International Alliance of Theatrical v. N.L.R.B.
| Decision Date | 08 July 2003 |
| Docket Number | No. 01-1456.,No. 01-1504.,No. 01-1509.,No. 02-1035.,01-1456.,01-1504.,01-1509.,02-1035. |
| Parties | INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES, Greater New Orleans Stage, Motion Picture, Television and Exhibition Employees, Local 39, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Freeman Decorating Company, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Philip A. Franco and Curtis Mack argued the cause for petitioners Freeman Decorating Company, et al. With them on the briefs were William J. Kelly III, William Lurye, Dannie B. Fogleman and David A. Rosenberg. Robert Markle, Richard B. Hankins and Peter J. Petesch entered appearances.
James D. Fagan, Jr. argued the cause and filed the briefs for petitioner International Alliance of Theatrical and Stage Employees, Greater New Orleans Stage, Motion Picture, Television and Exhibition Employees, Local 39, AFL-CIO. Robert S. Giolito entered an appearance.
James M. Oleske, Jr., Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Several parties petition for review of the National Labor Relations Board's (NLRB or the Board) ruling that the petitioning employers in this case committed an unfair labor practice by refusing to accept referrals from a local union hiring hall, after the union engaged in an illegal strike. We reverse the Board and hold that the hiring hall registrants lost the protection of the National Labor Relations Act (NLRA or Act) when the union engaged in an illegal strike. Central to this conclusion, we hold that each hiring hall registrant was an "employee who engage[d] in a strike" within the meaning of Section 8(d) of the Act, 29 U.S.C. § 158(d) (2000), regardless of whether the registrant was on referral to an employer at the time the strike was called.
This petition involves nine employers (Employers)1 and two unions (Local 39 and the Carpenters),2 each of which challenges the Board's ruling. The Employers provide installation, decorating, and related services for conventions held in the New Orleans area. Prior to July 1, 1997, Local 39 had individual contracts with approximately eighty employers, including the Employers involved in this petition. These contracts provided that the signatory Employers would hire workers in the New Orleans area exclusively from Local 39's hiring hall. Pursuant to the contract, when one of the Employers needed labor, it called Local 39's hiring hall. Local 39 then called individuals on its referral list to attempt to fill the request. Employees were not allowed to contact Employers directly to solicit work. The hiring hall had a registry of 446 journeymen, who were eligible for membership in Local 39, and 1,885 "helpers" who were not eligible for membership. Anyone registered with the hiring hall could be referred to any of the signatory Employers, but a number of the registrants had never been referred to any of the Employers involved in this case. Due to the transitory nature of the convention business, individual employees would often be referred to an Employer for short periods of time, sometimes only a single day.
Local 39's contracts with the Employers were set to expire on June 30, 1997. In April 1997, Local 39 sent timely notice to the Employers of its intent to renegotiate the contracts, and bargaining ensued. However, the parties did not reach an agreement, and the contracts expired without successor agreements on June 30, 1997. On that date, at a meeting attended by 126 of its members, Local 39 voted to go on strike against the Employers on July 1. At the time of the strike, only three hiring hall registrants were on referral to one of the Employers, and none of these three is an alleged discriminatee in this case.
By July 2, Local 39 had set up picket lines. For the next three weeks, Local 39 did not refer any of its hiring hall registrants to the Employers. Despite calls for labor, none of the hiring hall registrants worked for any of the Employers or attempted to disassociate themselves from the strike. Consequently, the Employers were left with no source of labor during a busy convention that began several days after the strike. Bargaining continued during the strike and several contract offers were exchanged and rejected.
Through inquiries with the Federal Mediation and Conciliation Service (FMCS), the Employers learned that Local 39 had failed to file a dispute notice with the FMCS thirty days before calling a strike, as required by Section 8(d)(3) of the NLRA, 29 U.S.C. § 158(d)(3). It is undisputed that Local 39's failure to file the required notice made its strike illegal under Section 8(d)(4) of the Act.
