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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2003 Decided April 11, 2003
No. 01-1470
JOE JACOBY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO, LOCAL #342,
INTERVENOR
On Petition for Review of an Order of the
National Labor Relations Board
Glenn M. Taubman argued the cause and filed the briefs
for petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Usha Dheenan, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Arthur F. Rosenfeld, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Meredith L. Jason, Attorney.
John L. Anderson argued the cause and filed the brief for
intervenor.
Before: EDWARDS, HENDERSON and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.
EDWARDS, Circuit Judge: The dispute in this case arose
when, due to an inadvertent error, Steamfitters Local Union
No. 342 (‘‘Local 342’’ or ‘‘Union’’) failed to assign petitioner
Joe Jacoby to a job to which he was entitled according to the
Union’s hiring hall rules. Jacoby filed charges with the
National Labor Relations Board (‘‘NLRB’’ or ‘‘Board’’), claim-
ing that the Union violated §§ 8(b)(1)(A) and (2) of the
National Labor Relations Act (‘‘NLRA’’), 29 U.S.C.
§§ 158(b)(1)(A) & (2), and breached its duty of fair represen-
tation (‘‘DFR’’). In its initial consideration of the case, the
Board dismissed the complaint. Jacoby then sought review in
this court and was successful in securing a remand of the case
to the Board for further consideration. Jacoby v. NLRB, 233
F.3d 611, 617 (D.C. Cir. 2000) (‘‘Jacoby I’’).
The court in Jacoby I directed the Board to analyze the
complaint pursuant to a ‘‘heightened duty of fair dealing’’
standard. Id. After reconsidering the case, the Board again
found no merit in the unfair labor practice (‘‘ULP’’) charges
and dismissed the complaint. In applying the ‘‘heightened
duty of fair dealing’’ standard, the Board found that the
Union’s conduct was neither a breach of the DFR nor other-
wise a violation of the NLRA. See Steamfitters Local Union
No. 342 of the United Ass’n of Journeymen & Apprentices of
the Plumbing & Pipefitting Indus. of the U.S. & Canada,
AFL-CIO (Contra Costa Elec., Inc.) & Joe Jacoby, Supple-
mental Decision & Order, 336 N.L.R.B. No. 44 (Sept. 28,
3
2001) (‘‘Remand Order’’), Joint Appendix (‘‘J.A.’’) 142-48.
Jacoby again seeks judicial review, contending that the
Board’s decision is inconsistent with the ‘‘heightened duty’’
standard and unreasonably departs from NLRB precedent.
We disagree.
This case does not involve evidence that the Union acted
with ill will, discrimination, unlawful favoritism, nor any other
obviously unreasonable business practice. The record before
us indicates only that, in a single instance, the Union failed to
refer petitioner to a job because of an admitted mistake. On
these facts, the Board reasonably concluded that the com-
plaint did not establish a violation of the Act or a breach of
the duty of fair representation. Accordingly, we deny the
petition for review.
I. BACKGROUND
A. The Facts
The facts in this case are recounted in the Board’s first
decision, Steamfitters Local Union No. 342 of the United
Ass’n of Journeymen & Apprentices of the Plumbing &
Pipefitting Indus. of the U.S. & Canada, AFL-CIO (Contra
Costa Elec., Inc.) & Joe Jacoby, Decision and Order, 329
N.L.R.B. No. 65 (Sept. 30, 1999) (‘‘Initial Decision’’), J.A.
121-33, and they are not disputed. For 27 years, Joe Jacoby
has worked as a pipefitter in northern California with union
membership in Local 342. Id., slip op. at 1, J.A. 121. Pursu-
ant to a contract with Contra Costa Electric, Inc., Local 342
retains the exclusive right to assign job-seekers to various
work sites, including the Tosco Refinery in Martinez, Califor-
nia. In 1994, the Union agent with the responsibility for
managing this hiring hall arrangement was Larry Blevins.
Id. Under the hiring hall’s referral system, Local 342 would
assign available workers to jobs on the basis of established
priority categories. Those individuals with both an advanced
skill level and significant prior work experience, like Jacoby,
were in the highest priority category. Id.
