Guidance Memorandum on Make Whole Remedies in Duty of Fair Representation Cases

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 20-09

June 26, 2020

TO:

All Regional Directors, Officers-in-Charge, and Resident Officers

FROM:

Peter B. Robb, General Counsel

SUBJECT:

Guidance Memorandum on Make Whole Remedies in Duty of Fair

Representation Cases

I.

Introduction

When a union violates Section 8(b)(1(A) by breaching its duty of fair representation

to employees, the Board’s decision in Ironworkers Local Union 377 (Alamillo Steel),1

governs whether the offending union is liable for make whole relief. Specifically, the General

Counsel must show that the grievant would have prevailed absent the failure to lawfully

process the grievance, and upon such showing the union would be liable for any increase

in damages caused by its misconduct.

Whether any given grievant “would have prevailed” had a union lawfully processed

her grievance,2 and determining the “increase in damages” caused by the union’s

misconduct3 are often perplexing questions without clear cut answers. More than 20 years

after the issuance of the decision in Alamillo Steel, experience has shown that requiring

Counsel for the General Counsel to show a grievant would have prevailed in a particular

grievance/arbitral forum with which the grievant has no familiarity or experience and

possesses little of the information known by the union and the employer, is difficult at best.

Nor is it workable to require the General Counsel to engage in guesswork to assess any

possible increase in damages caused by the union’s unlawful conduct.4 The unduly high

and difficult standard imposed on the General Counsel in these cases has prevented

1 326 NLRB 375 (1998)

2 Id. at 380.

3 Id. at 378.

4 The lack of clarity this issue is given in Alamillo Steel was palpable. See id. at 378, n.16 (where the Board

refused to provide a particular method for determining the amount of damages for which a union would be

responsible under the standard)

unduly high

and difficult standard imposed on the General Counsel in these cases has prevented

1 326 NLRB 375 (1998)

2 Id. at 380.

3 Id. at 378.

4 The lack of clarity this issue is given in Alamillo Steel was palpable. See id. at 378, n.16 (where the Board

refused to provide a particular method for determining the amount of damages for which a union would be

responsible under the standard).

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wronged employees from achieving not only make whole relief, but often, any relief at all,

thereby permitting this type of illegality with impunity.

Thus, it is clear that this outdated standard should be abandoned for one that is more

realistic and properly suited to bring justice to the industrial landscape. Therefore, Regions

should, in accordance with the foregoing guidance, urge the Board to reverse Alamillo Steel

and adopt a standard requiring that, once the General Counsel establishes that the

underlying grievance has “arguable merit,” the burden shifts to the respondent union to

establish that the grievance was not meritorious. If the union fails to carry its burden, the

union will be liable to make the employee(s) whole for the damage. While Regions are free

to attempt to settle these cases pursuant to the casehandling guidance below, if they are

not able to reach a reasonable settlement with the parties, they should argue that the Board

abandon the unworkable framework set forth in Alamillo Steel for the more reasonable

arguable merit standard.

II.

Development of the Current Remedial Framework

In Alamillo Steel, the Board modified the remedy for violations of Section 8(b)(1)(A)

where a union breaches its duty of fair representation by mishandling a unit employee’s

grievance

ith the parties, they should argue that the Board

abandon the unworkable framework set forth in Alamillo Steel for the more reasonable

arguable merit standard.

II.

Development of the Current Remedial Framework

In Alamillo Steel, the Board modified the remedy for violations of Section 8(b)(1)(A)

where a union breaches its duty of fair representation by mishandling a unit employee’s

grievance. The Board’s previous standard was articulated in Rubber Workers Local 250

(Mack-Wayne II).5 Pursuant to Mack-Wayne II, after a finding that the respondent union

had breached its duty of fair representation, the Board would first order the union to request

that the employer rescind the adverse employment action or process the grievance.6 If the

employer agreed to process the grievance, the union was required to promptly pursue the

remaining stages of the grievance procedure, including arbitration, in good faith. However,

if the union was unsuccessful at obtaining relief for the grievant from the employer, the

union had to make the employee whole for the loss of pay he or she suffered if the General

Counsel established that there was a “nexus” between the unfair labor practice and the

backpay remedy; or in other words, that the underlying grievance was not “clearly

frivolous.”7 The General Counsel’s initial burden was light; it was sufficient to show, for

example, that there were mitigating circumstances that supported a reduced penalty had

the grievance gone to arbitration.8

5 290 NLRB 817 (1988), reconsidering and modifying 279 NLRB 1074 (1986) (Mack Wayne I).

