Lucas v. N.L.R.B.

• Decision Date: 16 April 2003
• Docket Number: No. 00-71452.,00-71452.
• Citation: 333 F.3d 927
• Parties: Steven LUCAS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.3d 927

Steven LUCAS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 00-71452.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2002.

Filed April 16, 2003.

Dylan B. Carp, San Francisco, CA, argued the case for the petitioner. Glenn M. Taubman, Springfield, VA, assisted on the briefs.

Jeffrey L. Horowitz, NLRB, Washington, DC, argued the case for the respondent. Frederick C. Havard, NLRB, Washington, DC, assisted on the briefs.

On Petition for Review of an Order of the National Labor Relations Board. NLRB No. 28-CB-4351.

Before: WALLACE, KOZINSKI and PAEZ, Circuit Judges.

Opinion by Judge PAEZ; Concurrence by Judge WALLACE.

PAEZ, Circuit Judge:

Steven Lucas petitions for review of a decision of the National Labor Relations Board ("Board"). Lucas claims that the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 720, AFL-CIO ("Union") violated sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act¹ (the "NLRA" or the "Act") by refusing to readmit him to its exclusive hiring hall in March 1995. After an administrative hearing, the Administrative Law Judge ("ALJ") found that the Union's refusal to reinstate Lucas was arbitrary and unfair, and therefore constituted an unfair labor practice under sections 8(b)(1)(A) and 8(b)(2) of the NLRA.

The Board reversed and dismissed the complaint. Applying the "wide range of reasonableness" standard articulated in Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 81, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (internal quotation marks omitted), it determined that the Union's refusal to permit Lucas to re-register was not arbitrary in light of its finding that he had been permanently expelled from the hiring hall in 1994 for fifteen years of misconduct.

We conclude that in dismissing Lucas's complaint, (1) the Board erred in applying O'Neill's highly deferential standard in lieu of the heightened duty of fair dealing that applies in the exclusive hiring hall context, and (2) the Board's finding that the Union's refusal to allow Lucas to re-register was necessary to protect the effective representation of its constituency was not supported by substantial evidence. Accordingly, we reverse the Board's decision and remand so that the Board may enter an appropriate remedial order in favor of Lucas.

BACKGROUND

The Union operates an exclusive hiring hall² in the Las Vegas, Nevada area pursuant to a collective bargaining agreement with the Production Services Contractors Association of Las Vegas. Between 1981 and 1992, Lucas was a member in good standing with the Union and was referred to work assignments through the hiring hall. In 1992, Lucas took an honorable withdrawal from the Union, but the hiring hall continued to refer him out for employment until May 1994.

In early May 1994, Lucas entered the Union hiring hall to pick up an overdue check and was told by a Union employee that the Union would no longer refer him to work assignments. On May 16, 1994, Lucas filed a charge with the Board, alleging that the Union's refusal to refer him was unlawful. Shortly thereafter, the Union Executive Board decided to expel Lucas from the hiring hall, claiming that he had engaged in misconduct over a fifteen-year period. Neither the Union nor any of its agents informed Lucas that he had been expelled. Instead, only when the Board's Acting Regional Director ("Regional Director") notified Lucas that he would not issue a complaint on Lucas's charge did Lucas learn that the Union's refusal to refer him was based on his having been expelled due to alleged complaints about his behavior at work assignments and towards Union officials.³ Lucas did not appeal the Regional Director's decision.

Approximately ten months later, in March 1995, Lucas sought re-admission to the hiring hall, but the Union refused to reinstate him. According to Lucas, in early 1995, he went to the hiring hall and attempted to sign the out-of-work list for subsequent referral to an employer. A Union employee refused to allow Lucas to sign in and allegedly questioned his emotional and mental stability. On March 3, 1995, Lucas sent a letter to the Union President, explaining that he had attempted to sign in for referral but had not been dispatched, listing the job classifications for which he was available, and requesting referral. He attached a letter written by Dr. Lynn Larson, a clinical psychologist, in support of his request. Dr. Larson opined that there was "no reason, from a psychological stand point [sic], that Mr. Lucas should not be considered fit and able to be employed at this time."