4
Jacoby enrolled in the Union’s referral program on Decem-
ber 21, 1994. Id. The number of employment openings at
the Tosco Refinery increased in the weeks after Jacoby
registered. However, Jacoby did not receive an assignment
and several other workers – all with lower priority groupings
than petitioner – were referred to the facility. Id. Due to an
inadvertent administrative error, Union records incorrectly
indicated that Jacoby already had been dispatched to a job.
As a result, Jacoby was not referred to the Tosco Refinery.
Jacoby discovered this mistake and, after advising Blevins
about the situation, petitioner received a referral to the Tosco
Refinery project on February 17, 1995. Id.
B. Board Proceedings
Claiming injury for the period when he was temporarily
unemployed due to the clerical error, Jacoby filed an ULP
charge with the Board on March 9, 1995. NLRB General
Counsel subsequently issued a complaint, alleging that Local
342 had breached its DFR and had violated §§ 8(b)(1)(A) and
(2) of the NLRA. Initial Decision, slip op. at 11, J.A. 131;
see 29 U.S.C. §§ 158(b)(1)(A) & (2). Specifically, the General
Counsel claimed that the Union’s mistake in the job assign-
ment process was an ULP because it departed from estab-
lished hiring hall rules. Following an evidentiary hearing, an
administrative law judge (‘‘ALJ’’) ruled in favor of Jacoby.
Initial Decision, slip op. at 12, J.A. 132. The judge conclud-
ed that the Union’s failure to refer petitioner in a timely
manner was illegal and that negligence was not a viable
defense. The ALJ chiefly relied on a Board case that upheld
a DFR charge for negligent conduct under similar circum-
stances. Id.; see Int’l Ass’n of Bridge, Structural & Orna-
mental Iron Workers, Local 118, AFL-CIO (California Erec-
tors, Bay Area, Inc.), 309 N.L.R.B. 808 (1992) (‘‘California
Erectors’’).
The Board rejected the ALJ’s determination, holding that
the judgment in California Erectors was foreclosed by con-
trary Supreme Court precedent. Initial Decision, slip op. at
2, J.A. 122. The Board explained that the Court had adopted
a ‘‘highly deferential standard’’ for assessing union conduct in
5
United Steelworkers of America v. Rawson, 495 U.S. 362
(1990), and in Air Line Pilots Association v. O’Neill, 499 U.S.
65 (1991). Under the standard of conduct described in those
cases, the Board reasoned, petitioner had to allege more than
simple negligence to show that the Union had breached the
DFR:
We read these decisions together to mean that
‘‘mere negligence’’ in the operation of an exclusive
hiring hall does not give rise to a claim for breach of
the [DFR], even by an applicant who loses an em-
ployment opportunity as a result of the union’s
mistake.
Initial Decision, slip op. at 2, J.A. 122. On that basis, the
Board overruled California Erectors. The Board also found
that Jacoby’s claim presented no other separate NLRA viola-
tion, because a negligent error ‘‘does not constitute a display
of ‘union power’ which would carry a coercive message that
could reasonably be thought to encourage union member-
ship.’’ Id. at 4, J.A. 124. Accordingly, the Board dismissed
petitioner’s complaint.
On review of the Board’s decision, this court remanded.
Jacoby I, 233 F.3d at 611. The court held that the Board had
erred in interpreting the cited Supreme Court decisions and
by ignoring other relevant case law. The Jacoby I court
found that neither Rawson nor O’Neill was applicable to the
hiring hall context, where the union’s distinct role as both
employer and bargaining representative carries a special
obligation to exercise power fairly. Id. at 616; see also
Breininger v. Sheet Metal Workers Int’l Ass’n Local Union
No. 6, 493 U.S. 67, 89 (1989) (stating that the union’s respon-
sibility in a hiring hall setting fairly increases rather than
decreases). Reviewing this court’s discussion of the DFR in
cases in which the operation of a hiring hall was at issue, see,
e.g., Boilermakers Local No. 374 v. NLRB, 852 F.2d 1353
(D.C. Cir. 1988), the Jacoby I court found that a ‘‘heightened
duty of fair dealing’’ was the appropriate standard. 233 F.3d
at 617. The court therefore remanded the case and instruct-
ed the Board to reevaluate the Union’s conduct based on the
6
heightened duty standard and to consider whether the facts
otherwise amounted to a violation of the NLRA.
