Roadway Express, Inc.

ROADWAY EXPRESS, INC. 355 NLRB No. 23 197 Roadway Express, Inc. and Amadeo Bianchi International Brotherhood of Teamsters, Local 769, Successor to International Brotherhood of Teamsters, Local 390 and Amadeo Bianchi. Cases 12–CA–22202 and 12–CB–5002 May 21, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On July 24, 2008, Administrative Law Judge Keltner W. Locke issued the attached decision. Respondent Roadway Express, Inc. (Roadway) filed exceptions and a supporting brief, the General Counsel filed an answering brief, and Roadway filed a reply brief. The General Counsel filed exceptions and a supporting brief, and Roadway and Respondent International Brotherhood of Teamsters, Local 769 (the Union) filed answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in the light of the parties’ exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and con- clusions2 only to the extent consistent with this Decision and Order. At issue here is whether Roadway violated Section 8(a)(1) of the Act by discharging employee Amadeo Bi- anchi for actions he undertook in his capacity as union steward, and whether the Union breached its duty of fair representation in violation of Section 8(b)(1)(A) by rep- resenting Bianchi in his discharge arbitration perfuncto- rily and in bad faith. For the reasons set forth below, we find both violations as alleged. I. OVERVIEW After receiving an adverse decision in his discharge- grievance arbitration, Bianchi filed a hybrid action in Federal district court against Roadway and the Union, alleging that Roadway violated Section 301 of the Act by discharging him without contractually-required just cause, and that the Union, by its Business Agent Donald 1 Roadway has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard 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 reversing the findings. 2 We shall amend the judge’s Conclusions of Law to conform to the violations found. For the same purpose, and also to conform to the Board’s standard remedial language, we shall modify the judge’s rec- ommended Order. Finally, we shall substitute a new notice to conform to the Order as modified. Marr, breached its duty of fair representation (DFR) to- ward Bianchi. A jury found in Bianchi’s favor, and Roadway appealed. On appeal, the 11th Circuit Court of Appeals reversed, finding that Bianchi had waived the argument that Marr represented him in bad faith, by fail- ing to raise the issue in his arbitration hearing.3 Bianchi had also timely filed unfair labor practice charges against Roadway and the Union. Following the 11th Circuit’s decision, the General Counsel issued a complaint alleging that Roadway violated Section 8(a)(3) and (1) of the Act by discharging Bianchi for carrying out his duties as union steward, and that the Union, by Marr, violated Section 8(b)(1)(A) by representing Bian- chi perfunctorily and in bad faith. As an affirmative de- fense to the 8(a)(3) allegation, Roadway asserted that the Board should defer to the arbitral decision. In urging deferral, Roadway contended that the 11th Circuit’s re- jection of Bianchi’s DFR claim collaterally estopped the General Counsel from establishing a DFR breach as a ground for nondeferral. The judge rejected Roadway’s collateral estoppel and deferral arguments. On the merits, he found that Road- way violated Section 8(a)(3) and (1) in discharging Bian- chi, but dismissed the Section 8(b)(1)(A) DFR-breach allegation against the Union. As explained below, we affirm in part and reverse in part the judge’s decision. We affirm his finding that the General Counsel is not collaterally estopped from assert- ing a breach of the DFR as a basis for declining to defer to arbitration. We also affirm his findings that deferral is improper here and that Roadway violated the Act in dis- charging Bianchi. Contrary to the judge’s decision, however, we find that the Union, by Marr, breached its duty of fair representation toward Bianchi in violation of Section 8(b)(1)(A). 3 Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1279 (11th Cir. 2006) (per curiam), cert. denied 549 U.S. 954 (2006). To prevail against either Roadway or the Union, Bianchi had to prove both the Union’s DFR breach and that his discharge by Roadway was in breach of contract. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570–571 (1976). Thus, having found that Bianchi waived his DFR claim, the court of appeals granted judgment as a matter of law in favor of Roadway on the Section 301 claim. Bianchi, 441 F.3d at 1286. We correct the judge’s misstatement that “Section 301 of the Act af- ford[s] an employee an independent right to sue a labor organization for . . . a breach [of the duty of fair representation].” A cause of action in Federal district court for breach of the DFR does not arise under Sec. 301. Rather, it is “implied under the scheme of the [NLRA].” Del- Costello v. Teamsters, 462 U.S. 151, 164 (1983) (“[A hybrid 301/DFR suit], as a formal matter, comprises two causes of action. The suit against the employer rests on Section 301, since the employee is alleg- ing a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198 II. FACTUAL AND PROCEDURAL BACKGROUND4 A. The Underlying Incident On the night of October 12, 2001,5 Roadway employee Isaah “Gerome” Daniels was unloading a trailer at Roadway’s terminal in Miami, Florida. He began ex- periencing chest pain, which he thought was heartburn. A manager gave Daniels an antacid, but it did not help and Daniels went home early. When the pain persisted the next day, Daniels went to a hospital and was admitted. His admission papers show that he answered “No” to the question of whether his condition was work-related. Daniels remained in the hospital until the following day, undergoing tests. One of the doctors who examined Daniels told him that he had a severely pulled muscle over his heart. However, Daniels’ discharge paperwork did not reflect that oral diagnosis. Instead, it mentioned “chest pain,” “gastritis,” and “high blood pressure,” and it directed Daniels to take an antacid medication and to eat a low-sodium diet. On or about October 18, Daniels telephoned Business Agent Marr and told him, “I worked on the 12th and I got injured, and I was out of work for several days, and I was in the hospital for two days.” Marr asked Daniels if he had filled out an injury report. Daniels replied that he had not, and Marr told Daniels (incorrectly) that it was “too late” to file an injury report. Marr advised Daniels to file a lost-time claim for benefits from the Union’s Central States Fund. Lost-time claims are filed in con- nection with off-the-job injuries. The next day, Daniels spoke with his union steward, Bianchi. Daniels told Bianchi that he had been injured at work, but that Marr had told him to file a Central States claim because it was too late to file a workers’ compen- sation claim. Bianchi told Daniels that if he had gotten injured at work, he had to file an on-the-job injury report. Daniels encountered difficulties securing an on-the-job injury form. On October 22, Bianchi helped Daniels obtain and submit the form. Daniels wrote “10/12/01” as the date the injury occurred, but he also misdated the report itself “10/12/01.” Although the misdating was merely a mistake, Roadway management suspected that Daniels might be trying to conceal the 10-day delay be- tween the claimed injury and the report. To investigate further, Roadway’s safety manager obtained a copy of Daniels’ hospital records. As summarized above, those records did not support Daniels’ work-injury claim. 4 Conflicting testimony was introduced on several key issues of fact. Having affirmed the judge’s credibility findings, supra fn. 1, we rely on the credited testimony. 5 All dates are 2001 unless otherwise stated. Marr telephoned Daniels and told him, “That mother- fucker Bianchi made you put the wrong dates on these papers and you guys are going to get fired.” Marr and Bianchi were long-time rivals within the Union. Indeed, Marr testified that he considered Bianchi “just a pain in the ass politically.” Over the years, Bianchi had run against Marr for union office six times. On at least two occasions, disputes between them resulted in proceedings before Election Appeals Master Kenneth Conboy. One of these proceedings involved a protest by Marr, alleging that Bianchi had violated campaign rules. Election Ap- peals Master Conboy’s November 2 decision, which the General Counsel introduced into the record, was in favor of Bianchi. In his decision, Conboy rebuked Marr, find- ing that Marr had engaged in the same conduct that he was claiming as a campaign violation by Bianchi.6 On October 30, Roadway discharged Daniels for “[a]n act of dishonesty with fraud in reporting a personal ill- ness or injury as an on-the-job injury.” The same day, Roadway also discharged Bianchi for “being involved in and promoting” Daniels’ act of dishonesty. B. The Arbitrations Daniels and Bianchi grieved their discharges. On No- vember 13 and 14, their grievances proceeded to arbitra- tion in separate hearings on consecutive days—Daniels’ first, then Bianchi’s—before the Southern Region Griev- ance Committee (the Committee). Each grievant was represented by Marr. Before Daniels’ hearing, Marr told Daniels that if he said that he “got injured off the job” he would not have to appear before the Committee. In other words, Roadway and the Union would settle Daniels’ grievance in his favor. Daniels rejected Marr’s proposal. During Daniels’ hearing, Marr told the Committee, in substance, the following. Daniels never told Marr that he was injured on the job. Rather, Daniels told Marr that he did not know where or how he was injured. In response, Marr told Daniels to file a lost-time Central States claim. (Notably, Marr did not tell the Committee that Daniels 6 Election Appeals Master Conboy wrote: “Given [Marr’s] own con- duct in this regard, we find it unfortunate that he has misrepresented the practice permitting campaigning and thereby misled the protestor into pursuing this protest.” The record also contains very brief testimony from Marr concerning a second proceeding before Conboy. In response to leading questions from Roadway’s attorney, Marr testified that Bianchi filed a protest concerning Marr’s handling of his discharge grievance. Roadway’s attorney asked Marr: And in that proceeding, the Election Appeals Master found that there was absolutely no evidence that you had done anything wrong, isn’t that right? Marr answered, “Yes.” That is the entirety of the record evidence concerning this second proceeding. Conboy’s decision in the second proceeding is not in the record. ROADWAY EXPRESS, INC. 199 had informed him that he was injured on the job or that Marr advised Daniels to file a lost-time claim because he mistakenly thought it was “too late” for Daniels to file an on-the-job injury report.) In submitting an on-the-job injury report instead, Daniels simply did what Bianchi told him to do. (Marr said this to the Committee no fewer than four times.) Marr further stated that Daniels did not fully understand the difference between a work- injury report and a Central States claim. Daniels also told the Committee that he did not know where he was injured. This, of course, differs from what Daniels earlier told both Marr and Bianchi, i.e., that he was hurt at work. (In the unfair labor practice hearing, Daniels testified that he told the Committee that he did not know where he had been hurt because Marr advised him that it would get him out of the case.) Without stat- ing any reasons for its decision, the Committee granted Daniels’ grievance and ordered his reinstatement. Bian- chi’s arbitration was scheduled for the following day.7 At his hearing, Bianchi repeatedly told the Committee that he advised Daniels to complete an on-the-job injury report because Daniels told him that he was injured on the job. Marr did not directly contradict Bianchi’s testi- mony concerning what Daniels told Bianchi. However, Marr reiterated that Daniels told him (Marr) that he “was not sure” whether his injury had happened on or off the job. Members of the Committee made it plain to Bianchi that they disbelieved his assertions that Daniels claimed an on-the-job injury. For example, Committee Member Webb said to Bianchi: “There was testimony yesterday as well as today that nobody is sure, even to this day, whether or not Daniels has a personal illness or an on- the-job injury. That was statement yesterday [sic], and yet you were consistent [sic] that he fill out an on-the-job injury report.” Committee Member Wade was even more blunt, stating: “[O]bviously it was Daniels’ opin- ion that it was not an on-the-job injury until he talked with you that night.” Marr did not respond to these state- ments on Bianchi’s behalf. At the end of the hearing, the Committee asked Bian- chi whether the Union had represented him properly and fully. Bianchi answered in the affirmative. Again with- 7 The parties dispute the admissibility of testimony elicited in an of- fer of proof regarding a telephone call made by Marr to the terminal manager at Consolidated Freightways (CF) on the day of Bianchi’s grievance hearing. During the call, Marr purportedly stated that he could not attend a planned meeting because he had to “go through the motions of getting that motherfucker Bianchi his job back.” The judge ruled that the proffered testimony was hearsay, and the General Coun- sel has excepted to his ruling. We need not pass on this evidentiary issue, however, given our ruling on the merits in favor of the General Counsel. out stating its reasons, the Committee denied Bianchi’s grievance, upholding his discharge. C. The Legal Proceedings As already explained, Bianchi filed 8(a)(3) and (1) and 8(b)(1)(A) charges against Roadway and the Union, re- spectively. In federal district court, Bianchi filed a hybrid Section 301/DFR action, also described above. A jury found in Bianchi’s favor. Roadway appealed, and the 11th Circuit reversed, granting Roadway’s motion for judgment as a matter of law. The court based its decision entirely on its finding that Bianchi had waived any claim of bad faith on Marr’s part by failing to assert it before the Commit- tee. Accordingly, the court found the evidence insuffi- cient to support the jury’s verdict on Bianchi’s DFR claim. The General Counsel then issued an unfair labor prac- tice complaint, asserting the present Section 8(a)(3) and Section 8(b)(1)(A)/DFR allegations. Roadway asserted, as an affirmative defense to the 8(a)(3) allegation, that the Board should defer to the Committee’s decision de- nying Bianchi’s discharge grievance. The General Coun- sel argued that deferral to the arbitral decision would be improper because the Union breached its DFR in repre- senting Bianchi and therefore the arbitration was not fair and regular. Roadway countered that the 11th Circuit’s dismissal of Bianchi’s DFR claim collaterally estops the General Counsel from urging DFR breach as a ground for nondeferral. D. The Administrative Law Judge’s Decision The administrative law judge found that the 11th Cir- cuit’s decision did not have issue-preclusive effect in this proceeding, for two reasons. First, any waiver by Bian- chi of his private right to assert a claim for breach of the DFR cannot bind the General Counsel, who litigates on behalf of the public interest. Second, the circuit court did not decide the merits of the 8(a)(3) and (1) discharge allegation; indeed, it was without jurisdiction to do so. The judge also found—separate and apart from his findings concerning collateral estoppel—that deferral to the Committee’s decision under Spielberg and Olin8 would be inappropriate. In so finding, however, he re- jected the General Counsel’s contention that the arbitral proceeding was not fair and regular. Instead, he found deferral improper because, in his view, the Committee’s decision was palpably wrong and the Committee did not consider the 8(a)(3) unfair labor practice issue. 8 Spielberg Mfg. Co., 112 NLRB 1080 (1955); Olin Corp., 268 NLRB 573 (1984). