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 where the ALJ is overruled by the Board on peculiarly factual questions. See e.g. Doug Hartley, Inc. v. NLRB, 669 F.2d 579 (9th Cir. 1982) (credibility determinations involving conflicting testimony on motivation for discharge); NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, 928-29 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980) (determination whether two entities constitute a single employer is “essentially a factual one”).
In the present case, the Board and the ALJ did not differ in their factual determination, but rather in the conclusions to be drawn from the accepted facts. This case is similar to Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981). There the court upheld the Board’s determination, which differed from the ALJ’s, stating: “[t]he Board did not disagree with the ALJ’s assessment of witness credibility, rather it drew different inferences from the testimony itself. The Board has special expertise in drawing these kinds of inferences, and its determinations are entitled to judicial deference.” Id. at 1099 (footnote omitted).
Here, as in Kallman, the Board did not disagree with the ALJ’s assessment of witness credibility. The Board’s conclusion is within its area of special expertise. Thus, we are not dealing with the kind of ALJ determination that, as contrary evidence, detracts from the weight given to the Board’s conclusion.
The Board’s opinion almost exclusively addresses the scope of the union’s duty, under the NLRA, to interview grievants. The Board’s conclusion that the facts here did not require grievant interviews is clearly within its special expertise, and is entitled to judicial deference unfettered by consideration of the ALJ’s contrary interpretation of the NLRA. “Of course, the judgment of the Board is subject to judicial review; but if its construction of the [NLRA] is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute.” Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979).
A union is afforded great latitude in its handling of employee grievances. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-1056, 47 L.Ed.2d 231 (1976). In evaluating the fairness of a union’s representation, the union is not to be held to a level of performance appropriate to a court of law. See Findley v. Jones Motor Freight Corp., 639 F.2d 953, 958-59 (3d Cir. 1981). A union is granted the flexibility to do what is appropriate in the circumstances of each case. See Ness v. Safeway Stores, Inc., 598 F.2d 558, 561 (9th Cir. 1979).
*604In this case, the Board looked to the union’s conduct in processing Tenorio and Fowler’s grievance. The Board was looking at the conduct of non-lawyers in a non-judicial setting. No doubt the Board recognized that it would have been preferable to have interviewed the grievants. It is a fact, however, that substantial, credible, and impartial eyewitness evidence was presented against Tenorio and Fowler at the grievance hearing. Can it be said that an interview with the men might have affected the ultimate outcome of that hearing? I think not. While, in another situation, the failure to interview might certainly rise to the requisite level of unfairness, here I would not find it such a serious shortcoming as to be arbitrary or perfunctory-
The ALJ’s finding that the union harbored no animosity against the men was not excepted to by the parties, and was affirmed by the Board. This court must therefore accept that finding as correct. While the majority opinion acknowledges this, see majority opinion at 601, n.4, its discussion of the circumstances of this case notes the union’s “departure from its [normal] policy” of interviewing griev-ants, the “possible conflict of interest” arising from “a tension between the union’s loyalty to its officials and its duty to rank and file members,” and evidence indicating that the union “intended to handle their grievance in a summary manner.” Majority opinion at 602. These factors seem to go to the union’s purpose in handling the grievance as it did. This type of analysis would seem to be precluded by the fact that no animosity existed.
In my opinion, the Board had substantial evidence to support its finding that the representation was not arbitrary or perfunctory. The evidence indicated that the union president personally filed the grievance for Tenorio and Fowler, then interviewed not only Trimble, but also the two neutral eyewitnesses to the confrontation. On the basis of this substantial and credible evidence, the relevant union officials decided that it was unnecessary to interview Tenorio and Fowler.
The union’s investigation revealed that Tenorio, Fowler and a third man went to see Trimble while the latter was working. Fowler, acting as spokesman for the group, informed Trimble in a loud voice that they wished to speak with him. No explanation was offered as to the issue they wished to discuss. Trimble invited them to talk, either where they were, or in the chapel chairman’s office. Fowler declined and insisted they all go outside. Trimble refused to go outside, so Fowler assured him “I’ll see you when you get off work.”
Trimble was understandably frightened by this encounter. He had been confronted by two men he knew to have histories of job-related violence, and a third man he had never seen before. These men had refused his invitation to talk in the shop or in a quieter office and, without explanation, had demanded that he step outside. When he declined, he was informed that he would be met in the early morning when his shift ended. The two impartial eyewitnesses both stated that Fowler used a threatening tone of voice. The implications raised by an invitation to step outside, delivered in a threatening tone, are clear.
When his shift ended, Trimble was not enamored with the prospect of standing around in the dark, waiting for his bus. He requested that a security guard accompany him to the bus stop. The employer became aware of the confrontation through Trim-ble’s request for a guard and, knowing of past incidents of violence involving Tenorio and Fowler, discharged them.
The union here was faced with strong evidence against the grievants and with an employer that was unyielding in its desire to enforce the discharge. While it is not appropriate for the court to evaluate the merits of the grievance, Vaca v. Sipes, 386 U.S. at 192-93, 87 S.Ct. at 917-918, we may look at the existence and weight of the available evidence to decide if the union’s handling of the case was arbitrary or perfunctory. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1215 (9th Cir. 1980).
*605The Board decided that this situation was not so ambiguous as to require statements from Tenorio and Fowler. In my view, the judgment represents a “reasonably defensible” interpretation of the NLRA. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849.
Even if the union had interviewed Teno-rio and Fowler, it is extremely doubtful that their version of the incident would have been given any weight by the employer or would have altered the union’s conclusion that the grievance was meritless. In fact, the AU found their testimony to be contradictory and unreliable, and accorded it no weight. Thus, to transmute this situation to the context of a judicial proceeding, even if the union’s conduct in representing Tenorio and Fowler were “error,” I would find it “harmless error.”
In addition to its responsibility to protect the rights of aggrieved members, the union has a duty to its membership as a whole to expend its resources wisely. Here, the union’s president interviewed Trimble and two eyewitnesses to the confrontation, and determined that it was a bad case requiring no further investigation. In making that decision, he was responding to his responsibility to the entire membership not to waste additional time on what he had determined was a meritless grievance. See Fountain v. Safeway Stores, Inc., 555 F.2d 753, 756-57 (9th Cir. 1977).
In short, the Board has special expertise in the labor field and is in the best position to evaluate the reasonableness of a union’s representation in the context of normal labor relations. It is clear that even though the union did not interview Tenorio and Fowler, it did more than a perfunctory job. It made a rather thorough investigation. There was ample evidence for the Board to conclude that the union’s failure to interview the two, in the circumstances presented here, was not so egregious as to violate the union’s duty of fair representation.