                                                                    [DO NOT PUBLISH]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.


                                             3
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

                                          5
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

                                          6
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

                                           7
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

                                          8
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.

                                         9
      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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