Iron Workers Local 118, Intern. Ass'n of Bridge and Structural Iron Workers, AFL-CIO v. N.L.R.B.

• Decision Date: 20 November 1986
• Docket Number: Nos. 85-7521,86-7023 and 85-7576,R,No. 433,AFL-CI,P,433,s. 85-7521
• Citation: 804 F.2d 1100
• Parties: 123 L.R.R.M. (BNA) 3234, 105 Lab.Cas. P 12,137 IRON WORKERS LOCAL 118, INTERNATIONAL ASSOCIATION OF BRIDGE AND STRUCTURAL IRON WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Waldo F. KUSTERNS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Association of Bridge, Structural and Ornamental Iron Workers Localespondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1100

804 F.2d 1100

123 L.R.R.M. (BNA) 3234, 105 Lab.Cas. P 12,137

IRON WORKERS LOCAL 118, INTERNATIONAL ASSOCIATION OF BRIDGE AND STRUCTURAL IRON WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Waldo F. KUSTERNS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

International Association of Bridge, Structural and

Ornamental Iron Workers Local No. 433,

Respondent-Intervenor.

Nos. 85-7521, 86-7023 and 85-7576.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 4, 1986.

Decided Nov. 20, 1986.

Victor Van Bourg, David Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., Robert D. Newman, Los Angeles, Cal., for petitioner.

Joseph Oertel, Helen Morgan, N.L.R.B., Washington, D.C., Ellen Boardman, N.L.R.B., San Francisco, Cal., for respondent.

Petition for Review and Modification of Orders of The National Labor Relations Board.

Before SCHROEDER, CANBY, and THOMPSON, Circuit Judges.

SCHROEDER, Circuit Judge.

We here review a pair of National Labor Relations Board decisions arising out of similar disputes between union members and their locals. The disputes concerned the locals' requirement that the members pay supplemental dues arrearages before being dispatched by the union for work. We previously held that the union committed an unfair labor practice when it insisted that the employees pay the arrearages before being dispatched to employers outside the bargaining unit in which the arrearages were incurred. NLRB v. Iron Workers Local 118, 720 F.2d 1031 (9th Cir.1983) (per curiam); NLRB v. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433, 730 F.2d 768 (9th Cir.1984). We remanded to the Board for an award to make the employees whole. The Board awarded damages to Butler and denied them to Kusterns for failure to mitigate. We have consolidated the cases for purposes of this opinion because we have concluded that both cases are governed by similar principles and both individuals are entitled to back pay.

BACKGROUND

Waldo Kusterns and William Butler are both members of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Kusterns belongs to Iron Workers Local 433 and Butler to Iron Workers Local 118. Each local in 1977 was signatory to a multi-employer collective bargaining agreement which required employees working for signatory employers to pay supplemental dues, on the basis of each hour worked, as a condition of employment. Sometime in 1977, Kusterns and Butler, along with other iron workers, initiated court proceedings challenging the supplemental dues scheme under the Landrum-Griffin Act, 29 U.S.C. Secs. 401 et seq. (1975). In accordance with their position in the lawsuit, both men refused to pay supplemental dues prior to job referrals.

In 1979, Kusterns and Butler registered for work at their respective locals' hiring hall in the "out-of-work book." At a time when Kusterns and Butler were near the top of the work list, the unions' dispatchers refused to refer the men because they were in arrears on their supplemental dues. Local 433 refused to refer Kusterns to a job at RPM Erectors, Inc. (RPM), and Local 118 refused to refer Butler to the Pittsburgh-Des Moines Steel Co. project at Valmy, Nevada (Valmy). RPM and Valmy were not members of the same employer bargaining units in which Kusterns and Butler had incurred dues arrearages.

In both cases, the NLRB found that the unions violated the National Labor Relations Act Sec. 8(b)(1)(A) and (2), 29 U.S.C. Sec. 158(b)(1)(A) and (2) (1982), by denying the dispatches to Kusterns and Butler. It reasoned that the men were under no obligation to pay the supplemental dues before dispatch to the RPM or Valmy sites, but had a seven-day statutory grace period after dispatch within which to pay the dues. Id. at Sec. 158(f)(2). The Board ordered the locals to cease and desist from such unfair labor practices and to make the men whole for any loss of pay or benefits they may have suffered as a result of the discrimination. We enforced the Board's order as to Butler at 720 F.2d at 1032, and as to Kusterns in an unpublished decision entered January 26, 1984.

The lawsuit challenging the legality of the advance payment of supplemental dues was settled prior to the unfair labor practice hearing without impairing the unions' supplemental dues collection requirement. The net result was that, by virtue of the settlement, the union could insist upon payment of arrearages before dispatching members to employers in the unit where the dues were incurred. By virtue of the decisions in the unfair labor practice cases, however, the union could not so condition dispatch to an employer outside that bargaining unit.

Pursuant to this court's enforcement orders, the NLRB initiated back pay proceedings. The ALJ in each case determined that the respective locals owed Kusterns and Butler back pay for the period from the date of the locals' first unlawful dispatch refusal to the date the locals finally referred the men to comparable employment. The Board adopted the ALJ's back pay recommendation for Butler. It determined that Kusterns was not entitled to back pay, however, because he failed to mitigate his damages. The Board concluded that by refusing to pay his supplemental dues, Kusterns, although eligible for and wrongfully refused dispatch outside the unit, had rendered himself ineligible for dispatch to hundreds of jobs within the unit. According to the Board, he "essentially took himself out of the job market." Without citing any authority, the Board suggested that Kusterns could and should have met his mitigation obligations, without conceding his legal position in the pending litigation, by paying the supplemental dues under protest or into an escrow account.

Local 118 filed a motion for reconsideration of Butler's back pay award claiming that the Butler and Kusterns cases were factually and legally indistinguishable and arguing that the Board had enunciated two contrary rules. The Board then issued a "clarifying decision" stating that Butler had exercised reasonable diligence in his efforts to seek substantially equivalent interim employment by offering to pay his supplemental dues under protest. The Board, however, awarded back pay from the date of the local's wrongful refusal rather than from the date of the offer to pay under protest.

Because Kusterns was denied back pay on the ground that he had failed to mitigate damages, he petitions for review of the Board's decision in his case. Because Butler was awarded back pay from the union, the union petitions for review of the Board's order in that case.

DISCUSSION

The principal legal issue presented is whether the Board erred in concluding, in the peculiar circumstances of these cases, that the employees' duty to mitigate damages included a duty to offer to pay under protest the very dues they were challenging. We hold that there was no such duty and that the Board in effect imposed too high a mitigation standard. As we perceive the positions of the parties, all appear to agree that if there was no duty to offer to pay the dues under protest, then both Butler and Kusterns have satisfied any other mitigation obligations they may have had.

The general mitigation principles applicable to employees out of work as the result of an unfair labor practice are stated in NLRB v. Mercy Peninsula Ambulance Service, Inc., 589 F.2d...