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200 Reaching the merits, the judge found that Roadway’s discharge of Bianchi violated Section 8(a)(3) and (1). Applying Burnup & Sims,9 the judge found that Roadway honestly believed that Bianchi knowingly helped Daniels file a fraudulent work-injury report. Having credited testimony that Daniels told Bianchi he was injured at work, however, the judge further found that Bianchi did not, in fact, engage in misconduct in the course of his otherwise protected activity as union steward. Rather, Bianchi helped Daniels file a work-injury report that Bi- anchi believed to be truthful. However, the judge dismissed the 8(b)(1)(A) DFR al- legation against the Union, reasoning as follows. First, a union’s conduct is to be viewed within a “wide range of reasonableness,”10 unless the union sacrifices its right to be accorded that broad standard. Second, Marr did noth- ing to sacrifice the Union’s right to a “wide range of rea- sonableness” review. Contrary to the General Counsel’s assertions, Marr neither solicited Daniels to lie nor him- self lied to the Committee in either hearing. Third, even assuming Marr’s conduct was not entitled to be judged under the “wide range of reasonableness” standard, the DFR allegation still failed. Whatever personal animosity Marr may have felt toward Bianchi, in representing him Marr neither did anything he should not have done, nor omitted to do anything he was obliged to do. In sum, the judge found that “[t]he credited evidence fails to estab- lish that the Union acted perfunctorily or in bad faith.” III. DISCUSSION The threshold issue with respect to the 8(a)(3) and (1) discharge allegation against Roadway is whether the judge properly declined to defer to the Committee’s deci- sion denying Bianchi’s discharge grievance. That is, if deferral is warranted, the 8(a)(3) and (1) allegation is not reached. The determination of whether to defer, how- ever, depends on a number of factors, among them whether the process for reviewing Bianchi’s grievance was fair and regular. Related to that question is whether the Union, by Marr, breached its DFR to Bianchi in rep- resenting him before the Committee. Consequently, we must consider whether, as Roadway contends, the Gen- eral Counsel is collaterally estopped from asserting a DFR breach as a basis for arguing against deferral, based on the 11th Circuit’s dismissal of Bianchi’s DFR claim. Accordingly, we turn to the question of collateral estop- pel first. 9 NLRB v. Burnup & Sims, 379 U.S. 21 (1964). 10 See Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A. Is the General Counsel Collaterally Estopped from Relitigating Whether the Union Breached Its DFR? With some merit, Roadway contends that the judge misunderstood its collateral estoppel theory. Roadway says that it did not advance a freestanding collateral es- toppel argument separate from its deferral argument, as the judge treated it; and it never claimed collateral estop- pel with respect to the 8(a)(3) and (1) discharge allega- tion. Rather, Roadway urges that the Board must defer to the Committee’s decision upholding Bianchi’s dis- charge because of collateral estoppel. First, Roadway argues that, as the party opposing deferral, the General Counsel has the burden to prove that deferral is im- proper. Second, the sole basis that the General Counsel relied on to oppose deferral was the Union’s alleged DFR breach.11 Third, the General Counsel is collaterally estopped by the 11th Circuit’s decision from relitigating whether the Union breached its DFR. Thus, Roadway concludes that the Board must defer because the General Counsel failed to sustain his burden of showing that de- ferral is improper. Roadway’s argument fails because the “Board adheres to the general rule that if the Government was not a party to the prior private litigation, it is not barred from litigat- ing an issue involving enforcement of Federal law which the private plaintiff has litigated unsuccessfully.”12 This rule, notably, is consistent with the view of the 11th Cir- cuit itself. See EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1290–1291 (11th Cir. 2004) (“It is a ‘well- established general principle that the government is not bound by private litigation when the government’s action seeks to enforce a federal statute that implicates both public and private interests.’”) (quoting Herman v. South Carolina National Bank, 140 F.3d 1413, 1425 (11th Cir. 1998)).13 The rule applies here. The General Counsel was not a party to Bianchi’s unsuccessful lawsuit. Hence, the Gen- eral Counsel is not collaterally estopped from arguing that the Union breached its DFR in violation of Federal law.14 11 The General Counsel contends that DFR breach was not the sole ground he relied on to oppose deferral. Because we find, below, that deferral is improper on DFR-breach grounds, we need not address the General Counsel’s contention. 12 Field Bridge Associates, 306 NLRB 322, 322 (1992), enfd. sub nom. Service Employees Local 32B-32J v. NLRB, 982 F.2d 845 (2d Cir. 1993), cert. denied 509 U.S. 904 (1993). 13 See generally 18A Charles Alan Wright, Arthur R. Miller & Ed- ward H. Cooper, Federal Practice & Procedure §4458.1 (2d ed. 2009) (discussing principle). 14 Roadway contends that the General Counsel is also collaterally es- topped by Election Appeals Master Conboy’s finding that there was no evidence Marr did anything wrong in his handling of Bianchi’s griev- ROADWAY EXPRESS, INC. 201 Roadway points out that, where the other requisites of collateral estoppel are met, a prior adjudication has issue- preclusive effect in a subsequent action between the same parties or their privies. Roadway argues that the General Counsel is in privity with Bianchi because he is simply attempting to obtain compensation on Bianchi’s behalf. Roadway’s premise is mistaken. It fails to recognize the statutory function of the General Counsel, who is vested under Section 3(d) of the Act with exclusive prosecutorial authority on behalf of the Board. The Gen- eral Counsel is not simply representing Bianchi’s private interest in obtaining compensation. Rather, as the Su- preme Court has explained, the “Board as a public agency acting in the public interest, not any private per- son or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.” Amalgamated Utility Workers v. Consolidated Edison Co. of New York, 309 U.S. 261, 265 (1940).15 Accord EEOC v. Pemco Aeroplex, Inc., supra (holding that Federal Equal Employment Opportunity Commission was not in privity with individual plaintiffs who brought unsuccessful race-discrimination action). The General Counsel’s independence from the charg- ing party and its private interests is reflected in his abso- lute control over the issuance and prosecution of an un- fair labor practice complaint.16 In sum, even if Bianchi ance. We reject that contention, based on the rule of Field Bridge Associates, stated above. Moreover, even assuming that rule were set aside, and assuming fur- ther that decisions of the Election Appeals Master could have issue- preclusive effect, the evidence does not suffice for us to find that the elements of issue preclusion were met here. As stated above, Master Conboy’s decision is not in the record. See supra fn. 6. Thus, we can- not ascertain whether the issue of Marr’s representation of Bianchi was actually litigated before Master Conboy; whether Master Conboy’s determination of that issue resulted in a valid and final judgment; if so, whether it was essential to that judgment; or whether the issue decided by Master Conboy was the same as the DFR-breach issue before us here. See NLRB v. Donna-Lee Sportswear Co., Inc., 836 F.2d 31, 34 (1st Cir. 1987) (setting forth elements of issue preclusion). 15 See also NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959) (“To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purposes of the Act.”). 16 Over the charging party’s opposition, the General Counsel may decline to issue complaint on the charge; and his decision in that regard is final and unreviewable. Sec. 3(d) of the Act. In framing the allega- tions of the complaint, the General Counsel is not confined to the alle- gations of the charge. Fant Milling, supra. The General Counsel con- trols the theory of the case, which the charging party is powerless to enlarge upon or otherwise change. Zurn/N.E.P.C.O., 329 NLRB 484, 484 (1999); Kimtruss Corp., 305 NLRB 710, 711 (1991). The General Counsel may enter into a prehearing informal settlement with the re- spondent over the opposition of the charging party, and his decision to obtains a make-whole remedy as a result of the General Counsel’s efforts, those efforts are undertaken “in the public interest and not in vindication of private rights.”17 We recognize that two courts of appeals have found the Board precluded from relitigating the issue of whether a collective-bargaining agreement exists, when that issue was previously decided in Federal district court.18 The Board has distinguished those cases on the ground that the existence of the contract was the essence of the unfair labor practice allegation.19 Where the Board’s unfair labor practice findings depend entirely on finding that a contract existed, giving preclusive effect to the courts’ prior findings on that issue represents a minimal intrusion into the Board’s jurisdiction. As the court of appeals in Donna-Lee Sportswear observed, “[N]o broad policy question is implicated in the determi- nation that no contract exists. Nor is any precedent es- tablished by that determination which would have wide ranging effect on labor relations.”20 Here, by contrast, were we to find ourselves precluded by the court’s finding, a policy question would be impli- cated, and a significant precedent would be established, bearing on the General Counsel’s discretion to prosecute a charge in the public interest, even over the charging party’s contrary wishes. The 11th Circuit dismissed Bi- anchi’s private DFR claim not because it found, on the merits, that there had been no breach of the duty, but rather based solely on a finding that Bianchi had waived his claim. To give issue-preclusive effect to the court’s finding of a private waiver would impair the Board’s jurisdiction, exercised in the public interest, to prevent unfair labor practices. That would be contrary to the express language of Section 10(a) of the Act, which pro- vides that the Board’s power to prevent any unfair labor practice “shall not be affected by any other means of adjustment or prevention that has been or may be estab- lished by agreement, law, or otherwise.” 29 U.S.C. §160(a). For these reasons, we reject Roadway’s argument that the General Counsel is collaterally estopped from argu- ing that the Union breached its DFR in representing Bi- anchi before the Committee as a basis for urging us not do so is an unreviewable act of prosecutorial discretion. NLRB v. Food & Commercial Workers Local 23, 484 U.S. 112 (1987). Any private (non-Board) settlement between the charging party and the respondent must be approved by the Board’s Regional Director, who reviews it to ensure that it effectuates the purposes and policies of the Act. See Independent Stave Co., 287 NLRB 740 (1987). 17 Robinson Freight Lines, 117 NLRB 1483, 1485 (1957). 18 NLRB v. Donna-Lee Sportswear, 836 F.2d 31 (1st Cir. 1987); NLRB v. Heyman, 541 F.2d 796 (9th Cir. 1976). 19 Field Bridge Associates, 306 NLRB at 323 fn. 2. 20 Donna-Lee Sportswear, 836 F.2d at 35. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202 to defer to the Committee’s decision. Thus, to determine whether the General Counsel has shown that deferral would be improper, we turn to the merits of the DFR- breach allegation. B. Did the Union Breach Its Duty of Fair Representation Toward Bianchi? “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”21 We find that the Union, by Marr, did breach its duty of fair representation in violation of Sec- tion 8(b)(1)(A) of the Act under the “bad faith” prong of the standard, as alleged.22 Here, the record demonstrates that Marr acted in bad faith in the course of his represen- tation of Bianchi, by deliberately misleading the Com- mittee about crucial matters and thus virtually ensuring that Bianchi’s grievance would be denied. We analyze Marr’s conduct in the context of his rela- tionship with Bianchi, whom Marr termed a “pain in the ass politically.” Marr’s rivalry with Bianchi in matters of union politics and his longstanding hostility toward Bi- anchi are matters of record. Tellingly, Marr’s hostility would have been freshly fueled just days before the arbi- tral hearings: Election Appeals Master Conboy issued his decision adverse to (and critical of) Marr and in favor of Bianchi on November 2, and Daniels’ and Bianchi’s grievances went to hearing before the Committee on No- vember 13 and 14, respectively. We do not hold that the Union breached its DFR by permitting Marr to represent Bianchi, notwithstanding their adversial relationship. But, as we will explain, that relationship illuminates Marr’s conduct in the grievance hearings, conduct that strongly suggests that Marr seized an opportunity to eliminate a political rival from the workplace, while fail- ing to disclose exculpatory information that would have aided Bianchi but placed Marr himself in a bad light. See Union de Obreros de Cemento Mezclado (Betteroads Asphalt), 336 NLRB 972 (2001) (finding DFR breach where union advanced unreasonable contract interpreta- 21 Vaca v. Sipes, 386 U.S. 171, 190 (1967). 22 The judge erred in relying on the “wide range of reasonableness” standard in assessing Marr’s conduct in representing Bianchi. That standard applies only where a union’s conduct is alleged to breach the DFR under the “arbitrary” prong of the disjunctive Vaca test. Mine Workers District 5 (Pennsylvania Mines), 317 NLRB 663, 668–669 (1995) (“[I]n a situation—as here—in which a union’s conduct is not shown to be discriminatory or in bad faith, the [r]espondent can be found to have failed to provide proper representation only if its behav- ior is so far outside a wide range of reasonableness . . . as to be irra- tional.”) (emphasis added; internal quotations omitted); Carter v. UFCW, Local No. 789, 963 F.2d 1078, 1082 (8th Cir. 1992) (“The ‘wide range of reasonableness’ standard applies only to allegedly arbi- trary union conduct.”) (emphasis in original). tion, acquiesced by silence in employer’s adoption of that interpretation before the arbitrator, and did so to re- taliate against grievant for his intraunion activities). The central issues with respect to Daniels’ and Bian- chi’s grievances were where Daniels was injured and what Bianchi knew about that question. If Daniels was injured on the job, then neither he nor Bianchi engaged in miscon- duct in pursuing a work-injury claim. As to Bianchi, so long as he reasonably believed that Daniels was injured on the job, then he was seemingly blameless, whatever the actual facts. On the other hand, if Daniels’ injury could not be shown to be work-related, and Bianchi knew as much, then Bianchi was culpable; and, arguably, Bianchi alone could be held responsible if he himself caused Daniels to file an unsupported work-injury claim. The record here clearly supports the inference that Marr’s con- duct before and during the arbitration hearings was in- tended to persuade the Committee that Bianchi, and only Bianchi, was culpable—when, in fact, Bianchi was blame- less. Exonerating Bianchi, meanwhile, would have re- quired Marr to reveal that he himself had provided Daniels with bad advice, and may well have resulted in the rein- statement of Marr’s adversary. Marr’s conduct in Daniels’ grievance hearing seriously compromised Bianchi’s grievance even before Bianchi’s hearing began. In support of Daniels’ grievance, Marr did not argue that Daniels believed or told Bianchi that his injury was work-related, thus justifying his claim for workers’ compensation, but rather that Daniels did not know the origin of the injury and that Bianchi nonethe- less urged him to file the claim. Before Daniels’ hearing, Marr even tried to persuade Daniels to say that he was injured off the job. Had Daniels agreed, the loss of Bi- anchi’s grievance would have been all but assured, as would the cover-up of Marr’s own mistake in advising Daniels to file a Central States claim because it was “too late” to claim a work injury. Moreover, the judge credited Daniels that he told Marr that he had been injured on the job by stating, “I worked on