After accepting additional submissions by the parties, the
Board issued the Remand Order on September 28, 2001.
The Board acknowledged that the ‘‘heightened duty’’ stan-
dard applied, but again dismissed Jacoby’s complaint. Re-
mand Order, slip op. at 3, J.A. 143. After analyzing early
references to the DFR in NLRB precedent and in statements
from the courts, the Board concluded that deliberate wrong-
doing is required to establish a breach of duty claim:
The descriptive terms used to describe breaches of
duty – ‘‘arbitrary,’’ ‘‘invidious,’’ ‘‘discriminatory,’’
‘‘hostile,’’ ‘‘unreasonable,’’ ‘‘capricious,’’ ‘‘irrelevant or
unfair considerations,’’ without ‘‘honesty of pur-
pose’’ – indicate deliberate conduct that is intended
to harm or disadvantage hiring hall applicants.
They all imply that the union is either using its
power to control referrals against the interests of
individual applicants or classes of applicants, or that
it may do so at any time, at its discretion.
Id. at 4, J.A. 144. The Board thus held that simple negli-
gence is insufficient to support a DFR claim, even under the
‘‘heightened duty’’ standard: ‘‘However heightened the duty,
we do not believe it reaches so high.’’ Id. at 5, J.A. 145.
Further, the Board confirmed its view that the Union’s error
did not otherwise violate the NLRA because the inadvertent
and unplanned conduct could not reasonably enhance the
Union’s power to recruit through coercion. Id. at 5-6, J.A.
145-46.
This petition for review followed.
II. DISCUSSION
The issue driving this case is a simple one: whether one act
of simple negligence or inadvertent error by a union in its
administration of an exclusive hiring hall results in a breach
of the DFR or otherwise violates the NLRA. As the record
makes clear, this case does not involve any allegation that the
7
Union acted with ill will, discrimination, unlawful favoritism,
nor any other obviously unreasonable business practice. The
record before us indicates only that, in one instance, Local
342 failed to refer petitioner to a job because of an admitted,
albeit unintended, mistake. On these facts, we uphold the
Board’s decision that the Union’s mistake did not amount to a
violation of the NLRA or result in a breach of the DFR.
A. Statutory Violations
Petitioner asserts that, regardless of whether the Union’s
conduct breached the DFR, the Union failed to follow its
referral system and thereby independently violated the
NLRA. Section 7 of the NLRA guarantees that employees
enjoy ‘‘the right to TTT form, join, or assist labor organiza-
tions TTT and TTT to refrain from any or all of such activities.’’
29 U.S.C. § 157. Section 8(b)(1)(A) of the statute implements
this guarantee by making it an ULP for a union to ‘‘restrain
or coerce’’ employees in the exercise of their § 7 rights. Id.
§ 158(b)(1)(A). And § 8(b)(2) of the Act makes it illegal for a
union to ‘‘cause or attempt to cause an employer to discrimi-
nate against an employee’’ in a manner that encourages or
discourages union membership. Id. § 158(b)(2); see also id.
§ 158(a)(3). The Board found that the Union’s disputed,
unintentional conduct did not violate either statutory provi-
sion. We agree.
As the Board found, the inadvertent clerical error in this
case failed to signal that ‘‘union considerations [would] play a
part in determining who receives favorable treatment in
referrals.’’ Remand Order, slip op. at 5, J.A. 145 (citation
omitted). Therefore, the Union’s single mistake in managing
its hiring hall did not begin to approach conduct that is
proscribed by § 8(b)(1)(A) and § 8(b)(2). See, e.g., Plumbers
Local 52 (Aycock, Inc.), 282 N.L.R.B. 1228, 1232 (1987) (‘‘[I]f
a union hiring hall voluntarily chooses to implement a system
of recordkeeping to ensure to its membership a means of
monitoring its referral rights, that union should not be preju-
diced by finding it in violation of the Act for every possible
mistake it might make in administering that system.’’). Peti-
tioner offers nothing to suggest that the Board erred in
8
rejecting the § 8(b)(1)(A) and § 8(b)(2) charges. This is
hardly surprising, because the record is devoid of any evi-
dence indicating that the Union acted to ‘‘restrain or coerce’’
employees or to cause an employer to discriminate against
them. Indeed, petitioner’s arguments to the court on these
ULP charges seemed half-hearted at best, with Jacoby’s
petition for review primarily focused on the alleged breach of
the DFR. We therefore uphold the Board’s decision on the
cited ULP claims (insofar as they are distinct from the DFR
charge) and turn now to the DFR claim.
