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

794 F.2d 420 122 L.R.R.M. (BNA) 3000 , 123 L.R.R.M. (BNA) 2058, 55 USLW 2091 , 104 Lab.Cas. P 11,886 SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS' UNION NO. 4, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Michael Tenorio and Gil Fowler, Charging Parties. Nos. 83-7701, 83-7822. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 12, 1985. Decided July 7, 1986. Original Partial Concurrence and Partial Dissent Withdrawn and Replaced July 22, 1986. Laurence Gold, Brian C. Walsh, Garry, Dreyfus & McTernan, San Jose, Cal., for petitioner. Andrew G. Tranovich, NLRB, Washington, D.C., for respondent. William F. Lewis, San Francisco, Cal., for charging parties. On Application for Enforcement of an Order of the National Labor Relations Board. Before: TANG and FERGUSON, Circuit Judges, and GRAY, * District Judge. FERGUSON, Circuit Judge: 1 San Francisco Web Pressmen and Platemakers' Union No. 4 ("Union") petitions for review of the National Labor Relations Board ("Board") Second Supplemental Decision and Order dated October 24, 1984; the Board applies for enforcement. That decision orders the Union to arbitrate a wrongful termination grievance, permits…

San Francisco Web Pressmen and Plate-makers’ Union No. 4 (“Union”) petitions for review of the National Labor Relations Board (“Board”) Second Supplemental Decision and Order dated October 24, 1984; the Board applies for enforcement. That decision orders the Union to arbitrate a wrongful termination grievance, permits the employees involved to hire outside counsel at the union’s expense, and orders the Union to pay back wages if the grievance cannot be arbitrated. We grant enforcement of those parts of the order compelling arbitration and permitting outside counsel, and deny enforcement of that part of the order making the Union potentially liable for backpay.

I.

Michael Tenorio and Gil Fowler (“Employees”), members of the Union since 1977, became involved in a barroom fight in August 1978 with another Union member. On learning of the incident, the Union Executive Board contacted the Employees and requested that they explain their conduct. The Employees considered the incident of no concern to the Union, and on August 23, 1978, told Paul Trimble, a member of the Executive Board, over the telephone that they would not appear. They visited Trim-ble at work that same day and, in a…

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…