Rehearing and Rehearing En Banc Denied October 13, 1982.
BOOCHEVER, Circuit Judge:
Gil Fowler and Mike Tenorio (petitioners) contend that the San Francisco Web Pressmen and Platemakers' Union No. 4 (the Union) breached its duty of fair representation in violation of National Labor Relations Act (NLRA) § 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) by making no effort to obtain their version of the events that led to their discharge before processing their
Petitioners joined the Union upon commencing employment with the San Francisco Newspaper Printing Company (employer) in November, 1977.
Trimble reported the pressroom confrontation with petitioners to his foreman and claimed to have felt threatened.
Upon learning of the discharge, Union President Richard Munger filed a grievance on the petitioners' behalf. At the direction of Vice-President David Ratto, the Union also immediately prepared travel cards
The Union conducted an investigation of the confrontation between Trimble and the petitioners. Munger interviewed Trimble and two eyewitnesses. However, despite its policy of talking to discharged workers to get their story regarding discharges, the Union never interviewed Fowler or Tenorio, purportedly because it had neither their addresses nor telephone numbers. Yet, one Union official testified that he had had addresses for both men at the time of the investigation. Moreover, Ratto met twice with petitioners prior to the first stage of the grievance proceedings, a meeting of the Joint Standing Committee, without making inquiry into petitioners' explanation of the pressroom conversation.
The Joint Standing Committee, composed of two employer representatives and Munger and Ratto, met and reviewed the merits of the grievance. Among the evidence considered were written statements made by Trimble and the two eyewitnesses. No effort was made to contact or confer with either Fowler or Tenorio. Munger and Ratto decided, based on the written statements and "on the entire circumstances and merits of the whole grievance," to acquiesce in the dismissal; the Union decided "not to pursue it [the grievance] to arbitration". The Union's membership subsequently voted to approve the Union's settlement of the grievance.
Petitioners then filed a claim with the National Labor Relations Board. An administrative law judge (ALJ) concluded that, although the Union had harbored no animosity toward petitioners, it had processed their grievance arbitrarily and perfunctorily. He reasoned that because Fowler's
A. The Standard of Review
We cannot review the Union's conduct de novo. Instead, we accept as conclusive the Board's findings if substantial evidence in the record as a whole supports those findings. 29 U.S.C. § 160(f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, 928 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980). The fact that the Board's conclusion differed from that of the ALJ does not alter the applicable standard of review. NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir. 1978), but it causes us to engage in a "more searching" review. Doug Hartley, Inc. v. NLRB, 669 F.2d 579 (9th Cir. 1982). The ALJ's decision is an integral part of the record and must be considered. Universal Camera Corp., 340 U.S. at 493, 71 S.Ct. at 467. Our task in applying the substantial evidence test is not merely to look for evidence supporting the Board's finding, but to determine whether that evidence is substantial after taking into account whatever in the record fairly detracts from its weight. Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464; NLRB v. Tomco Communications, Inc., 567 F.2d 871, 877 (9th Cir. 1978). We shall affirm the Board's decision unless we can conscientiously find that its decision is not supported by substantial evidence. Dalewood Rehabilitation Hospital, Inc. v. NLRB, 566 F.2d 77, 80 (9th Cir. 1977).
B. The Duty of Fair Representation
A union breaches its duty of fair representation if it processes a member's grievance in an arbitrary or perfunctory manner.
Petitioners contend that the Union's investigation was so grossly inadequate as to transcend negligence and poor judgment. They argue that, by making no effort to hear their explanation of the events that resulted in their discharge, the Union showed a reckless disregard for their rights and thereby breached its duty of fair representation. We agree.
Second, the dispute in this case involved a Union official — Trimble — and therefore involved potential conflicts of interest for the Union in its handling of the grievance. In its role as the employees' exclusive representative, the Union must be careful to protect the interest of all those whom it represents. Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 909; Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-686, 97 L.Ed. 1048 (1953). Union officials must be cautious not to succumb to the influence of personal preferences. American Postal Workers Union, 618 F.2d at 1255. Disputes involving both a union official and a union member may give rise to a tension between the union's loyalty to its officials and its duty to rank-and-file members. We think that this possible conflict of interest places an additional responsibility on the union to assure that it handles its members' grievances fairly. The Union should have made at least some effort to learn petitioners' version of the pressroom confrontation.