the 12th and I got injured.”23 By contrast, Marr told the Committee that Daniels never told Marr that he was injured on the job, but rather said he did not know where 23 Daniels’ statement is, perhaps, ambiguous. However, Marr’s re- sponse shows that he understood Daniels to be saying that he worked on the 12th and got injured on the job. Marr asked Daniels if he had filled out a work-injury report, which is appropriate only for on-the-job injuries. When Daniels answered in the negative, Marr said it was “too late” to do so. Based on Daniels’ credited testimony concerning his statement to Marr and Marr’s response, we disavow as unsupported by the record the judge’s unexplained finding that Marr sincerely believed that Daniels had not sustained a work-related injury. ROADWAY EXPRESS, INC. 203 or how he was injured.24 Therefore, we disagree with the judge’s finding that Marr did not make any false state- ments to the Committee during either grievance hearing, and we do so based on the judge’s own credibility deter- minations. Marr’s lack of candor crucially undermined Bianchi, particularly when viewed together with everything else the Committee was told (and not told) during Daniels’ grievance hearing, namely that: (1) Marr did not know where or how Daniels was injured. (2) Daniels did not know where or how he was injured. (The Committee did not learn that Marr ad- vised Daniels to tell them as much because it would get Daniels out of the case.) (3) Daniels told Marr that he did not know where or how he was injured. (4) Marr advised Daniels to file a Central States claim. (Marr, of course, did not admit that this ad- vice was based on his incorrect belief that it was “too late” for Daniels to file a work-injury claim. That admission would have revealed that Daniels ac- tually told Marr he was hurt on the job, thus expos- ing Marr’s lie.) (5) Bianchi told Daniels to file a work-injury re- port. (6) Not really understanding the difference be- tween a Central States claim and a work-injury re- port, Daniels did what his union steward, Bianchi, told him to do. Apparently persuaded by the version of events pre- sented by Marr at Daniels’ grievance hearing, the Com- mittee, after brief deliberations, found Daniels’ grievance meritorious and reinstated him. Thus, by the time Bian- chi told the Committee, in his grievance hearing on the following day, that he advised Daniels to file a work- injury report because Daniels told him that he was hurt on the job, the Committee had already relied on Marr’s earlier presentation and was primed to discredit Bian- chi’s contrary testimony.25 It was surely unlikely that the 24 In finding that Marr did not lie to the Committee, the judge re- ferred to Marr’s saying to the Committee that neither he nor Daniels knew how Daniels had been injured. But those are not the key state- ments. 25 Roadway does not renew before us its argument to the 11th Circuit that Bianchi waived his DFR claim. Indeed, in its reply brief, Roadway expressly states that waiver is not in question. And, as we have ex- plained, in its prosecutorial function the NLRB is not bound by a charg- ing party’s private waiver in private litigation. Field Bridge Associates, supra, 306 NLRB at 322. But assuming arguendo that the issue of waiver were before us, we would respectfully disagree with the court of appeals and find that Roadway did not meet its burden of showing that Bianchi waived his DFR claim. “Waiver applies only where a party Committee would believe Bianchi, if Daniels himself did not know, and if Daniels told Marr he did not know, where or how he was hurt, as Marr had repeatedly stressed. As stated above, the members of the Commit- tee, in their questioning of Bianchi, revealed that they did, indeed, disbelieve him. Their questions presented Marr with an 11th-hour opportunity to corroborate Bian- chi’s testimony by admitting that Daniels had told him, as well, that he “worked on the 12th and . . . got injured.” But Marr remained silent, to Bianchi’s detriment. Accordingly, we reject the judge’s finding that, in rep- resenting Bianchi, Marr neither did anything he should not have done, nor omitted to do anything he was obliged to do. We find, rather, that Marr’s representation of Bi- anchi was in bad faith and that the Union thus breached its duty of fair representation toward Bianchi, in viola- tion of Section 8(b)(1)(A) of the Act. C. Should the Board Defer to the Committee’s Decision to Deny Bianchi’s Grievance and Uphold His Discharge? Deferral to an arbitral decision is warranted where the proceedings appear to have been fair and regular, all par- ties have agreed to be bound, the arbitral decision is not clearly repugnant to the purposes and policies of the Act,26 and the arbitrator considered the unfair labor prac- tice issue.27 Where the interests of the charging party grievant conflict with the interests of his or her union representative, the arbitral proceedings are not fair and regular, and the Board does not defer to arbitration.28 A conflict of interests rising to the level of a breach of the duty of fair representation plainly warrants a refusal to has acted with full knowledge of the facts.” Middlesex Mutual Insur- ance Co. v. Levine, 675 F.2d 1197, 1204 (11th Cir. 1982). Here, the key facts Bianchi needed to know were those involving Marr’s conduct at Daniels’ arbitration hearing, which, as just explained, crucially un- dermined Bianchi. But there is no evidence that Bianchi knew what transpired during Daniels’ hearing. We observe that, although the court of appeals, in finding waiver, took into account Bianchi’s awareness of “Marr’s personal and political animosity” against Bianchi generally, 441 F.3d at 1286, it did not consider Bianchi’s ignorance of Marr’s specific and highly prejudicial conduct at Daniels’ hearing. 26 Spielberg, supra, 112 NLRB at 1082. 27 Raytheon Co., 140 NLRB 883 (1963), petition for review granted on other grounds 326 F.2d 471 (1st Cir. 1964). 28 See, e.g., Postal Service, 336 NLRB 1182, 1191–1192 (2001) (de- clining to defer based on conflict of interest, where union president sabotaged grievance of employee based on personal hostility toward employee); Warehouse Employees Local 20408 (Dubovsky & Sons), 296 NLRB 396, 408–410 (1989) (declining to defer based on conflict of interest, where union that represented grievants caused discharges being grieved); Tubari Ltd., 287 NLRB 1273 (1988) (declining to defer based on conflict of interest between union and grievants, and also finding Sec. 8(b)(1)(A) breach of DFR), enfd. mem. 869 F.2d 590 (3d Cir. 1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204 defer on the basis that the proceedings were not fair and regular.29 The judge declined to defer based on his findings that the Committee did not consider the unfair labor practice issue and that its decision was clearly repugnant to the purposes and policies of the Act. We find it unnecessary to rely on either of those grounds. Instead, we find de- ferral to the Committee’s decision improper on the same basis as our finding that Marr’s representation of Bianchi constituted a breach of the Union’s duty of fair represen- tation.30 Thus, Marr allowed his personal animosity to- ward Bianchi to undermine his defense of Bianchi’s grievance by making and eliciting false or misleading statements, failing to present facts in Bianchi’s favor, and consistently casting blame on him to the Committee. D. Did Roadway’s Discharge of Bianchi Violate the Act? Bianchi was discharged for alleged misconduct in the course of acting in his capacity as union steward. As the judge correctly held, the applicable standard for deter- mining whether Bianchi’s discharge was unlawful is that set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). The Court there explained that [Section] 8(a)(1) is violated if it is shown that the dis- charged employee was at the time engaged in a pro- tected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of miscon- duct in the course of that activity, and that the em- ployee was not, in fact, guilty of that misconduct. Id. at 23. The respondent employer has the burden of show- ing that it held an honest belief that the discharged em- ployee engaged in misconduct. If the employer meets its burden, the burden shifts to the General Counsel to show that the employee did not, in fact, engage in the asserted misconduct.31 There are no exceptions to the judge’s finding that Roadway met its burden of showing that it honestly be- lieved Bianchi had engaged in misconduct. In any event, the evidence amply supports that finding. Roadway had good reason to believe that Daniels did not suffer an on- the-job injury. His paperwork from the hospital, which Roadway obtained, indicated that the injury was not work-related; it reflected diagnoses of chest pain, gastri- tis, and high blood pressure; and it directed Daniels to 29 Titanium Metals Corp. v. NLRB, 392 F.3d 439, 449–450 (D.C. Cir. 2004). 30 Accordingly, we find it unnecessary to address Roadway’s excep- tions to the judge’s reasons for declining to defer. 31 E.g., Marshall Engineered Products Co., 351 NLRB 767, 767 (2007). take an antacid and eat a low-sodium diet. Thus, when Bianchi submitted Daniels’ work-injury report, Roadway was justified in believing that Bianchi was, in its words, “involved in and promot[ing] fraud and dishonesty.” Accordingly, the burden shifted to the General Coun- sel to show that Bianchi did not, in fact, engage in the asserted misconduct. For the reasons stated by the judge, we agree with his finding that the General Counsel met this burden. The credited testimony establishes that Daniels told Bianchi that he was injured at work. Thus, we adopt the judge’s finding that Bianchi assisted Daniels in filing an on-the-job injury report that Bianchi believed to be truthful; and we affirm his conclusion that, by discharging Bianchi, Roadway violated Section 8(a)(1). We find it unnecessary to determine whether Roadway also violated Section 8(a)(3) because such a finding would not affect the remedy.32 AMENDED CONCLUSIONS OF LAW 1. Roadway Express, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters, Local 769, and its predecessor, International Brotherhood of Team- sters, Local 390, are labor organizations within the mean- ing of Section 2(5) of the Act. 3. Respondent Roadway Express violated Section 8(a)(1) of the Act by discharging employee Amadeo Bi- anchi on October 30, 2001, because of Bianchi’s pro- tected activities as union steward. 4. Respondent International Brotherhood of Team- sters, Local 769, and its predecessor, International Broth- erhood of Teamsters, Local 390, breached its duty of fair representation to Amadeo Bianchi in violation of Section 8(b)(1)(A) of the Act by representing Bianchi in connec- tion with his grievance in bad faith. ORDER The National Labor Relations Board orders that A. The Respondent Employer, Roadway Express, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any employee because of his or her protected activity as union steward. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 32 See Burnup & Sims, 379 U.S. at 22 (“We find it unnecessary to reach the questions raised under § 8(a)(3) for we are of the view that in the context of this record § 8(a)(1) was plainly violated, whatever the employer's motive.”); Webco Industries, 327 NLRB 172, 172 fn. 7 (1998), enfd. 217 F.3d 1306 (10th Cir. 2000). ROADWAY EXPRESS, INC. 205 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Amadeo Bianchi full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Jointly and severally with the Respondent Union, make Amadeo Bianchi whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the judge’s decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Amadeo Bianchi, and within 3 days thereafter, notify Amadeo Bianchi in writing that this has been done and that his discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its Miami, Florida facility copies of the attached notice marked “Appendix A.”33 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent Employer and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since October 30, 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 33 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” testing to the steps that the Respondent has taken to comply. B. The Respondent Union, International Brotherhood of Teamsters, Local 769, and its predecessor, Interna- tional Brotherhood of Teamsters, Local 390, their offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Breaching its duty of fair representation by repre- senting a unit employee in connection with his or her grievance in bad faith. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Em- ployer, make Amadeo Bianchi whole for any loss of earnings and other benefits suffered as a result of his lack of fair representation, in the manner set forth in the rem- edy section of the judge’s decision. (b) Within 14 days after service by the Region, post at its union office and all other places where notices to members are customarily posted, copies of the attached notice marked “Appendix B.”34 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent Union and maintained for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX A NOTICE TO EMPLOYEES 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 vio- lated Federal labor law and has ordered us to post and obey this notice. 34 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge any employee because of his or her protected activity as union steward. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights set forth above, which are guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Amadeo Bianchi full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL, jointly and severally with International Brotherhood of Teamsters, Local 769, and its predeces- sor, International Brotherhood of Teamsters, Local 390, make Amadeo Bianchi whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, less any net interim earnings, plus in- terest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Amadeo Bianchi, and WE WILL, within 3 days thereafter, notify Amadeo Bianchi in writing that this has been done and that his discharge will not be used against him in any way. ROADWAY EXPRESS, INC. APPENDIX B 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT breach our duty of fair representation by representing any of you in connection with your griev- ance in bad faith. