N.L.R.B. v. International Local 48, Afl Cio, No. 01-71769.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBrunetti
Citation345 F.3d 1049
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local 48, AFL-CIO, Respondent.
Decision Date16 September 2003
Docket NumberNo. 01-71769.
345 F.3d 1049
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local 48, AFL-CIO, Respondent.
No. 01-71769.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 11, 2003 — Seattle, Washington.
Filed September 16, 2003.

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Steven B. Goldstein, Esq., Washington, D.C., for the petitioner.

Norman D. Malbin, Esq., Portland, Oregon, for the respondent.

Gary Lieber, Esq., Washington, D.C., for amicus National Electrical Contractors Assoc.

On Petition for Review of an Order of the National Labor Relations Board. NLRB No. 36-CV-2052.

Before: Melvin Brunetti, Thomas G. Nelson, and Johnnie B. Rawlinson, Circuit Judges.

OPINION

BRUNETTI, Circuit Judge:


The National Labor Relations Board ("NLRB" or "Board") requests that we enforce its December 15, 2000 order arising from a claim that the respondent International Brotherhood of Electrical Workers, Local 48, AFL-CIO ("Local 48" or "union") violated portions of the National Labor Relations Act ("NLRA" or "Act") by forcing its member Patrick Mulcahy to pay Market Recovery Program ("MRP") funds when he worked on Davis-Bacon Act projects. The Davis-Bacon Act was designed for the benefit of construction workers on government projects, and requires contractors on federally funded construction projects to pay prevailing area wage rates "unconditionally ... and without subsequent deduction or rebate ... regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics." 40 U.S.C. § 276a(a) (West 2001). Local 48 opposes enforcement of the order, claiming that the NLRB's order was not supported by substantial evidence, that the NLRB failed to examine the issues under the NLRA, and that MRP dues do not violate the Davis-Bacon Act. We have jurisdiction pursuant to 29 U.S.C. § 160(e), and will enforce the NLRB's order.

I.

Local 48 has a bargaining relationship with the Oregon-Columbia chapter of the National Electrical Contractors Association ("ONECA"). ONECA is comprised of many electrical company members, who often assign their bargaining rights to ONECA. In 1986, Local 48 organized the MRP to help union members recover some of the business previously lost to lower wage nonunion contractors. The MRP created a fund that was used to subsidize union employees' wages so that

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union contractors could bid competitively on projects. The MRP pool was created solely through the funds paid by employees who worked under the Local 48-ONECA agreement. The union contractor could submit a competitive bid for jobs — i.e., project a lower hourly wage for employees — but still pay union employees the prevailing rate through monies provided from the MRP fund. For example, with the prior approval of Local 48, the union contractor could bid $20 an hour for employees, but meet the union employees' actual rate of $25 an hour by receiving $5 an hour from the MRP pool. Local 48 collected MRP dues though voluntary checkoff (direct deductions from employees' paychecks), direct payment to the union, or transfers from the employees' credit union accounts. However, by 1995, Local 48 had abandoned its dues-checkoff authorization, particularly on Davis-Bacon jobs. If an employee had failed to make the MRP payments, the union would inform that employee of the arrears in writing, including a notice that failure to pay would result in a discharge request to the employee's current employer.

Patrick Mulcahy, the charging party, was a member of Local 48. On June 21, 1995, Mulcahy began working for Kingston Constructors on a Davis-Bacon job. Previously, Mulcahy had worked for Excalibur Electric on a non-Davis-Bacon job. Although Mulcahy had requested that Excalibur directly debit from his paycheck MRP dues owed to Local 48, Excalibur refused to do so. While he was working at Kingston, Local 48 sent a letter requesting that Mulcahy pay the MRP fees owed from his job with Excalibur. Mulcahy did not respond to Local 48's request, so Local 48, as it had threatened in the letter to Mulcahy, requested that Kingston fire Mulcahy. On or about July 18, 1995, Kingston did, in fact, fire Mulcahy. However, Mulcahy paid the arrears to Local 48 and was reinstated at Kingston without losing any pay.