Third, the fact that the Union promptly issued travel cards to petitioners suggests that it intended to handle their grievance in a summary manner. This action showed that the Union had accepted Trimble's version of what had happened without even attempting to hear petitioners' story.
Finally, the Union needed to exercise special care in handling petitioners' grievance because they concerned discharges, the most serious sanction an employer can impose. See Griffin v. International Union, 469 F.2d 181, 183 (4th Cir. 1972). We find no indication in the record that the Union took special care with petitioners' grievance.
In light of these considerations, we cannot conscientiously find that substantial evidence supports the Board's finding that the Union was not obligated to attempt to ascertain the petitioners' version of the events that led to their discharge. The totality of these circumstances indicates that the Union's handling of petitioners' grievance was so inadequate and showed such an egregious disregard for their rights that it constituted a breach of the duty of fair representation. In reaching this conclusion, we are not second-guessing the Union's assessment of the merits of petitioners' grievance.
Both the Board and the employer, an intervenor in this action, warn that ruling in favor of petitioners will effectively establish a per se rule requiring unions to
REVERSED and REMANDED to the Board for further proceedings in accordance with this opinion.
HUG, Circuit Judge, dissenting:
I respectfully dissent. The majority opinion correctly sets forth the legal standard to be applied in determining whether a union has breached its duty of fair representation to a union member — that is, whether the union has processed the member's grievance in an arbitrary or perfunctory manner. Vaca v. Sipes, 386 U.S. 171, 190-91, 87 S.Ct. 903, 916-917, 17 L.Ed.2d 842 (1967). It is clear that this was the standard applied by the Board. We are thus only concerned with the question whether the findings of the Board, under that standard, should be upheld. The majority opinion correctly observes that we must accept as conclusive the Board's findings, if substantial evidence in the record as a whole supports those findings. It is also clear that the ALJ's decision is a part of that record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1076 (9th Cir. 1977).
The majority opinion finds it necessary to hold the Board's conclusion to a more searching review because it differed from that of the ALJ. The authority relied upon by the majority, however, addresses the situation where the ALJ is overruled by the Board on peculiarly factual questions. See e.g. Doug Hartley, Inc. v. NLRB, 669 F.2d 579 (9th Cir. 1982) (credibility determinations involving conflicting testimony on motivation for discharge); NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, 928-29 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980) (determination whether two entities constitute a single employer is "essentially a factual one").
In the present case, the Board and the ALJ did not differ in their factual determination, but rather in the conclusions to be drawn from the accepted facts. This case is similar to Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981). There the court upheld the Board's determination, which differed from the ALJ's, stating: "[t]he Board did not disagree with the ALJ's assessment of witness credibility, rather it drew different inferences from the testimony itself. The Board has special expertise in drawing these kinds of inferences, and its determinations are entitled to judicial deference." Id. at 1099 (footnote omitted).
Here, as in Kallman, the Board did not disagree with the ALJ's assessment of witness credibility. The Board's conclusion is within its area of special expertise. Thus, we are not dealing with the kind of ALJ determination that, as contrary evidence, detracts from the weight given to the Board's conclusion.
The Board's opinion almost exclusively addresses the scope of the union's duty, under the NLRA, to interview grievants. The Board's conclusion that the facts here did not require grievant interviews is clearly within its special expertise, and is entitled to judicial deference unfettered by consideration of the ALJ's contrary interpretation of the NLRA. "Of course, the judgment of the Board is subject to judicial review; but if its construction of the [NLRA] is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute." Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979).
A union is afforded great latitude in its handling of employee grievances. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-1056, 47 L.Ed.2d 231 (1976). In evaluating the fairness of a union's representation, the union is not to be held to a level of performance appropriate to a court of law. See Findley v. Jones Motor Freight Corp., 639 F.2d 953, 958-59 (3d Cir. 1981). A union is granted the flexibility to do what is appropriate in the circumstances of each case. See Ness v. Safeway Stores, Inc., 598 F.2d 558, 561 (9th Cir. 1979).
