Plumbers Local 342 (Contra Costa Electric, Inc.)

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 549 (N.L.R.B. 2001)

PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 549
Steamfitters Local Union No. 342 of the United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO (Contra Costa
Electric, Inc.) and Joe Jacoby. Case 32–CB–4435
September 28, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On September 30, 1999, the National Labor Relations
Board issued its Decision and Order in the above-
captioned case. 329 NLRB 688. The Board found that the
Respondent Union’s negligent failure to refer Charging
Party Joe Jacoby to a job in the proper order from its ex-
clusive hiring hall did not violate its duty of fair represen-
tation and Section 8(b)(1)(A) and (2) of the Act.
In reaching that conclusion, the Board relied on the Su-
preme Court’s decisions in Steelworkers v. Rawson, 495
U.S. 362 (1990), and Air Line Pilots Assn. v. O’Neill, 499
U.S. 65 (1991). In Rawson, the Court reiterated that a
union breaches its duty of fair representation only by con-
duct that is “arbitrary, discriminatory, or in bad faith.” 495
U.S. at 190, citing Vaca v. Sipes, 386 U.S. 171 (1967).
The Court also held that mere negligence does not violate
the duty. 495 U.S. at 361–362. In O’Neill, the Court held
that the “arbitrary, discriminatory, or in bad faith” standard
applies to all union activity, 499 U.S. at 67, and noted that
the duty of fair representation applies to hiring hall opera-
tions. Id. at 77. The Board read those decisions together
to mean that “mere negligence” in the operation of an ex-
clusive hiring hall does not violate the duty of fair repre-
sentation. 329 NLRB at 689.1 The Board also observed
that its holding was consistent with earlier Board decisions
finding that inadvertent mistakes in the operation of a hir-
ing hall do not violate the duty. See, e.g., Operating Engi-
neers Local 18 (Ohio Pipe Line), 144 NLRB 1365 (1963);
Plumbers Local 40, 242 NLRB 1157, 1163 (1979), enfd.
mem. 642 F.2d 456 (9th Cir. 1981).
The Board also rejected the General Counsel’s conten-
tion that the Union’s conduct violated Section 8(b)(1)(A)
and (2) even if it did not breach the duty of fair representa-
tion. The General Counsel noted that the Board had often
held that any departure from the established procedures of
an exclusive hiring hall that results in the denial of em-
ployment is unlawful unless it is justified by either a valid
union-security clause or the union’s need to perform its
representative functions effectively. See, e.g., Operating
Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB
681 (1973), remanded on other grounds 496 F.2d 1308
(6th Cir. 1974), on remand 220 NLRB 147 (1975), enf.
denied 555 F.2d 552 (6th Cir. 1977). The Board explained
that the rationale behind this rule is that any unjustified
departure from those procedures inherently encourages
union membership by demonstrating to hiring hall users
the union’s power over their livelihoods. The Board held
that this reasoning applies to the volitional acts of union
officials, but not to inadvertent failures to follow the rules.
Such failures, the Board held, do not indicate to applicants
that they must remain in the union’s good graces if they
wish to receive referrals. 329 NLRB at 691.

1 The Board overruled Iron Workers Local 118 (California Erec-
tors), 309 NLRB 808 (1992), and other decisions to the extent they held
that even a negligent failure to refer in the correct order violates the
duty of fair representation.
The Charging Party petitioned for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit. On December 12, 2000, the court of appeals reversed
and remanded the case to the Board. Jacoby v. NLRB, 233
F.3d 611 (D.C. Cir. 2000). The court held that the Board’s
reading of Rawson and O’Neill (which were not hiring hall
cases) could not be reconciled with the court’s earlier
holding that the Supreme Court in O’Neill did not intend
to weaken the standard of review applicable to hiring hall
operations. Plumbers Local 32 v. NLRB, 50 F.3d 29, 33
(D.C. Cir. 1995). The court also relied on the Supreme
Court’s statement in Breininger v. Sheet Metal Workers
Local 6, 493 U.S. 67, 89 (1989), that the imbalance of
power and possibilities for abuse in the hiring hall setting
were such that “if a union does wield additional power in a
hiring hall by assuming the employer’s role, its responsi-
bility to exercise that power fairly increases rather than
decreases.”2 The court remanded the case to the Board to
determine whether the Union’s negligent conduct was an
unfair labor practice, in light of what the court found to be
“the union’s heightened duty of fair dealing in the context
of a hiring hall.” 233 F.3d at 617.
