Laborers' Intern. Union, Local 578 v. N.L.R.B., 08-9564.

• Decision Date: 02 February 2010
• Docket Number: No. 08-9569.,No. 08-9564.,08-9564.,08-9569.
• Citation: 594 F.3d 732
• Parties: LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 578, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Tenth Circuit

594 F.3d 732 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 578, Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. No. 08-9564. No. 08-9569. United States Court of Appeals, Tenth Circuit. February 2, 2010.

[594 F.3d 733]

Terrence A. Johnson, Colorado Springs, CO, for Petitioner/Cross-Respondent.

Milakshmi V. Rajapakse (Meredith L. Jason, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, with her on the brief), National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner.

[594 F.3d 734]

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

In this case, the National Labor Relations Board (NLRB or Board) held that the Laborers' International Union of North America, Local 578, engaged in unfair labor practices when it persuaded Shaw Stone & Webster Construction, Inc. to fire Sebedeo Lopez for failing to pay his union dues. In support of its holding, the NLRB found that the union failed to provide Mr. Lopez with legally sufficient notice about his delinquent dues or a reasonable opportunity to cure the delinquency before it threatened, and then successfully sought, his dismissal.

Before us, the union challenges the factual findings on which the NLRB pinned its decision, arguing that a better reading of the record suggests it behaved appropriately toward Mr. Lopez. The problem is that we must affirm the NLRB's decision so long as "substantial evidence" exists in the record to support its findings. Our job isn't to make the call ourselves, but only to ask whether a reasonable mind could have made the call the NLRB made. And our review of the record of this case reveals ample, if not incontestable, evidence to support the NLRB's factual findings. So it is that we are obliged to deny the union's petition for review and grant the NLRB's cross-petition seeking enforcement of its order.

I A

The Laborers' International Union and Shaw Stone & Webster are parties to a collective bargaining agreement. Under the agreement, the union serves as the exclusive collective bargaining agent for all laborers, journeymen laborers, and apprentice-laborers at the company's Pueblo, Colorado work site. Like many collective bargaining agreements, this one contains a "union-security" provision requiring all employees represented by the union to join the union. If an employee fails to join the union, or fails to keep current on his union dues, the union-security provision permits the union to seek and obtain the employee's dismissal from the company.

Mr. Lopez started work at Shaw Stone & Webster on July 17, 2006. No one disputes that he was and is represented by the union in collective bargaining and so bound to join the union. In early October 2006, however, the union noticed that Mr. Lopez had not paid his initiation fee or certain dues. As a result, the union prepared a letter on October 12, 2006 addressed to Shaw Stone & Webster that "request[ed] the dismissal of" Mr. Lopez. The letter represented that Mr. Lopez owed the union $120 in late dues and $25 for reinstatement, but it did not explain how these amounts were calculated or provide Mr. Lopez any grace period in which to make payments. Instead, the letter purported to demand Mr. Lopez's immediate dismissal.

Still, not everything was quite as it appeared. Though the letter was addressed to the company, and though it spoke of Mr. Lopez in the third person, the union never sent the letter to Shaw Stone & Webster and the union did not actually seek Mr. Lopez's dismissal at that time. Instead, the union mailed the letter only to Mr. Lopez in an effort to coax him into paying up quickly.

But even still, not everything was as it appeared. Mr. Lopez insists he never received the letter or otherwise heard from the union about his overdue account. For its part, the union says that Mr. Lopez must have received the letter because it sent the correspondence to the right address,

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with sufficient postage, and the letter was never returned. The union also insists that it instructed Mr. Lopez's shop steward, Dave Lucero, to discuss the overdue dues problem with Mr. Lopez in person. In any event, the parties agree Mr. Lopez didn't respond with any immediate payment.

When nothing happened, the union prepared another letter, this one dated November 1, 2006. Like the first letter, this one was addressed to Shaw Stone & Webster and sought "the dismissal of" Mr. Lopez. This letter represented that Mr. Lopez's unpaid dues now totaled $415. But again like its predecessor, this letter provided no explanation about how the overdue amount was calculated, let alone why the amount nearly tripled in three weeks, and no deadline for payment. Unlike the first letter, though, the union made sure Mr. Lopez and the company received this one, hand-delivering copies of the document to both on November 1.