B. Duty of Fair Representation
The DFR finds no precise reference point in the express
terms of the NLRA. Rather, the DFR is mostly a creation of
the courts. See generally MARTIN H. MALIN & LORRAINE A.
SCHMALL, INDIVIDUAL RIGHTS WITHIN THE UNION 346-493 (1988)
(discussing Supreme Court and circuit court DFR cases);
LEE MODEJESKA, NLRB PRACTICE 409-16 (1983) (reviewing
early Supreme Court DFR cases); JEAN T. MCKELVEY, ED.,
THE DUTY OF FAIR REPRESENTATION (1977) (compiling scholarly
views on DFR doctrine). The Supreme Court long ago held
that the Railway Labor Act and the NLRA impose on labor
organizations – acting under the authority of these statutes as
the exclusive agents for employees in designated collective
bargaining units – the duty to represent all employees fairly.
See, e.g., Steele v. Louisville & Nashville R.R. Co., 323 U.S.
192, 204 (1944) (the DFR requires a union to act ‘‘without
hostile discrimination, fairly, impartially, and in good faith’’);
Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953) (unions
must make an ‘‘honest effort to serve the interests of all TTT
members, without hostility to any’’). Following Steele and
Huffman, the Court has elaborated on the DFR using similar
language in cases involving both the processing of grievances
and the negotiation of collective bargaining agreements. See,
e.g., Breininger, 493 U.S. at 78-90; Hines v. Anchor Motor
Freight, 424 U.S. 554, 564-67 (1976); Vaca v. Sipes, 386 U.S.
171, 183 (1967). In Vaca, the Court aptly characterized the
DFR as a ‘‘bulwark to prevent arbitrary union conduct
against individuals stripped of traditional forms of redress by
the provisions of federal labor law.’’ 386 U.S. at 182.
9
Although the DFR did not initially emanate as an ULP
under the NLRA, the Board eventually came to accept the
idea that, separate and apart from DFR actions that com-
mence with a lawsuit, the Board could enforce a DFR pursu-
ant to its authority to identify and remedy ULPs under the
NLRA. The Board first enunciated a DFR under the NLRA
in Miranda Fuel Co., Inc., 140 N.L.R.B. 181 (1962), enforce-
ment denied, 326 F.2d 172 (2d Cir. 1963). There, the Board
held that a union breaches the DFR by ‘‘taking action against
any employee upon considerations or classifications which are
irrelevant, invidious or unfair.’’ Id. at 185. In both Vaca,
386 U.S. at 181, and Humphrey v. Moore, 375 U.S. 335, 344
(1964), the Supreme Court noted, without approval or disap-
proval, the DFR doctrine enunciated by the Board in Mi-
randa Fuel. The Court merely observed that, ‘‘when the
Board declared in Miranda Fuel that a union’s breach of its
duty of fair representation would TTT be treated as an unfair
labor practice, the Board adopted and applied the doctrine as
it had been developed by the federal courts.’’ Vaca, 386 U.S.
at 181 (citation omitted).
The Union, as intervenor, argues that there can be no
breach of the DFR under the NLRA if a union has not
violated the literal terms of § 8(b)(1)(A) or § 8(b)(2). In
other words, the Union contends that the DFR does not
create a substantive duty under the NLRA apart from the
specific ULPs listed in the Act. This is an interesting
proposition. The Board routinely characterizes a breach of
the DFR as an ULP, yet the denial of ‘‘fair representation’’ is
not specifically listed as an ULP under the Act. And in those
cases in which the Board finds a union to have breached its
duty of fair representation, the agency cites either
§ 8(b)(1)(A) or § 8(b)(2), in conjunction with § 7, as the basis
for its holding. How then can there be a breach of the DFR,
the Union asks, if there has been no violation of the literal
terms of either § 8(b)(1)(A) or § 8(b)(2)?