6 290 NLRB at 817, 818 (the remedial provisions requiring the union to request that the employer rescind

the adverse employment action or accept the grievance so that it can be processed under the terms of the

collective-bargaining agreement are designed to restore the parties to their pre-unfair labor practice posture

as much as possible).

7 Id. at 818.

8 See id. at 819 & n.19.

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emedial provisions requiring the union to request that the employer rescind

the adverse employment action or accept the grievance so that it can be processed under the terms of the

collective-bargaining agreement are designed to restore the parties to their pre-unfair labor practice posture

as much as possible).

7 Id. at 818.

8 See id. at 819 & n.19.

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Once the General Counsel established this nexus, the burden shifted to the union to

prove that its conduct did not cause any injury because the grievance was not meritorious.

The union had the option of litigating the merits of the grievance at the unfair labor practice

hearing or at a compliance proceeding.9 If the union failed to meet its burden, the union

owed a full backpay remedy to the employee.10

In Alamillo Steel, the initial steps of the provisional make-whole remedy remain the

same and the union must first attempt to properly pursue the grievance consistent with its

duty of fair representation.11 If it is not possible for the union to pursue the grievance

procedure, such as in circumstances where the employer refuses to waive the contractual

time limits, the union then must make the grievant whole by paying the “increase in

damages caused by its misconduct” if it is established that the grievant “would have

prevailed” had the union properly processed the grievance.12 The General Counsel has the

burden of establishing that the grievance would have been meritorious, according to the

standard that would have been applied by the arbitrator under the parties’ grievance and

arbitration procedure.13 The merits of the underlying grievance should ordinarily be handled

at the compliance stage of the proceeding unless there is prior agreement by all the parties,

9 Id. at 821

al Counsel has the

burden of establishing that the grievance would have been meritorious, according to the

standard that would have been applied by the arbitrator under the parties’ grievance and

arbitration procedure.13 The merits of the underlying grievance should ordinarily be handled

at the compliance stage of the proceeding unless there is prior agreement by all the parties,

9 Id. at 821. Member Cracraft criticized this procedural element in her dissenting opinion concluding that it

prejudiced the General Counsel since it permitted the union alone to decide when the merits would be litigated,

which would likely result in wasted resources. Id. at 823.

10 Id. at 818 (“the union must make the employee whole or the employee will be left without adequate remedy

for the union’s unlawful refusal to process the grievance”).

11 326 NLRB at 380.

12 Id. at 377, 378. As referenced in note 4 above, the Board did not specify how the “increase in damages”

owed by the union should be calculated under this remedial scheme. See id. at 378 n.16 (noting with approval

the system used by a circuit court in a Section 301 lawsuit in which the “increase” occurred between the date

on which an arbitration hypothetically would have occurred had the union acted in accordance with its duty of

fair representation and the date of the jury verdict, but declining to specify that system because “the

appropriate method may depend of the type of contract violation, the type of breach by the union, and the

nature of the damages suffered by the employee”). The Board has not subsequently reached this issue to

provide any further explanation.

13 326 NLRB at 377

in accordance with its duty of

fair representation and the date of the jury verdict, but declining to specify that system because “the

appropriate method may depend of the type of contract violation, the type of breach by the union, and the

nature of the damages suffered by the employee”). The Board has not subsequently reached this issue to

provide any further explanation.