The court also addressed the Board’s holding that the
Union’s conduct did not violate Section 8(b)(1)(A) and (2)
apart from any breach of the duty of fair representation.
The court found that, “given the focus of Section 8(b)(2)
on discrimination, we cannot fault the Board’s view that a
purely negligent breach of the rules would lack the signal-
ing effect that the provision, and the Board, sought to
avoid.” Id. at 618. The court further noted, however, that
the effect of the Board’s holding regarding these “inde-
pendent” violations was to ensure that the Act “imposed
no broader liability independent of the duty of fair repre-
sentation than as construed with that duty.” Id. at 619.
Thus, in light of its remand on the duty of fair representa-
2 The Board had construed the Court’s statement as meaning that,
when a union operates an exclusive hiring hall, its duty of fair represen-
tation expands into additional areas, not that the union is subject to a
higher standard of conduct. 329 NLRB at 689–690.
336 NLRB No. 44
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
tion issue, the court found it premature to rule on the suffi-
ciency of the Board’s second holding. Id.
On March 27, 2001, the Board advised the parties and
amici curiae that it had accepted the court’s remand and
that they might file statements of position with respect to
the issues raised by the remand. The General Counsel, the
Charging Party, and the Respondent filed position state-
ments, and amici AFL–CIO, Building and Construction
Trades Department, AFL–CIO, and United Association of
Journeymen and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada, AFL–CIO
filed a joint position statement.
Discussion
Having accepted the court’s remand, we also accept its
opinion as the law of the case. We therefore assume, for
purposes of this decision, that Rawson and O’Neill do not
compel a finding that negligence in hiring hall operations
does not breach a union’s duty of fair representation. We
also assume, for purposes of this decision, that a union has
a “heightened duty of fair dealing” in the operation of an
exclusive hiring hall.3
For the reasons discussed below, applying this “height-
ened duty” standard, we reaffirm the Board’s earlier hold-
ing that inadvertent mistakes in the operation of an exclu-
sive hiring hall arising from mere negligence do not vio-
late the union’s duty of fair representation. We also reaf-
firm that such mistakes do not violate Section 8(b)(1)(A)
and (2). Consistent with the court of appeals’ opinion and
the law of the case, we reach these conclusions independ-
ently of the Supreme Court’s statements in Rawson and
O’Neill. Instead, we rely on the Board’s decisions prior to
California Erectors, in which the Board held that inadver-
tent errors in hiring hall operations did not violate the duty
of fair representation or Section 8(b)(1)(A) and (2). In our
view, those decisions set forth the better view, as both a
matter of law and policy. Accordingly, we reaffirm the
Board’s earlier decision overruling California Erectors
and other decisions to the extent they are inconsistent with
this view.
In so holding, we adhere to the Board’s longstanding
position that any departure from the established proce-
dures for an exclusive hiring hall that results in denial of
employment to an applicant violates the duty of fair repre-
sentation and Section 8(b)(1)(A) and (2), unless the union
can demonstrate that the departure was pursuant to a valid
union-security clause or was necessary to the union’s ef-
fective performance of its representative function. We
reaffirm that such departures encourage union membership

3 Chairman Hurtgen concludes that, as a matter of law and policy, a
union has a “heightened duty of fair dealing” in the operation of an
exclusive hiring hall.
by signaling the union’s power to affect the livelihoods of
all hiring hall users, and thus restrain and coerce applicants
in the exercise of their Section 7 rights. As indicated
above, however, our past decisions have recognized that
inadvertent errors in operating a hiring hall do not signal
the union’s power over referrals and thus do not encourage
union membership or restrain and coerce applicants in
violation of either the duty of fair representation or Section
8(b)(1)(A) and (2). We return to the view expressed in
those cases.