In most cases – as is true here – there is no independent
breach of the DFR when the Union’s conduct does not
otherwise violate the literal strictures of § 8(b)(1)(A) or
§ 8(b)(2). But this begs the question, for it is not clear that
10
in all cases a breach of the DFR is based on conduct that
violates the literal terms of § 8(b)(1)(A) or § 8(b)(2). Rather,
it appears that, in its DFR jurisprudence, the Board has
tended to start with § 7, not § 8(b)(1)(A) or § 8(b)(2). In
Miranda Fuel, for example, the Board ruled that, under § 7,
bargaining unit employees have the right to be free from
unfair, irrelevant, or invidious treatment by their exclusive
bargaining agent in matters affecting their employment. 140
N.L.R.B. at 185-86. A union’s breach of that right is an
interference with § 7 rights and, thus, a violation of
§ 8(b)(1)(A). Id. There is a bit of analytical mumbo jumbo
in this line of reasoning, but it allowed the Board to create a
DFR under the NLRA corresponding to the Court’s decisions
in Steele and Huffman, and then characterize breaches of the
DFR as ULPs.
The substantive reach of the DFR is not precisely cotermi-
nous with the rights protected by § 8(b)(1)(A) or § 8(b)(2);
rather, the DFR and the statutory ULPs seem to form
interlocking rings, with broad areas of overlap. And in those
small areas in which the DFR does not precisely fit within the
literal confines of § 8(b)(1)(A) or § 8(b)(2), the Board implicit-
ly relies on the Miranda Fuel ‘‘interference with § 7 rights’’
foundation and describes the DFR breach as a violation of
§ 8(b)(1)(A). See, e.g., Transit-Mix Concrete Corp., 267
N.L.R.B. 1130 (1983), enf’d., 740 F.2d 141 (2d Cir. 1984); E.
L. Mustee & Sons, Inc., 215 N.L.R.B. 203 (1974); Magma
Copper Co., 200 N.L.R.B. 40 (1972); Port Drum Co., 170
N.L.R.B. 555 (1968).
In any event, although the Union has raised an interesting
point in questioning whether there can be a breach of the
DFR sans a literal violation of § 8(b)(1)(A) or § 8(b)(2), we
need not tarry further on this issue. It is too late in the day
for this court to rip apart the fabric of DFR jurisprudence
under the NLRA. Miranda Fuel and subsequent decisions
have inferred a basis for the DFR from § 7, coupled with
§§ 8(b)(1)(A) or (b)(2). RPM Erectors, Inc., 266 N.L.R.B.
154 (1983); Transit-Mix Concrete Corp., 267 N.L.R.B. at
1131. And the lower federal courts now routinely accept the
Board’s jurisdiction to rule on DFR charges as part of the
11
agency’s statutory enforcement authority. See, e.g., Finerty
v. NLRB, 113 F.3d 1288 (D.C. Cir. 1997).
The DFR is thus regulated in a sort of ‘‘dyarchy,’’ with the
Board and the courts sharing enforcement responsibilities.
See Jacoby I, 233 F.3d at 614. As a result, applications of the
DFR may vary depending upon the place in which the
underlying complaint originates. This court has noted that ‘‘a
[DFR] claim brought before the NLRB is not necessarily
coterminous with one brought in federal court’’ even though
‘‘they undeniably possess many similarities.’’ George v. Local
Union No. 639, Int’l Bhd. of Teamsters, 100 F.3d 1008, 1009
n.2 (D.C. Cir. 1996) (citation omitted).