13 326 NLRB at 377. See State, County Employees AFSCME Local 1640 (Children’s Home of Detroit), 344

NLRB 441, 448 (2005) (Board affirmed the ALJ’s finding that the General Counsel had established that the

grievance would have been meritorious because of the employer’s past practice, evidence of which should

have been readily available to the union); Union de Obreros de Cemento Mezclado (Betteroads Asphalt Co.),

336 NLRB 972, 973 (2001) (Board affirmed the ALJ’s determination that the grievant would have won his

arbitration had the union not perpetuated an unreasonable interpretation of the contract and that a backpay

remedy was owed). See also ATU Local 1498 (Jefferson Partners L.P.), 360 NLRB 777, 787-88 (2014) (issue

moot since Board majority reversed the finding that the union violated its duty of fair representation, but the

ALJ thoroughly discussed the evidence needed to determine whether the grievance would have been

meritorious and determined that the General Counsel did not meet its burden and, therefore, a provisional

make-whole remedy was not appropriate).

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moot since Board majority reversed the finding that the union violated its duty of fair representation, but the

ALJ thoroughly discussed the evidence needed to determine whether the grievance would have been

meritorious and determined that the General Counsel did not meet its burden and, therefore, a provisional

make-whole remedy was not appropriate).

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including the Administrative Law Judge, to litigate that issue during the unfair labor practice

hearing.14

The remedial scheme in Alamillo Steel therefore departed from that in Mack-Wayne

II in two important ways. First, the General Counsel’s initial burden is now much higher and

in order to obtain a make-whole remedy, the General Counsel has to establish that the

grievance would have been meritorious before the burden shifts to the union. Second, with

respect to the available monetary remedy, the union’s liability is now limited to the portion

of the employee’s damages caused by the union’s mishandling of the grievance. The Board

decided to change the General Counsel’s burden because of concerns that the prior remedy

could be punitive and potentially granted a windfall to the grievant if the grievance was not

actually meritorious.15 By requiring the General Counsel to establish that the grievance

would have had merit, the Board determined that remedy would then comport with the

Section 10(c) requirement that affirmative relief must be “remedial, not punitive.”16

The Board majority made several arguments in Alamillo Steel to support its limitation

on the union’s liability for damages. The Board majority said that the make-whole remedy

should be governed by the Supreme Court’s principle of apportioned liability from Vaca v.

Sipes, 386 U.S

would then comport with the

Section 10(c) requirement that affirmative relief must be “remedial, not punitive.”16

The Board majority made several arguments in Alamillo Steel to support its limitation

on the union’s liability for damages. The Board majority said that the make-whole remedy

should be governed by the Supreme Court’s principle of apportioned liability from Vaca v.

Sipes, 386 U.S. 171 (1967), in which the Court decided that a union may not be required to

pay damages that are solely attributable to an employer’s breach of contract.17 Apportioned

liability also comports with the requirements of Section 10(c) that Board remedies are not

punitive.18 The majority said that the fact that the employer is not a party to a Section

8(b)(1)(A) violation and therefore not available for its apportioned liability is a product of the

statutory scheme created by Congress.19 Congress created the Section 301 action in

14 326 NLRB at 379-80 (describing the procedure for litigating the merits of the underlying grievance, which

is intended to insure all parties have notice of what is to be litigated at each stage of the proceeding and

reduce resources spent investigating and litigating the merits of the grievance at the initial unfair labor practice

hearing phase). The General Counsel must plead the provisional make-whole remedy in the complaint and

the union must include any request to litigate the merits of the grievance during the unfair labor practice

hearing in its answer to the complaint. The Administrative Law Judge will then hold a pre-hearing conference

with the parties and determine whether they all consent to litigating the merits at the unfair labor practice

hearing rather than the default option of reserving that issue for the compliance procedure. Id.

15 Alamillo Steel, 326 NLRB at 376.

16 Id.

17 Id. at 378 (“the governing principle, then, is to apportion liability between the employer and the union

according to the damage cause by the fault of each.”)

nd determine whether they all consent to litigating the merits at the unfair labor practice

hearing rather than the default option of reserving that issue for the compliance procedure. Id.

15 Alamillo Steel, 326 NLRB at 376.

16 Id.

17 Id. at 378 (“the governing principle, then, is to apportion liability between the employer and the union

according to the damage cause by the fault of each.”). The Board noted that this principle of apportioned

damages was reaffirmed by the Court in Bowen v. Postal Service, 459 U.S. 212, 223 (1983), and then again

in Del Costello v. Teamsters, 462 U.S. 151, 168 (1983).