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights set forth above, which are guaranteed you by Section 7 of the Act. WE WILL, jointly and severally with Roadway Express, Inc., make Amadeo Bianchi whole for any loss of earn- ings and other benefits suffered as a result of his lack of fair representation, less any net interim earnings, plus interest. INTERNATIONAL BROTHERHOOD OF TEAM- STERS, LOCAL 769, AND ITS PREDECESSOR, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, LOCAL 390 Christopher Zerby, Esq., for the General Counsel. Todd A. Dawson, Esq. and Chris Bator, Esq. (Baker & Hostetler, LLP), for the Respondent Employer. Barbara Harvey, Esq. (on brief), for the Charging Party. Howard Susskind, Esq. and Marcus Braswell, Esq. (Sugarman & Susskind, P.A.), for the Respondent Union. DECISION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. Respondent Employer discharged a shop steward for conduct associated with his representation of another employee. Previously, the steward had campaigned unsuccessfully against the union busi- ness agent who assisted him in grieving the discharge. The record establishes that Respondent Employer violated Section 8(a)(1) and (3) by discharging the steward, but Respondent Union neither breached the duty of fair representation nor vio- lated the Act. Procedural History This case began on April 16, 2002, when the Charging Party, Amadeo Bianchi, filed an unfair labor practice charge against Roadway Express, Inc., docketed as Case 12–CA–22202, and a charge against International Brotherhood of Teamsters, Local 390, the predecessor to the Respondent Union named in the complaint. The Board’s Regional Office docketed the charge against Local 390 as Case 12–CB–5002. On July 2, 2002, the Charging Party amended both of those charges. On July 30, 2007, the Regional Director for Region 12 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint, and notice of hearing (the com- plaint). In doing so, the Regional Director acted on behalf of, and with authority delegated by, the Board’s General Counsel (the General Counsel or the government). The Respondents filed timely answers. A hearing opened before me on March 24, 2008, in Miami, Florida, and closed on March 25, 2008, after all parties had the opportunity to call witnesses and present evidence. Thereafter, the parties submitted briefs. ROADWAY EXPRESS, INC. 207 Admitted Allegations In their answers, as amended at hearing, the Respondents admitted certain of the complaint allegations. Based upon those admissions, I make the following findings. The unfair labor practice charges were filed, amended and served as alleged in complaint paragraphs 1(a), (b), (c), and (d). At all material times, Roadway Express, Inc. (Respondent Roadway or Respondent Employer) has been a Delaware cor- poration, with its corporate office located in Akron, Ohio, and an office and place of business located in Miami, Florida. At all material times, Respondent Roadway has been engaged in the transportation of industrial, commercial, and retail goods throughout the United States, and between the United States and foreign countries. Respondent Roadway is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and therefore is subject to the Board’s jurisdiction. Its operations meet the Board’s criteria for the exercise of its jurisdiction. At all material times, the following individuals have been supervisors of Respondent Roadway within the meaning of Section 2(11) of the Act, and its agents within the meaning of Section 2(13) of the Act; Terminal Manager Christopher Clark; City Dispatcher and Supervisor Lauren Finley; Terminal Op- erations Manager Craig Henschel; Inbound Foreman William Jongeblood; Supervisor Craig Michael; Pickup and Delivery Supervisor and Safety Manager Bud Rowland; Labor Relations Manager Wilbur Williams; and Assistant Terminal Manager Michael Wilson. Sometime in November 2004, Local 390, International Brotherhood of Teamsters, merged into Local 769, Interna- tional Brotherhood of Teamsters. At all material times since November 2004, Local 769 (the Respondent Union) has been the successor to Local 390, with no alteration of the identity of the bargaining representative. At all material times, the Re- spondent Union has been a labor organization within the mean- ing of Section 2(5) of the Act. At all material times, Donald Marr held the position of busi- ness agent of the Respondent Union, and was its agent within the meaning of Section 2(13) of the Act. At all material times until on or about October 22, 2002, Geraldine Pape held the position of President and Business Manager of Local 390, Re- spondent Union’s predecessor, and was Local 390’s agent within the meaning of Section 2(13) of the Act. Facts At all material times, Respondent Union or its predecessor, Local 390, has been the exclusive bargaining representative of a unit of Respondent Roadway’s employees. These employees include drivers and dock workers. Charging Party Amadeo Bianchi worked in the bargaining unit until his discharge on about October 30, 2001. At the time of his discharge, Bianchi was also the chief union shop steward, a position he had held since 1984. On five occasions, Bianchi ran unsuccessfully for higher un- ion office. Three times, he ran for president, and twice for delegate. In campaigning for union office, candidates grouped themselves into “slates.” Bianchi ran as part of the “slate” which opposed the incumbent candidates. Respondent discharged Bianchi and another employee, Isaah Daniels, at the same time, and as a result of events involving both of them. These events are crucial to the outcome of this case and therefore should be examined carefully. At the outset, determining what happened requires an assessment of witness credibility. My observations of the witnesses lead me to conclude that Daniels’ testimony is most reliable. Where Daniels’ testimony conflicts with that of other witnesses, I credit Daniels. Like- wise, I conclude that Bianchi’s testimony merits trust. The following summary of events relies on the credited testimony of Daniels and Bianchi. On October 12, 2001, Daniels was working the night shift. He experienced chest pain which he then believed to be heart- burn. Daniels told his supervisor, Craig Henschel, about the dis- comfort, and Henschel gave him some antacid. When the pain continued, Daniels told Henschel that he couldn’t work, and Henschel sent him home. The next day, Daniels became concerned about the chest pain and went to a fire station, where a paramedic or emer- gency medical technician performed an electrocardiogram and concluded that Daniels was not having a heart attack. How- ever, when he continued to experience pain, Daniels went to a hospital emergency room, where he complained of chest pain radiating to the back. The hospital admitted him on October 13, 2008, and discharged him the next day. Daniels testified that, while at the hospital, a physician told him that he had a “severely pulled muscle” over his heart. However, the hospital discharge summary lists the following diagnoses: (1) chest pain, (2) gastritis, (3) high blood pressure. Even though the discharge summary does not mention a pulled muscle, it doesn’t exclude the possibility that a physician who examined Daniels made such a statement. Moreover, only the discharge summary, and not Daniels’ entire “chart,” is in evidence. As stated above, my observations of Daniels lead me to conclude that he is a trustworthy witness. Accordingly, I conclude that a physician did tell him that a pulled muscle caused his chest pain. Daniels telephoned Henschel from the hospital and told him that a pulled muscle, rather than heartburn, had caused the pain. However, Daniels testified that he “didn’t go into a whole lot of detail” because Henschel was busy. The hospital discharged Daniels on October 14, 2001, but he did not return to work. According to Daniels, he telephoned Business Agent Marr 3 or 4 days later. “I told him,” Daniels testified, “that I worked on the 12th and I got injured and I was out of work for several days and I was in the hospital for two days.” According to Daniels, Marr asked if he had filled out an in- jury report. When Daniels answered that he had not, Marr said that it was too late. Marr’s testimony about this conversation differs. In Marr’s version, he asked Daniels whether “it had happened at work” and Daniels had replied that he didn’t know. As discussed above, my observations of the witnesses lead me to place con- siderable trust in Daniels’ testimony. Additional reasons per- suade me that Marr’s testimony, quoted above, is not so reli- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208 able. The General Counsel asked Marr if he told Daniels that Terminal Manager Chris Clark would get “pissed off” if Daniels filed an on-the-job injury report. Marr’s response did not answer the question, so the General Counsel asked it again. Marr’s reply again ignored the question, which the General Counsel then asked for the third time. Marr answered: “I don’t recall telling him that at that conversation, no. I think that was his statement, not mine.” Marr’s failure to provide a responsive answer, twice, does not foster confidence in his testimony. Moreover, this instance wasn’t the only time that Marr sidestepped the question. Because of litigation unrelated to the Act, a court-appointed master supervised the Union’s internal election process in 2001. At one point, Marr complained to the master that Bianchi had engaged in improper campaigning. Ultimately, after an inves- tigation, the master rejected this complaint. The master’s report concluded that Marr had “misrepresented the practice permit- ting campaigning and thereby misled the protestor into pursu- ing this protest.” During Marr’s testimony, the General Coun- sel questioned him about the master’s report: Q. BY MR. ZERBY: Well, isn’t it true that the investi- gative officer stated that you misrepresented the practices? A. The practice under the guidelines, you could not campaign in the Employer’s break room. Q. Isn’t it true though that the investigator concluded that you misrepresented that practice? A. He practiced in the break room. Q. My question again is isn’t it true that the investiga- tor concluded that you misrepresented that practice permit- ting campaigning? A. Misrepresent––the practice was you could only campaign in parking lots, not in a break room. That’s why I filed the charge. Q. Isn’t it true that the investigator concluded that when you filed the charge, you misrepresented the prac- tice? A. He could have, but the practice was you could not campaign in break rooms. That’s why I filed the charge. The nonresponsiveness of Marr’s answers concerns me. Addi- tionally, another portion of Marr’s testimony raises further concerns about his credibility. That testimony will be exam- ined later in this decision, after some discussion necessary to place it in context. The concerns about Marr’s testimony lead me to conclude that it is not as reliable as that of Daniels and Bianchi. Credit- ing Daniels, I find that he did tell Marr that he had been injured at work. Based on Daniels’ testimony, I also find that Marr told Daniels that it was too late to file an injury report and advised Daniels to fill out a lost time claim form. (Daniels explained that employees used this form for off-duty injuries. The form is an application for benefits provided by the Union, and not an application for workers’ compensation.) Daniels’ telephone conversation with Marr took place on Oc- tober 17 or 18, 2001. About a day later, Daniels participated in a “three-way” telephone conversation with Charging Party Bianchi and another Roadway employee, Shawn Becker, who initiated the call. During this conversation, Daniels mentioned that he had got- ten hurt at work. Bianchi replied that if he had gotten hurt at work, then he should fill out an injury report, that is, a workers’ compensation claim form, rather than seeking the lost time benefits provided by the Union. Because the outcome of the unfair labor practice case against Roadway turns on what Daniels said to Bianchi and on how Bianchi replied, the credibility of these two witnesses becomes crucial. Therefore, it is appropriate to examine the relevant evidence carefully. Only three persons—Becker, Daniels, and Bianchi—heard what was said during this telephone conversation, and Becker didn’t hear all of it. (When the “call waiting” feature alerted Becker that someone else was telephoning him, he switched to the incoming call.) However, all of the testimony paints a con- sistent picture of what Daniels told Bianchi and what Bianchi said in response. Daniels testified that he told Bianchi that “I worked at night and I got injured.” According to Bianchi, Daniels reported that he had telephoned Terminal Operations Manager Henschel from the hospital and reported that “he had a pulled muscle over his heart and he got hurt at work.” Becker testified that “Daniels explained to Amadeo [Bian- chi] about how he pulled the muscle in his heart.” Although this testimony doesn’t specifically quote Daniels as saying that he pulled the muscle while on the job, Becker then quoted Bi- anchi as saying “if you get injured at work. . . .” Such a reply would seem unlikely if Daniels had not, in fact, told Bianchi that the injury occurred while working. In sum, the testimony of all three witnesses to this conversa- tion supports the conclusion that Daniels told Bianchi he had been injured at work. I so find. According to Daniels, Bianchi replied by saying “that if I got injured, I should fill out an injury report.” Bianchi testified that he told Daniels “If you got hurt at work, you have to file an on- the-job claim, Comp claim.” Becker did not hear this part of the conversation. He had switched to the incoming call after Bianchi said “if you get injured at work.” As stated above, my observations of the witnesses persuade me that Daniels testified reliably. Moreover, nothing in Bian- chi’s demeanor suggested that he was not telling the truth. Crediting Daniels and Bianchi, I find that Bianchi did tell Daniels that if he suffered an injury at work, he should file an on-the-job injury report. During this conversation, Daniels described the conversation he had with Business Agent Marr, who had told Daniels he should file for the Union’s lost-time benefit rather than for workers’ compensation. Crediting Bianchi’s testimony, I find that Bianchi replied to Daniels by saying that if he actually had gotten hurt at work, it would defraud “Central States” (the Un- ion’s fund) to file for the lost-time benefit. No evidence indicates that, during this telephone conversa- tion, Daniels and Bianchi discussed filing a fraudulent workers’ compensation claim. The record does not establish that Daniels and Bianchi engaged in such collusion at any time. Certainly, ROADWAY EXPRESS, INC. 209 no witness testified that he overhead Daniels and Bianchi plot- ting to defraud the workers’ compensation fund. It may be noted that during the lawsuit in Federal district court, witnesses testified about these same events both in pre- trial depositions and from the witness stand during the trial itself. If the discovery and testimony in that case had revealed any evidence that Daniels and Bianchi had plotted to defraud workers’ compensation, almost certainly that evidence would have been offered into the record here. In the absence of such evidence, I will not presume that Daniels and Bianchi ever collaborated in an attempt to defraud workers’ compensation. Rather, I find that they did not. After Daniels unsuccessfully requested the form used to re- port an on-the-job injury, Bianchi obtained the form and gave it to him. Bianchi also was present when Daniels completed the form and answered Daniels’ questions about the proper way to fill it out. I find that in doing so, Bianchi was acting in his capacity of chief union shop steward. At one point, Daniels asked Bianchi what date he should put on the form. It appears that Bianchi understood Daniels to be asking “what date should I put down the injury happened?” Bianchi replied that Daniels should put down the date of the injury. The “date of the injury”—or, more exactly, the date Daniels believed that he sustained the injury—was October 12, 2001, when chest pain caused him to leave work early. However, Daniels dated the form itself “10/12/01,” thereby indicating incorrectly that he had signed the form on the date of the sup- posed injury. Daniels testified that doing so was a mistake. Besides Daniels’ demeanor, another reason leads me to credit this tes- timony. Daniels’ birthday is October 12, 1967. However, on that part of the form for “date of birth,” Daniels wrote “10/12/01” rather than “10/12/67.” Daniels obviously had no reason to lie about his birth date. Therefore, the incorrect birth date would appear to be further evidence of Daniels’ confusion. Moreover, it may be noted that after Daniels’ discharge, he testified before a grievance resolution panel that he had made a mistake when he dated the form. The panel reinstated Daniels. Although the panel did not explain its reasons for doing so, it would appear unlikely for the panel to have restored Daniels’ employment if the panel members had disbelieved his testi- mony. Stated another way, if the panel members had rejected Daniels’ testimony that he had made a mistake, they necessarily would have concluded that he had lied on the form, which would constitute fraud. In those circumstances, it seems quite improbable that the panel would have ruled in his favor. In any event, crediting Daniels, I conclude that he simply erred when he dated the form October 12, 2001. Management, however, viewed the incorrect date as evidence that Daniels was trying to conceal the 10-day period which had elapsed between the claimed injury and the time he reported it. On October 30, 2001, Respondent Roadway terminated Daniels’ employment. The discharge notice gave the following reason: “An act of dishonesty with fraud in reporting a per- sonal illness or injury as an on-the-job injury and completing injury documents on 10/22/01. For the above, you are hereby