San Francisco Web Pressmen And Platemakers' Union No 4

National Labor Relations Board - Board Decisions

Oct 23, 1984

272 N.L.R.B. 899 (N.L.R.B. 1984)

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 theBoard 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