International Ass'n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local No. 111 v. N.L.R.B., AFL-CI
| Decision Date | 10 June 1986 |
| Docket Number | No. 85-1194,LOCAL,AFL-CI,85-1194 |
| Citation | 792 F.2d 241 |
| Parties | 122 L.R.R.M. (BNA) 2611, 253 U.S.App.D.C. 173, 55 USLW 2023, 104 Lab.Cas. P 11,877 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS,NO. 111, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Roger N. Gold, Chicago, Ill., for petitioner.
John G. Elligers, Atty., N.L.R.B., with whom Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., N.L.R.B., Washington, D.C., were on brief, for respondent.
Before SCALIA and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SCALIA.
Section 8(b)(1)(A) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(b)(1)(A) (1982), makes it an unfair labor practice for unions to coerce employees in the exercise of their right to refrain from union activity. Section 8(b)(2), 29 U.S.C. Sec. 158(b)(2), makes it an unfair labor practice for unions to attempt to cause employers to discriminate among employees in order to encourage union membership. Petitioner ("Local 111") seeks review of the Board's ruling that it violated Sec. 8(b)(1)(A) by forcing non-Local workers to cease working; and that it violated Sec. 8(b)(2) both by the indirect coercion to fire non-Local workers which the union-forced absences would produce, and by direct requests that the employer lay off non-Local workers and replace them with Local members. The issues presented are whether the Board's findings of unfair labor practices are supported by substantial evidence, and, if so, whether the Board acted unlawfully in ordering Local 111 to compensate non-Local workers for wages lost as a result of yielding to the union pressure to refrain from work but not as a result of any action taken by the employer at the union's instance.
The stipulated facts in the present case were as follows: Local 111, an affiliate of the International Association of Bridge, Structural and Ornamental Iron Workers ("IABSOIW"), was the collective bargaining representative for iron workers employed by Northern States Steel Builders, Inc. ("NSSB") at the Louisa Generating Station project in Muscatine, Iowa. As of January 1, 1982, NSSB employed twenty iron workers on the project, only three of whom were members of Local 111. The remaining seventeen were "travelers," i.e., members of other locals affiliated with the IABSOIW. Travelers are required by the IABSOIW constitution to pay "travel service dues" of $2.50 per week to the local in whose jurisdiction they work, to pay monthly union dues to their home local, and to have available for inspection receipts establishing that they have done so.
Between January 11 and January 29, 1982, Local 111 refused to accept properly tendered travel service dues from certain of the travelers working on the Louisa project. On January 18, Local 111's Steward told travelers that the Local was not forbidding them to work, but that travelers whose travel service dues had not been accepted would be subject to internal union charges if they worked. The next day, NSSB's Superintendent told all of the iron workers that NSSB had work for them and would like them to perform it, but that NSSB understood there was a dispute between the travelers and Local 111 and would not lay off travelers who did not work. On January 20, Local 111's Steward said that no internal union charges would be preferred against travelers who worked; but five days later he told ten travelers that if they worked they would be subject to internal union charges.
On January 28, the day after one of the travelers filed an unfair labor practice charge with the Board, Local 111 received a telegram from the IABSOIW directing it to accept travel service dues. Local 111 then informed the travelers that it would accept travel service dues from those who could document their payment of monthly dues to their home local. All but one traveler, Sylvan Hoiness, provided the necessary documentation by February 1. On January 29, Hoiness asked Local 111 to call his home local to confirm that he had paid his monthly dues. Local 111 refused. On February 2, Hoiness proffered a telegram indicating that he had wired payment of his monthly dues to his home local. Local 111 did not accept the telegram as verification, and again refused to call Hoiness's home local. On February 3, Hoiness went back to work for NSSB even though Local 111 refused to accept his tendered travel service dues and threatened to prefer internal union charges against him if he worked. No charges were ever brought, however, and on February 22 Hoiness's home local called Local 111 to confirm that Hoiness had paid his monthly dues. Local 111 thereafter accepted Hoiness's tender of travel service dues.