discharged.” At the same time it fired Daniels, Roadway also terminated Bianchi’s employment. The October 30, 2001 discharge notice provided this explanation: YOU VIOLATED OUR POLICY (OR CONTRACT) BY: Your act of dishonesty, being involved in and promoting fraud by reporting a personal illness or injury as an on-the-job injury. On-the-job injury documents were completed on 10/22/01. For the above, you are hereby discharged. Both Daniels and Bianchi filed grievances. Under the estab- lished grievance procedure, management answers the grievance in writing. Terminal Manager Christopher Clark’s answer to Bianchi’s grievance stated, in pertinent part, as follows: On the evening of 10/18/01 Bianchi called a laid off employee (Gerome Daniels) that was off due to a personal medical con- dition as of 10/12/01. Bianchi said Shawn Becker (a laid off employee) called Gerome [Daniels] on an issue not related to Gerome’s medical condition. Gerome had been off work since he took himself out of service on 10/12/01 at 01:15 AM (he started at 0001, 10/12/01). Gerome had what he called “heartburn.” Gerome checked himself into North Shore Medical Center on his wife’s Cigna Insurance on Saturday, 10/13/01 at 1438 PM. The notation on the bottom of this ex- hibit shows Accident Work Related: NO (exhibit 1). During this conversation Bianchi told Gerome not to go to the Union Hall on Friday 10/19/01 and complete Central States Lost Time Benefit forms as Gerome was advised to do by Don Marr (390 Business Agent). Bianchi told Gerome to fill out on[-]the[-]job injury forms at Roadway on the next day. Gerome called at approximately 11:30 AM 10/19/01. Gerome talked with Bud Rowland (Personnel Manager) and Mike Wilson (A.T.M.). [Assistant terminal manager] Gerome told them both that he wanted them to fax the injury report to the union hall. Mike and Bud told him they could not fax it and to come to Roadway to fill out the forms. Gerome did not come in 10/19/01 to fill out the forms. Gerome showed up on Saturday, 10/20/01 at 11:30 AM. I happened to be here and after finding out he did not show up 10/19/01 as instructed, I instructed him to come back Mon- day, 10/22/01 to see Bud Rowland (Bud had all pertinent in- formation concerning Gerome’s last night worked). I would have completed the forms at this time but I did not know where Bud’s information was. Gerome said he would. On 10/22/01 at 0545 AM, A. Bianchi asked City Dis- patcher, Lauren Finley, for an injury packet for Gerome Daniels. Lauren gave him the injury packet (Exhibit G). At approximately 0615 AM, 10/22/01, A. Bianchi handed the injury packet to Craig Michael (Driver Superinten- dent), (Exhibit H). Craig had just walked through the door moments earlier and did not know the history. Craig put this on Bud’s desk. Bud came in at 0730 AM, 10/22/01. He opened the packet to find it had not been completed properly and the supervisor’s report was not completed at all (this would have been done if Gerome would have come in to see Bud as he was instructed to do by the TM, Chris Clark). After reviewing the employee’s injury re- port, Bud saw that Gerome had put the date on the bottom DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210 of the form as 10/12/01, not 10/22/01. Gerome completed the form on 10/22/01 not 10/12/01. After a phone call from Gerome, it was determined that A. Bianchi told Gerome to put the date of 10/12/01 on the forms instead of 10/22/01. As per Exhibits D, E, I, J1, J2 and K, it is clear A. Bi- anchi told Gerome to date the injury form the wrong date. This would make the injury appear to have been reported on 10/12/01 and not a later date. It appears that if Gerome had the intention to report this medical condition, he would have done so Saturday, Sunday, Monday, Tuesday, Wednesday or Thursday. It was not until he was told by A. Bianchi not to fill out Central States Lost Time forms but rather to file an injury form with Roadway Express that Gerome called Roadway to fill out the forms. Respondent Roadway denied both Bianchi’s grievance and Daniels’ grievance at this initial level. The contractual griev- ance procedure provides for a hearing before a joint area griev- ance committee, consisting of two Union and two management members from trucking companies with which the Union has a collective-bargaining relationship. The joint area grievance committee conducts a hearing at which the grievant and representatives of the Union and man- agement have the right to participate. The committee considers testimony given during the hearing, documentary evidence, and the arguments of the parties. The committee members meet in private and then issue a decision which sustains or denies the grievance. The decision does not include any explanation for the committee’s action. The collective-bargaining agreement provides that the joint area grievance committee’s actions are final and binding, with one exception. If the committee deadlocks on a discharge or suspension grievance, then a “regional arbitration panel” de- cides the matter. That exception, however, is not relevant here because the joint area grievance committee did not deadlock. On November 13, 2001, the committee heard Daniels’ griev- ance and held in his favor. The next day, the committee, con- sisting of the same four individuals, heard Bianchi’s grievance. At the outset of the hearing, Labor Relations Manager Wilbur Williams described why Roadway had discharged Bianchi. He stated, in pertinent part, as follows: [Mr.] Bianchi asked City Dispatcher, Lauren Finley, for an in- jury packet for Gerome Daniels. At 05:15 a.m., on October 22nd, 2001, Mr. Bianchi handed the completed injury packet to Craig Michael, the Driver Superintendent. The date on the bottom of the form is October 12th, 2001, not October 22nd, 2001. After a phone call from Gerome, it was determined that Bianchi told Gerome to put the date of October 12th, 2001 on the form, instead of October 22nd, 2001. As the chief stew- ard, Mr. Bianchi, through his collusion, was involved in and promoted fraud and dishonesty with coercion in deceiving the Company. Although Williams then quoted the explanation provided to Bianchi in the discharge letter, he did not explain why Respon- dent accused Bianchi of promoting fraud and dishonesty “with coercion.” The record does not indicate that Bianchi engaged in any coercive conduct. As noted above, the committee consisted of the same four individuals who had sustained Daniels’ grievance the day be- fore. However, the committee denied Bianchi’s grievance. It provided no explanation for this decision. Bianchi sued both Roadway and the Union under Section 301 of the Labor-Management Relations Act, alleging that Roadway had discharged him unlawfully and that the Union had failed to represent him fairly. At the trial level, the jury returned a verdict in Bianchi’s favor. However, the United States Court of Appeals for the 11th Circuit reversed. It held that Bianchi had waived his right to contest the fairness of the Union’s representation because, at the close of the grievance hearing, he had stated that he be- lieved the Union’s business agent had represented him “prop- erly and fairly.” The Court’s decision had the effect of denying Bianchi’s claims against both Roadway and the Union. The Effect of Other Proceedings I. THE GRIEVANCE PROCEEDINGS Respondents raise a number of defenses related to the princi- ples of collateral estoppel and res judicata. They can be summa- rized as follows: The Charging Party already has had at least two bites at the apple and he shouldn’t be allowed a third. One of those “bites” involved filing a grievance concerning his discharge and participating in the hearing, described above, on November 14, 2001. Respondents urge that the Board defer to the panel’s decision denying the grievance. The Board strongly favors deferral to arbitration as a means of encouraging parties to voluntarily resolve unfair labor prac- tice issues. Kvaerner Philadelphia Shipyard, Inc., 347 NLRB 390, 391 (2006), citing Olin Corp., 268 NLRB 573, 574 (1984); Aramark Services, 344 NLRB 549, 550 (2005). The Board similarly defers to the grievance resolution decision reached by a joint committee such as the one which heard Bianchi’s griev- ance in the present case. United Parcel Service, 274 NLRB 667 (1985). Accordingly, in deciding whether the joint com- mittee’s decision merits deferral, I will apply the same deferral standards the Board applies to the awards of arbitrators. The party opposing deferral has the burden of showing that deferral is inappropriate. Turner Construction Co., 339 NLRB 451 (2003). This burden is a heavy one. Kvaerner Philadel- phia Shipyard, above. The Board has defined four criteria for determining whether deferral is appropriate. The party opposing deferral must show that at least one of these criteria has not been met. The criteria are as follows: 1. The arbitral proceedings appear to have been fair and regular. 2. All parties have agreed to be bound. 3. The arbitrator’s decision is not “clearly repugnant” to the purposes and policies of the Act. 4. The arbitrator must have considered the unfair labor practice issue which is before the Board. Motor Convoy, Inc., 303 NLRB 135 (1981), citing Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Raytheon Co., 140 211 NLRB 883 (1963). ROADWAY EXPRESS, INC. 211 1. The first two criteria At the outset, it may be noted that the words “fair and regu- lar” in the first criterion refer to the grievance proceedings rather than to the result. Applying this standard therefore does not involve deciding whether the outcome was “fair” or just. Rather, the criterion focuses on the procedure. Bianchi attended the proceeding and had the opportunity to speak and present evidence. Indeed, it is clear that he played a significant role in making sure that his union representative presented the evidence in the manner he wanted. The record does not reveal any manifest procedural unfairness. Moreover, the proceeding was “regular” in the sense that the collective- bargaining agreement established this forum and Bianchi’s hearing did not differ procedurally from those of other griev- ants. I conclude that the proceeding satisfies the “fair and regu- lar” requirement. As already noted, the collective-bargaining agreement estab- lished this procedure for resolving grievances. Accordingly, all parties agreed to be bound. I conclude that the second criterion has been satisfied. Whether the grievance committee’s decision satisfied the third and fourth criteria will be discussed at some length below. Before applying these criteria to the facts, however, it may be helpful to describe them in greater detail. To meet the third criterion, an arbitrator’s award must not be “clearly repugnant” to the purposes and policies of the Act. An arbitrator’s decision is not “clearly repugnant” to the purposes and policies of the Act if it is “susceptible” to an interpretation which is consistent with the Act. If Board precedent exists that supports an arbitrator’s deci- sion, it cannot be said that the decision falls outside the broad parameters of the Act. Thus, such a decision is not palpably wrong or clearly repugnant to the Act, even if other Board precedent is arguably contrary to the arbitral decision. Kvaerner Philadelphia Shipyard, above, citing Marty Gut- macher, Inc., 267 NLRB 528, 528–533 (1983). The Board has interpreted its fourth criterion—that the arbi- trator must have considered the unfair labor practice issue—to allow deferral even in some cases where the arbitrator made no mention of the alleged unfair labor practice. It suffices if the contractual issue decided by the arbitrator is “factually parallel” to the unfair labor practice issue. Nationsway Transport Ser- vice, 327 NLRB 1033 (1999). The arbitrator also must have been “presented generally” with the facts relevant to resolving the unfair labor practice. Motor Convey, Inc., above. 2. Was the grievance decision “palpably wrong”? In determining whether the area grievance committee’s deci- sion was “palpably wrong” and “clearly repugnant to the pur- poses and policies of the Act,” it should be noted that Respon- dent discharged Bianchi for his actions as the Union’s steward. Thus, Labor Relations Manager Williams told the joint griev- ance committee that Bianchi had requested the “injury packet” for Daniels and that “it was determined that Bianchi told Gerome to put the date of October 12th, 2001 on the form, instead of October 22nd, 2001.” Bianchi took both of these actions—obtaining the injury form and advising Daniels on how to complete it—in his capac- ity as union steward. The actions had nothing to do with Bian- chi’s responsibilities as an employee and Bianchi had nothing to gain by taking them. Thus, the reasons Respondent cited for discharging Bianchi solely concerned his concerted union ac- tivities. Indeed, in the Respondent’s opening statement to the joint grievance committee, Williams identified Bianchi as a steward: [T]he chief steward, Mr. Bianchi, through his collusion, was involved in and promoted fraud and dishonesty with coercion in deceiving the Company. Bianchi’s duties as union steward clearly constitute con- certed activity protected by the Act. There is no apparent rea- son for Labor Relations Manager Williams to identify Bianchi as chief union steward unless he wished the grievance commit- tee to consider that fact in deciding the outcome of the griev- ance. Moreover, it appears that the grievance committee not only considered Bianchi’s status as steward, but held it against him. Roadway had discharged Daniels for “An act of dishonesty with fraud in reporting a personal illness or injury as an on-the- job injury,” and had discharged Bianchi for assisting Daniels. However, the grievance committee had sustained Daniels’ grievance, which implicitly rejected the assertion that Daniels had been engaged in fraud and dishonesty. The next day, the same committee upheld the discharge of Bianchi, whom Respondent had fired for “promoting fraud and dishonesty” and for “collusion” with Daniels. If both Daniels and Bianchi had colluded in fraud, then they would have been equally guilty. However, without explanation, the committee found that Bianchi’s conduct warranted discharge but that Daniels’ did not. The only apparent difference between Daniels and Bianchi is that Bianchi was chief union steward and engaged in protected activity. The committee clearly knew about this difference because, as noted above, Roadway’s argument to the committee mentioned that Bianchi was chief steward. If the grievance committee had another reason, unrelated to Bianchi’s protected activities, for treating him more harshly, it could have said so. It did not. The Board has held that an arbitral decision is not “clearly repugnant” if it is “susceptible to an interpretation consistent with the Act.” Olin, above, 268 NLRB at 574. Therefore, I must ascertain whether the grievance committee could have treated Bianchi more harshly than Daniels for any reason unre- lated to Bianchi’s protected activity. Here, it is difficult to weigh whether the grievance commit- tee’s decision is “susceptible to an interpretation consistent with the Act” because the committee offered no explanation for its decision and, accordingly, there is nothing to interpret ex- cept the one-sentence ruling. Moreover, the committee’s rea- soning is not self-evident. Indeed, it is next to impossible to infer the committee’s reasoning from the results because the committee reached conflicting decisions in the Bianchi and Daniels cases. If the committee’s action—upholding the discharge of the union steward but reversing the discharge of another employee for essentially the same conduct—can be interpreted in a man- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212 ner consistent with the Act, such an interpretation eludes me. The present record certainly doesn’t suggest such a nondis- criminatory reason. In sum, I conclude that the grievance committee’s decision is palpably wrong and clearly repugnant to the purposes of the Act. 3. Did the grievance committee consider the unfair labor practice? A provision in the collective-bargaining agreement prohibits discrimination against an employee because of union activities. Specifically, article 21 states, in