Ubc v. Mtd, Afl-Cio ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED BROTHERHOOD OF No. 13-35095
CARPENTERS AND JOINERS OF
AMERICA; BUTCH PARKER; SCOTT D.C. No.
FLANNERY; WILLIAM CRAWFORD; 2:11-cv-05159-
TRUMAN JORDAN, TOR
Plaintiffs-Appellants,
v. OPINION
METAL TRADES DEPARTMENT, AFL-
CIO; HANFORD ATOMIC METAL
TRADES COUNCIL,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted
May 12, 2014—Seattle, Washington
Filed October 28, 2014
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge O’Scannlain
2 CARPENTERS V. METAL TRADES
SUMMARY*
Labor Law
The panel affirmed the district court’s dismissal of the
United Brotherhood of Carpenters and Joiners of America’s
action alleging that the Metal Trades Department, AFL-CIO,
violated the federal duty of fair representation.
The Carpenters, a labor union, alleged that, as part of a
campaign to force it to reaffiliate, the Building and
Construction Trades Department, AFL-CIO, an umbrella
labor organization, convinced the Metal Trades to expel the
Carpenters from its membership. The Carpenters alleged that
the Metal Trades waged a campaign against Carpenters
members that included stripping them of their preferential
positions as union stewards solely because they were
members of the Carpenters.
The panel held that the Carpenters failed to state a claim
for breach of the duty of fair representation because this duty
does not forbid consideration of union affiliation in the
appointment and removal of stewards. The panel held that a
union’s selecting stewards from whom it might expect
undivided loyalty¯that is, from members of an affiliated
union, rather than an unaffiliated union¯is not unreasonable
discrimination and does not, without more, breach the duty of
fair representation.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARPENTERS V. METAL TRADES 3
COUNSEL
Craig D. Singer, Williams & Connolly LLP, Washington,
DC, argued the cause and filed the briefs for the plaintiffs-
appellants. With him on the briefs were Charles Davant IV,
Williams & Connolly LLP, Washington, DC, and Daniel M.
Shanley, DeCarlo & Shanley, Los Angeles, CA.
Keith Bolek, O’Donoghue & O’Donoghue LLP, Washington,
DC, argued the cause and Craig A. Power, O’Donoghue &
O’Donoghue LLP, Washington, DC, filed the brief for the
defendants-appellees.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the duty of fair representation
requires unions to appoint and to remove stewards without
regard to union affiliation.
I
The United Brotherhood of Carpenters and Joiners of
America (“Carpenters”) represents half a million workers
throughout North America, including plaintiffs-appellants
Butch Parker, Scott Flannery, William Crawford, and Truman
Jordan. The Metal Trades Department, AFL-CIO, (“Metal
Trades”) is a labor organization that negotiates, administers,
and enforces collective bargaining agreements. The Hanford
Atomic Metal Trades Council is a labor organization
affiliated with the Metal Trades. Hundreds of Carpenters’
4 CARPENTERS V. METAL TRADES
members, including the four named plaintiffs, are members
of bargaining units represented by the Metal Trades.
In 2008, the Building and Construction Trades
Department, AFL-CIO, (“Building Trades”) an umbrella
labor organization, launched the “Push-Back-Carpenters
Campaign” to force the Carpenters to reaffiliate with the
Building Trades.1 To pressure the Carpenters, the Building
Trades enlisted the Metal Trades in its campaign, convincing
the Metal Trades to expel the Carpenters from its
membership. The Metal Trades “kicked out” the Carpenters
by dissolving a “Solidarity Agreement” between the two
labor organizations.
Allegedly, the Metal Trades waged “a discriminatory,
arbitrary, and bad-faith campaign,” targeting Carpenters’
members, intended “to punish the Carpenters for reasons
unrelated to the Metal Trades or the fair representation of its
. . . bargaining unit members” who were Carpenters’
members. This campaign included stripping Carpenters’
members of their preferential positions as stewards.2
The Carpenters, on behalf of its members whose
bargaining units were represented by the Metal Trades,
including Parker, Flannery, Crawford, and Jordan, sued the
Metal Trades and one of its affiliated unions, the Hanford
1
As we are reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6), we accept as true the complaint’s well-pleaded factual
allegations. E.g., OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th
Cir. 2012).
2
Other allegations made by the Carpenters are addressed in a
memorandum disposition filed concurrently with this opinion.
CARPENTERS V. METAL TRADES 5
Atomic Metal Trades Council. Its initial complaint alleged
that the Metal Trades, both by itself and through its non-party
affiliates, breached the federal duty of fair representation.