Notwithstanding this ‘‘dyarchy,’’ the courts have jealously
guarded their jurisdiction over DFR cases. This has oc-
curred in part to ensure that individual employees retain all
of the protections that the DFR is designed to afford. As the
Supreme Court noted in Vaca:
Were we to hold TTT that the courts are foreclosed
by [Miranda Fuel] from this traditional supervisory
jurisdiction, the individual employee injured by arbi-
trary or discriminatory union conduct could no long-
er be assured of impartial review of his complaint,
since the Board’s General Counsel has unreviewable
discretion to refuse to institute an unfair labor prac-
tice complaint. The existence of even a small group
of cases in which the Board would be unwilling or
unable to remedy a union’s breach of duty would
frustrate the basic purposes underlying the duty of
fair representation doctrine.
386 U.S. at 182-83 (citation and footnote omitted).
The net effect of these developments is that the courts are
not constrained or bound by NLRB precedent with respect to
DFR claims that initiate with a lawsuit. By contrast, when
the NLRB initially hears a DFR claim, and the matter in
dispute involves a question of statutory interpretation, we
owe considerable deference to the Board’s interpretation.
See Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
12
cil, Inc., 467 U.S. 837, 842-45 (1984). The Supreme Court
has held that where ‘‘the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible con-
struction of the statute.’’ Id. at 843. Under this principle,
the Board is entitled to deference with regard to its interpre-
tation of the NLRA as long as that interpretation is rational
and consistent with the statute. NLRB v. United Food &
Commercial Workers Union Local 23, 484 U.S. 112, 123
(1987).
The instant case commenced as a proceeding before the
NLRB. We therefore owe deference to the Board’s statutory
construction if it is permissible, Chevron, 467 U.S. at 842-45,
and we owe deference to the Board’s judgment if it is
supported by substantial evidence, Universal Camera Corp.
v. NLRB, 340 U.S. 474 (1951), reflects reasoned decision
making, Allentown Mack Sales and Service, Inc. v. NLRB,
522 U.S. 359, 374-75 (1998), and is not otherwise inconsistent
with the law, NLRB v. United Food & Commercial Workers
Union, 484 U.S. at 123. The evidence in this case is undis-
puted, so there is no real issue regarding the Board’s findings
of fact. Rather, petitioner claims that the Board’s decision is
infirm because it is inconsistent with the ‘‘heightened duty’’
standard and it unreasonably departs from NLRB precedent.
We disagree.
We are aware of no judicial decision – and petitioner cites
us to none – in which a court has held that a union violates its
duty of fair representation if it commits a single act of simple
negligence or inadvertent error in the administration of an
exclusive hiring hall. Indeed, we are unaware of any case in
which a court has found a breach of the DFR based on a
single act of simple negligence, where the record is devoid of
evidence that the union acted pursuant to ill will, discrimina-
tion, unlawful favoritism, or other obviously unreasonable
business practices. Therefore, there was no obvious legal
impediment to the Board’s holding in this case. The only
intriguing question in this case is whether the Board’s holding
satisfies the ‘‘heightened duty of fair dealing’’ standard, which
13
is unique to the hiring hall context. This is the question that
prompted the remand in Jacoby I.
In Boilermakers, 852 F.2d at 1353, and later in Plumbers &
Pipe Fitters Local Union No. 32 v. NLRB, 50 F.3d 29, 34
(D.C. Cir. 1995), this court set forth the parameters of the
heightened duty standard in hiring hall cases. The court
made it clear that ‘‘a union commits an unfair labor practice if
it administers the exclusive hall arbitrarily or without refer-
ence to objective criteria and thereby affects the employment
status of those it is expected to represent.’’ Boilermakers,
852 F.2d at 1358. Under this precept, a union must operate a
hiring hall with ‘‘objective, consistent standards,’’ Pipe Fit-
ters, 50 F.3d at 30, without discrimination, and without
‘‘caus[ing] or attempt[ing] to cause an employer to discrimi-
nate against an employee’’ in regard to employment so as to
encourage union membership. See 29 U.S.C. § 158(b)(2).
The heightened duty standard does not mean, however, that a
single, unintentional error by a union is a breach of the DFR.
Nothing in Boilermakers or Pipe Fitters suggests that, where
a hiring hall is administered pursuant to objective and consis-
tent standards, an act of simple negligence, unaccompanied
by ill will, discrimination, unlawful favoritism, or other obvi-
ously unreasonable business practices, violates the ‘‘height-
ened duty’’ standard.