pertinent part: Any employee, member of the Union, acting in any official capacity whatsoever shall not be discriminated against for his/her acts as such officer of the Union so long as such acts do not interfere with the conduct of the Employer’s business, nor shall there be any discrimination against any employee because of Union membership or activity. However, the Union did not invoke, cite, or otherwise refer to this contract language either in the grievance itself or during the proceeding before the grievance committee. The record does not suggest that the Union ever argued that Respondent Roadway had discriminated against Bianchi because of his acts as union steward. Similarly, nothing indicates that the griev- ance committee considered this issue. In other respects, the record does not establish that the griev- ance committee considered any issue factually parallel to the unfair labor practice issue. The Union argued that Bianchi had not acted dishonestly but it made essentially the same argument in Daniels’ case, and Daniels was not a union steward. The grievance committee had no reason to consider Bianchi’s status as a steward or the protected nature of his activity because the Union did not invoke the contractual language quoted above or argue that Bianchi’s conduct was entitled to its protection. Accordingly, I conclude that the grievance committee did not consider the unfair labor practice issue. Therefore, its decision is not entitled to deferral. For the above reasons, I have concluded that deferral to the joint grievance committee’s decision is not appropriate. There- fore, I proceed to the merits of the case. As discussed below, the credited evidence establishes that Respondent Roadway discharged Bianchi because of Bianchi’s protected activities as union shop steward. This finding affords an additional reason not to defer to the grievance resolution process. Where the precipitating event leading to an em- ployee’s termination is the employee’s protected activity, the Board considers deferral inappropriate. Mobil Oil Exploration & Producing, U.S., 325 NLRB 176 (1997).1 1 It may be noted that the General Counsel’s brief offers a further reason for denying deferral: “In Kansas Meat Packers, 198 NLRB 543, 544 fn. 5 (1972), the Board concluded that deferral to arbitration would be repugnant to the purposes of the Act because it would relegate the alleged discriminatees to an arbitral process authorized, administered and invoked entirely by parties hostile to their interests.” For the fol- lowing reason, however, I believe that the cited case is not apposite. The Kansas Meat Packers case (also known as Aristo Foods) in- volved a question of prearbitration deferral under Collyer Insulated Wire, 192 NLRB 837 (1971), rather than the postaward Spielberg de- ferral sought here. Because the grievance proceeding already has taken II. THE LAWSUIT As noted above, Bianchi filed a Federal lawsuit against the Employer and the Union and prevailed at the trial level. How- ever, the United States Court of Appeals for the 11th Circuit held that Bianchi had waived his right to contest the fairness of the grievance proceeding and reversed. Here, I must determine whether the court of appeals’ decision precludes any part of the present litigation. For the reasons discussed below, I conclude that it does not. When it reversed the trial court’s judgment in favor of Bian- chi, the court of appeals did not delve into the facts considered by the jury. Rather, it focused on an answer Bianchi provided in response to a question by a member of the joint committee which heard his grievance. After both sides had presented evi- dence to the committee, but before the committee issued its decision, one of the committee members, Pete Webb, asked the grievant two customary questions. The transcript of the griev- ance hearing reports the exchange as follows: WEBB: Any further questions? Mr. Bianchi, there’s two (2) questions that we ask at the end of the case. First (1st) of all, do you feel that you’ve had an opportunity to say everything and present every piece of evidence that needs to be entered on your behalf? BIANCHI: Once again I wish I would have been more and I didn’t know about what, reading the same thing into the, for these A, B, C, D, and F, up to L and have Gerome in here to ask the questions. I was un, unprepared for that and I should have been more prepared. But other than that, I presented anything that I could. WEBB: So your answer is yes? BIANCHI: Yes. WEBB: Secondly, do you feel that the Local Union has represented you properly and fully? BIANCHI: I believe Don Marr represented me properly and fully. The court of appeals held that Bianchi’s words—“I believe Don Marr represented me properly and fully”—constituted a waiver of his right to contest the quality of the representation in the Section 301 lawsuit. For that reason, it reversed the judg- ment. Here, for a simple reason, I need not go into an elaborate comparison of the court’s standards for finding a waiver with the Board’s standards for finding a waiver. The simple reason is this: Bianchi did not possess any authority to waive the Board’s right—more exactly the General Counsel’s right—to prosecute the unfair labor practice cases. By analogy, the relationship of tort law to criminal law illus- trates why Bianchi did not possess authority to waive the gov- ernment’s right to prosecute. Suppose, for example, that person A commits a battery on person B. Suppose further that person B calls the police, resulting in person A’s arrest, and also sues A in civil court. The battery constitutes both a crime and a tort. As the plaintiff in the civil action, person B can waive his right to pursue the tort claim or otherwise bring the litigation to place, what happened there is a matter of established fact which can and should be evaluated under the Spielberg standards. ROADWAY EXPRESS, INC. 213 an end. However, he does not have a similar right to control the criminal case. Certainly, person B may try to persuade the prosecuting attorney to drop the charge, but the prosecuting attorney has a duty to act on behalf of the citizenry to preserve the public peace. Exercising prosecutorial discretion, she could decide that the public will not suffer significant harm if she drops the charge; she also could decide that it would serve the public interest to continue the prosecution, even over the vic- tim’s objection. Analogously, a union’s breach of the duty of fair representa- tion may create a civil cause of action and also constitute an unfair labor practice violation of the National Labor Relations Act. In the civil action, the plaintiff may waive his right to proceed, but he cannot control whether the prosecutor—the Board’s General Counsel—decides that the public interest re- quires litigation of the unfair labor practice. It should be stressed that the difference between the plain- tiff’s personal cause of action in the Section 301 suit and the unfair labor practice is not merely a theoretical or academic matter. Rather, Congress has committed to the Board and its General Counsel exclusive responsibility to make sure that the statutory system of collective representation actually functions in the workplace. An employer’s discharge of a union steward because he ex- ercised statutory rights isn’t just a private matter between the company and the employee. Rather, such an unlawful action harms other bargaining unit employees. In fact, it causes three different kinds of harm. First, the unlawful discharge of the shop steward deprives the employees of representation by the person they had de- signed, through their union, to be their closest and most imme- diately accessible adviser and spokesman. Second, the unlaw- ful discharge also discourages other employees from being willing to serve as union steward. Third, until remedied, the unfair labor practice potentially chills every steward’s willing- ness to discharge his duties conscientiously and assertively. The court of appeals reversed the district court’s judgment in Bianchi’s Section 301 lawsuit without ever reaching the pivotal issue in the present 8(a)(1) and (3) case, namely, whether Re- spondent Employer discharged Steward Bianchi unlawfully. For that reason alone, it would be inappropriate to defer to the court’s 8(a)(1) and (3) findings. There were no 8(a)(1) and (3) findings. Because of its holding that Bianchi had waived the right to challenge the fairness of the Union’s representation of him before the joint committee, the court of appeals necessarily never reached any issue concerning the propriety of the em- ployer’s action. Thus, it never considered whether the dis- charge met, or failed to meet, the standards established through collective bargaining. Moreover, it could not have reached, in any event, the issue of whether Bianchi’s discharge violated the National Labor Relations Act. Bianchi’s Section 301 lawsuit did not raise this issue, the court did not have jurisdiction to decide it, and nei- ther the Board nor its General Counsel appeared as a party in that action. Accordingly, I conclude that the court’s dismissal of the Sec- tion 301 lawsuit does not preclude the present unfair labor prac- tice litigation. The complaint in this case alleges that Respondent Employer discharged Bianchi in violation of Section 8(a)(1) and (3), but it also alleges, in part, that Respondent Union breached its “duty of fair representation” and thereby violated Section 8(b)(1)(A) of the Act. It might be argued that, although the Court lacked jurisdiction to decide the 8(a)(1) and (3) allegations, it nonethe- less possessed and exercised authority to determine whether the Union breached its duty of fair representation. In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court held that the National Labor Relations Act did not give the Board exclusive jurisdiction to determine and remedy such breaches. Section 301 of the Act afforded an employee an independent right to sue a labor organization for such a breach. However, in dismissing the Section 301 suit, the court of ap- peals held only that Bianchi had waived his right to contest the fairness of sufficiency of the Union’s representations. For the reasons discussed above, an individual’s waiver of a right to sue under Section 301 of the Act does not waive the General Counsel’s right to enforce Section 8(b)(1)(A). In sum, I conclude that the litigation in Federal court, and the decision of the United States Court of Appeals, do not preclude the resolution of any issue in this proceeding. III. THE ELECTION APPEALS MASTER Because of a Federal lawsuit not involving the Board, a court-appointed master oversees the internal elections con- ducted by the International Brotherhood of Teamsters. Re- spondent Roadway argues that the court-appointed master ruled on the allegation that Respondent Union failed to represent Bianchi fairly in the grievance proceeding. Specifically, in its posthearing brief, Roadway states, in part: Bianchi then filed an election protest with the Office of the Election Administrator . . . claiming that Marr did not repre- sent him properly during his grievance proceeding. (Tr. 53.) Gerry Pape, the Union president at the time, hired counsel to defend the Union in regard to the protest and to demonstrate that Bianchi had been properly represented in all respects. (Tr. 128.) Although the Administrator initially found in Bian- chi’s favor, the Election Appeals Master, The Hon. Kenneth Conboy (a former federal judge) reversed. (Tr. 53.) He found that there was no evidence of any wrongdoing by Marr or anyone else associated with the Union. (Tr. 53.) Bianchi’s protest therefore was dismissed. [Emphasis in original.] Respondent Roadway’s brief referred to Tr. 53, which re- cords the examination of Business Agent Marr by Roadway’s counsel. Marr’s testimony included the following: Q. I’d also like to ask you, we talked a little bit about the Election Administrator and the November 2nd, 2001 decision. The Election Administrator’s decision, those are ap- pealable to the Elections Appeals Master, correct? A. Yes. Q. And I believe if you look at the last page of Gen- eral Counsel Exhibit 12—actually, I’m sorry, it’s the next—third from the last page—one more—fourth from DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214 the last page, on Page 4, it says Kenneth Conboy, Election Appeals Master? A. Yes. Q. Is that right? Now, Mr. Bianchi filed a protest re- garding your handling of his grievance, correct? A. Yes. Q. The grievance that we’re, in fact, talking about in this proceeding. A. Yes. Q. And he made essentially the same thing that he’s making in this proceeding, that you did not appropriately represent him in that grievance, is that right? A. Yes. . . . . Q. BY MR. DAWSON: And in that proceeding, the Election Appeals Master found that there was absolutely no evidence that you had done anything wrong, isn’t that right? A. Yes. This conclusory testimony, in response to leading questions, fails to convince me that the election appeals administrator actually reviewed the Union’s handling of Bianchi’s discharge grievance and ruled that the Union had not breached its duty of fair representation. The duties of an election appeals master involve oversight of the campaigns for internal union office and the voting itself. The record does not establish that this official either had the authority to review how well the Union per- formed in grievance proceedings or actually scrutinized how the Union represented Bianchi in the grievance proceeding. Respondent’s argument also suffers from more fundamental difficulties. At the beginning of Marr’s testimony excerpted above, Roadway’s counsel directed Marr’s attention to General Counsel’s Exhibit 12, a report signed by the election appeals master, Kenneth Conboy. However, this report had nothing at all to do with Bianchi’s discharge grievance or the Union’s representation of Bianchi at the discharge hearing. Indeed, Conboy’s report is dated November 2, 2001, which was 12 days before the joint committee heard and ruled upon Bianchi’s grievance. Thus, both the timing of Conboy’s report and its contents undercut Respondent Roadway’s argument that Conboy examined the Union’s representation of Bianchi at the grievance proceeding and concluded that it was fair. In its brief, Respondent Roadway did not cite any other evi- dence to support its argument that the election appeals master reviewed the Union’s handling of the Bianchi grievance. The brief does refer to the testimony of the former local president, Geraldine Pape, recorded at Tr. 128. This testimony concerns Pape’s retention of counsel to defend against the Section 301 lawsuit which Bianchi had filed. It doesn’t refer to the election appeals master. In sum, Respondent Roadway’s argument that the election appeals master reviewed the Union’s handling of Bianchi’s grievance draws no support from the record. Accordingly, I reject it. IV. FURTHER DISCUSSION OF MARR’S CREDIBILITY Although Marr’s testimony, quoted above, does not support the Respondent’s argument, it does raise further concerns about his credibility. In the interest of clarity, it appeared preferable to delay this further examination of Marr’s credibility until now, after Marr’s testimony had been placed in context. First, the testimony excerpted above indicates that Marr was willing to assert that Bianchi made “essentially the same” ar- gument to the election appeals master that Bianchi was making here, namely, that the Union “did not appropriately represent him” in the grievance proceeding. However, as already noted, the election appeals master issued his report before Bianchi’s grievance hearing, and the master’s report, of course, said noth- ing about that hearing. For another reason, Marr’s testimony raises concerns about his credibility. It should be noted that Roadway’s counsel had directed Marr’s attention to the report of the election appeals master (GC Exh. 12) shortly before asking the following: Q. BY MR. DAWSON: And in that proceeding, the Election Appeals Master found that there was absolutely no evidence that you had done anything wrong, isn’t that right? A. Yes. In fact, the election appeals master’s report did include an unfavorable reference to Marr’s conduct. This report focused on a