San Francisco Web Pressmen and Platemakers' Union No. 4 v. National Labor Relations Board, Michael Tenorio and Gil Fowler, Charging Parties

TANG, Circuit Judge,

concurring in part and dissenting in part:

I concur with the majority that the Board’s arbitration order and the Board’s order permitting the Employees to hire outside counsel at the Union’s expense may stand. I respectfully dissent from the majority’s conclusion that Union backpay liability is in each and every instance contingent upon a tribunal’s determination of wrongful discharge by the employer.

Although the general rule is that the Board shall not hold unions liable for back-pay without a finding by a tribunal (court, Board, or arbitration panel) that the discharge by the employer breached the collective bargaining agreement, see, e.g., United Steelworkers of America v. NLRB, 692 F.2d 1052, 1058 (7th Cir.1982); Glass Bottled Blowers Association, 240 NLRB 324 , 325 (1979), the Board here ordered Union backpay liability in the event that arbitration is found to be time-barred. Beverly Manor Convalescent Center, 229 NLRB 692 , 696 (1977). I believe this result is correct. Since we had already held the Union to have breached its duty of fair representation, Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982), the Board reasoned *426 that as the wrongdoer, the Union should not be rewarded for its misconduct. The Board thus held that for the purposes of backpay liability, the grievance would be resolved in favor of the injured employee. 1

If arbitration is found to be time-barred, the majority would leave the Employees without relief since no alternate tribunal would be available to adjudicate the wrongful discharge claim. A § 301 suit against the Union, the Employer, or both would be unavailable because the four-year statute of limitations would have long expired.

Thus, the practical result of the majority approach is to force employees filing an unfair labor practice complaint with the Board (alleging breach of duty of fair representation) to file simultaneously a § 301 suit against the union, the employer, or both simply to preserve their right to damages against the Union. Such a requirement is not only unfair, but also flies in the face of national labor relations policy. Congress has specified, and the Supreme Court has recognized, that a dispute resolution method agreed upon by the parties — in this case arbitration — is the desirable method for settlement of grievance disputes. § 203(d), 61 Stat. 154 , 29 U.S.C. § 173 (d); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63 , 96 S.Ct. 1048, 1055 , 47 L.Ed.2d 231 (1976). See also Clayton v. Automobile Workers, 451 U.S. 679, 689 , 101 S.Ct. 2088, 2095 , 68 L.Ed.2d 538 (1981) (national labor policy encourages private rather than judicial resolution of disputes arising over collective-bargaining agreements).

If arbitration is found to be time-barred, the Board is faced with a situation where it may be impossible to know with certainty what would have happened in the absence of the Union’s unfair labor practice. These uncertainties are the “direct products of Respondent Union’s unlawful action,” King Soopers, Inc., 222 NLRB 1011 , 1020 (1976), and the Board has consistently held that when a Union breaches its duty of fair representation under Section 8(b)(1)(A) of the Act by failing to process a grievance, “it is proper to resolve the question [concerning the validity of the grievance] in favor of the injured employee and not the wrongdoer.” Beverly Manor Convalescent Center, 229 NLRB at 696. See also Henry J. Kaiser Company, 259 NLRB 1 (1981); Electrical Workers IBEW 2088 (Federal Electric Corp.), 218 NLRB 396 (1975).

The Board’s view is in accord with well-established equitable principles. Indeed, the Supreme Court has made clear that “[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 , 66 S.Ct. 574, 580 , 90 L.Ed. 652 (1946). 2 In short, the Board, in seeking to uphold the public interest and restore the status quo, is entitled to place the burden of any uncertainty on the Union as the wrongdoer in this case.

Faced with such a situation, the Board correctly resolved the uncertainty in favor of the injured employees and not the wrongdoers, and presumed that Tenorio and Fowler’s grievance, if fully and fairly processed, would have been found meritorious and that they would have been reinstated with backpay. 3 In this instance I *427 believe the Board’s order was correct and for the foregoing reasons I would affirm that order.

. Ordinarily, the Board probably cannot pass on the merits of the discharge since its order could be construed as an attempt to remedy the Employer's breach of contract. Such an attempt would very likely overstep the Board’s authority to act. See Vaca v. Sipes, 386 U.S. 171, 187-88 (1967); NLRB v. Electrical Workers IUE Local 485, 454 F.2d 17, 23-24 (1972).

. See also Leeds & Northrup Co. v. NLRB, 391 F.2d 874, 880 (3d Cir.1968) ("the Board can hardly be said to be effectuating policies beyond the purposes of the Act by resolving the doubt against the party who violated the Act.”); NLRB v. Swinerton, 202 F.2d 511, 516 (9th Cir.1953).

. In Steelworkers v. NLRB, 692 F.2d 1052 (7th Cir.1982), the court failed to enforce the Board’s finding that the union violated its duty of fair representation. Thus, the court technically did not need to face the question of the proper remedy for such a violation. However, the court there further stated that the Board’s proposed backpay remedy could not be enforced because there was no finding the discriminatee’s grievance had merit, and thus it could not be *427 said that the union had caused any damage since there was no finding of breach of contract. On the other hand, the court conceded that in the event the arbitration order is found to be time-barred, the Board may pass on the merits of the contract claim to the extent that it effects the union’s liability. Id. at 1057 .

In NLRB v. Electrical Workers IUE Local 485, 454 F.2d 17, 22 (2d Cir.1972), the court enforced the Board’s initial order which, like the order in this case, required the offending union to “take [the discriminatee’s] grievance to arbitration if necessary.” The court explicitly noted that "if a section 301 suit against the employer is required in order to obtain arbitration ... it will be deemed necessary for the purpose of complying with the order" (footnote omitted). The court, however, found it “premature to deal with" the "problem” addressed by the Board in this case— the respondent’s liability for backpay if it is finally unable to obtain arbitration of the discri-minatees’ grievance. Id. at 24 . The court further noted that “[u]ntil some tribunal determines the validity of the [discriminatees] discharge, any assessment of back pay might well be regarded as speculative and punitive.” Id. at 23 .

However, since the Board did reach a final determination that the Union breached its duty of fair representation, I find nothing speculative or inconsistent with the above-discussed principles of equity, in assigning the Union with backpay liability should it be unable now to pursue the remaining stages of the grievance.