Plumbers and Pipe Fitters Local Union No. 32 v. N.L.R.B.

• Decision Date: 07 June 1995
• Docket Number: No. 93-1738,93-1738
• Citation: 50 F.3d 29
• Parties: 148 L.R.R.M. (BNA) 2833, 311 U.S.App.D.C. 58, 63 USLW 2640, 129 Lab.Cas. P 11,300, 129 Lab.Cas. P 11,302 PLUMBERS AND PIPE FITTERS LOCAL UNION NO. 32, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 29

50 F.3d 29

148 L.R.R.M. (BNA) 2833, 311 U.S.App.D.C.

58, 63 USLW 2640,

129 Lab.Cas. P 11,300, 129 Lab.Cas. P 11,302

PLUMBERS AND PIPE FITTERS LOCAL UNION NO. 32, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 93-1738.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 9, 1995.

Decided March 28, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied June 7, 1995.

Petition for Review and Cross-Application for Enforcement of a Decision and Order of the National Labor Relations Board.

Hugh Hafer, Seattle, WA, argued the cause, for petitioner. With him on the briefs was Ann-Marie McKittrick, Seattle, WA. John E. Rinehart, Seattle, WA, entered an appearance, for petitioner.

Julie B. Broido, N.L.R.B., Washington, DC, argued the cause, for respondent. With her on the brief were Linda R. Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter D. Winkler, N.L.R.B., Washington, DC.

Before: BUCKLEY, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

The Plumbers and Pipe Fitters Local Union No. 32 petitions for review of an order of the National Labor Relations Board and the Board cross-applies for enforcement. Adopting the decision of the administrative law judge, the Board found that Local 32 violated its duty of fair representation and committed an unfair labor practice by operating a hiring hall without objective, consistent standards. In accordance with circuit precedent, we reject petitioner's argument that the Board lacks jurisdiction to resolve a duty of fair representation challenge to the operation of a union hiring hall. Finding that the Board applied the correct legal standard and that its decision is supported by substantial evidence, we deny Local 32's petition for review and grant the Board's cross-application for enforcement.

I.

In July 1992, Rockford Corporation d.b.a. Alaska Continental Pipeline Corporation began a pipeline construction job in the Longview, Washington area. To perform the work, it needed to hire 13 "rig welders." Rig welders own their own welding machines and equipment which they bring to the jobsite mounted on trucks. The employer rents the welding rigs and compensates the welders for their labor.

The collective bargaining agreement between Rockford and the United Association of Plumbers and Pipe Fitters required the United Association to supply half of the rig welders, or seven of the 13 Rockford needed. The United Association chose Local 32 to operate a hiring hall, essentially an employment agency, to find and refer the needed rig welders. Local 32 ultimately referred 15 rig welders in order to fill seven positions because some rig welders failed a preliminary welding test and had to be replaced. The charges and findings of an unfair labor practice stem from the manner in which Local 32 selected these 15 rig welders.

Although Local 32 maintained hiring hall lists for other crafts, it referred pipeline welders infrequently and did not have a list for this craft. The union official responsible for staffing the Rockford job, business agent Donald Galloway, was unfamiliar with pipeline work. He asked Jeff Manning, who had attended a pipeline steward school and planned to serve as the union steward for the Rockford job, to compile a list of dependable and qualified rig welders. Galloway also gathered names of rig welders who had worked on a previous Local 32 job and those recommended by other United Association local business managers.

Local 32 did not promulgate any hiring hall rules with regard to the Rockford job. Plumbers and Pipe Fitters Local Union No. 32, 312 N.L.R.B. 1137, 1137, 1993 WL 449227 (1993) [hereinafter ALJ Decision]. Instead, Galloway allegedly relied on Manning's expertise to determine whom to refer. Manning did not rank the welders that he recommended. According to the ALJ, "[w]elders were not dispatched in order of application nor were they ranked in any manner." ALJ Decision at 1138. Nor did Galloway or Manning establish that Local 32 had any criteria by which it selected the replacements for referred welders who had failed the preliminary welding test. Id.

