N.L.R.B. v. Local 46, Metallic Lathers Union and Reinforcing Iron Workers of New York and Vicinity of the Intern. Ass'n of Structural and Ornamental Iron Workers

• Decision Date: 26 June 1998
• Docket Number: Docket No. 97-4021
• Citation: 149 F.3d 93
• Parties: 158 L.R.R.M. (BNA) 2684 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 46, METALLIC LATHERS UNION AND REINFORCING IRON WORKERS OF NEW YORK AND VICINITY OF THE INTERNATIONAL ASSOCIATION OF STRUCTURAL AND ORNAMENTAL IRON WORKERS, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 93

149 F.3d 93

158 L.R.R.M. (BNA) 2684

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 46, METALLIC LATHERS UNION AND REINFORCING IRON WORKERS OF NEW YORK AND VICINITY OF THE INTERNATIONAL ASSOCIATION OF STRUCTURAL AND ORNAMENTAL IRON WORKERS, Respondent.

Docket No. 97-4021.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1997.

Decided June 26, 1998.

Richard H. Markowitz, New York City (Markowitz and Richman, New York City, of counsel), for Respondent.

John D. Burgoyne, Assistant General Counsel, National Labor Relations Board, Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, DC, of counsel), for Petitioner.

Before: MESKILL and CALABRESI, Circuit Judges, and BRIEANT, District Judge. ^*

Judge BRIEANT concurs in a separate opinion; Judge CALABRESI dissents in a separate opinion.

MESKILL, Circuit Judge:

This petition presents the question of whether substantial evidence supports the National Labor Relations Board's (Board) conclusion that Local 46, Metallic Lathers Union and Reinforcing Iron Workers of New York and Vicinity of the International Association of Structural and Ornamental Iron Workers ("Local 46" or "the Union") violated sections 8(b)(1)(A) and (b)(2) of the National Labor Relations Act (Act) by refusing to refer work to a member-ironworker in retaliation for that ironworker's earlier racial discrimination charge against Local 46. See Local 46, Metallic Lathers Union and Reinforcing Iron Workers of New York and Vicinity of the International Association of Structural and Ornamental Iron Workers, 320 N.L.R.B. 982 (1996) (hereinafter "Local 46"). We conclude that substantial evidence supports the Board's finding that Local 46 was unlawfully motivated in its refusal to refer. However, because substantial evidence does not support the Board's denial to Local 46 of an affirmative defense under NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), we conclude that Local 46 has not violated the Act, and that the ironworker suffered no cognizable injury as a matter of law. Consequently, we deny enforcement of the Board's order.

BACKGROUND

This is a petition by the NLRB for enforcement of an order to redress allegedly unfair labor practices. We have jurisdiction to enforce that petition pursuant to § 10 of the Act, 29 U.S.C. § 160. The petition arises from the Board's finding that Local 46 engaged in unfair labor practices by refusing to refer work to one Fred James (James), an African-American ironworker and Union member, because James filed an earlier charge with the Board that alleged racial discrimination in the Union's work referral process. At the center of this action is the system by which Union members are referred work. We review that system before discussing James' complaint.

1. The Work Referral System

The Union is a signatory to a multi-party collective bargaining agreement with the Cement League (the League), an association composed of various employers engaged in the erection of concrete and cement structures. Pursuant to an exclusive work referral provision contained within that agreement, the Union refers its members, lathers and ironworkers, to League employers for work at various job sites in Manhattan. On July 16, 1971, following a labor dispute, Judge Marvin Frankel of the United States District Court for the Southern District of New York endorsed a Consent Decree setting forth the rules governing that exclusive work referral process. The objective of the rules was to ensure that all eligible workmen, regardless of race or union membership, share equally in available employment.

Under the rules, workers seeking referrals must personally appear at the Union hiring hall and sign a "hiring hall sheet" no later than 8:30 a.m. on any given workday (Rule II). After sign-in, the Union business agent announces to all registrants present in the hiring hall each available job, its location, expected duration if known, type of work, and any specific work experience required (Rule IV(B)(2)). The business agent then reviews the register and makes referrals based on a priority system that serves first those workers who have been out of work for the longest period of time.