In June 1995, Mulcahy briefly worked for Blessing Electric on a Davis-Bacon job. He did not pay MRP dues while employed with Blessing. In October 1995, Mulcahy was employed with L.K. Comstock on a Davis-Bacon job. While Mulcahy worked at L.K. Comstock, Local 48 requested in a letter that he pay the MRP fees from the Blessing employment. The letter included a warning that if Mulcahy failed to pay the Blessing MRP fees, Local 48 would seek his discharge from L.K. Comstock. Mulcahy paid the amount before Local 48 attempted to have him fired.

On January 12, 1996, Mulcahy filed a charge with the NLRB claiming that Local 48 had violated the NLRA. In his complaint dated February 13, 1997, Mulcahy asserted that Local 48 had violated §§ 8(b)(1)(A) and 8(b)(2) of the Act by requesting and securing Mulcahy's termination from Kingston. Mulcahy claimed his termination was for reasons other than "failure to pay periodic dues and fees as allowed under the National Labor Relations Act." Mulcahy's complaint also alleged violations for his threatened termination from L.K. Comstock in October 1995. The complaint alleged that Local 48 had threatened other unknown employees with termination under similar circumstances. On February 25, 1997, Local 48 responded to Mulcahy's complaint and requested dismissal.

An Administrative Law Judge heard the case and, on March 19, 1998, issued his decision, dismissing all claims. The judge dismissed the claim related to payment of MRP dues on Davis-Bacon jobs for lack of jurisdiction. He heard the claims that involved Local 48's attempt to collect MRP dues from the non-Davis-Bacon job at Excalibur, related to Mulcahy's termination while at Kingston. The ALJ determined

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that Detroit Mailers Union No. 40, 192 N.L.R.B. 951 (1971) had implicitly overruled the earlier decided Teamsters Local No. 959, 167 N.L.R.B. 1042 (1967). Detroit Mailers allows collection of special-purpose dues under the union-security clause if they are periodic, uniformly required, and not "otherwise inimical to public policy." Detroit Mailers, 192 N.L.R.B. at 952. The ALJ found that the MRP dues requested from Mulcahy when he worked on the non-Davis-Bacon job at Excalibur were periodic, uniformly-required, and not inimical to public policy. The judge held that Local 48 did not violate § 8(b)(2) or § 8(b)(1)(A) when it requested Kingston fire Mulcahy in July 1995 for failure to pay MRP dues on the non-Davis-Bacon job at Excalibur. The ALJ dismissed the complaint in its entirety.

The General Counsel filed exceptions to the ALJ's decision. After hearing the case, the NLRB issued its decision and order on December 15, 2000. See Int'l Brotherhood of Elec. Workers, Local 48, AFL-CIO (Kingston Constr., Inc.) and Patrick Mulcahy, 332 N.L.R.B. No. 161, 2000 WL 1920355 (2000) (hereinafter Kingston). The NLRB held that it did have jurisdiction to decide the Davis-Bacon Act cases because the contractors in question had a collective bargaining agreement with ONECA. Because one of the contractors in question (Tice Electric) met the Board standards for the exercise of discretionary jurisdiction, the Board could assert jurisdiction over any of the contractors who assigned bargaining rights to ONECA, if the case had more than a de minimis effect on interstate commerce. Kingston, 2000 WL 1920355, at *9. Since the jurisdictional standards were met, the NLRB further found that the MRP dues for Davis-Bacon projects were "inimical to public policy" under the standard in Detroit Mailers. Id. at *14. The NLRB, determined that Local 48 violated § 8(b)(1)(A) when it threatened to have employees discharged for failure to pay MRPs on Davis-Bacon jobs. Id. Particularly, Local 48 violated the NLRA when it threatened Mulcahy with termination from L.K. Comstock for failure to pay dues from Blessing, a Davis-Bacon job, and when it made similar threats to an unnamed class of employees. Id. However, the Board held that Local 48 did not violate § 8(b)(2), which prohibits a labor organization from causing an employer to discriminate against an employee for reasons other than failure to pay periodic dues. Id. at *15; 29 U.S.C.A. § 158(b)(2) (West 1998). Since Mulcahy was only threatened with termination from L.K. Comstock, Local 48 did not violate § 158(b)(2) because the union did not seek his termination. Kingston, 2000 WL 1920355, at *15.

