NLRB v. International Union of Operating Eng., Local 925
| Citation | 460 F.2d 589 |
| Decision Date | 17 May 1972 |
| Docket Number | No. 71-2158.,71-2158. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 925, AFL-CIO, and its Business Manager, H. B. Roberts, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
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Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Harold A. Boire, Director, Region 12, N.L.R.B., Tampa, Fla., Stanley R. Zirkin, Nancy M. Sherman, N.L.R.B., Washington, D. C., for petitioner.
Frank E. Hamilton, Jr., Thomas A. Capelle, Tampa, Fla., for respondent.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
The National Labor Relations Board petitions to enforce its orders1 finding that respondents, Local 925 of the International Union of Operating Engineers and H. B. Roberts, the business manager of the local, violated § 8(b)(2) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(2), and awarding backpay to discriminatee Herman Dewey Ross. Respondents do not, in the main, challenge the validity of the Board's factual findings concerning the commission of flagrant unfair labor practices against a union member. Instead, respondents have mounted an extensive procedural attack on the propriety of the backpay award. As to respondent Local 925, we find the procedural arguments to be without merit and grant the petition for enforcement. As to respondent Roberts, we remand the petition to the Board for further proceedings.
This case grows out of a protracted feud between business manager Roberts and a now deceased member of the local, Herman Ross. The details of this dispute have been described in two lengthy reported decisions of the Board.2
Local 925 operates a union hiring hall in the Tampa, Florida area and has the exclusive right to furnish operating engineers to construction sites in that locale. The union refers its members to construction jobs on the basis of seniority rosters or "out-of-work lists" maintained by the hiring hall. Business manager Roberts supervises the referral process.
Prior to his death, Herman Ross was an experienced crane and heavy equipment operator, and had been a member of Local 925 since 1951. In June, 1962, Ross unsuccessfully sought election to the post of union business manager in a campaign against the incumbent Roberts. The election was hotly contested and apparently resulted in substantial animosity between Ross and Roberts. Both prior to and after the election, Roberts made numerous statements that Ross could expect no further referrals from the hiring hall. Subsequent events proved that these threats were not idle ones. The Board found that during the period from June, 1963, until April, 1965, the union, at the instigation of Roberts, engaged in a lawless course of conduct designed to deprive Ross of the benefits of union membership. During that period, respondents discriminatorily refused to refer Ross to numerous jobs and frequently walked off jobs on which Ross was employed, all in violation of § 8(b)(2) of the Act. The Board's factual findings are, with one exception, uncontested in this court.
The issues raised by respondents in opposition to the petition for enforcement concern only the correctness of the Board's 1970 backpay award. In order to understand these issues, it is necessary to briefly review the history of this case before the Board.
Ross filed his first unfair labor practice charge against the union on December 4, 1963, after the union had refused to refer him to a job as a crane operator with J. L. Manta, Inc. After a brief period of negotiations in January of 1964, that charge was settled. The settlement agreement provided that Ross was to be paid $200 backpay for loss of the Manta job. In addition the union agreed to refrain from similar misconduct in the future, both as to J. L. Manta, Inc., and as to any other employer. The union further agreed to post the appropriate notices of the settlement. This settlement was approved by the Regional Director on January 29, 1964.
On the date that the settlement was approved, however, the union preferred intra-union disciplinary charges against Ross. These charges alleged that Ross had violated union rules by filing an unfair labor practice charge against the union without first exhausting internal union remedies. In response to these charges, Ross filed on February 3, 1964, a second unfair labor practice charge against the union with the Board. This second charge alleged that the bringing of intra-union charges against Ross for the reasons stated violated the Act.
At the March meeting of the union Ross was convicted of these charges and fined $1,025, which included $525 in legal fees, $200 to reimburse the union for payment of the settlement, and $300 representing one week's salary for business manager Roberts. Ross refused to pay the fine and the union thereafter on two occasions refused to accept Ross' tender of union dues.
Subsequent to the bringing of intra-union disciplinary proceedings against Ross, there followed a period of systematic hiring hall discrimination against him. In particular, between June and October, 1964, the Board found at least six instances in which the union either wrongfully refused to refer Ross to a job to which he was entitled, or walked off jobs on which Ross was working causing employers to discharge him.
Finally, on December 3, 1964, Ross again complained to the Board by amending the February 3rd charge to include all of the subsequent acts of discrimination through the date of amendment. In response to this amended charge, the Regional Director, on December 9, 1964, set aside the January 29, 1964, settlement agreement of the December 4th charge and issued an order consolidating the two charges. On the same date, the Regional Director issued a complaint and notice of hearing in the consolidated cases.
Hearings were held in the two cases from February 23 through March 2, 1965. On April 28, 1965, the Board hearing examiner issued his decision holding that respondents violated § 8(b)(1) (A) of the Act by fining Ross for filing unfair labor practice charges against the union. The examiner also found that respondents had violated § 8(b)(2) by refusing to refer Ross to numerous jobs and by causing certain employers to discharge Ross.
The earliest incident of discrimination found by the examiner was the refusal to refer Ross to a job with the Foster-Wheeler Company on July 30, 1963. No unfair labor practice charges arising after October 26, 1964, were litigated at the 1965 hearings.
On August 24, 1965, the Board issued a Decision and Order affirming the decision of the trial examiner. 154 NLRB 671. The Board's order required that respondents desist from the unfair labor practices found and from any related interference with Ross' Section 7 rights. The order affirmatively required backpay for any loss of wages resulting from the discrimination and required that respondents maintain permanent records which would disclose the basis upon which referrals were made.
After the Board's affirmance of the trial examiner's decision, the Regional Director and the union engaged in negotiations concerning the scope of respondents' liability for backpay. Unable to agree, the Board filed on October 24, 1966, a petition with this court for enforcement of its order. However, on January 9, 1967, the Board voluntarily withdrew its petition for enforcement without prejudice.
On February 17, 1967, the Regional Director issued a backpay specification and notice of hearing claiming liability for backpay from the date of the first discrimination against Ross (the Foster-Wheeler incident on July 30, 1963) and continuing indefinitely into the future "until Respondents comply with the Board's Order". Respondents filed a motion to strike that portion of the backpay specification which asserted backpay liability for events occurring after the last unfair labor practice litigated during the 1965 hearings. The trial examiner granted this motion and entered an order confining the backpay proceeding to determination of liability only for those acts determined to be unfair labor practices by the Board in its original order. The trial examiner reasoned that the Board's original order did not authorize a determination of backpay beyond the specific events found to be unfair labor practices.
In response to the trial examiner's ruling, the Board on June 21, 1967, issued a notice to show cause why the original order should not be amended to include backpay reimbursement for any discrimination against Ross occurring after October 26, 1964. On December 11, 1967, the Board issued an amended order requiring respondents to make Ross whole for any loss of pay from the date "such discrimination began until such time as the discrimination ceases or has ceased and Respondent fully complies or has complied with the Board's order". 168 NLRB 818.
Pursuant to this amended order, the trial examiner reinstated the provisions of the backpay specification relating to conduct occurring after October 26, 1964. Backpay hearings were held on various dates from May 7 to November 13, 1968. On June 11, 1969, the trial examiner announced his decision awarding to Ross a total of $14,762.68 backpay.
The trial examiner calculated backpay in the following manner:
1. For the period from July 30, 1963, to December 2, 1963, the examiner used the earnings of Eddie McCrae, the crane operator referred to the Foster-Wheeler job instead of Ross, to calculate gross backpay. Deducted from this amount were wages actually earned by Ross and amounts earned by McCrae during periods when Ross was unavailable for work due to disability.
2. For the period from ...
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