concurring and

dissenting.

I concur in the majority’s conclusion that the order of the National Labor Relations Board (NLRB) enjoining the Union’s state-court lawsuit is quite unenforceable. I dissent from the rest of the majority’s determinations because they are all foreclosed by the decision of the Supreme Court in Bill Johnson’s Restaurants, Inc. v. NLRB, - U.S. -, 103 S.Ct. 2161 , 76 L.Ed.2d 277 (1983) (Bill Johnson’s II). That decision has held that where a state-court lawsuit has been filed which is not baseless (i.e., not frivolous or lacking any reasonably litigable issue of law or fact), the Board cannot enjoin its prosecution. Moreover, under such circumstances, the Board cannot continue its own proceeding if it necessarily involves determining that same issue of which the state-court has acquired proper jurisdiction. Therefore, we have no business deciding corollary and derivative issues which cannot be reached until the lawsuit is decided.

The dispositive issue before the state-court and before the Board is a disputed fact question: Did the Union give its member an oral extension of time in which to pay his dues? It can only be resolved by a proceeding in which credibility is resolved. Neither the majority nor the Board contends that that issue is not in dispute, or that the dispute is not genuine. The majority has devised a theory that the Board acquired jurisdiction before the Union filed in state-court and that that ousts the court of jurisdiction. That is completely without substance. The majority also says that the Administrative Law Judge already has decided the fact issue against the Union, and that is that. My answer is the suggestion that Bill Johnson’s II be reread.

*1266 At heart in the Supreme Court’s decision which reversed a precedent of this circuit (to which the majority still clings), is the philosophy that the judicial power in this society is in a dual system of courts, federal and state, each with its own integrity of structure and functioning. No part of that power is committed to administrative agencies. Although in its work of implementation of the National Labor Relations Act (the Act), Congress has given to the Board a mission and the means of discharging its responsibilities, those means include no authority to perform the judicial function nor the power to interfere with activities which are legitimately within the judicial function. When a court of the states has invoked a proper jurisdiction to hear and determine an issue, the message of Bill Johnson's Restaurants, Inc. v. NLRB,-U.S. -, 103 S.Ct. 2161 , 76 L.Ed.2d 277 {Bill Johnson’s II), is that the Board must stay its hand because our jurisprudence demands that kind of deference to a court.

This is not new ground. The principle has been recognized in many circumstances. That is what Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967) holds. That is why even federal courts must sometimes stay their process, as in Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), when a state-court is considering an issue of great state concern. Important and valued principles are entrusted to the expertise of administrative bodies, such as the Board, and their exercise of statutory authority is not legally subject to interference except in accordance with established principles. But other and more paramount considerations come into play when administrative adjudicatory functioning conflicts with judicial functioning with respect to the same subject matter. Even carefully designed statutory schemes relating to administrative determinations may be held to have built-in exceptions when the administrative and the judicial power reach to the same issues. See, e.g., Kremer v. Chemical Construction Corp., 456 U.S. 461 , 102 S.Ct. 1883, 1891 , 72 L.Ed.2d 262 (1982) (although Title VII cases are tried in federal district court de novo after consideration by a state agency to which EEOC has deferred, “neither the statute, nor our decisions, indicate that the final judgment of a state-court is subject to redetermination at such a trial.”).

Bill Johnson’s II applies these principles to the field of labor law. It holds plainly that the Board cannot require an employer to withdraw a state-court lawsuit if it has any real substance. This does not imply any inquiry into whether the suit may in fact be won or lost. The Supreme Court cast it in terms of a genuine issue of fact— concepts having distinct meaning in litigation. The common sense of it is that if the lawsuit is a sham, then it is in effect no lawsuit. State courts have no defensible interests in allowing sham or baseless lawsuits to clutter their dockets. Justice Brennan, concurring in Bill Johnson’s II, wrote that a suit is without reasonable basis if it appears that “controlling federal law bars the plaintiff’s right to relief, that clear state law makes the case frivolous, or that no reasonable jury could make the findings of fact in favor of the plaintiff that are necessary under applicable law.” Id., 103 S.Ct. 2176 . Under these circumstances the obligation of deference is overcome.

