International Union of Operating Engineers Local 406, AFL-CIO v. N.L.R.B.

• Decision Date: 28 March 1983
• Docket Number: AFL-CI,P,No. 82-4230,82-4230
• Citation: 701 F.2d 504
• Parties: 112 L.R.R.M. (BNA) 3282, 97 Lab.Cas. P 10,102 INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 406,etitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 504

701 F.2d 504

112 L.R.R.M. (BNA) 3282, 97 Lab.Cas. P 10,102

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 406 AFL-CIO, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 82-4230

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 28, 1983.

Jerry L. Gardner, Jr., New Orleans, La., for petitioner-cross respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent-cross petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before REAVLEY, RANDALL and JOLLY, Circuit Judges.

PER CURIAM:

J. Lamar Honey filed a complaint with the National Labor Relations Board (NLRB), alleging that his union had retaliated against him by committing various unfair labor practices. The case was brought before an administrative law judge, who credited testimony establishing that the union's business agent had discriminated against Honey by depriving him of employment referrals. The administrative law judge cited the union for numerous violations of the National Labor Relations Act, and the union appealed. The NLRB affirmed the Order, concluding as an additional basis of liability that the union's surreptitious change of a longstanding rule regarding employment referrals constituted an additional unfair labor practice. On appeal, we review the NLRB's decision in light of numerous contentions advanced by the union. Finding no merit in the union's contentions, we affirm the NLRB's decision and enforce the Board's Order.

I. FACTS.

Under the terms of a collective bargaining agreement, a northeastern Louisiana local of the International Union of Operating Engineers ("the Union") maintained a pool of out-of-work union members, known as a "hiring hall," from which area employers could gain access to union labor. The hiring hall covered all job classifications traditionally included in the Union's geographical territory. Employers who entered the Union's jurisdiction seeking to employ union labor were required to sign supplemental agreements with the Union binding them to the procedures of the Union's exclusive hiring hall.

The hiring hall was designed to spread fairly the available employment opportunities among the numerous out-of-work members. The Union maintained a list of applicants, denoting each worker's name and his or her qualifications to operate various machinery. The Union's business agent, Charles "Sub" Hayes, was charged with the responsibility of tendering employment opportunities to the list's job applicants. In standard practice, qualified laborers were referred to job openings on a first-in, first-out basis. Once an applicant was referred to a job, his name was removed from the list and would not reappear until he was once again out of work. Practical exceptions, however, were built in to the general referral procedure. Only if an applicant worked a job lasting more than five days was his name removed from the list. Short-term jobs, lasting on the average no more than one to three days, were offered to those qualified applicants present at the hiring hall when the jobs were announced. An applicant present in the hall could receive such a referral even though "outranked" on the referral list; moreover, he would not lose his priority on the list. In addition, the referral procedure allowed that a union worker who had worked for an employer within the preceding 45 days could be recalled by that employer to work a job "within the [Union's] geographical area."

In general, an employer could reject any worker referred to it by the hiring hall. Likewise, job applicants were allowed the right to refuse any proffered job. In order to retain their places on the list, the applicants routinely turned down jobs not lasting significantly longer than five days. Thus the wise strategist chose to accept short-term jobs, retaining a place on the out-of-work list while awaiting the opportunity of a long-term referral.

In February 1978 the job superintendent of Ford, Bacon & Davis Construction Company (FBD) contacted Union member Lamar Honey, a hiring hall applicant who had recently worked for the company, and requested that Honey report to a nearby FBD work site. Honey attempted unsuccessfully to contact business agent Hayes in order to obtain the requisite referral slip. Thereafter, he proceeded to the job site and began working as a "cherry picker" operator. Later, Honey succeeded in contacting Hayes, who demanded that Honey leave work and obtain the necessary form. Honey dutifully reported to Hayes, whereupon a heated argument ensued. Hayes accused Honey of "hiring over the fence," or circumventing the hiring hall's procedures. Nonetheless Hayes issued the necessary referral slip and Honey returned to the FBD site, where he continued to work his assigned job during the next three weeks.