The Board determined on remand in this case that an error
resulting from simple, not gross, negligence, without evidence
of bad faith, discrimination, or untoward business practices,
did not constitute a breach of the DFR. We can find no basis
for second-guessing this judgment, for it is eminently reason-
able and well within the legal parameters enunciated in
Boilermakers or Pipe Fitters. One act of simple negligence
does not come close to violating the ‘‘heightened duty’’ stan-
dard. The Union had a clear set of objective rules in place
that provided legitimate and fair means of assigning jobs in
the hiring hall. The objective standards are not in dispute or
otherwise challenged. The misstep about which Jacoby com-
plains is attributable to nothing more than a simple adminis-
trative mistake, and the Union corrected that mistake as soon
as it became aware of the problem. Under these circum-
14
stances, the Board did not err in holding that the Union did
not breach its duty of fair representation.
Petitioner argues that the Board’s application of the
‘‘heightened duty’’ standard affords no greater protection
than the more traditional definitions of the DFR. We dis-
agree. Traditionally, ‘‘[a] breach of the statutory duty of fair
representation occurs only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary, discrim-
inatory, or in bad faith.’’ Vaca, 386 U.S. at 190 (citation
omitted). In other words, the DFR generally requires the
union to serve the interests of all bargaining unit employees
without hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to avoid
arbitrary conduct. Marquez v. Screen Actors Guild, Inc., 525
U.S. 33, 44 (1988) (quoting Vaca, 386 U.S. at 177). Under a
heightened duty standard, however, a union might violate the
DFR in instances of gross negligence or in circumstances in
which its hiring hall business practices are so reckless as to
cause foreseeable adverse affects on the employment status of
those persons whom the union is expected to represent fairly.
The heightened duty of fair dealing requires a union to
operate a hiring hall using ‘‘objective criteria’’ and ‘‘consistent
standards.’’ It does not, however, hold a union strictly liable
for inadvertent mistakes when it is otherwise operating its
hiring hall pursuant to the prescribed criteria and standards.
Petitioner’s view would set the standard of conduct so high as
to make anything less than a flawlessly run system an
actionable offense. Perfection in administrative operations is
a laudable aspiration, but it is not mandated by the law.
Finally, petitioner contends that, because the Board’s deci-
sion departs from NLRB precedent, no deference is due to
the agency in this case. In support of this argument, peti-
tioner cites the Board’s decision in California Erectors. But,
as noted above, the Board overruled California Erectors and
reasonably concluded that, in light of the overall goals of the
statute, the facts here cannot constitute a breach of the DFR.
The Board’s reconsideration of its case law reflects a permis-
sible construction of the Act. The ‘‘heightened duty’’ stan-
dard emanating from Boilermakers does not compel a finding
15
that a single act of simple negligence results in a breach of
the DFR, so the Board was not foreclosed from clarifying the
substantive reach of the DFR as it did in this case. We are
therefore required by Chevron to defer to Board’s reasonable
and permissible interpretation of the Act.
The Union in this case made a simple mistake, erring in
good faith. The Board was well within the bounds of the law
and sound judgment in concluding that a single error in the
hiring hall setting did not breach the DFR. We reject
petitioner’s arguments to the contrary.
III. CONCLUSION
The petition for review is hereby denied.
1
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the
judgment:
While I concur, I by no means believe the issue is as open-
and-shut as the substantive portion of the majority’s opinion
suggests. See Majority Op. at 12-15. Plainly, Jacoby I did
not find it so–Jacoby I declined to accept the Board’s position
that as a matter of law ‘‘merely negligent conduct can never
breach the duty of representation in any context, including
that of the hiring hall.’’ Jacoby v. NLRB, 233 F.3d 611, 616
(D.C. Cir. 2000). Nor did the Board, which apparently
deemed its disposition here in conflict with its own decision in
Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers
Local 118 (California Erectors), 309 N.L.R.B. 808 (1992)–‘‘a
Board case that upheld a [Duty of Fair Representation]
charge for negligent conduct under similar circumstances.’’
Majority Op. at 4.