total investigative effort into the grievance was his meet- ing with McCarty Jessie Barnard, the Union's secretary, testified that she was not in the office on May 2, 1981, a Saturday, as the office is normally closed on that day She was not aware whether Moseley, the Union's business agent, was in the office at that time Barnard testified that on Monday, May 4, 1981, Johnson was in the union hall and paid his dues and received a withdrawal card and was placed on TEAMSTERS LOCAL 528 (WALSH CONSTRUCTION) 31 the referral list She was gone during a portion of the time that Johnson was in the union hall Barnard did not recall Johnson conducting any other business in the union office that day, but acknowledged that she had been gone for a portion of the time that Johnson was there Walsh Construction Company Project Manager McCarty testified that he did not recall whether he had participated in Johnson's grievance on behalf of Walsh Construction Company, but that Walsh considered John- son's layoff to be a normal reduction in force and did not feel it was a grievable matter McCarty testified that nor- mally Walsh hears grievances which are untimely Moseley was recalled by Respondent and testified that on Saturday, May 2, 1981, he had not received any calls from Johnson as he was not at the Union's office on that date He testified that on Monday, May 4, 1981, Johnson came into the Union's office and that Barnard was out of the office at the time although she may have arrived later Moseley testified that he collected dues from John- son and issued him a withdrawal card, and wrote him a receipt for his dues and a receipt for a withdrawal card, but that Johnson did not ask Moseley to file a grievance concerning his layoff Moseley testified that the next time he saw Johnson was June 19, 1981, the date of the grievance filed by Johnson at which time Johnson stated that he felt his layoff had been unfair Moseley testified he told Johnson that there was no seniority on the job and "there's nothing we can do, you know It's total dis- cretion of the company And he said he wanted to file a grievance," and "I said, well and good but, you know, it's real late, but we'll go ahead and process it" Moseley testified that he asked Johnson what Johnson wanted the grievance to contain and Johnson handed Moseley "some type of form, a government form, and it had the exact wording that's on this grievance" Moseley testified that following the filing of the grievance by Johnson, he discussed the grievance with McCarty Moseley ac- knowledged on cross-examination that union meetings are held on Saturday at the office facilities on occasions and that records are sometimes but not always kept of the meetings Moseley denied having ever received the letter written to him by Johnson (G C Exh 3) Analysis The General Counsel contends that Johnson attempted to file a grievance on several occasions concerning his layoff by Walsh but that Respondent Union ignored these attempts until Johnson filed a charge with the Na- tional Labor Relations Board The General Counsel fur- ther contends that after Johnson was permitted to file a grievance by the Union, the Union's processing of the grievance was so perfunctory as to render its conduct unlawful and violative of Section 8(b)(1)(A) of the Act The General Counsel contends that Respondent thereby breached its duty of fair representation in its processing of Johnson's grievance as its conduct toward Johnson, a member of the collective-bargaining unit, was arbitrary, discriminatory, and in bad faith citing in support thereof, Vaca v Sipes, 386 U S 171 (1967), P & L Cedar Product, 224 NLRB 244 (1976), E L Mutsee & Sons, 215 NLRB 203 (1974), Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974), and Glass Bottle Blowers Assn, 240 NLRB 324 (1979) Respondent also relies on Vaca v Sipes, supra, in its contention that the union conduct toward Johnson in processing his grievance was not arbi- trary, discriminatory, or in bad faith and contends that the burden is on the General Counsel to prove its case, citing Steelworkers v NLRB, 111 LRRM 3125 (7th Cir 1982) Respondent in its brief cites certain alleged incon- sistencies in the testimony of Johnson including his testi- mony that he contacted Moseley on May 2, 1981, a Sat- urday in contrast to Moseley's testimony that he was not in the office on that date, as well as Johnson's testimony that he visited the union office on May 4, 1981, to file a grievance and that no other business was transacted with the Union in contrast to the testimony of Moseley and Barnard that although Johnson visited the Union office on May 4, 1981, a grievance was not mentioned and that Johnson paid his union dues, obtained a withdrawal card and signed up for referrals Respondent also relies on the testimony of Moseley and Barnard that Johnson did not make a second trip 2 weeks later to inquire about the grievance in contrast to Johnson's testimony that he did so Respondent also contends that a letter offered by the General Counsel (G C Exh 3) assertedly from Johnson to Moseley purporting to be a request that the Union file a grievance is suspect as Johnsen could not confirm when the date purporting to be May 24, 1981, was writ- ten on a duplicate copy of the letter Respondent also cites Johnson's testimony that he again visited the Union's office approximately June 3, 1981, and spoke with Barnard regarding the progress of the grievance and Barnard's testimony that Johnson did not appear in the office on that date, and cites in support also the testi- mony of Moseley and Barnard that the first time Johnson visited the office after May 4, 1981, was June 1981, at which time Moseley took a statement from Johnson con- cerning the nature of his grievance and filled out the grievance form Respondent contends that, after review- ing the information obtained from Johnson and after its investigation which consisted of Moseley's discussing the matter with McCarty, the Union concluded that claim was not meritorious and was untimely I credit Johnson's version of the testimony (rather than that of Moseley) regarding Johnson's having discussed his grievance on Saturday May 2, 1981, and having re- quested Moseley to file a grievance when he was in the office on Monday, May 4, 1981 I also credit Johnson's testimony that he inquired about the grievance and came to the union hall on at least one other occasion prior to June 19 when the grievance was ultimately filed by Re- spondent on his behalf In making credibillity determina- tions in this case, I have considered the likelihood of the sequence of events as described by Johnson in his testi- mony and the testimony of Moseley and Barnard in this regard Assuming arguendo that Johnson did not contact