The district court dismissed the complaint, concluding
that the Carpenters failed to provide sufficient factual support
for its allegations. The court granted leave to amend.
In its amended complaint, the Carpenters included
additional detailed factual allegations, but once again, the
court dismissed for failure to state a claim, this time with
prejudice. The Carpenters timely appealed.
II
Section 9(a) of the National Labor Relations Act grants to
designated unions the “exclusive power to represent all
employees in a particular bargaining unit.” Breininger v.
Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S.
67, 86–87 (1989) (citing 29 U.S.C. § 159(a)). With the power
to represent even unaffiliated workers comes the
responsibility—“created by the courts”—to “exercise [such]
power in their interest and behalf.” Simo v. Union of
Needletrades, Indus. & Textile Emps., 322 F.3d 602, 610–11
(9th Cir. 2003) (quoting Air Line Pilots Ass’n, Int’l v. O’Neill,
499 U.S. 65, 74 (1991)). This “duty of fair representation” is
the “obligation to serve the interests of all members [of a
bargaining unit] without hostility or discrimination toward
any, to exercise . . . discretion with complete good faith and
honesty, and to avoid arbitrary conduct.” Vaca v. Sipes,
386 U.S. 171, 177 (1967).
The duty of fair representation arises where “a union is
acting under authority granted by statute or a collective
6 CARPENTERS V. METAL TRADES
bargaining agreement.” Simo, 322 F.3d at 613. It applies
both to the negotiation, Air Line Pilots Ass’n, 499 U.S. at 77,
and to the administration, Breininger, 493 U.S. at 88, of
collective bargaining agreements. But “[d]efinitionally,” it
“does not apply where the union is not representing the
workers in question.” Simo, 322 F.3d at 614. “[A] union . . .
can be held to represent employees unfairly only in regard to
those matters as to which it represents them at all—namely,
‘rates of pay, wages, hours . . . , or other conditions of
employment.’” Int’l Bhd. of Teamsters, Local No. 310 v.
NLRB, 587 F.2d 1176, 1183 (D.C. Cir. 1978) (second
omission in original) (quoting 29 U.S.C. § 159(a)). “In other
words, the duty of fair representation extends only to matters
involving an employee’s dealings with his employer and
ordinarily does not affect an employee’s relationship with the
union structure.” Kolinske v. Lubbers, 712 F.2d 471, 481
(D.C. Cir. 1983) (citing Bass v. Int’l Bhd. of Boilermakers,
630 F.2d 1058 (5th Cir. 1980)).
In Bass, for example, the duty of fair representation did
not apply to a union’s dismissing two members from an
apprenticeship program. Because the union was not the
exclusive representative for those in the program, and
dismissal did not interfere with the members’ relationship to
their employer, the union’s decision was an “internal affair[]”
not subject to judicial scrutiny. See 630 F.2d at 1062–63.
And courts have “usually excluded internal union affairs”
from the duty to provide fair representation. Kolinske,
712 F.2d at 481.
But merely labeling an arbitrary decision “internal” will
not relieve the union of its duty, because even internal union
affairs may “have a substantial impact upon the external
relationships of members of the unit to their employer.”
CARPENTERS V. METAL TRADES 7
Retana v. Apt., Motel, Hotel & Elevator Operators Union,
Local No. 14, 453 F.2d 1018, 1024 (9th Cir. 1972). Where
the union’s “internal” decisions “have a substantial impact
upon members’ rights in relation to the negotiation and
administration of the collective bargaining agreement,” the
question is whether a union is making “‘an honest effort to
serve the interests’ of all members of the bargaining unit.”
Id. at 1024–25 (quoting Ford Motor Co. v. Huffman, 345 U.S.
330, 337 (1953)); see also Air Line Pilots Ass’n, 499 U.S. at
67 (“[A] union breaches its duty of fair representation if its
actions are either ‘arbitrary, discriminatory, or in bad faith
. . . . [A] union’s actions are arbitrary only if . . . the union’s
behavior is so far outside ‘a wide range of reasonableness”
. . . as to be irrational.” (quoting Ford Motor Co., 345 U.S. at
338)).
