*1 AND DENVER STEREOTYPERS UNION,
ELECTROTYPERS Petitioner, NO.
LOCAL
v. RELATIONS LABOR
NATIONAL
BOARD, Respondent, Simonette, Intervenor.
Paul 78-1019. Appeals,
United States Court
Tenth Circuit. 14, 1979.
Argued May June
Decided Patterson, of Criswell &
John A. Criswell Colo., petitioner. for Englewood, N.L.R.B., Shanklin, Atty., Wash- Jay E. Counsel, Irving, (John Gen. ington, D. C. S. Counsel, Jr., Deputy Higgins, Gen. John E. Counsel, El- L. Associate Gen. Taylor, Carl Counsel, Moore, Associate Gen. Deputy liott C., N.L.R.B., Washington, D. with him on brief), respondent. Goldstein, Karp Karp N. &
Sander Denver, Colo., for intervenor. LOGAN, BARRETT, McKAY and
Before Judges. Circuit LOGAN, Judge. Circuit Electrotyp- Stereotypers The Denver 13) Union, (union or Local Local No. 13 ers order of the from a decision and appeals (NLRB or Board Labor Relations National union commit- Board), ruled that the which violation of an unfair labor ted Re- 8(b)(1)(A) National Labor section fairly Act, breaching its lations Simonette, charging par- represent Paul (1977). The ty. 231 N.L.R.B. fоr enforce- cross-application has filed a of the order. ment negotiated a multiem- In 1973 the union agreement cov- bargaining ployer collective Post, Inc. of The Denver ering stereotypers Company Publishing (Post) the Denver Moun- Rocky (News), publishes which The union was concerned tain News. *2 jurisdiction; within the union’s this date is could сause its mem- technological changes stereotypers. priority. The called a substitute’s town Simo- jobs bers to lose their as nette’s town negotiate would would have entitled parties agreed him employers highest position attrition and the to the second on the the method of list. right assign have the to such stereo- substitute would typers agreement to other work. This cov- The executive of the union met board (herein- regular situation holders only ered August placement 16 to discuss Simonette’s stereotypers) after referred to as full-time list, put voted to him on the substitute and employed by the Post or the News as of According the bottom. to Cavolt the 26, February following dеcision was based on the consid- acquired printing (1) stereotyping a erations: trade was 1975 the News dying; (2) giving that did was process require stereotypers not Simonette not fair to because he stereotyping and its other substitutes had therefore discontinued 28, 1975, guaranteed was department. job March taken and lost the he On Simo- nette, job employed by the News the attrition and that was having been stereotyper; not to and stereotyper any as a full-time covered available other (3) believed the local agreement, assigned position was to a in the the executive board constitutions did department. street circulation and international union Simonette directly speak then in the not to situation. applied membership Denver Simonette’s decision, Guild, which em- When informed of the Simonette Newspaper represented membership in was told the reason was ployees department, in that but he retained his 31, the Guild. membership July his in Local 13. On 1975, discharged pri- was because Simonette presi- The next week asked the Simonette physical injuries impaired ability to intercede; dent of the International to he do the street circulation work. refused, stating power that he lacked the to Henry, then asked Dale contacted the do so. Simonette immediately
Simonette
Guild,
vice-president and chairmаn of the board of
no recourse
but was told he had
union,
permanent
give
a
the local
to
him the reasons for
because he had not become
writing. Henry
depart-
in the street circulation
the board’s decision in
employee
1,
August
apprised
agreed,
ment.
he
Paul Ca-
but never did so.
On
13,
volt,
the situation
president of Locаl
a suffi-
obtained
Simonette thereafter
he, Simonette,
requested
be con-
petition
on a
signatures
cient number of
on sick
stereotyper
sidered a
substitute
meeting
special membership
call a
to con-
Post, which was still employ-
leave for the
meeting was sched-
plight.
sider his
The
needed,
ing
stereotypers
substitute
a written notice
uled and announced
full-time
regular
stereotypers.
addition
Post,
board at the
but
posted on a bulletin
request
refer
Cavolt said he would
personally
was not
notified of
Simonette
hiring agent.
the union’s
and did not attend. Because
meeting
absent,
ad-
was
was
August
About
informed
Simonette
problem.
of his
journed
work and
without discussion
Cavolt that he was now able to
Simonette, request-
Henry
telephoned
then
as a
stereo-
should be considered
substitute
petition for a
ing him to withdraw the
typer
employment.
available for
Cavolt
refused,
When
special meeting.
hiring agent,
told him to contact the
but
persons
one
who
Henry stated that
priority might
mentioned that Simonette’s
аgreed, at Hen-
signed
petition
had
had
pose
problem
a
the union’s executive
signature.
ry’s request,
to withdraw
board would have to consider.