On July 22, 1997, six of the Employers faxed a "Notice of Termination" to Local 39, which stated that "all employees covered under the Local 39 Labor Agreement with any of the signatory employers indicated below are hereby terminated for participating in an illegal strike." Within the week, the six Employers mailed copies of the termination notice to over 2,600 individuals represented by Local 39, including anyone who had ever been referred to a job by the Local 39 hiring hall.
On July 23 or 24, Local 39 attempted to accept any contract offer that was still on the table from the largest Employer, GES, but was informed that GES no longer recognized Local 39 and had terminated all "Local 39 employees." On July 26, Local 39 sent a letter to all of the Employers purporting to end its economic strike and attempting to accept the Employers' contract proposal it had rejected in mid-July. The Employers responded that the contract proposal had been withdrawn, that they had no obligation to bargain with Local 39, and that all strikers had been terminated.
Three of the Employers-Zenith, Renaissance, and Eagle-did not sign the July 22 termination letter, but sent similar letters to Local 39 in August. They did not, however, send copies of their letters to the hiring hall registrants, and Local 39 submitted a request to Zenith and Eagle asking for the names of the individuals affected by the termination notices. Zenith and Eagle refused to provide that information.
In late 1997, Freeman and GES, the two largest Employers, signed contracts with the Carpenters Union, which also operates a hiring hall, to replace Local 39 as their labor source. In early 1998, in preparation for the Board hearing in this case, an attorney for GES contacted a number of the hiring hall registrants who had received termination letters and questioned them over the telephone.
Local 39 filed an unfair labor practice charge alleging that the Employers' and the Carpenters' actions violated the Act. On September 28, 2001, the Board issued a decision and order. The Board found that the Employers violated Sections 8(a)(3) and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) & (3), by announcing the terminations of over 2,200 individuals who had used Local 39's hiring hall. The Board reasoned that although the strike was unlawful, the hiring hall registrants were not "employee[s] who engage[d] in a strike" under Section 8(d) and thus did not lose the protection of Section 8(a) of the Act 29 U.S.C. § 158(d). They were not "employee[s]," the Board determined, because none of the registrants was on referral to an Employer at the time the strike was called. Moreover, even if the registrants were employees, the Board held that the Employers had failed to show that any of the hiring hall registrants "engage[d] in [the] strike" by deliberately withholding labor from the Employers.
The Board declined, however, to find that the Employers violated the Act by announcing the terminations of 330 other hiring hall registrants because the Board deferred to the General Counsel's decision not to include these individuals in the unfair labor practice charges.
In addition, the Board ruled that the Employers violated Sections 8(a)(5) and 8(a)(1) by withdrawing recognition from Local 39; that Zenith and Eagle violated Sections 8(a)(5) and 8(a)(1) by refusing to provide Local 39 with information relevant to its representation duties; that Freeman and GES violated Sections 8(a)(2) and 8(a)(1) by entering into a collective bargaining agreement with the Carpenters; that the Carpenters violated 8(b)(1)(A) by acting as the representative of employees that Local 39 had the exclusive right to represent; and that GES violated Section 8(a)(1) by interrogating employees about their union activities.
The Board issued a remedial order requiring the Employers and the Carpenters to cease and desist from their "unlawful" conduct. The Employers were ordered to rescind the announced discharges-i.e., begin to accept referrals from Local 39; recognize and bargain with Local 39 upon request; and post remedial notices. The Carpenters and the two Employers with whom they entered into collective bargaining agreements (Freeman and GES) were ordered to rescind those agreements and jointly and severally disgorge certain dues, fees, and benefit contributions.
In addition, the Board remanded the matter to the ALJ for a determination of whether individual hiring hall registrants might also be entitled to instatement and backpay in addition to the other relief ordered. The Board stayed the remand proceedings pending the outcome of this petition for review.
The Employers and Carpenters petitioned for...
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