18 Id.

19 Id. at 379.

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federal court as the sole way that an employee can recover damages from his employer for

breach of contract. The union should not be responsible for the employer’s portion of the

damages due to the employer’s breach of contract because of the employee’s choice of

forum.20

The dissent by Members Hurtgen and Brame takes issue with awarding less than full

relief to victims of these unfair labor practices.21 They argue that the purpose of remedies

under Section 10(c) of the Act is to restore the status quo ante and eradicate the

consequences of the unfair labor practice to the greatest extent possible. Therefore, a

grievant should not be awarded less than he or she would have secured through a

grievance victory.22 The dissent also takes issue with the majority’s reliance on its analogy

to hybrid duty of fair representation/Section 301 cases since the employee is able to seek

relief from both the employer and the union in those cases and does not miss out on a full

remedy.23

III

t possible. Therefore, a

grievant should not be awarded less than he or she would have secured through a

grievance victory.22 The dissent also takes issue with the majority’s reliance on its analogy

to hybrid duty of fair representation/Section 301 cases since the employee is able to seek

relief from both the employer and the union in those cases and does not miss out on a full

remedy.23

III.

The Board Should Overturn Alamillo Steel and Adopt an “Arguable Merit”

Standard that Imposes Full Liability on the Union for Mishandling a Grievance

to Ensure Discriminatees are Made Whole

The Alamillo Steel standard places nearly an impossible burden on the General

Counsel regarding the merits of the underlying grievance and does not adequately

compensate the wronged employee. Such is underscored by the few reported cases in the

area.24 Therefore, Alamillo Steel should be overturned and the Board should institute a

new standard that equitably adjusts the burden on the General Counsel and fully

compensates aggrieved employees for their losses. 25

The unrealistic burden imposed on the General Counsel under Alamillo Steel almost

ensures that employees will not be made whole for the misconduct of their exclusive

20 Id.

21 326 NLRB at 383.

22 Id.

23 Id. at 383-84.

24 See supra at note 13 for reference to the only two reported cases, of which the General Counsel is aware,

where the Board applied the Alamillo Steel standard and concluded the General Counsel established the

grievant would have prevailed: State, County Employees AFSCME Local 1640 (Children’s Home of Detroit),

344 NLRB 441, 448 (2005); Union de Obreros de Cemento Mezclado (Betteroads Asphalt Co.), 336 NLRB

972, 973 (2001).

25 The General Counsel does not take issue with the procedural elements of Alamillo Steel and agrees that

the merits of the grievance will ordinarily be litigated during the compliance phase, if at all.

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1640 (Children’s Home of Detroit),

344 NLRB 441, 448 (2005); Union de Obreros de Cemento Mezclado (Betteroads Asphalt Co.), 336 NLRB

972, 973 (2001).

25 The General Counsel does not take issue with the procedural elements of Alamillo Steel and agrees that

the merits of the grievance will ordinarily be litigated during the compliance phase, if at all.

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bargaining representative. This result occurs because it is unlikely that the General Counsel

can develop sufficient evidence to prove the merits of the grievance.26 The union is in a far

better position than the General Counsel or the employee to gather the necessary evidence

to establish whether or not the grievance would have had merit due to the union’s collective-

bargaining relationship with the employer. The union also has the ability to request evidence

from the employer about the grievance on the basis of their relationship.27

In addition, the General Counsel does not litigate private sector arbitrations. A

Charging Party employee is not often familiar with any aspect of the arbitration process.

Arbitrators are hard to predict even for those who regularly litigate before them. The union

is more intimately familiar with the collective-bargaining agreement and the past practice

between the parties. Given these advantages of familiarity with the collective bargaining

agreement, past practice of the parties, the arbitration process, and greater access to

information from the employer, the union is still in a much better position than the General

Counsel to proffer evidence and defend its position under this new standard and would not

be disadvantaged by shifting the burden of proof in this manner. Rather, the new burden-

shifting standard would provide a more balanced approach in which a wronged employee

with a meritorious grievance has some possibility of being made whole, which the current

standard virtually forecloses

the General

Counsel to proffer evidence and defend its position under this new standard and would not

be disadvantaged by shifting the burden of proof in this manner. Rather, the new burden-

shifting standard would provide a more balanced approach in which a wronged employee

with a meritorious grievance has some possibility of being made whole, which the current

standard virtually forecloses.

