Moore, Hays and Feinberg, Circuit Judges.
In April 1968, the National Labor Relations Board found that Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO, violated section 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b) (1)(A), by unlawfully refusing to process a wrongful discharge grievance of union member Opreas Barclay against his employer, Automotive Plating Corp. (the Company). 170 NLRB 1234 (1968).*fn1 The Board issued an order which, in part, required Local 485 to take the grievance to arbitration, if necessary, but the Board did not seek enforcement of that order. In June 1970, the Board found that the Local had failed to comply with the original order and issued a supplemental order which, with one member dissenting, required the Local to:
Make Opreas Barclay whole for any loss of earnings he may have suffered as a result of his discharge . . . from the date Barclay requested the Union to challenge the propriety of that discharge . . . until such time as the Union fulfills its obligation to Barclay of fair representation, or Barclay obtains substantially equivalent employment, whichever is sooner.
183 NLRB No. 131 (1970). In a petition filed in February 1971, the Board seeks enforcement of both these orders. We enforce the original order, but decline to enforce the supplemental order for reasons set forth below.
The parties agree on some of the facts in this bitterly contested case. On August 16, 1965, Barclay was summarily discharged from his job as a grinder and polisher in the Company. The discharge was based on Barclay's alleged insubordination when he refused a temporary transfer to another job. At that time, Barclay had been in the Company's employ for over seven years and was the most senior worker in the shop. Although a written grievance was immediately filed on Barclay's behalf by the Shop Committee, Local 485 did not take Barclay's grievance to arbitration, as it had a right to do under its collective bargaining agreement. Shortly before Barclay's discharge, there had been a volatile dispute in the plant over compulsory overtime. The Company, apparently dissatisfied with the lack of sufficient volunteers to meet its overtime needs, posted a notice purportedly requiring some employees to work a 56-hour week rather than the 40-hour week provided in the contract. That same day, the Shop Committee chairman, Rupert Campbell, called Wallace Eisenberg, the Local's business manager, to complain about the Company's action and a meeting between Eisenberg and the men was held. The meeting was, in modern jargon, an exercise in participatory democracy; positions on both sides of the overtime issue were taken with conviction and in colorful language, to say the least. Eisenberg was criticized severely for asserting that the Company had the right to demand overtime if the voluntary arrangements were inadequate. One of his most vocal critics was Opreas Barclay.*fn2
The remaining factual issues were hotly disputed and the evidence -- primarily testimonial -- conflicts markedly in critical respects. The trial examiner found that Eisenberg threatened to "get rid of" Barclay "in [my] own way" following the union meeting, and that when Barclay was fired soon thereafter for the alleged insubordination, Eisenberg when so advised said "he's the instigator, isn't he." The examiner also found that Eisenberg failed to discuss the discharge with Company representatives, although during this period he did successfully take up another discharge case with the Company. Generally discrediting the Local's witnesses,*fn3 the examiner concluded that the Local's decision not to take Barclay's grievance to arbitration, which as a practical matter was under Eisenberg's control as business manager, was motivated by Eisenberg's hostility toward Barclay.
The Board adopted the trial examiner's findings, with some modifications. The Board did not rely on one of the examiner's findings that Barclay was a pawn in a feud between Eisenberg and the Shop Committee, but rather found an adequate basis for a section 8(b)(1)(A) violation in Eisenberg's threatening response to Barclay's criticism and in Eisenberg's failure to discuss Barclay's discharge with Company representatives. The Board concluded (170 NLRB at 1234):
Since Barclay's conduct at the union meeting constituted activity protected under Section 7 of the Act, [29 U.S.C. § 157], the Union's retaliation through Eisenberg's failure to process Barclay's grievance, was violative of Section 8(b)(1)(A).
