N.L.R.B. v. International Broth. of Elec. Workers, Local Union 112, AFL-CIO
| Decision Date | 04 September 1987 |
| Docket Number | AFL-CIO,No. 84-7556,84-7556 |
| Citation | 827 F.2d 530 |
| Parties | 126 L.R.R.M. (BNA) 2292, 107 Lab.Cas. P 10,136 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 112,, and Fischbach/Lord Electric Company, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth J. Pederson and David E. Williams, Richland, Wash., Gary P. Scholick and Richard N. Hill, San Francisco, Cal., for respondents.
Kenneth Hipp and Collis Suzanne Stocking, Washington, D.C., for petitioner.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before HUG, FARRIS and BOOCHEVER, Circuit Judges.
The National Labor Relations Board (the "Board") applies for enforcement of its order finding that the International Brotherhood of Electrical Workers ("Union"), Local Union 112 ("Local 112"), and Fischbach/Lord Electric Company (the "Company") engaged in discriminatory The Board found that the Union had discriminated against four nonmembers of Local 112 in hiring hall practices in violation of sections 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act ("NLRA"). The Board had issued an order that Local 112 cease and desist from such practices and make the four employees whole for losses suffered as a result of those practices. The Board also found that Local 112 and the Company acted in concert and discriminated against nonmembers of Local 112 in firing one employee and laying off 38 other employees in violation of sections 8(b)(2) and 8(b)(1)(A) of the NLRA. The Board issued an order that the Company and Local 112 cease and desist from such practices and that the 39 employees be made whole for losses suffered from those violations.
practices against non-local members of the Union.
The issue with regard to the hiring hall discrimination is whether substantial evidence supports the finding of the Board that Local 112 discriminated against the four nonmembers in hiring hall referrals to Company jobs and wrongfully precluded them from inspecting the dispatch register. The issues relating to the layoffs of the 39 employees are (1) whether there is substantial evidence to support the finding of the Board; (2) whether the six-month limitation period for filing an unfair labor practice precluded the claims as to some employees; and (3) whether the complaint against the Union adequately identified the employees against whom it allegedly discriminated.
Our standard of review requires us to enforce the Board's order if the Board correctly applied the law and its findings are supported by substantial evidence in the record viewed as a whole. Carpenters Union Local 25 v. N.L.R.B., 769 F.2d 574, 579 (9th Cir.1985). In this case, the Board attached the findings of the Administrative Law Judge ("ALJ") and adopted them with a minor modification that concerned two of the four employees involved in the hiring hall complaint. Id.
The Washington Public Power Supply System ("WPPSS") is a consortium of power companies which, during the 1970's, was engaged in the construction of five nuclear plants. The Company was an electrical contractor at the WPPSS Nuclear Power Plant # 2.
The Union and the Company operated under a collective bargaining agreement between the Union and a multiemployer association, of which the Company was a member. Under the agreement, the Union was required to operate an exclusive hiring hall, from which prospective employees would be referred to member employers. The agreement set forth a system to determine employee referral priority. Pursuant to this system, the Union maintained registers known as "out-of-work" lists, which listed employees in chronological order as of the dates they registered their availability for employment. When an employer requested a specified number of applicants, the Union would refer employees in the order of their place on the out-of-work list.
The Board found that Local 112 refused to refer four applicants from the hiring hall because of their nonmembership in Local 112 in violation of sections 8(b)(2) and 8(b)(1)(A) of the NLRA. It is clear that when a labor organization operates an exclusive hiring hall, it must refer applicants in conformity with the procedures set forth in the collective bargaining agreement, without regard to union affiliation. N.L.R.B. v. International Ass'n of Bridge, Etc., 600 F.2d 770, 777 (9th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980). Local 112 does not dispute this, but claims that there were legitimate explanations for its conduct.
