Machinists Union Local 2699 (Miller Brewing Com-Pany)

National Labor Relations Board - Board Decisions

Feb 17, 1989

292 N.L.R.B. 1222 (N.L.R.B. 1989)

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