The parties disagree about what happened next. Mr. Lopez says he spoke with Mr. Lucero and that Mr. Lucero told him to contact the union's office manager, Patricia Martinez, to make arrangements for payment. Mr. Lopez insists that Mr. Lucero did not explain how the union calculated the amount due or provide a specific deadline for payment. For its part, the union says that Mr. Lopez spoke over the phone to the union's Secretary Treasurer, Rudy Ortiz, who told him he had to pay $150 that week and another $150 the next week, or else he'd be fired.

It is undisputed, however, that Mr. Lopez did contact Ms. Martinez sometime between November 1 and November 5, and told her that he was able to pay $200 toward his past-due account. Ms. Martinez replied that this was "okay," and the following Friday, November 10, Mr. Lopez purchased a money order for $200. On Monday, November 13, Mr. Lopez called Ms. Martinez to tell her that he was planning on bringing the $200 money order to the union's main office in Colorado Springs that day. Ms. Martinez volunteered that Mr. Lopez "didn't have to go all the way to Colorado Springs" because Mr. Ortiz would be at the Pueblo office and Mr. Lopez could simply drop off the payment with him.

According to Mr. Lopez, when he arrived at the Pueblo office later that day it was locked and appeared unstaffed. So Mr. Lopez called Ms. Martinez to ask what he should do. Ms. Martinez told him to "go ahead and fill out the money order and throw it in the slot in the door." Mr. Lopez claims he did just that, though the union insists it never found the money order. Mr. Lopez also claims that he asked Ms. Martinez if he could have until Friday, November 17, to pay the remaining $215 sought by the union in its November 1 letter. According to Mr. Lopez, Ms. Martinez replied that he could have until Thursday, November 16, something Ms. Martinez does not dispute.

But the union didn't wait that long. Instead, on Tuesday, November 14, it contacted the company, and this time it unmistakably demanded Mr. Lopez's immediate discharge. Later the same day, Randy Espinoza, the company's General Foreman, walked Mr. Lopez off the job site. Mr. Espinoza explained to Mr. Lopez that he was acting on "strict orders from Rudy Ortiz to walk [Mr. Lopez] off the job because of [his] union dues." Despite having been fired, Mr. Lopez claims he paid the remaining $215 on Thursday, November 16, just as he and Ms. Martinez had agreed.

B

Upset with his firing and how it unfolded, Mr. Lopez complained to the union, the

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company, and the NLRB. Eventually, the union and company agreed to reinstate Mr. Lopez and the NLRB decided to press unfair labor practice charges against the union. The case was assigned to an Administrative Law Judge (ALJ), who accepted Mr. Lopez's testimony that he never received the October 12 letter, as well as Mr. Lopez's account of the events following his receipt of the November 1 letter. With those facts in hand, the ALJ proceeded to hold that the union violated the National Labor Relations Act (NLRA) on both November 1 and November 14.

First, the ALJ concluded that the union's November 1 letter violated Section 8(b)(1)(A) of the NLRA. Section 8(b)(1)(A) makes it an unfair labor practice for a union to "restrain, or coerce employees in the exercise of their rights guaranteed in [Section 7 of the Act]," 29 U.S.C. § 158(a)(1); Section 7, in turn, affords employees the right to "refrain from any or all [union] activities," 29 U.S.C. § 157. The ALJ reasoned that the union violated Section 8(b)(1)(A) by threatening Mr. Lopez with immediate discharge without first explaining to him how it calculated his delinquency or offering him a reasonable period of time to cure that delinquency.

Second, the ALJ concluded that the union's actions on November 14, when it secured Mr. Lopez's discharge, likewise violated Section 8(b)(1)(A). The ALJ stressed that, even by this time, the union still had not explained to Mr. Lopez how it calculated the amounts it claimed were overdue. The ALJ also emphasized that, while the union had by then agreed to a payment plan with Mr. Lopez, it denied Mr. Lopez the chance to complete that payment plan, even though he was on track to do so. Separately, but relatedly, the ALJ found that the union's actions on November 14 violated Section 8(b)(2) of the NLRA, which makes it an unfair labor practice for a union "to cause or attempt to cause an employer to discriminate against an employee," 29 U.S.C. § 158(b)(2), in a manner aimed at "encourag[ing] or discourag[ing] membership in any labor organization," 29 U.S.C. § 158(a)(3). The ALJ reasoned that the union violated this provision by asking and persuading the company to fire Mr. Lopez without explaining to him how it calculated the overdue amounts or affording him the chance to complete the agreed payment plan.¹

The NLRB adopted the ALJ's decision and...