The ALJ's finding that the union harbored no animosity against the men was not excepted to by the parties, and was affirmed by the Board. This court must therefore accept that finding as correct. While the majority opinion acknowledges this, see majority opinion at 601, n.4, its discussion of the circumstances of this case notes the union's "departure from its [normal] policy" of interviewing grievants, the "possible conflict of interest" arising from "a tension between the union's loyalty to its officials and its duty to rank and file members," and evidence indicating that the union "intended to handle their grievance in a summary manner." Majority opinion at 602. These factors seem to go to the union's purpose in handling the grievance as it did. This type of analysis would seem to be precluded by the fact that no animosity existed.
In my opinion, the Board had substantial evidence to support its finding that the representation was not arbitrary or perfunctory. The evidence indicated that the union president personally filed the grievance for Tenorio and Fowler, then interviewed not only Trimble, but also the two neutral eyewitnesses to the confrontation. On the basis of this substantial and credible evidence, the relevant union officials decided that it was unnecessary to interview Tenorio and Fowler.
The union's investigation revealed that Tenorio, Fowler and a third man went to see Trimble while the latter was working. Fowler, acting as spokesman for the group, informed Trimble in a loud voice that they wished to speak with him. No explanation was offered as to the issue they wished to discuss. Trimble invited them to talk, either where they were, or in the chapel chairman's office. Fowler declined and insisted they all go outside. Trimble refused to go outside, so Fowler assured him "I'll see you when you get off work."
Trimble was understandably frightened by this encounter. He had been confronted by two men he knew to have histories of job-related violence, and a third man he had never seen before. These men had refused his invitation to talk in the shop or in a quieter office and, without explanation, had demanded that he step outside. When he declined, he was informed that he would be met in the early morning when his shift ended. The two impartial eyewitnesses both stated that Fowler used a threatening tone of voice. The implications raised by an invitation to step outside, delivered in a threatening tone, are clear.
When his shift ended, Trimble was not enamored with the prospect of standing around in the dark, waiting for his bus. He requested that a security guard accompany him to the bus stop. The employer became aware of the confrontation through Trimble's request for a guard and, knowing of past incidents of violence involving Tenorio and Fowler, discharged them.
The union here was faced with strong evidence against the grievants and with an employer that was unyielding in its desire to enforce the discharge. While it is not appropriate for the court to evaluate the merits of the grievance, Vaca v. Sipes, 386 U.S. at 192-93, 87 S.Ct. at 917-918, we may look at the existence and weight of the available evidence to decide if the union's handling of the case was arbitrary or perfunctory. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1215 (9th Cir. 1980).
Even if the union had interviewed Tenorio and Fowler, it is extremely doubtful that their version of the incident would have been given any weight by the employer or would have altered the union's conclusion that the grievance was meritless. In fact, the ALJ found their testimony to be contradictory and unreliable, and accorded it no weight. Thus, to transmute this situation to the context of a judicial proceeding, even if the union's conduct in representing Tenorio and Fowler were "error," I would find it "harmless error."
In addition to its responsibility to protect the rights of aggrieved members, the union has a duty to its membership as a whole to expend its resources wisely. Here, the union's president interviewed Trimble and two eyewitnesses to the confrontation, and determined that it was a bad case requiring no further investigation. In making that decision, he was responding to his responsibility to the entire membership not to waste additional time on what he had determined was a meritless grievance. See Fountain v. Safeway Stores, Inc., 555 F.2d 753, 756-57 (9th Cir. 1977).
In short, the Board has special expertise in the labor field and is in the best position to evaluate the reasonableness of a union's representation in the context of normal labor relations. It is clear that even though the union did not interview Tenorio and Fowler, it did more than a perfunctory job. It made a rather thorough investigation. There was ample evidence for the Board to conclude that the union's failure to interview the two, in the circumstances presented here, was not so egregious as to violate the union's duty of fair representation.