I. A UNION’S INADVERTENT MISTAKE IN
OPERATING A HIRING HALL DOES NOT BREACH
ITS DUTY
OF FAIR REPRESENTATION
The duty of fair representation was a creation of the
Federal courts. In Steele v. Louisville & Nashville Railway
Co., 323 U.S. 192 (1944), the Supreme Court held that a
union’s acceptance of authority, under the Railway Labor
Act, as the exclusive representative of bargaining unit em-
ployees carried with it a correlative duty to exercise its
authority fairly. The Court stated that, in collective bar-
gaining and in making contracts, the union was required to
represent nonunion or minority union members “without
hostile discrimination, fairly, impartially, and in good
faith.” Id. at 204. The Court extended those principles to
the NLRA in Ford Motor Co. v. Huffman, 345 U.S. 330
(1953), holding that a union’s authority as the exclusive
bargaining representative gives rise to a duty to represent
all unit employees fairly. This “statutory obligation to
represent all members of an appropriate unit requires [un-
ions] to make an honest effort to serve the interests of all
of those members, without hostility to any.” Id. at 337.
Nine years later, the Board held that a union’s breach of
its duty of fair representation constituted an unfair labor
practice. Miranda Fuel Co., 140 NLRB 181 (1962), enf.
denied 326 F.2d 172 (2d Cir. 1963). The Board majority
in Miranda based its holding on the union’s status as the
9(a) exclusive bargaining representative, and noted court
decisions that had inferred a concomitant duty to represent
the interests of the entire group fairly, impartially, and in
good faith.4 In light of those obligations and of employ-
ees’ rights under Section 7 of the Act to bargain collec-
tively through their chosen representatives, the majority
held that “Section 7 . . . gives employees the right to be
free from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting their
4 140 NLRB at 184, citing Wallace Corp. v. NLRB, 323 U.S. 248,
255 (1944) (as representative of all employees, union is “charged with
the responsibility of representing their interests fairly and impartially);
and Hughes Tool Co. v. NLRB, 147 F.2d 69, 74 (5th Cir. 1945) (as
bargaining agent for the group, union “became bound to represent
equally and in good faith the interests of the whole group”).
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 551
employment.” Id. at 185. Accordingly, “Section
8(b)(1)(A) . . . prohibits labor organizations, when acting
in a statutory representative capacity, from taking action
against any employee upon considerations or classifica-
tions which are irrelevant, invidious, or unfair.” Id.5
The majority in Miranda also held that a union violates
Section 8(b)(2) “when, for arbitrary or irrelevant reasons
or upon the basis of an unfair classification, [it] attempts to
cause or does cause an employer to derogate the employ-
ment status of an employee.” Id. at 186. The majority
recognized that the crucial question is whether such con-
duct encourages membership in any labor organization,
which is a necessary element of an 8(b)(2) violation.6 The
majority held that a violation does not necessarily flow
from actions that have the foreseeable result of encourag-
ing union membership, but that, given such a foreseeable
result, whether a violation is committed depends on
whether the disputed conduct serves legitimate employer
or union purposes. The majority concluded that unions are
not permitted to affect an employee’s employment status
for personal, arbitrary, unfair, or capricious reasons, re-
gardless of whether those reasons are related to the em-
ployee’s union membership or activities. 140 NLRB at
186–188.
In the four decades following Miranda Fuel, the Board
and the courts have consistently held that the duty of fair
representation applies to unions that operate exclusive
hiring halls. In its hiring hall decisions, the Board has
repeatedly and consistently described the duty of fair rep-
resentation in terms similar to those employed in Steele,
Huffman, and Miranda Fuel. See, for example, Teamsters
Local 519 (Rust Engineering), 276 NLRB 898, 908 (1985)
(union operating a hiring hall must not conduct itself in an
“arbitrary, invidious, or discriminatory manner”); Boiler-
makers Local 374 (Combustion Engineering), 284 NLRB
1382, 1383 (1987), enfd. 852 F.2d 1353 (D.C. Cir. 1988)
(union must operate hiring hall in a “fair and impartial
manner,” with rules that must not be “discriminatory or
arbitrary”); New York Lithographers Union No. 1-P, 258
NLRB 1043, 1046 (1981), rev. denied 742 F.2d 1439 (2d
Cir. 1983) (union must not base referrals on “arbitrary,
hostile, invidious, or capricious considerations,” but must
act “in good faith and with an honesty of purpose”); and

5 Sec. 8(b)(1)(A) makes it an unfair labor practice for a union to “re-
strain or coerce employees in the exercise of the rights guaranteed in
section 7.”