To properly accommodate the relative positions of the aggrieved employee and a

respondent union, the Board should utilize a burden shifting analysis, similar to that applied

under Wright Line when determining if an employer’s adverse employment action violates

the Act.28 Once the General Counsel has established that the grievance has arguable merit,

the burden shifts to the union to prove that the grievance lacked merit. While this arguable

merit standard is less demanding than the burden imposed in Alamillo Steel, it does not

26 See Mack Wayne II, 290 NLRB at 819 (“As between the General Counsel and the union, the union

obviously has more particular knowledge regarding the merits of the underlying grievance than does the

General Counsel.”).

27 See e.g., NLRB v. Acme Industrial Co., 385 U.S. 432, 436 (1967) (confirming that the duty to provide

relevant information includes information necessary to enable a union to evaluate the merits of a grievance);

Centura Health St. Mary-Corwin Medical Ctr., 360 NLRB 689, 689, 692 (2014) (an employer has a statutory

obligation to provide information requested by the union to evaluate whether to process a grievance).

28 See Wright Line, 251 NLRB 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), approved in NLRB

v. Transp. Mgmt. Corp., 462 U.S

nable a union to evaluate the merits of a grievance);

Centura Health St. Mary-Corwin Medical Ctr., 360 NLRB 689, 689, 692 (2014) (an employer has a statutory

obligation to provide information requested by the union to evaluate whether to process a grievance).

28 See Wright Line, 251 NLRB 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), approved in NLRB

v. Transp. Mgmt. Corp., 462 U.S. 393 (1983) (where the General Counsel bears the initial burden of

demonstrating that protected activity was a motivating factor in the adverse employment action taken by the

employer and then the burden shifts to the employer to establish that it would have taken the same action

even in the absence of the protected activity); Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 1

n.3, 5-6 (Nov. 22, 2019) (describing the burden shifting framework in Wright Line).

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represent a return to the mere “nexus” standard from Mack Wayne II, as that prior standard

is insufficient to support the imposition of full backpay liability on the union.29

If the union is not able to satisfy its burden by establishing that the grievance lacked

merit, the union should then be liable for the entire backpay remedy.30 The Board should

overturn the apportionment element of Alamillo Steel and return to the Mack Wayne II

standard of awarding the grievant the full amount he or she would have received had the

grievance been lawfully processed.31 This is the only way that the employee will receive a

meaningful remedy. Such remedy is not punitive to the union because it is the union’s

unlawful actions in violation of Section 8(b)(1)(A) that caused the harm to the grievant. The

failure to process a meritorious grievance in itself is sufficient to require the union to make

the employee whole

had the

grievance been lawfully processed.31 This is the only way that the employee will receive a

meaningful remedy. Such remedy is not punitive to the union because it is the union’s

unlawful actions in violation of Section 8(b)(1)(A) that caused the harm to the grievant. The

failure to process a meritorious grievance in itself is sufficient to require the union to make

the employee whole. This remedy is supported by traditional equitable principles that the

wrongdoer should bear the consequences of any uncertainty created by its actions.32 Even

though the employer’s breach of contract may have initiated the scenario, as with the

doctrine of joint and several liability, the union can be held financially responsible for the

entire harm to the employee.33 It is a function of the statutory scheme that the harmed

29 Arguable merit in this situation is analogous to the Regional determination of whether to defer an arguably

meritorious charge to the parties’ grievance and arbitration procedure. See, e.g., Memorandum GC 19-03,

Deferral under Dubo Manufacturing Company, dated Dec. 28, 2018, at p. 3; NLRB, Casehandling Manual

Part One: Unfair Labor Practice Proceedings § 10118.1 (2020). See infra for more detailed casehandling

guidance.