The absence of articulated standards in Local 32's referral system came to light when two members of other United Association locals, experienced rig welders William Harper and Michael Flowers, sought work on the Rockford pipeline project. On July 3, they arrived on the Longview jobsite with their truck-mounted welding rigs and inquired about registering for work. Local 32 union steward Manning told them that he was gathering names for Al Sexton, the Local 32 business manager, and that Sexton would call them. Manning failed his welding test that day and ceased working on the project. Two days later, Harper and Flowers attempted to speak to Sexton at the union's office in Seattle, but they were unsuccessful. The union secretary informed them that Sexton was in a meeting and then that he had left the hall. Eventually, the union business manager for plumbing, not pipefitting, agreed to speak to them. He explained that Sexton and Galloway ran the pipeline work referrals and, when pressed by the men, accepted their travel cards and dues, and allowed them to sign what Harper and Flowers believed was an out-of-work list for pipeline work. Although they in fact had signed a list for construction work, the ALJ credited the manager's testimony that he did not intentionally mislead the men. Id.

After receiving no response from Sexton and learning that additional welders were taking the preliminary welding test, Harper and Flowers returned to the Longview jobsite. On July 10, a new union steward, Phil Stroud, asked Harper and Flowers to be patient, promising to let them take the welding test. When they returned later that day, Stroud advised the men to contact Rockford's foreman, which they did. They claim that the foreman told them that he did not need additional welders. Harper and Flowers remained in the area for several days, waiting for Local 32 to contact them, but it never did. Discouraged, they returned to California. On July 22, Flowers called Galloway who reported that all the welding jobs had been filled.

Harper and Flowers charged Local 32 with committing an unfair labor practice in the operation of its referral system. In identical charges, each alleged that Local 32 "failed to dispatch [him] for arbitrary, capricious and invidious reasons" in violation of sections 8(b)(1)(A) & (2) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(A) & (2) (1988). The Board's General Counsel filed a consolidated complaint against Local 32, casting the alleged unfair labor practice as a breach of the duty of fair representation. After a hearing, the administrative law judge found that Local 32 failed to use objective criteria and standards in the operation of its hiring hall in violation of section 8(b)(1)(A) of the Act, and that Local 32 discriminated against Harper, Flowers and other rig welders seeking employment referrals for reasons not based on objective criteria and standards in violation of section 8(b)(2). ALJ Decision at 1139. He recommended that the Board order Local 32 to cease and desist from its unfair labor practice and that it order make-whole relief for Flowers and Harper. Id. The Board adopted his recommendations without opinion. Id. at 1137. Local 32 now petitions for review and the Board cross-applies for enforcement.

II.

We must first address Local 32's claim that a breach of the duty of fair representation does not amount to an unfair labor practice and, as a result, that the Board lacked jurisdiction in this case. The judicially-created duty of fair representation arises from the union's status as the exclusive bargaining representative of all employees in a bargaining unit. See 29 U.S.C. Sec. 159(a) (1988). A union breaches its "statutory duty fairly to represent all of those employees" when its actions are "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 177, 190, 87 S.Ct. 903, 909, 916, 17 L.Ed.2d 842 (1967).

With its argument that the Board lacks jurisdiction over a complaint alleging a breach of the duty of fair representation, Local 32 seeks to revive a debate settled long ago in this circuit. As early as 1967, in Truck Drivers, Local Union 568 v. NLRB this court squarely held that a breach of the duty of fair representation can constitute an unfair labor practice within the jurisdiction of the Board. 379 F.2d 137, 141-42 (D.C.Cir.1967). We relied on Vaca v. Sipes, noting the Supreme Court's "explicit assumption that unfair representation is an unfair labor practice." 379 F.2d at 142. See also 2 The Developing Labor Law 1413 (Patrick Hardin ed., 3d ed. 1992) (concluding that the Court's discussion of federal preemption in Vaca v. Sipes was necessarily premised on the assumption that the breach of a union's duty of fair representation constituted an unfair labor practice under Sec. 8(b) of the Act).

Faced with this clear and binding precedent, Local 32 argues, citing our recent decision in Lotus Suites, Inc. v. NLRB, that the authority of Truck Drivers is "not significant" because the parties in that case did not litigate the issue of the Board's jurisdiction. 32 F.3d 588, 592 (D.C.Cir.1994). In Lotus Suites, however, we merely declined to rely on a Supreme Court decision which did not decide the issue before the panel. Id. Truck Drivers did decide the issue that Local 32 presents here, concluding that the Board has jurisdiction over a complaint alleging a breach of the duty of fair representation. Truck Drivers, 379 F.2d at 141-42. We have consistently followed the conclusion reached in Truck Drivers, as have other circuits that have decided the issue. See, e.g., International Union of Elec., Elec., Salaried, Mach. and Furniture Workers v. NLRB, 41 F.3d 1532, 1537 (D.C.Cir.1994); see...