6 Sec. 8(b)(2), in relevant part, makes it an unfair labor practice for a
union to “cause or attempt to cause an employer to discriminate against
an employee in violation of [Sec. 8(a)(3)].” Sec. 8(a)(3) provides, in
relevant part, that it is an unfair labor practice for an employer “by
discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in
any labor organization[.]”
Plumbers Local 40, 242 NLRB at 1163 (union must re-
frain from conduct motivated by “hostile, invidious, ir-
relevant, or unfair considerations”).
Reviewing courts have done likewise. See, e.g., Oper-
ating Engineers Local 406 v. NLRB, 701 F.2d 504, 508
(5th Cir. 1983) (union must not use “arbitrary or invidi-
ous” criteria in referrals); NLRB v. Iron Workers Local
433, 600 F.2d 770, 777 (9th Cir. 1979) (unlawful for bar-
gaining representative to act in an “unreasonable, arbitrary,
or invidious manner” with regard to an employee’s em-
ployment status); Electrical Workers Local 948 v. NLRB,
697 F.2d 113, 116 (6th Cir. 1982) (union does not commit
unfair labor practice unless it administers exclusive hiring
hall in “discriminatory or arbitrary” manner); and Boiler-
makers Local 374 v. NLRB, 852 F.2d 1353, 1358 (D.C.
Cir. 1988) (unlawful for union to administer exclusive
hiring hall “arbitrarily or without reference to objective
criteria” and thereby to affect employment status of em-
ployees it represents; union is held to “high standard of
fair dealing”). Indeed, although the Supreme Court in
Breininger stated that in the hiring hall setting, a union’s
“responsibility to exercise [its] power fairly increases
rather than decreases,” 495 U.S. at 89, it also said that the
union’s authority over referrals must be exercised “in a
nonarbitrary and nondiscriminatory fashion.” Id. at 88.
The descriptive terms used to describe breaches of the
duty—”arbitrary,” “invidious,” “discriminatory,” “hos-
tile,” “unreasonable,” “capricious,” “irrelevant or unfair
considerations,” without “honesty of purpose”—indicate
deliberate conduct that is intended to harm or disadvantage
hiring hall applicants. They all imply that the union is
either using its power to control referrals against the inter-
ests of individual applicants or classes of applicants, or
that it may do so at any time, at its discretion.
There is nothing in those descriptions, however, to sug-
gest that a union must operate an exclusive hiring hall mis-
take-free. An inadvertent failure to dispatch a hiring hall
applicant in the proper order by definition is not deliberate
and can hardly be described as “arbitrary,” “invidious,”
“hostile,” or any of the other adjectives repeatedly used to
characterize unfair representation. It carries no suggestion
that the union has any thought or intention of acting to an
applicant’s disadvantage. It may signal an error in judg-
ment, but not favoritism or hostility.
For this reason, the Board’s decisions initially held that
inadvertent mistakes or errors in judgment in hiring hall
operations did not violate the duty of fair representation.
Thus, for example, in Operating Engineers Local 18 (Ohio
Pipe Line), supra, the union business agent, mistakenly
believing that an applicant had been reregistered, failed to
reregister him, thus making him ineligible for referrals.
The Board found that the failure to reregister the applicant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
was not discriminatorily motivated or prompted by “unfair
or irrelevant or invidious” reasons. 144 NLRB at 1367.
Accordingly, the Board found that the union had not vio-
lated its duty of fair representation, since “[m]ere forget-
fulness or inadvertent error is not the type of conduct that
the principles of Miranda were intended to reach.” Id. at
1368.