30 This eliminates the confusion associated with how to calculate the “increase in damages” under Alamillo

Steel.

31 As discussed above, the dissent argued in Alamillo Steel that when the Board instituted the apportioned

liability, it departed from the “well-established Board policy of seeking full relief for the victims of unfair labor

practices.” 326 NLRB at 383.

32 See e.g., Mack Wayne II, 290 NLRB at 819 (citing Bigelow v. RKO Pictures, 327 U.S. 251, 265 (1946)

(“[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk

of uncertainty which his own wrong has created.”))

eparted from the “well-established Board policy of seeking full relief for the victims of unfair labor

practices.” 326 NLRB at 383.

32 See e.g., Mack Wayne II, 290 NLRB at 819 (citing Bigelow v. RKO Pictures, 327 U.S. 251, 265 (1946)

(“[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk

of uncertainty which his own wrong has created.”)). See also Graphic Communications Local 4 (San Francisco

Newspaper), 272 NLRB 899, 900 (1984) (citing “well-established equitable principles”); TNT Skypak, Inc., 328

NLRB 468, 470 (1999) (relying on the principle that uncertainty should be resolved against the wrongdoer in

determining liability for a bargaining violation), enforced 208 F.3d 362 (2d Cir. 2000); Love’s Barbeque

Restaurant No. 62, 245 NLRB 78, 82 (1979) (resolving uncertainty about what the employer would have done

absent its unlawful purpose against the employer in the successor hiring context), enforced in part sub nom.

Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981).

33 Under the joint and several liability doctrine, when two or more persons cause an injury, each is liable for

the full amount of damages. Joint-and-several liability doctrine, BLACK’S LAW DICTIONARY (11th ed. 2019). See,

e.g., NLRB, Casehandling Manual Part One: Unfair Labor Practice Proceedings § 10130.5 (2020) Joint and

Several Liability (describing Board procedures for settlements involving joint and several liability, including

where the settlement is only with one party). Cf. UPMC, 365 NLRB No. 153 (Dec. 11, 2017) (Board majority

approved a settlement and dismissal of a single employer allegation, finding the settlement reasonable and

therefore effectuated the purposes of the Act, despite the charging party union and General Counsel objecting

to the identity of the entity providing the remedy).

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is only with one party). Cf. UPMC, 365 NLRB No. 153 (Dec. 11, 2017) (Board majority

approved a settlement and dismissal of a single employer allegation, finding the settlement reasonable and

therefore effectuated the purposes of the Act, despite the charging party union and General Counsel objecting

to the identity of the entity providing the remedy).

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grievant can only collect from the union through a duty of fair representation case, so the

union should be liable for the entire amount of lost wages and benefits.34

IV.

Casehandling Guidance

Based on the new approach described above, Regions should investigate the merits

of the underlying grievance prior to issuing complaint or settling any Section 8(b)(1)(A)

allegation concerning a union’s failure to lawfully process a grievance. This investigation

should be a standard investigation, including at a minimum taking affidavits from the

charging party and all witnesses within his or her control and requesting evidence from the

charged party union.35 The investigation may also include gathering evidence from third-

party sources, such as the employer, as is appropriate to the circumstances of the individual

case.36 The Region should provide an opportunity to the union to establish that the

grievance would not have been meritorious as a defense against any backpay obligation,

even if it does not excuse the underlying duty of fair representation violation.37

If the Region has determined that the underlying grievance is arguably meritorious

and the union has not presented sufficient evidence to establish the grievance was not

meritorious, the Region should pursue a reasonable settlement between the union and the

charging party.38 Similarly, if there has already been a Board decision finding merit to the

unfair labor practice allegation, the Region may approve a reasonable settlement should

the underlying grievance have arguable merit

the union has not presented sufficient evidence to establish the grievance was not

meritorious, the Region should pursue a reasonable settlement between the union and the

charging party.38 Similarly, if there has already been a Board decision finding merit to the

unfair labor practice allegation, the Region may approve a reasonable settlement should

the underlying grievance have arguable merit.