During the January 11-29 period when travel service dues were being rejected, the following additional events occurred: On January 11 and again on January 29, Local 111's Business Manager asked NSSB's Superintendent to hire Local members. Both times, the Superintendent refused, saying that NSSB needed no additional workers. On a number of occasions, Local 111's Steward asked the Superintendent to give him a "layoff list" of NSSB iron workers. The Superintendent responded that NSSB had no such list and did not intend to lay off any of its iron workers. On January 13, Local 111's Business Manager asked certain travelers to quit so that unemployed Local members could replace them. The Business Manager also told two of the travelers that he would ask NSSB to lay off travelers so that they would be eligible for unemployment compensation.
The unfair labor practice complaint that is the subject of this appeal was issued by the Director of Board Region 33 on February 23, 1982. The parties submitted the case on a stipulated record, and on March 6, 1985 the Board issued its Decision and Order. International Association of Bridge, Structural & Ornamental Iron Workers, Local No. 111 (Northern States Steel Builders, Inc.), 274 N.L.R.B. No. 110. The Board found that Local 111 had violated Sec. 8(b)(1)(A) of the NLRA by refusing to accept properly tendered travel service dues and attempting to coerce travelers to quit so that Local members could replace them. The Board also found that Local 111 had violated Sec. 8(b)(2) of the NLRA, by attempting to prevent travelers from working in order to pressure NSSB to replace them with Local members, and by repeatedly asking NSSB to draw up "layoff lists" and to hire Local members even though it was apparent that NSSB had no plans to lay off current employees or hire new workers. In addition to issuing a cease-and-desist order and requiring the posting of notices, the Board ordered Local 111 to pay the lost wages of the travelers who missed work as a result of Local 111's unfair labor practices.
Pursuant to 29 U.S.C. Sec. 160(f) (1982), Local 111 filed the present petition for review, challenging the Board's findings that it had engaged in unfair labor practices and the Board's order that it compensate travelers for lost pay. The Board filed a cross-application for enforcement of its order. See 29 U.S.C. Sec. 160(e); FED.R.APP.P. 15(b).
Although the Board found that Local 111 violated Sec. 8(b)(1)(A) in a number of ways, Local 111 contests only the violation based on its refusal to accept Sylvan Hoiness's tender of travel service dues from January 29, 1982 until February 22, 1982. It is uncontested that Hoiness did not have a receipt from his home local indicating that he had paid his monthly dues, as was required by the IABSOIW constitution. The Board held, however, that Local 111's refusal to accept the alternative verification offered by Hoiness was an unfair labor practice, because in comparable cases Local 111 had waived strict enforcement of the verification requirement and had declined to do so here merely because it wished to secure Hoiness's job for one of its members. Local 111 attacks this holding on the ground that, although it had waived the verification requirement on occasion, it had never done so in circumstances comparable to those of this case.
It was stipulated that during some periods Local 111 did not consistently require travelers to verify payment of dues to their home locals. Moreover, when Local 111 did require verification, it frequently accepted telephone calls from home locals as sufficient. Finally, on occasion Local 111 temporarily waived the dues-payment requirement for travelers who had financial emergencies. Although the union accurately notes the absence of evidence that it had ever made (rather than received) a telephone call or accepted a telegram to verify dues payment, there is a difference between comparability and identity, and only the former is needed. We have no basis for disturbing the Board's judgment that Local 111's behavior toward Hoiness was an improperly motivated deviation from what had otherwise been lenient enforcement of the verification requirement. See 29 U.S.C. Sec. 160(f) (). Since Local 111 did not dispute that such a deviation, if shown, would constitute an unfair labor practice, we must affirm the Board on this issue.
The Board concluded that Local 111 committed two separate violations of Sec. 8(b)(2), one indirect and one direct. The indirect violation consisted of some of the same acts that constituted the Sec. 8(b)(1)(A) violation, namely Local 111's effort to make the travelers miss work, which the Board concluded was designed to force NSSB to replace them with Local members. The direct Sec. 8(b)(2) violation consisted of the union's repeated requests that NSSB draw up "layoff lists" and hire Local...
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