San Francisco Web Pressmen And Platemakers' Union No 4

GRAPHIC COMMUNICATIONS LOCAL 4 (SAN FRANCISCO NEWSPAPER) 899 San Francisco Web Pressmen and Platemakers' Union No 4 affiliated with the International Printing and Graphic Communications Union of North America (San Francisco Newspaper Printing Company, Inc d/b/a San Francisco Newspaper Agency) and Gil Fowler Case 20- CB-4721 23 October 1984 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 25 April 1980 the National Labor Relations Board issued a Decision and Order in this proceed ing 1 The Board, reversing the administrative law judge s contrary findings, found that the Respond ent did not breach its duty of fair representation toward employees Mike Tenono and Gil Fowler when it processed a grievance concerning their dis charge for allegedly threatening another employee without interviewing them concerning that event The Board found that the Respondent had acted within the "wide range of reasonableness accord ed a statutory bargaining representative 2 by inter viewing the employee who had allegedly been threatened and two eyewitnesses before presenting the grievance to a Joint Standing Committee corn posed of two representatives of the Union and two representatives of the Employer The Joint Stand ing Committee voted unanimously to uphold the discharge of Tenono and Fowler As the Board concluded that the Respondent had satisfied its duty of fair representation and had not violated Section 8(b)(1)(A) of the Act it dismissed the corn plaint in its entirety Tenono and Fowler filed a petition for review of the Board's Decision and Order with the United States Court of Appeals for the Ninth Circuit On 29 June 1982 the court issued an opinion finding in agreement with the judge that the particular cir cumstances of this case obligated the Respondent to attempt to ascertain Tenono and Fowler's ver sion of the events that led to their discharge prior to acquiescing in the dismissal of their grievance and that the Respondent therefore failed in its duty of fair representation by not doing so 3 On the basis of this finding the court reversed the Board s decision and found that the Respondent had violat ed Section 8(b)(1)(A) of the Act and remanded the 1 249 NLRB 88 2 Id at 90 3 Michael Tenorio il Gil Fowler v NLRB 680 F 2d 598 602 (9th Cir 1982) petition for rehearing denied October 13 1982 272 NLRB No 138 case to the Board for further proceedings in ac cordance with its opinion On 25 August 1983 the Board issued a Supple mental Decision and Order in this proceeding 4 The Board accepted the remand of the Ninth Cir cult and adopted the judge s recommended remedy and order which, among other things, required the Union to request the Company to reinstate Tenono and Fowler to their former positions and, if the Company refused, to promptly pursue the remain ing stages of the grievance procedure, including ar bitration, in good faith with due diligence" The judge had noted (249 NLRB at 97) that the collec live bargaining agreement apparently did not con tam any time limitations on filing grievances The Board's Order also specifically provided In the event that it is not possible to pursue the remaining stages of the grievance procedure due to consider ations of timeliness, resulting in the inability to re solve the grievance of Gil Fowler and Mike Ten ono on the merits [the Union must] make Fowler and Tenono whole for any loss of pay they may have suffered as a result of its unlawful conduct in processing their grievance in an arbitrary or per functory manner 267 NLRB at 451 (emphasis added) The Respondent petitioned the Ninth Circuit for review of the Board's Supplemental Decision and Order During a prebnefing conference involving a staff attorney for the Ninth Circuit and attorneys for the parties the question was raised whether, under the language of the Board s Supplemental Decision and Order, the Union s inability to re solve the grievance of Gil Fowler and Mike Ten ono on the merits due to some reason other than timeliness would likewise leave the Union liable for backpay to Fowler and Tenono In light of this question the Board thereafter asked leave of the Ninth Circuit to consider the case further The Board's request was granted The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel After further review of the entire record and the parties statements of position the Board has decided to modify its order as set forth below The basic purpose of a Board remedial order is to restore so far as possible the status quo that would have obtained but for the wrongful act Rutter Rex Mfg Co, 396 U S 258, 265 (1969) Res toration of the status quo not only secures the rights of injured parties but also deters the corn mission of unfair labor practices by preventing the wrongdoer from gaining advantage by his unlawful 4 267 NLRB 451 (1983) 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct Id As to the traditional backpay remedy the Supreme Court stated in Rutter Rex Mfg Co 396 U S at 263 A back pay order is a reparation order de signed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice Nathanson v NLRB, 344 U S 25, 27 (1952) With regard to the Respondent s breach of its duty of fair representation in processing Fowler and Tenono s grievances—the Board is faced here with a situation where it may be impossible to know with certainty what would have happened in the absence of the Respondent's