Michael June and Jimmy Scott were registered with the hiring hall, but were not members of Local 112. The Board The only explanation offered by Local 112 for these referral bypasses is that, because of the precipitous change in working conditions and the resultant layoffs, there was a massive increase in hiring hall registrants, thereby effecting inadvertent referral errors. The Board did not accept this explanation and found that mere inadvertent error could not explain the great number of occasions that both persons were bypassed. There was substantial evidence in support of the Board's finding that the bypassing of June and Scott was the result of Union discrimination.
found that June had been bypassed on at least fourteen occasions and that Scott had been bypassed on at least eight occasions.
Robert Knapp and Tom McKenzie were also registered with the hiring hall, but were not members of Local 112. McKenzie was bypassed for dispatch on at least nine separate occasions, while Knapp was bypassed on four occasions. The Union claims that Knapp and McKenzie were bypassed because neither of them possessed a Washington electrician's certificate of competency. According to Walter Marlatt, the hiring hall dispatcher, there was an understanding between the Union and employers that the Union would dispatch only licensed electricians. The ALJ found in favor of the Union on this issue. This is the one area in which the Board did not adopt the ALJ's findings.
The Board found that Marlatt's testimony with respect to an understanding was vague and, therefore, not credible. Further, the Union's explanation was belied by its own failure to abide by such an understanding. During March, April, and May, Marlatt dispatched McKenzie despite the fact that McKenzie was not certified. After being previously bypassed, Knapp, still uncertified, was dispatched on May 19. The Board's finding that license requirements were not factors in the bypassing of Knapp and McKenzie was supported by substantial evidence.
A union's duty of fair representation requires it to permit hiring hall applicants to inspect dispatch records unless such inspection is shown to be "burdensome" or the records contain "truly confidential material." Bartenders' Union, Local 165, 261 N.L.R.B. 420, 423 (1982). In the present case, the Board found that the Union unlawfully denied applicants a reasonable opportunity to inspect one of the dispatch registers.
The Union concedes that it refused to permit applicants to examine a dispatch book. Marlatt testified that if anyone requested information, either he or his secretary would inspect the books for them. The purported reason for refusing access to the dispatch book was because it was, according to Marlatt, "pretty tattered." After examining the dispatch book, the Board concluded that "it did not appear in such a distressed condition so as to excuse the burden placed upon the [Union] by dint of its duty of fair representation." The Board reasonably concluded that permitting inspection of the dispatch book would not have been unduly burdensome.
We next turn to the claim against the Company and Local 112 that they acted in concert to discriminate against nonmembers of Local 112 in laying them off contrary to their wishes. The Company and Local 112 each raise procedural claims, which we consider first.
Section 10(b) of the NLRA establishes a six-month statute of limitations for the filing of an unfair labor practice charge. The limitation period does not begin to run until the party filing the charge receives actual notice that an unfair labor practice has occurred. American Distributing Co., Inc. v. N.L.R.B., 715 F.2d 446, 452 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553 (1984). We review the Board's determination of actual notice under the substantial evidence standard. Id.
The unfair labor practice charges were filed on December 2, 1982. According to the Company, the claims of the 22 laid-off workers who received Reduction of Force ("ROF") cards between May 19 and June 1, 1982 are time-barred. However, notice of the intention to commit an unfair labor practice does not trigger section 10(b). Id. The Board reasonably concluded that the distribution and execution of the ROF cards did not provide unequivocal notice to the workers that their statutory rights were being violated. In N.L.R.B. v. Babcock and Wilcox Co., 697 F.2d 724 (6th Cir.1983), the employer claimed that the limitations period began on the date the employee was suspended rather than the date of discharge. The court rejected this argument, stating that the "suspension was neither a discharge nor a final decision by the Company of any kind; it was merely a tentative first step by the Company toward imposing discipline upon [the employee]." Id. at 727. In the present case, it was not inevitable that, at the time they executed the ROF cards, the workers would be laid off. Therefore, the Board reasonably...
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