In early March 1978 the superintendent asked Honey to do some "book work" normally associated with the "master mechanic" position. Although Honey agreed to do the work temporarily, he asked that someone else be offered the master mechanic's job. Sometime later, the superintendent requested two additional workers for the job site. Hayes sent not only the two requested men, but also a master mechanic. Upon the master mechanic's arrival at the job site, an argument took place. The superintendent ascertained that Honey did in fact want the master mechanic's job, and so retained Honey. He sent the newly-recommended master mechanic back to the Union.

Honey's refusal to resign the master mechanic's position so annoyed Hayes that he confronted Honey at the FBD site, angrily threatening to retaliate against Honey for his insubordinate actions. Stating that Honey would have to "come by [him] one day or another," Hayes vowed that he was "gonna get [Honey] sooner or later." In Honey's opinion, however, neither he nor FBD had done anything wrong. At a union meeting in late March 1978, Honey discussed the matter with the Union's business manager. The manager told Honey that he wanted him to "step down" from the position so that the Union could put a "union man" in his place and "bring the company to its knees." Undaunted, Honey adhered steadfastly to the position that neither he nor the company was "doing wrong."

Soon thereafter, Hayes once again visited Honey at the FBD site and asked him to quit the job. Honey stated that he feared FBD would fire him if he resigned the master mechanic's job. The conversation ended with Hayes' assurance that Honey would never work another master mechanic's job again so long as Hayes was the Union's business agent.

Hayes did not attempt to conceal his attitude toward Honey; indeed, he remarked openly that he intended to "get even" with Honey by making sure that Honey was not referred to any jobs for some time. No fewer than four union members heard Hayes threaten to deprive Honey of employment referrals.

Honey's tenure with FBD expired in mid-February, 1980, when the company "laid him off" for lack of work. Honey returned to the Union's hiring hall and, on February 20, signed the out-of-work list. Although he repeatedly visited the hiring hall during the next three months seeking short-term jobs, he did not receive a referral. In late May, Honey approached Hayes and the two men began to argue about the hiring hall's "recall policy," which allowed a contractor to request by name employees who had worked for the contractor during the preceding 45 days. During the argument, Hayes explained that he was very irritated by Honey's refusal to step down from the master mechanic's job, and that he intended to "get even" with Honey because of it. Two weeks later Honey demanded to know why he, unlike other hiring hall applicants, was not receiving job referrals. Hayes reminded Honey that he had vowed to "get even." Further, he implied that he was using his powers as business agent in order to carry out the threats.

In mid-June, Hayes "recommended" hiring hall applicant Sherman Allen for a master mechanic's job opening at FBD, notwithstanding that Honey had seniority relative to Allen on the list. Within the next three months, Hayes referred to jobs no fewer than eight men with less "list seniority" than Honey's. Vexed by Hayes' refusal to refer him to a job opening, Honey on August 6, 1980 filed a charge of unfair labor practice with the NLRB's General Counsel. In late September, 1980, Honey was offered a six-day job; he refused the opportunity because the relatively short duration of the job militated against relinquishing his position on the out-of-work list. In the following weeks, several more men with less list seniority than Honey's were referred to jobs.

On October 15, 1980, the Union posted a notice which indicated a change in policy. Pursuant to the notice, the names of members would be removed from the list only if their jobs lasted longer than six days. In fact, the policy had been in effect several weeks prior to the date on which the notice was posted. Hayes had secretly tendered six-day job offers to several men, with the tacit understanding that their acceptance would not cause their names to be relegated to the bottom of the list. Lamar Honey, among others, was not informed of the sub rosa change in policy. His rejection of the late-September job offer had been predicated upon an understanding that the former rule was still in effect.

In November 1980 Honey was referred to a dangerous and unhealthy job that the Union "couldn't get anybody to go out on." Honey accepted the job and worked for twenty-six days bulldozing flaming, polluted carbon black. He received no other referrals until six days prior to his administrative hearing. Honey refused the late job opportunity because he thought it would interfere with the scheduled hearing in the instant unfair labor practice action.

The hearing took place in June 1981. Upon consideration of...