At about the same time, in early March 1995, Lucas contacted AVW Audio Visuals, Inc. ("AVW"), a signatory employer to the collective bargaining agreement with the Union, and informed AVW of his availability for work at an upcoming convention. On March 22, 1995, AVW name-requested⁴ Lucas from the hiring hall to work at that convention. The hiring hall refused to refer Lucas on the ground that it had permanently expelled him from the hiring hall in May 1994.

Lucas filed a second charge with the Regional Director alleging that the Union had engaged in an unfair labor practice when it refused to readmit him and to refer him to AVW in March 1995. The Board's General Counsel subsequently issued an unfair labor practice complaint alleging that the Union violated 29 U.S.C. §§ 158(b)(1)(A) and 158(b)(2) by refusing to reinstate Lucas and by denying him work referrals through the hiring hall. An ALJ held an evidentiary hearing and, on February 29, 1996, issued a decision finding that the Union had violated the Act. See Stage Employees Local 720 (AVW Audio Visual), No. 28-CB-4351, 2000 WL 1311111, at *6 (N.L.R.B. Sept.12, 2000) (reproducing the ALJ's decision).

The ALJ found that there was "no proof that Lucas knew or should have know [sic] in 1994 that not only was he barred permanently from use of the Union's hiring hall, but[also] that Lucas could do nothing to change the Union's position." Id. The ALJ rejected the Union's contention that "once unfit, always unfit," as the Union had failed to present any credible evidence or "persuasive argument to rebut the presumption that the effect of refusing to re-register Lucas in its hiring hall is to encourage union membership on the part of all employees who have perceived the Union's display of power." Id. The ALJ further found that the Union lacked objective standards for operating the referral service, and that this practice was arbitrary and unfair to Lucas and to all others wishing to access the Union's exclusive hiring hall. See id.

The Union filed exceptions and appealed the ALJ's decision to the Board, contending that it had no obligation to readmit Lucas to the hiring hall. The Board declined to adopt the ALJ's decision and dismissed the complaint. Id. Contrary to the ALJ, the Board concluded that the Union's refusal to re-register Lucas was not arbitrary and that the Union had "demonstrated that its conduct was necessary to protect the representative role that it performs in administering an exclusive hiring hall." Id. at *3. Recognizing that the Union owed a duty of fair representation to all applicants wishing to use the hiring hall, the Board concluded that the Union's refusal to reinstate Lucas was well within the "wide range of reasonableness" standard articulated in O'Neill.⁵ Id. at *4-*5. The Board pointed to Lucas's fifteen years of alleged misconduct which led to his expulsion as a reasonable basis for refusing to readmit Lucas in March 1995, noting that this denial was necessary to maintain the integrity and efficiency of the Union's hiring hall operations. Accordingly, the Board concluded that the Union had neither breached its duty of fair representation nor engaged in an unfair labor practice by encouraging union membership. See id. at *5. It further determined that, although the Union had not acted in accordance with a specific written policy governing re-admission, it would be inappropriate for the Board to dictate the operating rules that a particular hiring hall must follow. See id. at *4.

STANDARD OF REVIEW

We will uphold a decision by the Board if its findings of fact are supported by substantial evidence and if it correctly applied the law. See NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir.1999). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Todd Pac. Shipyards Corp. v. Dir., Office of Workers Comp. Programs, 914 F.2d 1317, 1320 (9th Cir.1990) (internal quotation marks omitted). We defer to the Board's interpretation and application of the National Labor Relations Act, as long as the Board's interpretation is "reasonable and not precluded by Supreme Court precedent." NLRB v. Advanced Stretchforming Int'l, Inc., 233 F.3d 1176, 1180 (9th Cir.2000) (internal quotation marks omitted). However, where the Board rests its decision on a misinterpretation of Supreme Court precedent, we need not give the Board's interpretation any particular deference. See Jacoby v. NLRB, 233 F.3d 611, 614 (D.C.Cir.2000) ("Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] does not help an agency that rests its decision on a misinterpretation of Supreme Court precedent, as the Board did here.").

DISCUSSION⁶

I.

A.

The Supreme Court has long recognized that a union has a statutory duty of fair representation under the NLRA. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Although the Act does not explicitly articulate this duty, the Court has held that the duty is implied from "the grant under § 9(a) of the NLRA, 29 U.S.C. § 159(a) (1982 ed.), of the union's exclusive power to represent all employees in a particular bargaining unit."...