unfair labor practice In such a situation fashioning a remedy which ap proximates a return to the status quo is necessarily 'a difficult task Thus, there is uncertainty whether an arbitrator would have found their grievance to be meritorious and there is also uncertainty wheth er an attempt now to process the grievances would be availing These uncertainties however 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 representa tion 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 Service Employees Local 579 (Beverly Manor Convalescent Center) 229 NLRB 692 696 (1977) See for example Henry J Kaiser Co 259 NLRB 1 (1981) Electrical Workers IBEW Local 2088 (Federal Electric Corp ), 218 NLRB 396 (1975) The Board s view is in accord with well es tablished equitable principles Indeed as the judge noted (249 NLRB at 97 fn 8) the Supreme Court made clear that [t]he most elementary conceptions of justice and public policy require that the wrong doer shall bear the risk of the uncertainty which his-own wrong has created Bigelow v RKO Radio 0 Picture2-3.7 U S 251 265 (1946) 5 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 Respondent as the wrongdoer in this case Applying the above principles the Board will place the burden on the Respondent as the wrong doer to seek a proper and prompt resolution of [Fowler and Tenono's] grievance Teamsters 5 See also Leeds & Northrup Co v NLRB 391 F 2d 874 880 (3d Or 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 Swznerton 202 F 2d 511 516 (9th Cir 1953) Local 559 (Mashkin Freight Lines), 257 NLRB 24 (1981) Such utilization of the grievance and arbi tration procedure of the collective bargaining agreement may in fact provide a full and adequate remedy for the unfair labor practices found (Elec trical Workers IBEW Local 2088 above, 218 NLRB at 396) Of course such a resolution depends on the Respondent being willing and able to take effec tive steps to fulfill its obligation of fair representa tion so as to remedy its unlawful conduct with re spect to [Fowler and Tenono] Port Drum Co, 180 NLRB 590 (1970) See also Teamsters Local 559, supra 6 The Board recognizes that as a result of the Re spondent's misconduct in handling Tenono and Fowler s grievance, the Respondent may be unable to obtain an arbitrator s resolution of their gnev ance However, the absence of such a determina lion can hardly deprive Tenono and Fowler of their statutory right to have their grievance fairly processed—because it was the Respondent s, not Tenono or Fowler s, wrongful conduct which caused this result Faced with such a situation the Board will resolve the uncertainty in favor of the injured employees and not the wrongdoers and presume that if fully and fairly processed Tenon° and Fowler s grievance would have been found meritorious and that they would have been rein stated with backpay 7 On further consideration we 6 In December 1979 following the judge s decision the Respondent apparently requested that the Employer reinstate Tenono and Fowler and requested arbitration when the Employer refused The Employer re fused to proceed to arbitration presumably on the ground that the Joint Standing Committee s vote was a decision on the merits Thus the Re spondent s request for arbitration does not as of yet constitute an effec tive step to remedy its unlawful handling of Tenono and Fowler s grievance The Respondent has also referred Tenono and Fowler to jobs at a number of pressrooms and on one occasion the Respondent referred Tenon° back to the Employer who refused to hire him and the Re spondent filed a grievance The arbitrator Issued an Opinion and Award on 12 August 1982 finding that the Issue of Tenon() s discharge was set tied by the decision of the Joint Standing Committee at issue in this case but that the employee could not be permanently barred from employment with the Employer The arbitrator s decision was subsequently appealed to district court and thereafter remanded to the arbitrator The arbitrator issued a clarification of his original decision and sustained his original conclusion The arbitrator s decision was again appealed to the district court where It was vacated The Respondent s appeal of this decision is now before the Ninth Circuit In any event regardless of the outcome of that appeal the arbitrator s decision specifically declined to address Ten ono s original grievance on the merits and likewise does not serve to remedy the Respondent s violation in this case 7 In reaching our decision here we recognize that the issue under con sideration involves complex factors We believe the approach adopted here is the one which best effectuates the purposes and policies of the Act We also recognize that some circuit courts have intimated a differ ent position on the issue or questioned the Board s approach to the prob lem We find those cases to be distinguishable and to the extent that our approach here differs with those of the courts we respectfully disagree 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 rep resentation Thus the court technically did not need to face the question of the proper remedy for such a violation However the court there fur Continued GRAPHIC COMMUNICATIONS LOCAL 4 (SAN FRANCISCO NEWSPAPER) 901 find no basis for making the Respondent s possible backpay liability contingent solely on the Respond ent's inability to pursue the remaining stages of the grievance due to considerations of