Local Union No. 948, Intern. Broth. of Elec. Workers, (IBEW), AFL-CIO v. N.L.R.B.
| Decision Date | 27 December 1982 |
| Docket Number | No. 81-1061,P,AFL-CI,81-1061 |
| Parties | 112 L.R.R.M. (BNA) 2598, 96 Lab.Cas. P 13,984 LOCAL UNION NO. 948, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, (IBEW),etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles Looman, Fenton, Mich., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Vivian Miller, Washington, D.C., for respondent.
Before MERRITT and JONES, Circuit Judges, CELEBREZZE, Senior Circuit Judge.
Local Union 948 of the International Brotherhood of Electrical Workers, AFL-CIO, petitions for review of an order of the National Labor Relations Board. The Board found that the Union had violated Secs. 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act because of its discriminatory treatment toward non-members of Local 948. The Board has ordered relief and has filed a cross-application for enforcement of its order. We believe that the Administrative Law Judge and the Board have made proper credibility determinations and, therefore, grant enforcement.
Lawrence Moore, a member of Local 569, IBEW in San Diego, California, and James Rawson, a member of Local 103, IBEW in Melford, Massachusetts, are travelers. 1 Moore and Rawson came to the Local Union's area seeking work. On May 24, 1979, they went to the union hall in Flint, Michigan in order to register on the Local's out of work book. 2 Ray Mullaly, the Local's business representative, told them that no work was available that day and thus signing the out of work list for travelers would be pointless. They left, but returned the next day and signed the list for travelers.
On May 31, two jobs became available at the Hammer and Smith Electric Co. jobsite. John Hillis, the Local's office manager, called Moore and Rawson into Mullaly's office that morning. Mullaly asked to see their current dues receipts in order to verify their membership. Moore testified that Mullaly told them that he ran the Local, that he wanted no trouble from them, and that if they were laid off or quit, they should not return.
Moore and Rawson further testified that they asked to be referred to Universal Electric Co. or Petras Electric Co. jobsites because of the large amount of overtime available at those jobsites. Moore stated that Mullaly replied that Universal and Petras had not requested referrals and that Hammer and Smith would provide as much overtime work as the other companies.
Moore and Rawson worked for Hammer and Smith until Friday, June 8. On that day, Rawson heard from an electrician working at Universal that Petras and Universal employees were working 70 hours per week rather than the 45 hours per week worked at Hammer and Smith. The general foreman for Hammer and Smith also told them that Universal's general foreman had called and said that Universal had asked the Local for the referral of five additional electricians.
Moore and Rawson decided that Rawson would call Mullaly to inquire about the possibility of working at Universal or Petras. Rawson testified that when he called, Mullaly replied that Universal and Petras had made no requests for referrals and that "if [they] quit or got fired, not to bother coming back in there." Mullaly denied having any conversation with Moore and Rawson until June 14 or 15.
On Monday, June 11, after they had left Hammer and Smith, Moore and Rawson returned to the hall and again signed the out of work book. They appeared each morning without being referred until June 15. On that morning, Hillis called them into Mullaly's office. Mullaly told them that four electricians had quit a job with the Weinstein Electric Co. which had a 48 to 50 hour work week. Moore replied that the job was not much better than the one they had left at Hammer and Smith and that they would prefer to remain on the list until Universal or Petras requested a referral. 3 According to Moore, Mullaly said that "he wasn't going to let [them] ride the book, that [they] were off the book, and that [they] might as well get out of his jurisdiction." When Moore asked him to reconsider, Mullaly apparently replied that the Universal and Petras jobs were "reserved for local men and if [they] thought travelers were going to get on that job [they were] crazy." Moore testified that Mullaly told them to leave because he was "sick of you Philadelphia lawyers coming in here to run [his] organization." Rawson's testimony corroborated Moore's recollection of the incident. 4
Mullaly admitted that he had had a conversation with Moore and Rawson on June 15. He asserted that the conversation was limited to an offer of the job at Weinstein and their expression of a desire to work for Universal or Petras. Mullaly testified that he told them that Universal and Petras had not sought referrals. Hillis corroborated Mullaly's testimony concerning this and other conversations held in Mullaly's office.
Moore testified that about three weeks later he returned to the hall and asked Mullaly to reconsider and to allow them to register in the out of work book. Mullaly refused, saying that "the situation was the same as far ... as he was concerned and [Moore] could just go on rolling down the road." Mullaly denied having any conversation with Moore or Rawson after June 15. Mullaly testified that Moore and Rawson lost their places on the out of work list when they failed to appear on July 9, resign day. 5
On July 10, 1979, Moore and Rawson filed an unfair labor practice charge against the local. The Administrative Law Judge, after hearing the testimony, credited Moore and Rawson. He concluded that the Local had violated Secs. 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, 29 U.S.C. Secs. 158(b)(1)(A) and (b)(2), by refusing to permit Moore and Rawson to remain on the out of work list because they were travelers and not members of the Local. The Board agreed with the Administrative Law Judge and entered an order requiring the Local to cease and desist from the unfair labor practice, to place Moore and Rawson on the list and refer on a non-discriminatory basis, to reimburse them for any pay lost, and to post an appropriate notice.