The Board reached a similar conclusion in Plumbers
Local 40, supra. There, the union business agent dis-
patched an applicant to a job for which he was qualified,
and for which he deemed the other registered applicants to
be unqualified. The Board agreed with the administrative
law judge that, even if the business agent had underesti-
mated the qualifications of the other applicants, there was
no showing of favoritism or an attempt to discriminate. It
therefore adopted his finding that the agent’s conduct was
not shown to have been motivated by “hostile, invidious,
irrelevant, or unfair considerations,” but instead was no
more than “a judgment which, while possibly erroneous or
mistaken, was not arbitrary” or unlawful. 242 NLRB at
1163.7
We think that Ohio Pipe Line and Plumbers Local 40
reflect the correct view of the duty of fair representation.8
As discussed above, there is nothing about making an in-
advertent error in the referral process that is in any way
deliberate or indicative of an intention to harm an appli-
cant or to deprive him of representation. A union’s simple
negligence in administering a hiring hall does not impli-
cate the concerns that animate the duty of fair representa-
tion.9
Moreover, in operating hiring halls, unions perform a
valuable service for employers as well as employees. If
we were to find that unions have a duty to perform that
service free of all errors, we might well discourage unions
from undertaking that worthwhile role. As a matter of
sound public policy, then, we are unwilling to infer that
the duty of fair representation admits of no mistakes in the
hiring hall context.
As indicated above, we reach this conclusion even ap-
plying the court of appeals’ holding that, in hiring hall
operations, a union has a “heightened duty of fair dealing.”

7 See also Boilermakers Local 374 (Combustion Engineering), supra,
284 NLRB at 1383: “To support a finding of arbitrariness ‘something
more than mere negligence or the exercise of poor judgment on the part
of the Union must be shown.’” (Citation omitted.)
8 Both Ohio Pipe Line and Plumbers Local 40 were decided well be-
fore Rawson and O’Neill. The Board’s holdings thus were completely
independent of the Supreme Court’s statements in those cases.
9 The situation would be different, of course, if the operation of the
hiring hall were so faulty that gross negligence was established. In such
circumstances, the union’s conduct demonstrates that it is deliberately
or recklessly indifferent to employees’ interests—the equivalent of
hostility or arbitrariness.
The court did not imply that, under the heightened-duty
standard, a union could not make a simple mistake in re-
ferrals from an exclusive hiring hall. Nor, for the reasons
discussed above, do we think so. However heightened the
duty, we do not believe it reaches so high.
II. A UNION’S INADVERTENT MISTAKE IN
OPERATING A HIRING HALL ALSO DOES NOT
VIOLATE
SECTION 8(b)(1)(A) AND (2).
As indicated above, the General Counsel argued that,
even if negligent errors in referrals do not breach the duty
of fair representation, they are nonetheless unlawful. The
Board in its original decision rejected that contention. We
reaffirm that holding today, essentially for the same rea-
sons discussed above.
The Board has long held that any departure from estab-
lished hiring hall procedures that leads to denial of em-
ployment inherently encourages union membership and
violates Section 8(b)(1)(A) and (2), unless it is based on a
valid union-security clause or is necessary to the effective
performance of the union’s representative function. Oper-
ating Engineers Local 18 (Ohio Contractors Assn.), 204
NLRB at 681.10 On its face, this rule could be read to en-
compass simple mistakes. However, as explained in the
Board’s earlier decision, the rationale for the rule is that
deliberate, volitional departures from established hiring
hall procedures encourage union membership. They sig-
nal to employees that, no matter what the hiring hall rules
say, the union can do as it wishes in making referrals, and
thus that union considerations may play a part in determin-
ing who receives favorable treatment in referrals. 329
NLRB at 691. As the Board further explained, however,
that rationale cannot reasonably be applied to simple mis-
takes in the referral process:

When, as in this case, a union officer in charge of
referrals intends to follow the prescribed procedures
and thinks that he has done so, his inadvertent failure
to do so, even to the detriment of an applicant, simply
does not carry the message that applicants had better
stay in the good graces of the union if they want to
ensure fair treatment in referrals. . . . [M]ere negli-
gence does not constitute a display of “union power”
which would carry a coercive message that could rea-
sonably be thought to encourage union membership.
Id.

10 When the General Counsel shows that a union has departed from
established hiring hall procedures, a violation is established unless the
union comes forward with rebuttal evidence that the departure was
justified. The overall burden of persuasion remains with the General
Counsel. Operating Engineers Local 450, 267 NLRB 775, 795 (1983).
PLUMBERS LOCAL 342 (CONTRA COSTA ELECTRIC) 553
Because it found that such mistakes do not encourage (or
discourage) union membership, the Board concluded they
do not violate Section 8(b)(2) or restrain or coerce em-
ployees in violation of Section 8(b)(1)(A).