timeliness If for any procedural or substantive reason the Re spondent is ultimately unable to obtain further con sideration of the underlying grievance (see fn 6), the Respondent shall be required to provide back pay We shall revise the Order herein to so pro vide ORDER The National Labor Relations Board orders that the Respondent San Francisco Web Pressmen and Platemakers' Union No 4 affiliated with the Inter national Printing and Graphic Communications Union of North America its officers, agents, and representatives, shall take the action set forth in the Order reported at 267 NLRB 451 (1983), as modi fled 1 Substitute the following for paragraph 2(c) (c) In the event that it is not possible to pursue the remaining stages of the grievance procedure resulting in the inability to resolve the grievance of ther stated that the Board s proposed backpay remedy could not be en forced because there was no finding the discnminatee s grievance had merit and thus It could not be said that the union had caused any damage since there was no finding of breach of contract We first note that in the instant case the Board and the Ninth Circuit have not accept ed the Seventh Circuit s position that a breach of the duty of fair repre sentation cannot be found unless the union arbitrarily rejected a mentor: ous grievance See Tenon:, v NLRB 680 F 2d 598 602 fn 5 (9th Cir 1982) (court found violation without intimating any opinion regarding how the merits of the grievance should be decided ) Further the Sev enth Circuit s view (Steelworkers v NLRB supra 692 F 2d at 1057 see also NLRB v Eldorado Mfg Corp 660 F 2d 1207 1215 (7th Cir 1981)) relies on a number of cases brought under Sec 301 of the Labor Manage ment Relations Act in which courts have rejected any claim for lost earnings against a union which has allegedly breached its duty where the claimant fails to show that its claim against the employer had merit However there is a distinction between the elements of proof needed to show a violation of the duty of fair representation and those elements needed to establish an entitlement to backpay as a result of the employ er s or union s breach of contract See Hines v Anchor Motor Freight 424 U S 554 570-571 (1976) Clayton v Automoble Workers 451 U S 679 683 fn 4 (1981) United Parcel Service v Mitchell 451 U S 56 62 (1981) Since these causes of action are separate It follows that the Board s Gen eral Counsel need not prove a breach of contract to show that the union breached its duty of fair representation Our decisions in this area remedy only the union s breach of duty of fair representation In NLRB v Elec mica' 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 re quired the offending union to take [the discrimmatee s] grievance to ar bitration 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 respond ent s liability for backpay if it is finally unable to obtain arbitration of the discnminatees gnevance Id at 24 noting that [u]ntil some tribunal de tern-Imes the validity of the [discnminatees] discharge any assessment of back pay might well be regarded as speculative and punitive Id at 23 However since we have reached a final determination that the Union breached its duty of fair representation we 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 re maimng stages of the grievance Gil Fowler and Mike Tenono on the merits make Fowler and Tenono whole for any loss of pay they may have suffered as a result of its unlawful con duct in processing their grievance in an arbitrary or perfunctory manner by payment to them of the amount they would normally have earned from the date they made their first request to the Respond ent to redress their grievance until they obtained substantially equivalent employment, less their net earnings during the backpa-y- period, together with interest thereon" 2 Substitute the attached notice for that set forth at 267 NLRB 451 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 ordered us to post and abide by this notice WE WILL NOT fail or refuse to fairly represent any employee represented by us and WE WILL not arbitrarily and perfunctorily process any employ ee s grievance WE WILL NOT in any like or related manner re strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL request San Francisco Newspaper Printing Company Inc , d/b/a San Francisco Newspaper Agency to reinstate Gil Fowler and Mike Tenono to their former positions of employ ment and, if it refuses to do so WE WILL promptly pursue the remaining stages of the grievance proce dure including arbitration, in good faith with all due diligence WE WILL permit Gil Fowler and Mike Tenono to be represented by their own counsel at the re maimng stages of the grievance procedure and at the arbitration proceeding and WE WILL pay the reasonable legal fees of such counsel WE WILL make Gil Fowler and Mike Tenono whole, with interest, for any loss of pay they may have suffered as a result of our failure to fairly process their grievance concerning their discharges by San Francisco Newspaper Printing Company, Inc , d/b/a San Francisco Newspaper Agency, if their grievance concerning those discharges cannot 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be processed through the grievance procedure to arbitration SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS UNION No 4 AFFILI ATED WITH THE INTERNATIONAL PRINTING AND GRAPHIC COMMUNI CATIONS UNION OF NORTH AMERICA