The parties do not dispute the legal issue of whether a union may discriminate against an employee in its administration of a hiring hall. Sec. 8(b)(2) makes it an unfair labor practice to cause or attempt to cause an employer to discriminate against an employee with respect to hire, tenure, or terms or conditions of employment for the purpose of encouraging or discouraging membership in a labor organization. 29 U.S.C. Sec. 158(b)(2). Section 8(b)(1)(A) makes it an unfair labor practice for a union to coerce employees in their rights to organize or refrain from organizing. 6 29 U.S.C. Sec. 158(b)(1)(A). The policy underpinning these provisions is to insulate employees' jobs from their organizational rights in order that they may "abstain from joining any union without imperiling their livelihood." Radio Officers' Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455 (1954).
An exclusive hiring hall arrangement necessarily tends to encourage union membership. Because the Act only proscribes encouragement or discouragement of union membership which is accomplished through discrimination, a union does not commit an unfair labor practice unless it administers an exclusive hiring hall in a discriminatory or arbitrary fashion. Local 357, International Brotherhood of Teamsters Union v. NLRB, 365 U.S. 667, 675-76, 81 S.Ct. 835, 839-40, 6 L.Ed.2d 11 (1961); NLRB v. Local Union 633, United Ass'n of Journeymen, etc., 668 F.2d 921 (6th Cir.1982) (per curiam). In order to find a violation of the Act in the operation of an exclusive hiring hall, the Board need not have specific evidence of intent to encourage or discourage union membership; the Board may find a violation where the union refuses to place non-members on the referral list or gives members preference on the referral list or give members preference over non-members in referrals. 7 NLRB v. Local No. 86, Sheet Metal Workers Int'l Ass'n, 491 F.2d 1017 (6th Cir.1974); NLRB v. United Ass'n of Journeymen and Apprentices, etc., 424 F.2d 390 (6th Cir.1970). The Board's order should be enforced, therefore, if substantial evidence supports its finding that the Local refused to permit Moore and Rawson to remain on the out of work list because they were travelers and not members of the Local.
The issue presented in this case is whether the Administrative Law Judge and the Board made proper credibility determinations. The Local contends that the Administrative Law Judge should not have credited the testimony of Moore and Rawson and should have accepted the testimony of Mullaly and Hillis. The Board argues that Administrative Law Judge properly resolved the conflicting testimony.
The standard for review for the Board's determinations of credibility is narrow. Because the Administrative Law Judge and the Board are the triers of fact in the first instance, their credibility resolutions are to be accorded considerable weight on review. NLRB v. Barberton Plastics Products, Inc., 354 F.2d 66, 69 (6th Cir.1965) (); NLRB v. Nelson Mfg. Co., 326 F.2d 397, 398 (6th Cir.1964); NLRB v. Interurban Gas Corp., 317 F.2d 724, 725 (6th Cir.1963); N.L.R.B. v. Bendix Corp., 299 F.2d 308, 310 (6th Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962). See NLRB v. Fredrick's Foodland, Inc., 655 F.2d 88, 89 (6th Cir.1981) (per curiam). The Board's choice between conflicting testimony will not be set aside simply because this court "would justifiably have made a different choice had the matter before it been de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1950). See Interban...
To continue reading
Request your trial
-
Conair Corp. v. N.L.R.B.
... ... Local 222, International Ladies' Garment Workers' , ... AFL-CIO, Intervenor ... No. 82-1623 ... United ... accorded the National Labor Relations Board (NLRB or Board) under the National Labor Relations Act ... employer's grave misconduct even though the union involved never received authorization cards from ... See, e.g., Local Union No. 984, IBEW v. NLRB, 697 F.2d 113, 117 (6th Cir.1982); NLRB ... to our decision in International Union of Elec., Radio & Machine Workers v. NLRB, 383 F.2d 230, ... ...
-
Hickman Harbor Service, a Div. of Flowers Transp. Co. v. N.L.R.B.
... ... National Maritime Union of America, AFL-CIO, Intervenor ... Nos ... See National Posters, Inc. v. NLRB, 720 F.2d 1358, 1363 (4th Cir.1983). Concededly, ... NLRB v. Food Store Employees Union, Local 347, 417 U.S. 1, 10 n. 10, 94 S.Ct. 2074, 2080 n ... 948, IBEW, et al. v. NLRB, 697 F.2d 113, 117 (6th ... testified that after he informed his co-workers of his opposition to the union, he found his jeep ... ...
-
N.L.R.B. v. International Broth. of Elec. Workers, Local 575, AFL-CIO
... ... Associate General Counsel, Washington, D.C., for NLRB ... William K. Shaw (argued), Portsmouth, ... , to cease requiring travelers, members of other IBEW locals, to resubmit qualification letters at six-month ... because of membership or non-membership in the Union, the parties hereto agree to the following system of ... See also Local Union No. 948, IBEW v. NLRB, 697 F.2d 113, 117-18 (6th Cir.1982) ... ...
-
Teledyne Industries, Inc. v. N.L.R.B.
... ... Association of Machinists and Aerospace Workers, AFL-CIO, and its affiliated Local Lodge 2553. tidham and Wheeler participated in the Union's long and frequently hostile strike at the ... 29 U.S.C. Sec. 158(a)(1); NLRB v. Int'l Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, ... also is "narrow." Electrical Workers Local 948 v. NLRB, 697 F.2d 113, 117 (6th Cir.1982). In ... ...