A
The Carpenters’ complaint alleges that the Metal Trades
violated the duty of fair representation by removing
Carpenters’ members from their positions as stewards based
on union affiliation. Whether the duty of fair representation
forbids consideration of union affiliation in the appointment
and removal of stewards presents a question of first
impression among federal appellate courts.3
3
Three of the district court cases cited by the parties, including this case,
have suggested that such question turns on whether selection of stewards
is left to the union’s discretion under the relevant collective bargaining
agreement. See Maddalone v. Local 17, United Bhd. of Carpenters, 1996
WL 562986, at *5 (S.D.N.Y. Oct. 3, 1996), aff’d in part, rev’d in part on
other grounds, 152 F.3d 178 (2d Cir. 1998); Brett v. Sohio Const. Co.,
518 F. Supp. 698, 703 (D. Alaska 1981). But an exclusive bargaining
agent is required “to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct.” Vaca, 386 U.S. at 177 (emphasis
8 CARPENTERS V. METAL TRADES
1
A steward is “[a] union official who represents union
employees and who oversees the performance of union
contracts.” Black’s Law Dictionary 1549 (9th ed. 2009); see
also Kudla v. NLRB, 821 F.2d 95, 100 (2d Cir. 1987)
(recognizing “the vital role that stewards play in the
collective bargaining process by policing the contract,
advising employees on contractual provisions and
representing employees in on-site grievance proceedings”).
Thus, the discharge of a steward to maintain “cohesive
leadership” in a union has been called “a legitimate union
interest and a plainly internal affair.” NLRB v. Int’l Bhd. of
Boilermakers, 581 F.2d 473, 476 (5th Cir. 1978) (internal
quotation marks omitted).4
added); see also Ford Motor Co., 345 U.S. at 338 (“A wide range of
reasonableness must be allowed a statutory bargaining representative in
serving the unit it represents, subject always to complete good faith and
honesty of purpose in the exercise of its discretion.” (emphasis added)).
Where a union has more power, “its responsibility to exercise that power
fairly increases rather than decreases.” Breininger, 493 U.S. at 89. What
terms to seek or to accept in contract negotiation, for example, is surely
“discretionary,” but subject nonetheless to the duty of fair representation.
Air Line Pilots Ass’n, 499 U.S. at 67 (holding that unions are permitted a
“wide range of reasonableness” in exercising such discretion (citation
omitted)). On appeal, the Metal Trades does not suggest that its removal
of stewards was not subject to the duty of fair representation merely
because it was within the discretion afforded by the collective bargaining
agreements.
4
Because removal of the steward was an internal affair, our sister circuit
concluded that it was not an unfair labor practice under section 8(b)(1)(A)
of the NLRA, 29 U.S.C. § 158(b)(1)(A). Boilermakers, 581 F.2d at 476,
478. The duty of fair representation, though, is not “defined in terms of
what is an unfair labor practice.” Breininger, 493 U.S. at 86. “[A] breach
of the duty of fair representation also [can] be an unfair labor practice,”
CARPENTERS V. METAL TRADES 9
Stewards are not simply employees—although they are
that5—they are also representatives of the union. E.g.,
Charles Leonard, Inc., 131 N.L.R.B. 1104, 1105 (1961) (noting
that “shop steward and shop committee are arms of the
contracting union”). As representatives of the union,
stewards are bound by its duty to represent the rank-and-file
members of the bargaining unit fairly. “A shop steward with
grievance processing responsibilities is the union vis-à-vis the
employees as well as the employer.” Local 254, SEIU,
332 N.L.R.B. 1118, 1122 (2000) (internal quotation marks and
citation omitted). A steward’s violation of the duty of fair
representation is the union’s violation, for which it may be
sued. See, e.g., Branch 3126, Nat’l Ass’n of Letter Carriers,
330 N.L.R.B. 587, 587 (2000) (finding that a steward’s
discriminatory action breached the union’s duty of fair
representation, even though the steward acted alone and not
according to union policy). According to the Carpenters’
own complaint, the Metal Trades violated its duty of fair
representation when its stewards failed to process particular
but the two concepts are not fully coextensive—“a union may breach its
duty of fair representation without committing an unfair labor practice and
vice versa.” Lucas v. NLRB, 333 F.3d 927, 932 (9th Cir. 2003). Thus
Boilermakers does not hold that removal of stewards is not subject to such
duty. Nevertheless, we have found it useful to consider unfair labor
practice cases in defining the duty of fair representation’s scope. See
Retana, 453 F.2d at 1024 (citing Wallace Corp. v. NLRB, 323 U.S. 248
(1944) (holding that corporation committed unfair labor practice)).
5
“[T]he Chief Shop Steward really does serve the interests of the
employer . . . [a]lthough he may not be operating machinery.” Int’l Ass’n
of Machinists, Local Lodge 964 v. BF Goodrich Aerospace Aerostructures
Grp., 387 F.3d 1046, 1057 (9th Cir. 2004). Wages paid by an employer
to a steward, who may be a full-time representative of the union, are paid
as compensation for their “service as an employee of such employer.” Id.
at 1047, 1060.