In this case, in no way can it be argued that the Union’s state-court action is a sham. Its subject is very clear. One count sounds in libel and slander, claiming that the member falsely imputed unfair conduct to the Union in improperly causing his discharge. Unions are entrusted with looking after the interests of their members. Procuring a member’s discharge without reason and contrary to the Union’s fiduciary responsibilities could certainly constitute libel or slander.

In our case, the Union caused Gilson’s discharge. If there was just cause — delinquency in payment of union dues — the Union’s action was valid under the express terms of the Act and of the collective bargaining contract. If there was no just cause, the Union would, exactly as Gilson and the Board charged, have committed an inexcusable breach of the fiduciary’s duty owed to its member. Such a charge, if false, could be viewed as slander because it

California Civil Code, § 46(3). It could also constitute libel:

California Civil Code, § 45.

Truth, of course, is one of the most common defenses. Royer v. Steinberg, 90 Cal. App.3d 490 , 153 Cal.Rptr. 499 (1979). The Union denied it had given Gilson an extension. Unless the extension was established, Gilson had no case and the Board had no case. It was Gilson’s word against that of the Union’s people. There was no smoking gun, only a credibility determination to be made on conflicting testimony. The element or defense of “truth” is critical and cannot be proved without first resolving that oral conflict. The administrative law judge did resolve the conflict in Gilson’s favor, but that issue was also before the state court in the lawsuit. Bill Johnson’s II holds that the ALJ was wrong in deciding the same issue because it was court litigation, and preclusive effect should have been accorded that litigation.

Id., 103 S.Ct. 2173 .

On the facts of this case there simply is no way, consistent with the Supreme Court’s holding, that the Board or ALJ can conclude that the Union’s state-court suit fails to raise a genuine issue of fact. That issue is to be determined by the court — not by the administrative agency. The ALJ can look at the state case but only to see that it is for real. Once that reality is seen to exist, “the Board must await the results of the state-court adjudication with respect to the merits of the state suit.” Id. It cannot itself weigh and decide an issue which is not, in effect a sham.

Since, in this case, the ALJ is not entitled to consider and make credibility determinations on disputed testimony (I would assume all would agree that there was no inherent incredibility on either side), the agency’s duty was and now is to await the outcome of the state lawsuit because the verbal extension is the linchpin of the entire unfair labor practice proceeding. For this reason, the majority ought not to have rushed into a decision whether section 7 rights are involved because it does not know whether that issue will survive. If the Union should prevail in the state-court, that issue will disappear. If the Union loses its lawsuit, then and only then will the way be open for Board action. The majority, too, should stay its hand.

The majority’s opinion is replete with dictum, including the unfounded statement that the principle of state-court deference does not apply if NLRB proceedings were already underway when the action was filed. At 1263. This is incorrect. In Bill Johnson’s II, Board proceedings were already ongoing. The Supreme Court did not *1268 say it was too late. It said that at that point the “Board should proceed no further with its * * * unfair labor proceedings but should stay those proceedings until the state-court suit has been concluded.” Id. 103 S.Ct. at 2171-2172 .

The majority is also wrong in holding that the Board is not required to hold up its action, even though a state-court suit clearly presents a genuine issue for decision, unless it appears that the state-court suit involves “a controversy that is at least in part separate from the controversy that before the Board, that the Board itself had no power to adjudicate the subject matter of the state-court suit, or that the Union had no ability to bring the controversy to decision before the Board * * * ” At 1263. This is entirely inconsistent with Bill Johnson’s II and I find it difficult to believe the majority really adheres to any such analysis.

Turning to other issues which the majority has with some gratuitous industry discussed, I would ask why, if the Board is to stay its hand — and I have no doubt that it must do so — do we undertake to decide the summary judgment and section 7 issues — issues which may never again arise in this case — and which in the present posture of the case do not represent final agency action?

I would remand to the Board for the sole purpose of letting it make its cautious and limited analysis whether there exists a genuine issue for the state-court to hear. The Board has no business guessing the actual outcome if such an issue exists. In my judgment it would be a capricious act should the Board find no genuine issue. And this court has no business doing prejudging either.

For these reasons I dissent.