N.L.R.B. v. Plumbers and Pipefitters Local Union No. 403, Affiliated with United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry, AFL-CIO

• Decision Date: 22 July 1983
• Docket Number: R,No. 82-7394,AFL-CI,82-7394
• Citation: 710 F.2d 1418
• Parties: 113 L.R.R.M. (BNA) 3768, 98 Lab.Cas. P 10,317 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403, AFFILIATED WITH the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY,espondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1418

710 F.2d 1418

113 L.R.R.M. (BNA) 3768, 98 Lab.Cas. P 10,317

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 403, AFFILIATED WITH the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO Respondent.

No. 82-7394.

United States Court of Appeals Ninth Circuit.

Submitted June 9, 1983.

Decided July 22, 1983.

Corinna L. Metcalf, Washington, D.C., for petitioner.

Richard J. Davis, Davis, Frommer & Jesinger, Los Angeles, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before BROWNING, Chief Judge, and CHOY and FERGUSON, Circuit Judges.

CHOY, Circuit Judge:

The National Labor Relations Board ("Board") applies to this court for enforcement of an order the Board issued against Plumbers and Pipefitters Local Union No. 403 ("Union" or "Local 403"). The Board issued the order after adopting the findings of an Administrative Law Judge ("ALJ") that the Union violated sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(b)(1)(A) and 158(b)(2), by operating its exclusive hiring hall in a manner that discriminated against "travelers" from sister locals and by making coercive statements and threats designed to further its discriminatory referral system. The Union opposes enforcement of the order on the ground that it was denied due process of law through several actions of the ALJ. We grant enforcement of the order in full.

I. Background

Pullman Power Products ("Employer") hired pipefitters and welders to work on the Diablo Canyon Nuclear Power Plant. The collective bargaining agreement between the Employer and Local 403 established Local 403 as the exclusive source of the Employer's welders and pipefitters. After unsuccessful negotiations to renew the collective bargaining agreement between the Employer and the Union, the Employer staged a lockout. Prior to the lockout, 26 travelers (members of locals other than Local 403), who had been referred by the Union, were employed on the Diablo Canyon site. However, during the labor dispute and after the lockout, the Union did much to discourage travelers from seeking work at Diablo Canyon. After the lockout was over, the Union informed management that it regarded the lockout as a "termination," requiring that restaffing be done through the Union's dispatch procedures and hiring hall. The Employer protested, insisting that the Union dispatch to the Diablo Canyon site the same employees who had worked there prior to the lockout.

However, the Union sent none of the 26 travelers back to the site for a period of over one month. Local 403 refused to dispatch to the site travelers whom the Employer requested by name. Travelers were told by the Union business manager and dispatcher that they would not be re-employed on the site until all members of Local 403 were employed. The Union gave travelers low priority for any assignment.

The Union business manager threatened a traveler who had filed charges against the Union with the Board that he would not receive another job assignment until he dropped the charges. Other members of the Union harassed and threatened the traveler in an attempt to pressure him into dropping the charges.

The ALJ found that these actions by the Union constituted violations of sections 8(b)(1)(A) and 8(b)(2) of the NLRA. The ALJ's recommended order required Local 403 to cease and desist from the unfair labor practices found and from any similar practices. The order also required the Union to keep records of its dispatch practices for periodic inspection by the Regional Director of the Board, to pay appropriate back-pay awards to the 26 travelers who were not immediately redispatched to the Diablo Canyon site after the lockout, and to give notice of the award in a specified manner. The order stated that the amount of the back-pay award to each traveler would be determined at a hearing during the compliance stage of the proceedings.

The Board affirmed the rulings, findings, and conclusions of the ALJ and adopted his recommended order with only slight modification. The Union appeals the decision of the Board on three grounds: (1) The Union did not receive the procedural safeguards afforded a defendant in a class-action suit under Fed.R.Civ.P. 23. (2) The ALJ erred in failing to "tailor" the remedy to the violations demonstrated by the evidence and in leaving determination of the entitlement of specific individuals to back-pay awards to the compliance stage. (3) The ALJ erred in considering evidence supporting the Board's "termination theory" when determining the appropriate remedy for the violations found. As we discuss in more detail below, we find no merit to any of these contentions.

II. Applicability of Fed.R.Civ.P. 23

Because the order entered by the Board vindicates a wrong committed against a group of individuals, the Union argues that the suit brought by the Board is a class-action suit and that the Union, as defendant, should have been afforded the procedural protections of Fed.R.Civ.P. 23. The Supreme Court's holding in General Telephone Co. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), gives us clear guidance in deciding this issue. In that case, the Supreme Court affirmed this court's holding (599 F.2d 322, 328-35 (9th Cir.1979)) that Rule 23 is not applicable to an enforcement action brought by the EEOC in its name and pursuant to statutory authority to prevent unlawful employment practices and, therefore, the EEOC may seek class-wide relief under Sec. 706(f)(1) of Title VII of the Civil Rights Act of 1964 without being certified as the class representative. 446 U.S. at 323, 334, 100 S.Ct. at 1702, 1708. While the holding of General Telephone is narrow, a footnote to the opinion indicates that its intended sweep is quite broad:

Petitioners characterize this action as a "class action"; the EEOC characterizes it as an action "affecting a class of individuals." We need not choose between these characterizations. The issue is whether an action, however it is styled, brought by a Government agency to enforce the federal law with whose enforcement the agency is charged is subject to the requirements of Rule 23.

Id. at 323 n. 5, 100 S.Ct. at 1703 n. 5.

The Board brought the present action under section 10 of the NLRA, 29 U.S.C. Sec. 160, which expressly authorizes the Board to bring an administrative action to "prevent any person from engaging in any unfair labor practice." The Supreme Court found in General Telephone that, because of a similar authorization for the EEOC to bring suits under Title VII, the authority of the EEOC to bring enforcement actions is "in no way dependent upon Rule 23, and the rule has no application to a Sec. 706 suit." 446 U.S. at 324, 100 S.Ct. at 1703. The same rationale applies to an action brought by the NLRB under section 10 of the NLRA, for the action is one to vindicate "[t]he public interest in effectuating the policies of federal labor laws;" it is not a civil proceeding brought by a group of individual claimants to vindicate the wrongs they have suffered. Vaca v. Sipes, 386 U.S. 171, 182 n. 8, 87 S.Ct. 903, 912 n. 8, 17 L.Ed.2d 842 (1967). The Fifth Circuit has already applied the rationale of General Telephone to enforcement actions brought by the Board under the Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et seq. Donovan v. University of Texas at El Paso, 643 F.2d 1201 (5th Cir.1981). We hold that the General Telephone rationale is equally applicable to enforcement actions brought by the Board under the NLRA. Therefore, the Board was not required to proceed in accordance with Rule 23 of the Federal Rules of Civil...