Although any Board order, even under the General Counsel’s proposed remedial

scheme, will require the union to first seek to have the employer rescind the adverse

34 If the union is able to later collect anything from the employer to go towards the remedy, such as by

requesting that the employer rescind its adverse employment action or through their collective-bargaining

relationship, it can be treated as an offset to the union’s full liability burden.

35 See Memorandum GC 08-06 Attachment E, Checklist for 8(b)(1)(A) Allegations, dated May 15, 2008 (listing

areas to cover in a duty of fair representation affidavit, including sufficient information about the subject matter

of the grievance to be able to determine the merits). Cf. Memorandum GC 11-05, Guideline Memorandum

Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) cases, dated

Jan. 20, 2011, at p. 10 (describing the investigation for determining arguable merit for the purposes of

deferral).

36 The process for investigations remains in the sound discretion of the Regional Director.

37 Regions should be cognizant of any related Section 8(a)(5) information request cases as unions may need

to obtain evidence from the employer concerning the merits of the grievance.

38 Such a settlement should include make whole relief. If the grievance either does not have arguable merit,

or the union has demonstrated it would not be meritorious, the Region can accept a settlement with the union

with the standard cease and desist language and notice posting remedy for violations of Section 8(b)(1)(A)

tain evidence from the employer concerning the merits of the grievance.

38 Such a settlement should include make whole relief. If the grievance either does not have arguable merit,

or the union has demonstrated it would not be meritorious, the Region can accept a settlement with the union

with the standard cease and desist language and notice posting remedy for violations of Section 8(b)(1)(A).

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employment action and then to have the employer process the grievance,39 Regions may

not approve informal settlement agreements of Section 8(b)(1)(A) allegations concerning

the mishandling of arguably meritorious grievances where the union is only committing to

those steps and the settlement does not have an agreed- upon backpay amount should the

first two steps fail.40 Informal settlement agreements in these cases must include an

agreed-upon backpay amount if, after applying the burden shifting framework described

above, the Region concludes the grievance has arguable merit and the union did not

establish the grievance was not meritorious. Backpay disputes may not be left open in

informal settlement agreements, as there is no mechanism to facilitate their resolution.

Although formal compliance proceedings may be used to resolve such disputes arising

under Board orders, they are not available in an informal settlement agreement.41 Thus,

any disputes over backpay must be resolved prior to reaching an informal settlement

agreement and the agreed-upon amount must be included therein.

V.

Conclusion

In Section 8(b)(1)(A) duty of fair representation cases where make whole relief may

be appropriate, Regions should investigate the merits of underlying grievances prior to

issuance of complaint, and attempt to settle unfair labor practice allegations pursuant to the

results of those investigations

formal settlement

agreement and the agreed-upon amount must be included therein.

V.

Conclusion

In Section 8(b)(1)(A) duty of fair representation cases where make whole relief may

be appropriate, Regions should investigate the merits of underlying grievances prior to

issuance of complaint, and attempt to settle unfair labor practice allegations pursuant to the

results of those investigations. If the parties are not able to reach a reasonable settlement,

the Region should urge the Board to overturn the relevant aspects of Alamillo Steel and

implement a standard requiring the General Counsel to show the grievant’s grievance had

“arguable merit.” The burden then shifts to the union to demonstrate that the grievance was

not meritorious. Where the General Counsel meets its burden and the union is unable to

meet its burden under the foregoing test, the union will be held liable for the entirety of the

make whole remedy.

/s/

P.B.R.

39 The General Counsel is not advocating to overturn the procedural requirements put in place by Alamillo

Steel which require the General Counsel to affirmatively plead the provisional make-whole remedy in the

complaint and defers the litigation of the merits of the grievance to the compliance proceeding unless all

parties agree to litigate it during the unfair labor practice hearing.

40 It is advisable, though not required, to have the union attempt these two steps prior to entering into an

informal settlement.

41 See Rules and Regulations of the National Labor Relations Board, 29 CFR 102.54; see also NLRB

Casehandling Manual, Part Three, Compliance Proceedings, Sec. 10646 (2018).

Rescinded 2/1/2021 by Memorandum GC 21-02