Under the priority system, the business agent is required to maintain a cumulative, daily list for the previous two weeks of all workers who registered at the hiring hall and were not referred employment (Rule IV(C)(1)). Those workers whose names appear on the list more than five times in a two week period are entitled to priority of referral (Rule IV(C)(2)). For those workers counted on the priority list, a priority sequence is then established corresponding to the number of days that a worker registered but was not referred for employment. If more than one worker is entitled to the same priority, the worker who registers earlier on the day of referral is entitled to the first referral (Rule IV(C)(3)).

All employer requests for workers are submitted on "contractor sheets" and are date-and-time stamped at the time of receipt (Rule III(A)(1)). In all cases, the business agent is required to offer jobs in the order in which requests for workers are received (Rule IV(B)(1)). The Union may not grant an employer's request for the referral of a specific individual other than a foreman or a deputy foreman (Rule III(B)). When a worker accepts a job, he/she must then sign a contractor's sheet indicating an acceptance of the referral. The business agent then notes the referral, and the referred worker then carries a copy of that contractor's sheet to the job site where he/she presents it to the employer.

There are some exceptions to the priority system. If a job calls for certain specified skills, only workers having those skills will be eligible for that referral (Rule III(A)(4) and IV(B)(2)). Further, employer requests for minority workers are explicitly exempt from the priority system by Rule III(B), which provides that "[n]othing contained herein shall limit the Union's obligation to grant employer's requests, pursuant to requirements of Federal, State and Local law, that non-white workmen be referred." When employers request minority workers, the Union's practice is to write the letter "M" next to that minority worker's name on the contractor's sheet.

As with all rules governing the hiring hall, only the court-appointed Administrator has the power to modify or change the rules, and the administrator may do so only after consulting with "the Union and the Government." ¹ (Rule VIII). The Administrator must then communicate the modification, in writing, to the Union and Government, and allow both parties fifteen days to apply to the district court for a determination as to the validity of that action (Rule VIII). Notwithstanding this procedure, it is undisputed on the record that over the years, the Administrator has orally modified the rules without any articulated objection. In particular, because there were men out of work for long periods of time, the Union sought and obtained from the Administrator a lengthening of the out-of-work period required for priority of referral from two weeks to three weeks. Under this scheme, the Union was permitted to place workers on the priority list who, over a three week period, had signed the register at least four times each week in a normal five day work week.

2. Fred James' Complaint

On April 25, 1994, James filed with the Board his initial unfair labor practice charge against the Union, alleging that since mid-November 1993 the Union had racially discriminated against him by refusing to refer work to him, in violation of sections 8(b)(1)(A) and (2) of the Act. ² The charge listed Robert Ledwith, the Union business agent, as the Union representative to contact.

On May 13, 1994, James filed a second charge with the Board alleging that on May 9, 1994 the Union, acting through its business agent Robert Ledwith, refused to refer him to a League employer, Northberry Concrete Corporation (the "Northberry job") because of his April 25, 1994 charge. On July 28, 1994, the Board's General Counsel, in turn, issued a complaint against the Union (the James Complaint) for refusing to refer James to the Northberry job. Specifically,

                the General Counsel alleged that the Union had failed and refused to refer James to Northberry because James had filed a racial discrimination charge against the Union.  The General Counsel argued that such conduct restrained and coerced employees in the exercise of their rights guaranteed by section 7 of the Act, all in violation of section 8(b)(1)(A) of the Act, and that the Union had attempted to cause and was causing Northberry to discriminate against employees who had filed charges with the Board in violation of section 8(b)(2) of the Act. 3  On August 8, 1994 the Union filed its answer to the complaint, denying any wrongdoing in refusing to refer James to the Northberry job and asserting that James was not referred to the Northberry job because he did not meet the priority criteria for referral on May 9, 1994.  Specifically, on May 9, 1994 the priority list indicated that James had registered for referral eight times during the prior three week period.  There were fifty-eight names on the list ahead of James, composed of individuals who had registered between nine and fifteen days during the previous three week period.  The three men Ledwith did send out to the Northberry job (one George Caban, one Dennis Campbell, and one Daryl Moore) were all minorities and all outranked James on the list;  Caban was ranked number one, Campbell was ranked number two, and Moore was ranked number eight
                

3. The Administrative Hearing

On May 3, 1995, the parties appeared before Administrative Law Judge (ALJ) Robert T. Snyder in New York City for a hearing on the James...