Roadway Express, Inc. v. National Labor Relations Board , 427 F. App'x 838 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12445 MAY 27, 2011
JOHN LEY
________________________ CLERK
Agency No. 12-CA-22202
ROADWAY EXPRESS, INC.,
lllllllllllllllllllll Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
lllllllllllllllllllll Respondent.
AMADEO BIANCHI,
llllllllllllllllllllll Intervenor.
________________________
Petition for Review of a Decision of the
National Labor Relations Board and
Cross Application for Enforcement
________________________
(May 27, 2011)
Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Roadway Express, Inc. (“Roadway”) and International Brotherhood of
Teamsters, Local 769 (“union”) petition for review of a final National Labor
Relations Board (“NLRB”) ruling. Because we conclude that (1) issue preclusion
does not bar the General Counsel of the NLRB (“General Counsel”) from pursuing
a claim against Roadway, and (2) substantial evidence supports the NLRB’s
conclusions that the union breached its duty of fair representation (“DFR”)
towards Amadeo Bianchi and that Roadway violated section 8(a)(1) of the
National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), by discharging
Bianchi, we deny appellants’ petitions for review.
BACKGROUND
In October 2001, Gerome Daniels, a former Roadway employee, was
admitted into a hospital after he experienced chest pain while unloading a
Roadway trailer. A few days later Daniels informed his union steward, Bianchi,
that he had been injured at work. Bianchi helped Daniels file an injury claim.
After investigation of the claim, Roadway discharged Bianchi because it believed
he assisted Daniels in filing a fraudulent worker’s compensation claim.
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Daniels and Bianchi grieved their discharges in union arbitration hearings;
both were represented by union agent Donald Marr. Marr and Bianchi were
long-standing political rivals within the union, having run against each other for
office six times and having twice appeared before a union master to settle
campaign disputes. Notwithstanding their apparent enmity, when at the end of the
arbitration hearing the committee asked Bianchi whether the union had
represented him properly and fully, Bianchi answered in the affirmative. Bianchi
states in his briefs on appeal that he did so because he wanted to return to work
without further delay. Without stating its reasoning, the arbitration committee
denied both Daniels’s and Bianchi’s grievances and upheld their discharges from
Roadway.
Bianchi then filed unfair labor practices claims against Roadway and the
union in a private lawsuit before a federal district court. The jury found in favor
of Bianchi on his DFR claim,1 but this Court reversed, granting Roadway’s motion
1
As summarized by this Court in Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1281
(11th Cir. 2006) (per curiam),
[t]he jury held for Bianchi against both Roadway and the Union, finding: (1) that
Roadway had terminated Bianchi without just cause in violation of the [collective
bargaining agreement]; (2) that the Union had breached its DFR by Marr’s handling
of Bianchi’s grievance proceedings arbitrarily, discriminatorily and/or in bad faith;
and (3) that the Union’s breach materially affected the outcome of Bianchi’s
grievance hearing.
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for judgment as a matter of law. See Bianchi v. Roadway Exp., Inc., 441 F.3d
1278, 1279 (11th Cir. 2006) (per curiam). We reasoned that Bianchi had waived
any claim that Marr represented him in bad faith by failing to raise it before the
arbitration committee.
The General Counsel then filed before the NLRB an unfair labor practice
complaint against Roadway and the union, asserting that Bianchi was wrongfully
discharged on the basis of protected union activities and that the union breached
its DFR towards Bianchi during his grievance proceedings. In March 2008, the
ALJ dismissed the DFR claim against the union and upheld Bianchi’s discharge
from Roadway. On review, the NLRB (1) affirmed the ALJ’s conclusion that
issue preclusion did not bar the General Counsel from asserting a breach of the
DFR as a basis for declining to defer to the arbitration results; (2) affirmed the
ALJ’s findings that the arbitration results were not the product of a fair and regular
proceeding and that Roadway violated section 8 of the NLRA by discharging
Bianchi; and (3) reversed the ALJ’s finding that the union had not breached its
DFR toward Bianchi. Accordingly, the NLRB awarded Bianchi seven years of
backpay and ordered Roadway to reinstate him. Roadway and the union now
petition for review of the NLRB decision.
STANDARD OF REVIEW
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We must accept the NLRB’s findings with respect to questions of fact if
they are supported by substantial evidence on the record considered as a whole.
See 29 U.S.C. § 160(e). “Substantial evidence is more than a mere scintilla. It
means such evidence as a reasonable mind might accept as adequate to support a
conclusion.” Fla. Steel Corp. v. NLRB, 587 F.2d 735, 745 (5th Cir. 1979)
(citations omitted) (internal quotation marks omitted). While this Court will not
act as a mere enforcement arm of the NLRB, see BE &K Constr. Co. v. NLRB, 133
F.3d 1372, 1375 (11th Cir. 1997) (per curiam), we will not substitute our own
judgment for the NLRB’s choice between two reasonable positions. See Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
DISCUSSION
The threshold question is whether issue preclusion operates to bar the
General Counsel from pursuing its DFR claim against Roadway in light of this
Court’s ruling in Bianchi, 441 F.3d 1278, that Bianchi waived it. For issue
preclusion to apply, both cases must involve the same parties or their privies. See
EEOC v. Pemco Aeroplex, Inc. (“Pemco”), 383 F.3d 1280, 1285 (11th Cir. 2004).
Whether a party is in privity with another for purposes of issue preclusion is a
question of fact that we review for clear error. Id. We have noted that the
requirement of privity is “particularly important where the party in the second
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action is a governmental agency reposed with independent statutory power to
enforce the law and having independent interests not shared by a private party.”