10 CARPENTERS V. METAL TRADES
grievances. See Nat’l Ass’n of Letter Carriers, Branch 3126
v. NLRB, 281 F.3d 235, 237 (D.C. Cir. 2002) (noting that
union breached duty of fair representation because its steward
refused to file a grievance).
2
According to the Carpenters, the Metal Trades violated
the duty of fair representation by removing Carpenters’
members from positions as stewards solely because they were
members of the Carpenters. We can see no meaningful
difference in a union’s discretion between appointing
stewards and removing them, and the Carpenters have given
no reason to treat them differently. Thus, if the Carpenters’
contention that the Metal Trades breached its duty when it
removed stewards because of their union affiliation is correct,
it follows that a union would breach its duty by appointing
stewards based on their union affiliation. That is to say,
exclusive bargaining unions would be required to select
stewards regardless of membership in an affiliated union, or
in any union. To justify its extraordinary argument, the
Carpenters’ brief cites no case remotely on point. For good
reason—no court has suggested that the duty of fair
representation requires unions to appoint or remove union
officers and representatives without regard to union
affiliation.
The Carpenters’ argument relies heavily on Retana, where
we noted that even “internal” union policies and practices
could be subject to the duty of fair representation, which
“‘arises out of the union-employee relationship and pervades
it.’” 453 F.2d at 1024 (quoting Nedd v. United Mine
Workers, 400 F.2d 103, 106 (3d Cir. 1968)). Even “internal”
policies “may have a substantial impact” upon the employees’
CARPENTERS V. METAL TRADES 11
relationship to their employer. Id. (citing Wallace Corp.,
323 U.S. 248).
In Retana, a discharged hotel maid sued on behalf of
Spanish-speaking members of her union, alleging that her
union’s failure to provide, for example, a Spanish translation
of the collective bargaining agreement violated the duty of
fair representation. Id. at 1021, 1023. Although we declined
in that case “to attempt a . . . precise delineation of the scope
of the duty of fair representation,” we noted a possible
violation of the union’s duty “to make an honest effort to
serve the interests of all members of the bargaining unit.” Id.
at 1024–25 (internal quotation marks omitted). The union’s
alleged failure to take relatively easy and inexpensive steps
to accommodate its Spanish-speaking members suggested—
adequately under the relaxed pleading standard of Conley v.
Gibson, 355 U.S. 41 (1957)—that the union was not
negotiating or administrating in good faith on their behalf.
By contrast, requiring stewards to be affiliated with the
exclusive bargaining representative does not—at least not
plausibly, see Petzschke v. Century Aluminum Co. (In re
Century Aluminum Co. Sec. Litig.), 729 F.3d 1104, 1107 (9th
Cir. 2013)—imply that the union is failing to serve in good
faith the interests of all members of the bargaining unit.
In Local 254, the National Labor Relations Board
described the necessity of a union’s selecting stewards of its
own choosing. 332 N.L.R.B. at 1122. A union has a
“legitimate interest in speaking with one voice, through
trusted representatives, in dealing with the [e]mployer about
the bargaining unit employee[s’] terms and conditions of
employment.” Id.; cf. Emporium Capwell Co. v. W. Addition
Cmty. Org., 420 U.S. 50, 70 (1975) (A union “has a
12 CARPENTERS V. METAL TRADES
legitimate interest in presenting a united front . . . and in not
seeing its strength dissipated and its stature denigrated by
subgroups within the unit separately pursuing what they see
as separate interests.”). Such interest is “self-evident”
regarding the selection of stewards; an exclusive-bargaining
union administers a collective bargaining agreement, day-by-
day, through its stewards, and the stewards, in turn, are the
union. Local 254, 332 N.L.R.B. at 1122. “In the performance
of that important representational function, a union is entitled
to have as its agents only those persons whom it trusts to act
with an undivided loyalty.” Id. (emphasis added); accord
Metro. Edison Co. v. NLRB, 460 U.S. 693, 704 n. 9 (1983)
(“[N]o one, whether employer or employee need have as his
agent one who is obligated to those on the other side, or one
whom, for any reason, he does not trust.”). Consequently, the
appointment and the removal of stewards have uniformly
been considered “internal union affairs.” See, e.g.,
Boilermakers, 581 F.2d at 476; see also Local 254,
332 N.L.R.B. at 1123.
To be sure, Local 254 concerned unfair labor practices,
not the duty of fair representation, but a union’s interest in
working through trusted and loyal representatives is equally
legitimate and equally weighty in both contexts. We have
held that the duty of fair representation “does not impose
upon a union the duty to open wide its doors to anyone.”