The Board’s holding was consistent with previous deci-
sions. Thus, in Plumbers Local 520 (Aycock Inc.), 282
NLRB 1228, 1232 (1987), the Board held that a union that
mistakenly placed an applicant’s name at bottom of its
referral list did not violate Section 8(b)(1)(A) and (2), even
though the union’s error cost the applicant a referral. In
IATSE Local 592 (Saratoga Performing Arts Center), 266
NLRB 703, 710 (1983), the Board found that although the
union representative’s sloppy and unbusinesslike operation
of an exclusive hiring hall led to mistakes in referrals, it
did not violate Section 8(b)(1)(A) and (2). In neither case
was the duty of fair representation discussed, and thus both
clearly support the view that simple mistakes do not inde-
pendently violate Section 8(b)(1)(A) and (2) apart from the
duty of fair representation.
Accordingly, for all the foregoing reasons, we reaffirm
the Board’s earlier holding that a union’s inadvertent mis-
take in operating a hiring hall arising from mere negli-
gence also does not violate Section 8(b)(1)(A) and (2),
independent of the duty of fair representation.11
III. IN CASES INVOLVING A UNION’S
INADVERTENT MISTAKE IN OPERATING A
HIRING HALL, THE STANDARDFOR FINDING A
VIOLATION OF SECTION 8(b)(1)(A) AND (2)
DOES NOT DEPEND ON WHETHER A BREACH
OF THE DUTY OF FAIR REPRESENTATION
IS ALSO ALLEGED
Finally, we wish to clarify our holding in response to
certain observations made by the court of appeals. Because
the Board overruled California Erectors, a duty of fair
representation case, but did not overrule any decisions in
which a breach of the duty of fair representation was not
alleged, the court apparently inferred that the Board might
apply different standards in determining whether a negli-
gent failure to abide by hiring hall procedures violated the

11 We therefore also reaffirm that California Erectors, and other de-
cisions suggesting that inadvertent errors in the operation of an exclu-
sive hiring hall violate the duty or the Act, are overruled.
Act, depending on whether a violation of the duty of fair
representation was alleged. 233 F.3d at 618.12
If that was the court’s impression, we wish to correct it.
In such cases, the Board has applied and will continue to
apply the same standards, regardless of whether a breach
of the duty of fair representation is alleged. Except for
California Erectors, which we have overruled, the Board
has consistently declined to find that simple mistakes or
errors in judgment in hiring hall operations violated the
Act, both when a breach of the duty of fair representation
was alleged (Ohio Pipe Line; Plumbers Local 40) and
when it was not (Plumbers Local 520 (Aycock Inc.);
IATSE Local 592).13
Conclusion
For the foregoing reasons, we reaffirm the Board’s hold-
ing that the Union did not breach its duty of fair represen-
tation or violate Section 8(b)(1)(A) and (2) by negligently
failing to refer Jacoby in the proper order, and we reaffirm
its dismissal of the complaint.14
ORDER
The complaint is dismissed.
12 The court of appeals observed: “Given that the underlying theory
in California Erectors (which the Board does explicitly overrule) and
other duty of fair representation cases is that breaches of the duty are
themselves violations of Sections 8(b)(1)(A) and (2) . . . the Board in
essence argues that the standard for judging violations of the same
statutory provisions may depend upon whether or not a complaint or
ruling specifically invokes the magic words “duty of fair representa-
tion.” Id.
13 The court of appeals observed that, “The Board does not cite, and
we have been unable to find, any evidence that in hiring hall cases the
Board has ever applied different standards depending on whether the
complaint invoked the duty of fair representation or not.” 233 F.3d at
618. Nor are we aware of any such decisions.
14 The Charging Party contends that the Union’s failure to refer him
properly was anything but inadvertent. He notes that, because of an
unusually high volume of referral activity, the Union delegated part of
the responsibility for dispatches to inexperienced staff. The Charging
Party argues that, in those circumstances, mistakes were foreseeable
and even volitional. We find no merit in this contention. The person
who made the mistake in not referring Jacoby was the business agent
himself, not one of the inexperienced staff.