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

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 *600 grievance. The National Labor Relations Board found in favor of the Union. We reverse.

FACTS

Petitioners joined the Union upon commencing employment with the San Francisco Newspaper Printing Company (employer) in November, 1977. 1 In August, 1978, petitioners became involved in a barroom altercation with a fellow Union member. Although the fight occurred away from the employer’s premises, the Union initiated an investigation. Upon learning of the petitioners’ involvement in the fight, the Union Executive Board asked Fowler and Tenorio to appear before it to answer questions. They decided not to appear, thinking that the fight had been a private matter of no concern to the Union. They telephoned Paul Trimble, an Executive Board member to inform him of their decision. Uncertain that Trimble had understood their…

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…

680 F.2d 598 110 L.R.R.M. (BNA) 2939 , 94 Lab.Cas. P 13,694 Michael TENORIO & Gil Fowler, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, San Francisco Web Pressmen and Platemakers' Union No. 4, Intervenor. No. 80-7648. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1981. Decided June 29, 1982. Joe R. McCray, Matthew D. Ross, Davis, Frommer & Jesinger, San Francisco, Cal., for petitioners. Ruah Donnelly Lahey, Washington, D. C., argued, for respondent; William Wachter, Washington, D. C., on brief. Appeal from the National Labor Relations Board. Before HUG and BOOCHEVER, Circuit Judges, and BAZELON, * Senior Circuit Judge. BOOCHEVER, Circuit Judge: 1 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 grievance. The National Labor Relations Board found in favor of the Union. We reverse. FACTS 2 Petitioners…