Id.Congress vested the General Counsel with the independent authority to
enforce the NLRA. See 29 U.S.C. § 153(d). Similarly, section 10(a) of the NLRA
states that the NLRB’s authority to prevent unfair labor practices “shall not be
affected by any other means of adjustment or prevention that has been or may be
established by agreement, law or otherwise . . . .” 29 U.S.C. § 160(a). Further, the
NLRB has independent interests—while Bianchi’s interest is in seeking
reinstatement and damages for the personal harm resulting from his discharge, the
NLRB represents the “public[’s] interest in effectuating the policies of the federal
labor laws, not the wrong done the individual employee” when “fashioning unfair
labor practice remedies.” Vaca v. Sipes, 386 U.S. 171, 182 n.8 (1967). To put it
another way, the NLRB’s interest is in protecting the workforce as a whole by
pursuing remedies that will deter future unfair labor practices. Whether those
remedies would fully redress Bianchi’s individual injuries is irrelevant in this case.
Thus, we conclude that the General Counsel of the NLRB and Bianchi were not in
privity for purposes of invoking issue preclusion. See Pemco, 383 F.3d 1280 at
1283 (holding that the district court erred by applying issue preclusion against the
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EEOC where employer had prevailed in a separate lawsuit brought by a number of
individual plaintiffs alleging racial harassment).
Next, we consider the record as a whole to determine whether substantial
evidence supports the NLRB’s conclusion that the union breached its DFR
towards Bianchi, despite a union arbitration decision to the contrary.
Notwithstanding Bianchi’s statement at the end of the arbitration hearing that he
believed Marr had represented him “properly and fully,” the NLRB concluded that
Marr had “allowed his personal animosity towards Bianchi to undermine his
defense of Bianchi’s grievance . . . .” The NLRB further stated that “the record
demonstrates that Marr acted in bad faith . . . by deliberately misleading the
[arbitration c]ommittee about crucial matters . . . .”
“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,
discriminatory, or in bad faith.” Vaca, 386 U.S. at 190. The burden to establish a
breach of DFR is “a substantial one.” Harris v. Schwerman Trucking Co., 668
F.2d 1204, 1206 (11th Cir. 1982) (quoting another source). Further, mere
negligence is never sufficient to sustain a claim for breach of the DFR. Parkers v.
Connors Steel Co., 855 F.2d 1510, 1521 (11th Cir. 1988). Nor are simple
mistakes of judgment during the representation. Harris, 668 F.2d at 1206. In
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Spielberg Manufacturing Co., 112 NLRB 1080, 1082 (1955), the NLRB explained
that deference to an arbitration decision is warranted only where “the proceedings
appear to have been fair and regular, all parties had agreed to be bound, and the
decision of the arbitration panel is not clearly repugnant to the purposes and
polices of the [NLRA].” The NLRB has refused to defer to an arbitration where it
found a breach of the DFR, a conflict of interest, or hostility between the union
and grievants. See Tubari Ltd., Inc., 287 NLRB 1273, 1273–74 & n.4 (1988).
Here, substantial evidence in the record supports the NLRB’s conclusion
that Marr’s representation of Bianchi was in bad faith. The NLRB found that
Bianchi failed to disclose exculpatory information that would have aided Bianchi
and that Marr purposefully persuaded the arbitration committee that Bianchi
believed Daniels’s injury was not work-related but encouraged him to file it as
such anyway. After careful review of the record and having heard oral argument
on the matter, we hold that substantial evidence supports the NLRB’s conclusion
that the union breached its DFR towards Bianchi in violation of section 8(b)(1)(A)
of the NLRA. Thus, the NLRB did not err by refusing to defer to the arbitration
committee’s decision.
And finally, we consider the record as a whole to determine whether
substantial evidence supports the NLRB’s finding that Roadway violated section
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8(a)(1) of the NRLA, § 158(a)(1), by discharging Bianchi. The ALJ found that
Roadway believed that Bianchi knowingly helped Daniels file a fraudulent
work-injury report. The ALJ also found that Bianchi believed that report to be
truthful and therefore had not engaged in misconduct in the course of his protected
union-steward activities. Agreeing with the ALJ, the NLRB stated that “[t]he
credited testimony establishes that Daniels told Bianchi that he was injured at
work.” Thus, the NLRB concluded that Bianchi was acting within the scope of his
protected union-steward activities when assisting Daniels.
An employer’s conduct violates section 8(a)(1) of the NRLA if it has a
reasonable tendency to interfere with employees’ section 7 right to “form, join or
assist labor organizations.” Id. § 157; § 158(a)(1). The Supreme Court has said
that an employer violates section 8(a)(1) where “the discharged employee was at
the time engaged in a protected activity, that the employer knew it was such, that
the basis of the discharge was an alleged act of misconduct in the course of that
activity, and the employee was not, in fact, guilty of that misconduct.” NLRB v.
Burnup & Sims, Inc., 379 U.S. 21, 23 (1964). An employer acts unlawfully by
discharging an employee for misconduct arising out of protected activity when it is
shown that the misconduct never occurred, despite the employer’s honest belief
that it did. Id. at 23.
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We conclude that substantial evidence in the record considered as a whole
supports the NLRB’s conclusion. Despite Roadway’s honest belief that Bianchi
had engaged in misconduct, it violated section 8 by discharging him on the basis
of protected union-steward activities.
For the foregoing reasons, we deny Roadway’s and the union’s petitions for
review and enforce in full the order of the NLRB.
PETITION FOR REVIEW DENIED, CROSS-APPLICATION FOR
ENFORCEMENT GRANTED.
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