Moseley concerning his grievance on May 2, 1981, by all accounts Johnson appeared in the office on May 4, 1981, following the Friday when he was terminated by Walsh Construction Company On that occasion Barnard was not present for the initial period of time that Johnson was in the office and spoke to Moseley Although Mose- 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ley testified that Johnson did not raise the subject of a grievance, I found Johnson's testimony in this regard to be specific and credible whereas I found Moseley's ver- sion unlikely and I do not credit it I also credit John- son's testimony that he appeared at the Union's office in the interim between May 4, 1981, and the filing of the grievance on June 19, 1981 I am thus convinced and find that Johnson attempted to file a grievance concern- ing his layoff and requested that Moseley do so on his behalf prior to June 19, 1981 Assuming further arguendo that the testimony of Johnson concerning his attempts to file a grievance prior to June 19, 1981, were not to be credited, it is undisputed that Johnson ultimately filed a grievance with the Union on June 19, 1981 It is also un- disputed that this filing and the acceptance of this griev- ance by Respondent Union occurred after the filing of a charge with the National Labor Relations Board against the Union on which charge the instant complaint is based A review of the testimony of Moseley concerning the manner in which he processed the grievance shows that this investigation of the grievance consisted solely of meeting with McCarty on one occasion wherein McCarty asserted that the cause of the layoff was a normal reduction in the work force, that Moseley asser- tedly accepted this statement and made no investigation concerning the merits or lack thereof of Johnson's com- plaint that he was singled out for layoff because of his association with white females Thus Moseley undeniably on the basis of the record in this case did not seek addi- tional information from Johnson concerning the employ- ee who had informed Johnson of the reason for his layoff or seek to discuss the matter with the foreman who terminated Johnson or perform any additional in- vestigation whatsoever Rather it appears from the record that Moseley sought primarily to discourage Johnson from filing his grievance on June 19, 1981, on the basis of the right of the Employer to lay off employ- ees without any consideration of the merits of Johnson's grievance and on the basis of the untimely filing of the grievance Moseley also premised his decision to dismiss the grievance and process it no further on the basis that the grievance was untimely However, McCarty's unre- butted testimony, which I credit, was that Walsh has routinely processed grievances which have been untime- ly in the past I find that Respondent Union, through its agent Mose- ley, initially failed to accept and process Johnson's griev- ance (that he had been allegedly laid off by Walsh Con- struction Company as a result of his association with a white female) There was no evidence that the grievance of Johnson was frivolous, particularly under the circumstances of this case wherein Johnson was terminated as a truckdriv- er, the Employer on a number of occasions between May 5 and August 1981 issued letters to the Union requesting the referrals of drivers, and the unrebutted testimony of Johnson concerning his appraisal by another employee as to the reason for his layoff and that the Employer's fore- man refused to discuss the matter with him Newspaper Guild Local 26, 220 NLRB 79 (1975), Glass Bottle Blow- ers Assn , supra I find that the Union's acceptance of the grievance of Johnson was in direct response to his filing of a charge with the National Labor Relations Board and its process- ing of the grievance was perfunctory I accordingly find that the Union breached its duty of fair representation to its member Robert E Johnson by its arbitrary and dis- criminatory conduct by initially ignoring his complaint and subsequently processing his grievance in a perfuncto- ry manner and thereby violated Section 8(b)(1)(A) of the Act Vaca v Sipes, supra, P & L Cedar Products, supra, E L Mutsee & Sons, supra, Local No 705 (Associated Trans- port), supra, see also Brown Transport Corp, 239 NLRB 711 (1978), and Operating Engineers Local 139 (CF Kalupa), 256 NLRB 535 (1981) IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III above occurring in connection with the operation of the Employer, Walsh Construction Company, described in section I above, have a close, intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce CONCLUSIONS OF LAW 1 The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent Union is a labor organization within the meaning of Section 2(5) of the Act 3 By failing to process the grievance of Robert E Johnson concerning his layoff by the Employer in a fair and impartial manner, Respondent Union violated Sec- tion 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in a cer- tain unfair labor practice in violation of Section 8(b)(1)(A) of the Act, I shall recommended that it be or- dered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act As a direct result of Respondent Union's failure to ini- tially accept the grievance of Robert E Johnson and ul- timately its failure to process it in an impartial and fair manner, it is uncertain whether the grievance would have been found to be meritorious and Johnson has also been placed in the position of filing an untimely griev- ance Respondent's conduct was a direct contributing cause to this uncertainty and to the untimely filing of Johnson's grievance Accordingly, any uncertainty as to the merits of the grievance should be resolved against the wrongdoer Kings Soopers, Inc , 222 NLRB 1011, 1020 (1976), PPG Industries, 229 NLRB 713 (1977), enf denied 579 F 2d 1057 (7th Cir 1978) and Electrical Work- ers, 254 NLRB 1186 (1981) Accordingly, the Board has held under circumstances such as this that it shall be pre- sumed that the grievance, if it had been fairly and impar- TEAMSTERS LOCAL 528 (WALSH CONSTRUCTION) 33 tially processed, would have been found to be meritori- ous Accordingly, I shall recommend that the Respond- ent Union make Robert E Johnson whole for any loss he may have suffered as a result of his layoff on May 1, 1981, until such time as he was reinstated by the Em- ployer 6 All loss of earnings, and benefits incurred by Johnson as a result of Respondent Union's acts, as set out above, shall be computed with interest in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977) 7 [Recommended Order omitted from publication ] 8 Johnson was reinstated by the Employer in October 1981 7 See generally Isis Plumbing Go, 138 NLRB 716 (1962)