September 4 the local union executive
from a
On
dispatches
The union
substitutes
president
holding
requested
board
advice from
consisting
stereotypers
list
concerning this situa-
of the International
regular
seniority
situations. The order of
the local
letter mentioned that
upon the date the
tion. The
on this list
is based
job
had another
board “felt
that since he
stereotyper
substitute
first worked as a
any
wages
and was in another Union he had relin-
loss of
or other benefits result-
post
quished
priority.”
president
appro-
his town
The
from the
an
International,
priate
letter
notice.
Sep-
dated
9, responded
tember
that he could not make
Court raises
petition
in this
ruling
subject
stage.
a
on the
at that
On
issues,
juris-
including
several
September
regularly scheduled
complaint of
employee’s
diction over an
*3
membership meeting was held. After the
represеntation,
breach of the
of fair
duty
executive
explained
board
the reasons for
remedies,
exhaustion
of internal
decision, including
its
Simonette’s member-
employee
an
represent
union’s
duty
Guild,
ship
among
in the
and after debate
bargaining
who is not a member of the
unit.
members,
the membership voted to sus- Because we
conсlude that
deci-
tain the board’s decision.
sufficiently supported by
sion is not
record, we do not address the union’s other
charge
thereafter
filed a
express
opinion
contentions and
no
on their
against
the union with the NLRB. After
purposes
disposing
merits. For
of this
evidentiary hearing,
an
Administrative Law
appeal,
jurisdic-
we assume the Board had
Judge Earldean V.
Robbins
S.
concluded
tion.
that
the union had violated
section
8(b)(1)(A)
place
because its decision to
Si-
statutory duty
represen
of fair
monette at the bottom of the substitute list
requires
represent employ
tation
a union to
was tainted
considerations of dual union-
bargaining
“honestly
ees in its
unit
and in
Board, howevеr,
ism. The
good
overturned this
faith and without invidious discrimina
arbitrary
because dual unionism was not al-
tion or
conduct.” Hines v. An
Inc.,
554, 570,
leged
complaint
Freight,
in the
chor Motor
424
and the issue was
U.S.
1048, 1059,
(1976);
96
47 L.Ed.2d
fully litigated;
the union
S.Ct.
231
had therefore
171, 177,
Sipes,
Vaca v.
87
386 U.S.
S.Ct.
deprived
process.
been
of due
The Board
903, 909,
(1967).
842
A
17 L.Ed.2d
“union
nevertheless concluded that
the union had
cоnduct is ‘arbi
duty
breaches its
when its
breached
representation
its
of fair
in
in
trary, discriminatory, or
bad faith’
8(b)(1)(A)
violation of section
because the
. .”
Bhd.
Elec.
International
“placement
of Simonette at the bot-
Foust,
42, 47,
Workers v.
442 U.S.
99 S.Ct.
tom of the substitute list rather
than in
2121, 2125,
(1979) (quoting
placing bottom of the Simonette at priority sub with the shall second oldest substitute list. Id. The union was ordered days five have claim to the second availa- ble, etc., to cease and desist from the unfair labor through remaining subs in jurisdiction. to make Paul Simonette whole for subjects collective-bargaining agreement concerning provi- 1. The doеs not on those which no expressly provide priorities, for substitute but sions are made in this contract.” Those laws general permit priority does state that the laws of the Interna- the local to establish the rules. 1, 1973, February govern tional in effect assume that the local rules are therefore “shall We incorporated pаrties relations into the between the to this contract. Simonette, special meeting requested XV, Article Section discussed hereafter. journeyman losing A situation holder his situation shall be leaving and/or face, expressly On its section four treats correspond- list priority the sub placed on speaks accorded substitutes and working with of his first the date priority begins; the date it upon which does jurisdiction on current traveler or initia- prior- of retained not deal with the tion. ity for who have left the trade. substitutes XX, constitution, Article local agreed The Board with the administra- priorities, arguably which also deals with XV, judge’s finding that article applies only stereotypers to full-time clearly apply section did not to Simo- provides retain for six they nette, but that section four was decided Thus, months.2 the officers could reason- essence, the clearly applicable. conclude, did, ably the record shows provides “unam- reasoned section four the constitution and were sim- *4 a biguously absolutеly” and that substi- silent ply question priori- on the of retained priority. tute’s shall be his town It ty for substitutes. apparently inferred arbitrariness or bad from the union’s failure to treat reaching faith Simo- In the decision that the record the in accordance with what Board provide support nette does not substantial for the conclusion, unambiguous determined to be clear and Board’s we are influenced also decision, however, judge’s treatment provisions. The Board’s provisions. found that section She directly upon does not focus the reasonable- five “is view; clearly applicable” not here. 231 instead, ness of the union it officials’ Although N.L.R.B. at 686. she did not ex- seems to hold those officials to a standard pressly treat the issue whether section four legal of skill in documents akin interpreting applied, quoted opin- that section is in her possessed by that the Board. This is to ion, apparent and we think it she did not union, determining error. whether the controlling. nonprofessional it consider members, through its officers and acting decisions, union officers’ which were in line fair representation, breached its of the experienced with the view of an and out- relevant. Viewing skill of the actors is judge, standing administrative law should light principle, record as a whole in of this arbitrary not be deemed or in bad faith. was not entitled we believe to or bаd faith. infer arbitrariness thought the Union The Board also applied four when it recognized section have a full-time The union here did not list, the