Local 485 argues at length that there is no substantial evidence to support the factual determinations of the Board and its trial examiner and that the credibility findings are "even more egregious."*fn4 We have examined the record with care, and although we might not have reached the same conclusion as the Board did had the matter come before us de novo, we find the Board's "choice between two fairly conflicting views" to be supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951). See NLRB v. Marsellus Vault & Sales, Inc., 431 F.2d 933, 937 (2d Cir. 1970); Bedding, Curtain & Drapery Workers Union, Local 140 v. NLRB, 390 F.2d 495, 500 (2d Cir.), cert. denied, 392 U.S. 905, 20 L. Ed. 2d 1363, 88 S. Ct. 2056 (1968). Because resolution of the factual issues in this case turns mainly on credibility, we have necessarily relied in great measure on the trial examiner's credibility findings, particularly on the key issues whether Eisenberg threatened Barclay with retaliation and whether the Local took the trouble even to discuss Barclay's case with management at a meeting in August. See note 3 supra. To the extent the credibility findings are buttressed by documentary evidence, they do not appear unreasonable.*fn5 To the extent demeanor was influential, the testimony ultimately credited was not "hopelessly incredible." NLRB v. Warrensburg Board & Paper Corp., 340 F.2d 920, 922 (2d Cir. 1965), quoting NLRB v. Dinion Coil Co., 201 F.2d 484, 490 (2d Cir. 1952). This, then, is the common situation of a case that could have gone either way on the facts. Its only unusual aspect is that the full scale attack on the Board as "sloppy and most inept" in its investigations and on the examiner as " one-sided" and hostile comes from a union rather than from an employer. Nonetheless, applying the normal standard of review, we conclude that we are required to affirm the Board's findings. Moreover, we do not believe that the Local was denied a fair hearing, as it claims.
The Board found that Barclay's criticism of the Local's position on the overtime issue was protected activity under section 7, 29 U.S.C. § 157, and that the Local's refusal to process his wrongful discharge grievance because of the criticism was an attempt to "restrain or coerce . . . employees in the exercise of rights guaranteed in section 7. . . ." 29 U.S.C. § 158(b)(1)(A). We agree with the Board's conclusion that this was an unfair labor practice, see NLRB v. Teamsters Local 282, 412 F.2d 334 (2d Cir. 1969), cert. denied, 396 U.S. 1038, 24 L. Ed. 2d 682, 90 S. Ct. 682 (1970).*fn6 The more difficult issues arise out of the remedy proposed by the Board -- a full back pay order enforceable against the Local.*fn7
The problem of protecting an individual employee against arbitrary collective bargaining decisions of his union without destroying the union's effectiveness as a bargaining agent is not an easy one. When an employee claims, as Barclay does here, that a company violated a collective bargaining agreement and that his union thereafter failed to represent him properly in pressing his grievance, the rights of the employee, the union and the company are all intertwined. Moreover, there are three possible tribunals to resolve aspects of the dispute -- a court, the Board or an arbitration panel -- each having practical and legal limitations on its power. Under the developing law, Barclay had a number of choices open to him. He could have brought a lawsuit against his employer directly "under § 301 [29 U.S.C. § 185] for breach of a promise embedded in the collective bargaining agreement that was intended to confer a benefit upon the individual." Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 298-99, 29 L. Ed. 2d 473, 91 S. Ct. 1909 (1971). Or Barclay could have sued the Local alone for breach of its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Or he could have joined the Company and the Local in a suit against both, although the essence of the claim against each would differ. See Humphrey v. Moore, 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964); Steinman v. Spector Freight System, Inc., 441 F.2d 599 (2d Cir. 1971). Such actions may be brought notwithstanding otherwise enforceable limitations on employee remedies.*fn8 See Vaca v. Sipes, supra, 386 U.S. at 185-86, 195-98. See also Professor Lewis's perceptive article, Fair Representation in Grievance Administration: Vaca v. Sipes, 1967 Sup. Ct. Rev. 81, 87-88 (1967). In short, despite the Supreme Court's continuing concern over maintaining the Board's exclusive powers in this delicate area of labor relations, see Lockridge, supra, 403 U.S. at 285-91, it is now firmly established that Barclay could have gone directly to court rather than to the Board in order to obtain ...