Jacoby v. National Labor Relations Board

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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.