protest which Marr’s “slate” of candidates had made against Bianchi’s “slate” of candidates. Marr’s “slate” (the “Hoffa Unity slate”) had accused Bianchi’s “slate” (the “Leedham slate”) of campaigning in a driver’s breakroom where “there was no pre-existing right to campaign.” In his November 2, 2001 report, the election appeals master rejected this allegation. Moreover, in the paragraph penultimate to his ruling, the master’s report stated, in part, as follows: Finally, we reject the declaration by Marr that campaigning is prohibited inside CF facilities under Local 390’s jurisdiction, finding that he has engaged in such activity himself without challenge or objection. Given his own conduct in this regard, we find it unfortunate that he has misrepresented the practice permitting campaigning and thereby misled the protestor into pursuing this protest. Thus, although Marr testified that the election appeals master had found “absolutely no evidence” that he, Marr, had “done anything wrong,” in fact, the election appeals master concluded that Marr had misrepresented and misled. It should be emphasized that I do not rely upon the opinion of the election appeals master—that Marr had misrepresented and misled—in performing my own assessment of Marr’s credibility. Rather, I am concerned about the difference be- tween Marr’s testimony concerning the election appeals mas- ter’s report and the contents of the report itself. It is true that Marr simply answered “yes” in response to a leading question, namely, that the master had found “absolutely no evidence” that Marr had done anything wrong. If Marr him- self had volunteered during his testimony that the master had found absolutely no evidence that he had done anything wrong, it certainly would have caused greater damage to Marr’s credi- bility than did his succinct response to the attorney’s question. All the same, it is appropriate to consider Marr’s answer in this instance along with other factors reflecting on his credibility. ROADWAY EXPRESS, INC. 215 In sum, I do not believe Marr’s testimony to be as reliable as that given by Daniels and Bianchi. In view of this conclusion about Marr’s credibility, it is not necessary to take judicial no- tice of Marr’s Federal court testimony, as the General Counsel sought in a posthearing motion. The Unfair Labor Practice Allegations 1. The 8(a)(3) and (1) allegations The evidence establishes that Respondent discharged Bian- chi for actions he performed in his capacity as union steward. The Act protects a union steward’s advising and assisting an employee in dealing with the employer on a work-related mat- ter. Therefore, Respondent discharged Bianchi for conduct which the Act protects. In these circumstances, the Supreme Court’s decision in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), establishes the analytical framework to be followed. Because the evidence clearly establishes that Respondent Employer discharged Bian- chi for statements he made and actions he took as a union stew- ard—activity clearly within Section 7’s zone of protection—the discharge must be found to be unlawful unless, during the course of the protected activity, Bianchi engaged in misconduct so egregious that it removed him from the protection of the Act or rendered him unfit for further service. Bloomfield Health Care Center, 352 NLRB 252 (2008), Beverly Health & Reha- bilitation Services, 346 NLRB 1319 (2006). When the credited evidence establishes that an employer has discharged an employee for conduct during the course of pro- tected activity, the burden of proceeding shifts to the employer to prove that it acted with an honest belief that the employee had engaged in misconduct. When the employer has estab- lished such a good faith belief, the burden shifts back to the General Counsel. At this point, if the General Counsel proves that the asserted misconduct did not, in fact, occur, the dis- charge will be found violative. Accurate Wire Harness, 335 NLRB 1096 (2001), Webco Industries, 327 NLRB 172 (1998) However, if the General Counsel cannot establish that the em- ployee did not engage in the asserted misconduct, the em- ployer’s defense goes unrebutted and prevails. Bloomfield Health Care Center, above, Marshall Engineered Products Co., 351 NLRB 767 (2007). Clearly, Respondent Roadway contends that Bianchi en- gaged in misconduct warranting his discharge. Thus, its posthearing brief states that on “October 30, 2001, Bianchi was discharged for assisting rank-and-file member Isaah “Gerome” Daniels . . . in filing a fraudulent workers’ compensation claim.” Respondent Roadway bears the burden of demonstrating that it did hold an honest belief that Bianchi had engaged in this misconduct. However, Board precedent establishes a relatively low threshold for showing that such an honest belief existed. Although the employer must do more than merely make the assertion, some specific record evidence linking particular em- ployees to particular allegations of misconduct will suffice. An employer’s honest belief may be based on hearsay, and the employer need not interview the employee before taking disci- plinary action. Avery Heights, 343 NLRB 1301 (2004), citing General Telephone Co. of Michigan, 251 NLRB 737, 739 (1980), Giddings & Lewis, Inc., 240 NLRB 441, 448 (1979), and Detroit Newspapers, 340 NLRB 1019 (2003). Respondent Roadway has met its burden of showing that it possessed such an honest belief. Daniels initially had informed management that he had heartburn. Only later did he claim that he had pulled a muscle. Moreover, management had learned that the Union’s business agent, Marr, told Daniels to file for union benefits not related to workers’ compensation and that steward Bianchi had, in effect, contradicted Marr’s instruction. Certainly, management had grounds to be suspicious. Consid- ering the low threshold for proving an honest belief, I conclude that Respondent Roadway has met its burden. However, I conclude that the General Counsel has proven that Bianchi did not, in fact, engage in misconduct. As noted above, my observations of the witnesses lead me to credit Daniels and Bianchi. Based on their testimony, I find that Bi- anchi believed that Daniels had suffered a work-related injury. Moreover, I find that Bianchi did not, at any time, intend to deceive or defraud Respondent Roadway. To the contrary, he intended to assist Daniels in filing an on-the-job injury report which Bianchi believed to be truthful. Accordingly, I conclude that Respondent violated Section 8(a)(1) and (3) of Act by discharging him, and thereafter vio- lated the Act by refusing to reinstate him. 2. The 8(b)(1)(A) allegations Complaint paragraph 8(a) alleges that from on or about Oc- tober 30, 2001, to on or about November 14, 2001, Respondent Union processed a grievance filed by Bianchi concerning his discharge “perfunctorily, with hostility and in bad faith.” Complaint paragraph 8(c) alleges that this conduct (process- ing the grievance “perfunctorily, with hostility and in bad faith”) resulted in the denial of the grievance. Respondent Un- ion denies these allegations. At the outset, it should be noted that Bianchi’s grievance was not “clearly frivolous.” Indeed, his grievance arose out of the same facts as the Daniels’ grievance, which the joint committee sustained. Did the Union Breach It’s Duty of Fair Representation? A union breaches it’s duty of fair representation toward em- ployees it represents when it engages in conduct affecting those employees’ employment conditions which is arbitrary, dis- criminatory, or in bad faith. A union’s actions are arbitrary “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.” National Association of Letter Carriers, 347 NLRB 289 (2006), citing Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991) (inter- nal quotation marks omitted). To enjoy this “wide range of reasonableness,” a union must act “in good faith, with honesty of purpose, and free from reli- ance on impermissible considerations.” Union de Obreros de Cemento Mezclado (Betteroads Asphalt Corp.), 336 NLRB 972 (2001), citing Auto Workers Local 651 (General Motors Corp.), 331 NLRB 479, 480 (2000), and Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). In Union de Obreros de Cemento Mezclado (Betteroads Asphalt Corp.), the Board also stated that “A union violates its duty of fair representation if its disposition DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216 of a grievance was “motivated by ill will or other invidious considerations.” Union de Obreros de Cemento Mezclado (Bet- teroads Asphalt Corp.), above, citing Bottle Blowers Local 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979). These quotations from Union de Obreros de Cemento Mez- clado (Betteroads Asphalt Corp.), above, might, if considered in isolation, suggest that union officials’ hostility to a grievant, if arising from the grievant’s protected activities, alone would suffice to violate the Act. However, I do not understand the Board to be saying that ill will or invidious considerations would make unlawful a union’s otherwise appropriate disposi- tion of a grievance. For example, if a grievance were clearly frivolous, a union lawfully could refuse to take it to arbitration even if union officials bore hostility towards the grievant be- cause of his protected activities. Likewise, if a union official zealously pursued a grievance, the fact that the official secretly hated the grievant because of the grievant’s protected activities would not render unlawful conduct which otherwise would be appropriate. On the other hand, proof of hostility isn’t always required to establish a violation of Section 8(b)(1)(A). Although the Gen- eral Counsel must show “something more than mere negli- gence,” a union’s extreme dereliction of its duty as exclusive bargaining representative can violate Section 8(b)(1)(A) even in the absence of an unlawful motive See, e.g., Unlicensed Divi- sion, District 1 (Mormac Marine Transport), 312 NLRB 944 (1993). In sum, a breach of the duty of fair representation can arise only when a union’s action or inaction adversely affects an employee in the bargaining unit which the union represents, but this necessary condition—an adverse effect upon a represented employee’s terms and conditions of employment—is not, by itself, sufficient. Whether or not the union’s action or inaction is lawful depends on an additional factor. The action or inac- tion either must result from negligence greater than “mere neg- ligence,” or it must result from some invidious reason, such as hostility engendered by the grievant’s protected activities. Therefore, the analysis appropriately begins by asking what the Respondent Union did which potentially harmed the em- ployee it had a duty to represent. The General Counsel’s brief argues that Business Agent Marr’s conduct violated the Act in a number of ways. The Daniels grievance hearing took place the day before the Bianchi grievance hearing. The General Counsel’s brief states that before the Daniels’ hearing, Marr “asked Daniels to lie and say that he had not been hurt at work.” Based on Daniels’ testimony, which I credited for the rea- sons discussed above, I find that before Daniels’ grievance hearing, Business Agent Marr told him that if he said that he “got injured off the job,” he wouldn’t have to appear before the joint committee, the implication being that the Union and Em- ployer would settle the grievance in Daniels’ favor. Daniels declined to make such a statement. The General Counsel’s brief argues that when Business Agent Marr suggested to Daniels that he disavow having been injured at work, Marr was trying to make it appear that Bianchi had encouraged Daniels to lie about the cause of the medical problem. Thus, the brief states: If Daniels agreed to say that he was not injured at work, it would have appeared that Bianchi had told him to falsely change a personal injury to an on-the-job injury. Marr’s at- tempt to get Daniels to essentially assert that Bianchi had en- gaged in misconduct once again demonstrates Marr’s hostility and bad faith toward Bianchi. However, even if Daniels had been willing to state that he wasn’t injured at work, such a statement would not be tanta- mount to saying that the shop steward had encouraged Daniels to make a false claim. Thus, I reject the General Counsel’s argument that Marr was trying to get Daniels “to essentially assert that Bianchi had engaged in misconduct.” The General Counsel cites the pejorative language which Marr used in referring to Bianchi as evidence that Marr in- tended to undermine Bianchi’s grievance. Obviously, Marr was irritated and even angry at Bianchi, but in the particular circumstances presented here, I do not conclude that Marr’s use of a vulgar epithet shows that Marr intended to represent Bian- chi unfairly or try to defeat his grievance. Rather, I conclude that Marr sincerely believed that Daniels had not suffered a work-related injury. When Daniels left work on October 12, 2001, he gave heartburn as a reason. Moreover, Daniels did not claim to have suffered an injury at a particular point in time—for example, because of an accident at work— but instead claimed to have discovered, after the fact, that he had pulled a muscle. Marr had legitimate reason to question that conclusion. In these circumstances, it was not unreasonable for Marr to seek to resolve Daniels’ grievance by having him disavow the on-the-job injury claim. Such a disavowal wouldn’t necessarily doom Bianchi’s grievance because it could still be asserted that Bianchi acted with the good faith belief that Daniels had, in fact, sustained an on-the-job injury. The General Counsel’s brief further argues that Marr’s ac- tions during both Daniels’ hearing and Bianchi’s hearing breached the Union’s duty to represent Bianchi fairly. Thus, the brief states: The positions that Marr took and the statements he made during Daniels’ and Bianchi’s grievance hearings also demonstrate his hostility and bad faith. During Daniels’ hearing Marr told the Grievance Committee on about five occasions that Daniels did not know how he had been injured, despite the fact that Marr knew full well that Daniels believed that he had been injured at work. Marr also told the Grievance Committee repeatedly that he per- sonally did not know how Daniels was injured and that it was not his position that Daniels was injured at work. These false statements by Marr make it appear as if Bian- chi told Daniels to claim a personal injury as an on-the-job injury and again demonstrate Marr’s hostility toward Bi- anchi. (Transcript and exhibit citations omitted.) The General Counsel thus asserts that it was improper for Marr to tell the grievance committee, during Daniels’ hearing, that Daniels didn’t know how he had been injured. However, the General Counsel’s argument faces a major obstacle: ROADWAY EXPRESS, INC. 217 Daniels did not know whether he strained the muscle at work. During his hearing, he told the grievance committee: I’m still under my doctor’s care and we didn’t know the deci- sion from him. I’ll be going back the 26th to see what he says about my injury, whether it’s on-the-job or personal injury. So whenever I get a statement from my doctor, then I will be able to give more information about it. Thus, Daniels’ testimony at the grievance hearing contradicts General Counsel’s argument that Marr “knew full well that Daniels believed he had been injured at work.” Daniels himself did not know the etiology of the medical problem. Likewise, the record does not support the General Counsel’s assertion that Marr made “false statements” by saying he did not know how Daniels was injured. Daniels’ own testimony, quoted above, establishes that he, Daniels, wasn’t sure how or where he was injured. If Daniels himself wasn’t sure, there was no way for Marr to know. Marr did nothing wrong in claiming uncertainty about the origin of Daniels’ medical problem. His statements do not breach the duty of fair representation. The General Counsel’s brief further argues that Marr im- properly told the grievance committee that Shop Steward Bian- chi had told Daniels that the injury was job-related and that all Daniels did was follow the steward’s instructions. The brief continues: Marr then told the committee that Daniels “never intended