Moynahan v. Pari-Mutuel Emp. Guild of Cal., Local 280,
317 F.2d 209, 211 (9th Cir. 1963). If that is so in selection of
members, how much more is it in selection of union stewards.
A union serves the rank-and-file members of a bargaining
unit through its stewards and is entitled, in the interest of
serving all fairly, to the loyalty of its stewards. The duty to
represent fairly all members of a bargaining unit may
CARPENTERS V. METAL TRADES 13
therefore permit the union to discriminate based on union
affiliation. “Because the interests of a few individuals often
must give way to the interests of the group, courts have given
unions wide latitude.” Bernard v. Air Line Pilots Ass’n, Int’l,
873 F.2d 213, 216 (9th Cir. 1989).
3
“Wide latitude,” of course, does not necessarily “mean a
union may discriminate on the basis of union membership.”
Id. A union is obliged to act “fairly and in good faith, and
without unreasonable discrimination.” Nedd, 400 F.2d at 105
(emphasis added). The duty of fair representation requires
unions to serve the interests of all members of the bargaining
unit, without unreasonably discriminating against the interests
of one particular group. Usually, such discrimination on the
basis of union membership is excellent evidence that the
union is promoting the interests of one group above another.
So in Bernard, we noted two facts that supported finding a
violation of the duty of fair representation: the union not only
(1) refused to appoint members of a nonunion pilot group to
a team negotiating an integration agreement after a merger,
but also (2) failed to follow its merger policy of conducting
internal negotiations with that group. 873 F.2d at 216.
Failure to take either action demonstrated that the union was
not fairly representing the nonunion pilot group’s interests.
In particular, failing to follow the merger policy was strong
evidence of bad faith. See id. at 217.
The Carpenters’ brief does not assert that any
discrimination based on union affiliation is per se a violation
of the duty of fair representation. Quoting Bernard, 873 F.2d
at 216, it contends that “a union may breach the duty if it
‘discriminates on the basis of union membership.’” (emphasis
14 CARPENTERS V. METAL TRADES
added). As one of our sister circuits reasoned, “because a
union by necessity must differentiate among its members in
a variety of contexts, see Ford Motor Co.[, 345 U.S. at 338],
a showing that union action has disadvantaged a group of
members, without more, does not establish a breach of the
duty of fair representation.” Haerum v. Air Line Pilots Ass’n,
892 F.2d 216, 221 (2d Cir. 1989) (emphasis added) (citing
Bernard, 873 F.2d at 216); accord Dement v. Richmond,
Fredericksburg & Potomac R.R. Co., 845 F.2d 451, 458 (4th
Cir. 1988) (“[T]he fact that [some] employees do not benefit
under the . . . Agreement does not in and of itself constitute
‘discrimination’ amounting to a breach of the union’s duty of
fair representation.”).
A union’s selecting stewards from whom it might expect
undivided loyalty—that is, from members of an affiliated
union, rather than an unaffiliated union—is not unreasonable
discrimination and does not, without more, breach the duty of
fair representation.
B
The Carpenters’ complaint does not allege that the Metal
Trades removed Carpenters’ members from positions as
stewards for any reason other than union affiliation.
According to the complaint, the Metal Trades informed
Carpenters-affiliated stewards that they were being removed
as stewards “[f]ollowing its decision to kick out the
Carpenters.” They were removed “for no reasons other than
their Carpenters membership and the refusal of the Carpenters
to meet the non-Metal Trades-related demands of the
Building Trades.” In other words, Carpenters’ members were
stripped of their steward positions because the Carpenters
were no longer affiliated with the Metal Trades and refused
CARPENTERS V. METAL TRADES 15
to affiliate with the Building Trades. But if those individuals
had been willing to join a union affiliated with the Metal
Trades, they would not have been removed as stewards. One
such individual,“BS,” was allowed to remain a steward when
he agreed to join the Boilermakers, an affiliate—through the
New Orleans Metal Trades Council—of the Metal Trades.
Even if the Metal Trades “singled out” Carpenters-
affiliated workers “because of their union affiliation,” then,
the Carpenters’ complaint fails to state a breach of the duty of
fair representation as a matter of law.
III
We conclude that the duty of fair representation does not
prevent unions from appointing or removing stewards based
on union affiliation. The Carpenters’ allegation that the
Metal Trades removed Carpenters’ members as stewards
merely because of their affiliation with the Carpenters thus
fails as a matter of law to state a claim.
AFFIRMED.