On November 13, 2001, the NLRB sought enforcement of its order from us. The essence of the NLRB's holding is that, within the meaning of the NLRA, MRP dues are "inimical to public policy" if they are collected for employment on Davis-Bacon jobs, regardless of whether or not the worker from whom payment is sought is employed on a...

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26 practice notes
  • Idaho Bldg. & Constr. Trades Council, AFL–CIO v. Wasden, Case No. 1:11–cv–00253–BLW.
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    • U.S. District Court — District of Idaho
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    ...that the Davis–Bacon Act bars wage deductions pursuant to job targeting programs on public work projects. See NLRB v. IBEW Local 48, 345 F.3d 1049 (9th Cir.2003); IBEW Local 48 (Kingston Constructors, Inc.), 332 N.L.R.B. 1492, 1502 (2000). In IBEW Local 48, for example, the Ninth Circuit en......
  • Murphy Oil USA, Inc., 10-CA-038804
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    • October 28, 2014
    ...[3] Electrical Workers Local 48 (Kingston Constructors), 332 N.L.R.B. 1492, 1501 (2000), supplemented 333 N.L.R.B. 963 (2001), enfd. 345 F.3d 1049 (9th Cir. 2003) [4] I also agree with the majority's finding that--separate from the “ class” waiver contained in Respondent's arbitration agree......
  • Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chapter Builders & Contractors, Inc., Nos. 11–35985
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 2015
    ...No. 2, 2012 WL 5246914 (2012) ; Int'l Bhd. of Elec. Workers, Local 48, 332 N.L.R.B. 1492 (2000), modified 333 N.L.R.B. No. 122, enforced, 345 F.3d 1049 (9th Cir.2003) (“Kingston Constructors ”). In some cases, however, workers pay the funds directly to the union. See Int'l Bhd. of Elec. Wor......
  • Pauma v. Nat'l Labor Relations Bd., No. 16-70397
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 26, 2018
    ...as to federal Indian law, as Indian law is "outside the NLRB's ‘special expertise.’ " NLRB v. Int'l B'hd of Elec. Workers, Local 48 , 345 F.3d 1049, 1054 (9th Cir. 2003) ; cf. Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 143–44, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002).Casino Pauma......
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26 cases
  • Idaho Bldg. & Constr. Trades Council, AFL–CIO v. Wasden, Case No. 1:11–cv–00253–BLW.
    • United States
    • U.S. District Court — District of Idaho
    • December 22, 2011
    ...that the Davis–Bacon Act bars wage deductions pursuant to job targeting programs on public work projects. See NLRB v. IBEW Local 48, 345 F.3d 1049 (9th Cir.2003); IBEW Local 48 (Kingston Constructors, Inc.), 332 N.L.R.B. 1492, 1502 (2000). In IBEW Local 48, for example, the Ninth Circuit en......
  • Murphy Oil USA, Inc., 10-CA-038804
    • United States
    • National Labor Relations Board
    • October 28, 2014
    ...[3] Electrical Workers Local 48 (Kingston Constructors), 332 N.L.R.B. 1492, 1501 (2000), supplemented 333 N.L.R.B. 963 (2001), enfd. 345 F.3d 1049 (9th Cir. 2003) [4] I also agree with the majority's finding that--separate from the “ class” waiver contained in Respondent's arbitration agree......
  • Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chapter Builders & Contractors, Inc., Nos. 11–35985
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 2015
    ...No. 2, 2012 WL 5246914 (2012) ; Int'l Bhd. of Elec. Workers, Local 48, 332 N.L.R.B. 1492 (2000), modified 333 N.L.R.B. No. 122, enforced, 345 F.3d 1049 (9th Cir.2003) (“Kingston Constructors ”). In some cases, however, workers pay the funds directly to the union. See Int'l Bhd. of Elec. Wor......
  • Pauma v. Nat'l Labor Relations Bd., No. 16-70397
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 26, 2018
    ...as to federal Indian law, as Indian law is "outside the NLRB's ‘special expertise.’ " NLRB v. Int'l B'hd of Elec. Workers, Local 48 , 345 F.3d 1049, 1054 (9th Cir. 2003) ; cf. Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 143–44, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002).Casino Pauma......
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