to defraud the company. The advice he got from the steward is what he took his directive from.” (GC Exh. 10.) Marr also in- formed the committee on multiple occasions that in contrast to Bianchi, he (Marr) had advised Daniels to complete Central States forms. (GC Exh. 10.) In making these statements Marr sent a strong message to the Grievance Committee that Bianchi intended to defraud Respondent Employer, despite the fact that the same committee was to hear Bianchi’s griev- ance the following day. Thus, Marr ensured that the commit- tee would believe that Bianchi advised Daniels to claim a per- sonal injury as an on-the-job injury and that Bianchi advised Daniels to engage in fraud. These statements demonstrate Marr’s hostility toward Bianchi and constitute a breach of the Union’s duty to represent Bianchi fairly. In evaluating the General Counsel’s argument, it first should be noted that it assumes Marr knew that the same committee which was hearing the Daniels grievance would be deciding Bianchi’s case the next day. However, the record leaves room to question whether Marr had such knowledge. Moreover, contrary to the General Counsel’s argument, I do not conclude that Marr’s assertions that he told Daniels to com- plete a Central States form (rather than a workers’ compensa- tion form) “demonstrate Marr’s hostility toward Bianchi. . . .” The record does include evidence indicating that Marr bore ill feelings towards Bianchi, but Marr’s statements to the joint committee do not constitute part of that evidence. As a union business agent, Marr, was a labor relations pro- fessional, and the members of the joint committee were also labor relations professionals. They were his peers, and Marr naturally would have a personal interest in maintaining their respect. Marr believed he had given Daniels correct advice which would have kept Daniels out of trouble. Marr would feel a normal human inclination to let his peers know that he wasn’t responsible for this awkward situation. Whether or not Marr’s statements breached the duty of fair representation—a question to be discussed next—they do not, themselves, demonstrate that Marr was hostile to Bianchi. The General Counsel faults Marr for telling the grievance committee both (1) that Daniels filed an on-the-job injury re- port because of Bianchi’s advice and (2) that Marr had told Daniels to file for Central States benefits. However, both these statements are true. Bianchi had told Daniels to file an on-the- job injury claim and Marr had told Daniels to do otherwise. The General Counsel’s argument notwithstanding, I cannot conclude that Marr breached the duty of fair representation by telling the truth. Moreover, the credited evidence does not support a finding that Marr made any false statement to the joint committee in either grievance hearing. I conclude that he did not. The General Counsel’s brief further argues that Marr “mounted a vigorous and relatively thorough defense of Daniels” but only a “weak defense” of Bianchi. However, the transcripts of these grievance hearings do not demonstrate that Marr performed any less zealously in one than the other. How closely should I scrutinize and compare Marr’s per- formance as an advocate at these two grievance hearings? Or- dinarily, a union enjoys a “wide range of reasonableness” in deciding how to represent a grievant. Union de Obreros de Cemento Mezclado (Betteroads Asphalt Corp.), above, suggests that a union may be afforded this “wide range of reasonable- ness” only when it acts “in good faith, with honesty of purpose, and free from reliance on impermissible considerations.” Pre- sumably, the General Counsel would argue that Marr’s hostility towards Bianchi because of the latter’s protected activity de- prives the Union of this “wide range of reasonableness” and compels stricter scrutiny. Even assuming that Marr bore hostility towards Bianchi, it isn’t clear to me that such hostility is inconsistent with Marr acting “in good faith, with honesty of purpose, and free from reliance on improper considerations.” It raises that possibility, of course, but an advocate can represent a client zealously even if the advocate doesn’t like the client personally. Both profes- sionalism and a competitive desire to win can cause the advo- cate to disregard personal feelings and do the best job possible. In a separate section below, I will discuss in greater detail the evidence that Marr harbored hostility towards Bianchi. To summarize that discussion, the present record does not persuade me that Marr’s hostility towards Bianchi compromised his good faith and honesty of purpose in representing Bianchi before the joint committee. Accordingly, I conclude that the Respondent Union remains entitled to a “wide range of reasonableness.” Moreover, I con- clude that Marr’s actions and decisions as Bianchi’s advocate fall within that range of reasonableness. However, even should I scrutinize Marr’s conduct more strictly, I would not conclude that it breached the Union’s duty to represent Bianchi fairly. Contrary to the implication con- veyed by the General Counsel’s brief, the record does not es- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218 tablish that Marr sacrificed Bianchi to win Daniels’ grievance. Likewise, I cannot conclude that Marr compromised Bianchi’s case to gain an edge in Daniels’. Were I to scrutinize Marr’s performance at the Bianchi grievance hearing more closely than I believe appropriate, I might wonder why he did not invoke the specific language set forth in Article 21 of the collective-bargaining agreement, stat- ing in part that any employee “acting in any official capacity whatsoever shall not be discriminated against for his/her acts as such officer of the Union so long as such acts do not interfere with the conduct of the Employer’s business. . . .” Marr did tell the joint committee that Bianchi was only doing his job as a steward, but left it at that, without citing the contractual lan- guage. Such an inquiry, though, would seem to be exactly the sort of nitpicking and “Monday morning quarterbacking” which the Board long has eschewed. Moreover, even were some hypo- thetical panel of expert advocates to conclude that, ideally, Marr should have raised this argument, its omission hardly would establish that Marr failed to represent Bianchi fairly and in good faith. In sum, no matter what hostility Marr might have felt to- wards Bianchi personally, the credited evidence does not estab- lish that it affected Marr’s representation of Bianchi before the joint committee. The record also does not establish that Marr acted dishonestly, incompetently, or perfunctorily while ap- pearing before the joint committee on behalf of Bianchi and Daniels. Because the credited evidence fails to establish that Marr did anything he shouldn’t have done, or failed to do anything he was obliged to do in representing Bianchi, I conclude that the Respondent Union did not breach its duty of fair representation. This conclusion holds regardless of whether Marr disliked Bi- anchi because of Bianchi’s protected activities. An analogy to an 8(a)(3) case may be appropriate here. In a case alleging discrimination in violation of Section 8(a)(3), proving animus alone will not establish a violation. Rather, the General Counsel must also prove that there was an adverse employment action. Likewise, proving that union officials bore hostility to someone because of that person’s protected activi- ties will not establish a breach of the duty of fair representation. The government must also show that the union acted in some improper way by doing something it should not have done, by failing to do something required, or by discharging its duty in merely a perfunctory manner. Complaint paragraph 8(a) alleges that Respondent Union processed Bianchi’s discharge grievance “perfunctorily, with hostility and in bad faith.” The credited evidence fails to estab- lish that the Union acted perfunctorily or in bad faith. What- ever hostility Marr may have held towards Bianchi is not suffi- cient by itself to establish a violation. Therefore, I recommend that the Board dismiss the charge against the Union. Evidence of Hostility Against Bianchi For the reasons discussed above, I have concluded that, be- cause the evidence fails to establish that the Union represented Bianchi unfairly, it isn’t necessary to consider whatever hostil- ity Business Agent Marr may have harbored because of Bian- chi’s protected activities. In case the Board may disagree, the following analysis discusses evidence related to Marr’s hostil- ity. Three different witnesses testified that Marr referred to Bi- anchi with a pejorative vulgar epithet. Marr did not deny using that expression, but explained that he applied it to many people, not just to Bianchi. Such language, Marr testified, was com- mon in the industry: “We can make—and when I say we, the Teamsters, we can make a sailor blush.” No other witness con- tradicted this testimony, which I credit. Marr’s own testimony reflects his feelings about Bianchi. Although, as discussed above, Marr sometimes failed to answer questions responsively, he did not attempt to conceal his opin- ion of Bianchi. Thus, Marr testified: Q. Explain under what circumstances you would have conversations with Ms. Pape about Mr. Bianchi? A. He was a pain in the ass politically. He’s just a pain in the ass politically. As far as a shop steward, he was a very good shop steward, but everybody acknowl- edged it. And when I say that, we had our political differ- ences. He belonged to TDU. “TDU” stands for “Teamsters for a Democratic Union.” The record does not reveal the exact nature of the differences be- tween the TDU and the faction to which Marr belonged. To prove that Marr harbored hostility towards Bianchi, the General Counsel relies in part on the testimony of Geraldine Pape, who was president of Local 390 from 1998 to 2002. She testified that Marr told her that Bianchi “was going to lose” the grievance concerning his discharge. According to Pape, she told Marr “Bianchi is not a threat to you and that you do not need to do this. And he said okay.” Pape testified that after Bianchi lost the grievance, she gave Marr a warning letter “because I told him not to do that. And I told him if he ever did it again, he would be fired.” The record includes a July 15, 2002 warning letter from Pape to Marr. The letter states as follows: Please be advised that this is a final warning letter for failure to follow instructions. Previously you have been warned three times about instructions I have given to you and you have totally ignored my instructions and proceeded in your own fashion. This is the fourth incident that you have not fol- lowed my instructions. Therefore, if there is another occur- rence in that you disregard my instructions I will have no al- ternative than to terminate your employment. This letter does document the tension between Union Presi- dent Pape and Business Agent Marr, but it certainly does not corroborate Pape’s testimony that she issued Marr a warning concerning his handling of the Bianchi grievance. Pape wrote this letter some 8 months after the joint committee ruled against Bianchi, and it makes no reference to either Bianchi or his grievance. Additionally, Pape had some difficulty remembering details. More than 6 years had elapsed between the events and her tes- timony, so memory difficulties might be expected. However, her inability to recall details does cast some doubt on the reli- ability of her testimony. ROADWAY EXPRESS, INC. 219 Marr flatly denied that Pape had any discussions with him about the Bianchi grievance. He testified that the conversation Pape described “never took place.” Based on my observations of the witnesses, I credit Marr rather than Pape. Accordingly, I conclude that he did not tell Pape that Bianchi was “going to lose” his grievance. More- over, I am quite skeptical of Pape’s claim that after the joint committee denied the Bianchi grievance, she warned Marr that if he ever “did it again,” she would fire him. Even if credited, Pape’s testimony would fall short of estab- lishing that Marr participated in, or knew about, any kind of plot to compromise the impartiality of the joint committee or to cause the committee to rule against Bianchi. Although, credit- ing Marr, I conclude that he never told Pape that Bianchi was “going to lose,” this vague statement hardly would support a finding that the joint committee proceeding had been rigged. Equally plausibly, it simply could have been a prediction as to how the joint committee would rule. Although I do not rely upon Pape’s testimony, which I do not credit, Marr’s own testimony does establish that he was not particularly fond of Bianchi, whom he considered a “pain in the ass” politically. Essentially, Marr considered Bianchi to be an irritation. Although this rather low level of animosity arguably might have affected how well Marr represented Bianchi, on the other hand, it might not have. Based on the present record, I conclude that Marr’s dislike of Bianchi did not affect his professional representation of Bianchi during the grievance proceeding. Bianchi said as much when he told the grievance committee “I believe Don Marr repre- sented me properly and fully.” Although Bianchi later dis- avowed this statement, I conclude that he was telling the truth. CONCLUSIONS OF LAW 1. Roadway Express, Inc. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters, Local 769 and its predecessor, International Brotherhood of Teamsters, Local 390, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Roadway Express violated Section 8(a)(1) and (3) of the Act by discharging employee Amadeo Bianchi on October 30, 2001, because of Bianchi’s protected activities as union steward. 4. Respondent International Brotherhood of Teamsters, Lo- cal 769 and its predecessor, International Brotherhood of Team- sters, Local 390, did not violate Section 8(b)(1)(A) or 8(b)(2) of the Act. 5. Except for the conduct described in paragraph 3 above, neither Respondent violated the Act in any manner alleged in the Complaint. REMEDY Having found that Respondent Roadway Express has en- gaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative ac- tion designed to effectuate the policies of the Act, including posting the notice to employees attached hereto as appendix A. Respondent Roadway must reinstate Amadeo Bianchi to his former position or to a substantially equivalent position if his former position no longer exists. Respondent Roadway also must make Amadeo Bianchi whole, with interest, for all losses he suffered because of his unlawful discharge. Backpay shall be based on earnings which the terminated employees would normally have received during the applicable period, less any net interim earnings, and shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended2 ORDER The Respondent, Roadway Express, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging an employee because of the employee’s pro- tected union activities or because of the employee’s status as a union shop steward. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, or to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to re- frain from any and all such activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Offer Amadeo Bianchi immediate and full reinstatement to his former position or, if his former position no longer exists, to a substantially equivalent position. (b) Make Amadeo Bianchi whole, with interest, for all losses suffered because Respondent unlawfully discharged him. (c) Within 14 days after service by the Region, post at its fa- cilities in Miami, Florida, copies of the attached notice marked “Appendix A.”3 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall 2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these findings, conclusions, and rec- ommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board, and all objections to them shall be deemed waived for all purposes. 3 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220 duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 30, 2001. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Regional Director attesting to the steps that the Respondent has taken to comply. Case 12–CB–5002 is severed from Case 12–CA–22202 and dismissed.