substitute “al- placed on Simonette bargaining representative agent; all of- priority.” his 231 N.L.R.B. stripped beit performed ficers their duties in addition to upon dependent conclusion is at 681. This holding jobs stereotypers. That the offi- clearly this section the Board’s view cers believed sections four and five were applied interrupted priority. to That to the clearly applicable not recognized officers as a substi- supported placement is their Simonette’s tute, however, entirely is consistent with testimony, upon their reliance International only spoke their view that these documents rulings, see 231 and their N.L.R.B. pri- beginning to the date of a substitute’s to the International September letter ority. only id. The evidence to president. See to be drawn toward contrary is the inference What about the attitude The Board found the union handling of the from the union officers’ Simonette? shall return to their situations Said members 2- XX ARTICLE expiration surrender at the of six months or PRIORITIES RETAINED rights priority. who to their Members all expiration of six resume their situations at will retain Local No. 13 ineligible engage to in other months shall be gain- engaged its members who are in other year. period gainful occupations for a of оne occupations period six ful for a months. leadership interpreted In this case union notify to officers’ failure against a membership meeting, attempt bylaws their special the union constitution priority. re- union member’s claim of substitute withdrawing him into pressure attempts to have meeting, repeated schedule another and He then made quest according to pre- reviewed subsequently their failure to schedule such decision procedures. were “indicative” of bad faith. scribed The administrative law witnesses concluded that ambiguous judge this make this a case of an who saw the Does post-interpretative where conduct in the union was influenced officers’ attempts interpretation by frustrating in its animus toward the member’s for re- Si- First, faith, interpreta- monette? We do not think we do view was in bad but their so. finding patently not understand the on this tion was so correct that no bad Board’s independent ground interpretation for its making matter be an faith in could be imputed. the Board reviewed the initially decision. It was made the ad- When record, it expressly precisely contrary ministrative law who noted held a view of finding sufficient proper interpretation was not itself of the constitution support bylaws. opinion a breach. All of the administra- does make Its judge’s findings except abundantly her inter- clear whether its of bad — XV, pretatiоn of Art. and her re- faith was on it exclusively Sec. based what be- upon liance dual unionism as a basis for impermissible interpretation lieved to be an expressly approved by decision —were of the constitution and or whether it Considering purged Board. the record took some comfort from the administrative *5 showing evidencе union animus based on law conclusion that the judge’s factual unionism, reasoning complaint processed dual seems was in a bad- member’s governing to be that since the relevant doc- faith manner. unambiguous, uments were clear and agree majority’s I with the conclusion contrary action to those documents neces- bylaws the constitution and are “sim- If, decide,
sarily wrongful. was as we the ply silent” on the issue involved and that ambiguous, documents are and we are not could, perfectly good union officials in unionism, to consider the evidence on dual faith, interpret they them as did. The in- then the record does not contain substantial standing terpretative by decision itself evidence of bad faith or arbitrariness. finding could not support a of bad faith. Enforcement is denied and the order is What is left is the factual of vacated. post-interpretative whether the officers’ (found by conduct
McKAY, Judge, dissenting: Circuit faith) in judge to have been bad is suffi- that, imply opting This suit for breach of the of fair cient to for one of two representation highlights problem permissible interpretations, the act- officers many reviewing too ed in faith toward this union tribunals administra- bad member. disputes. properly charged tive we both of the tribunals Since cannot alter Since involved, finding im- with fact found the constitution and number tribunals our most portant discipline bylaws рriority, task is to assure in adher- clear on substitute we sim- ply ence to allotted review functions. It is do not know what factual conclusion enough they difficult for us to divine from the would have reached if had viewed supervise bylaws cases how to the allocation the constitution and as either am- If were at fact-finding biguous liberty functions bеtween administra- or silent. we finding of bad faith judges guess, express and administrative tribu- law followed becoming nals without our a third level of administrative not, therefore, analy- fact finders. It is the Board’s conclusion that bad faith exist- ed, suggests opposite sis result from that bylaws of the union constitution and disagree, proper majority. with which I Neither the mа- but rather reached procedural jority say I am able to as a matter of disposition of this case. nor conduct is post-interpretative law that unavoidably requires
either irrelevant of bad faith. interpretation neither consti-
Since mandated, ex- clearly
tution and is process- of bad faith in the
ternal evidence dispute may, but does not neces- bad faith the officers in
sarily, imply
interpreting provisions the critical
governing rules. This sensitive factual
judgment properly is left to the Board quite of an administrative
with the assistance law
judge. proper procedure would be to
return this case to the fact finders for a this question.
resolution of MULARZ,
Theodore L.
Plaintiff-Appellant,
v. COMPANY, PARK
GREATER CITY
Defendant-Appellee.
No. 78-1969. *6 Appeals,
United Court of States
Tenth Circuit.
Argued 1980. May
Decided June