N.L.R.B. v. International Broth. of Elec. Workers, Local 77
| Decision Date | 21 February 1990 |
| Docket Number | No. 88-7395,88-7395 |
| Parties | 133 L.R.R.M. (BNA) 2734, 114 Lab.Cas. P 11,931 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 77, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard E. Perlstein and Richard A. Cohen, N.L.R.B., Washington, D.C., for petitioner.
Richard H. Robblee, Hafer, Price, Rinehart & Schwerin, Seattle, Wash., for respondent.
Before BROWNING, BEEZER and RYMER, Circuit Judges.
The National Labor Relations Board ("NLRB") petitions for enforcement of its order holding the International Brotherhood of Electrical Workers, Local No. 77 ("Local 77"), in violation of Sec. 8(b)(1)(B) of the National Labor Relations Act ("the Act"), 29 U.S.C. Sec. 158(b)(1)(B)(1982). Local 77 disciplined two members of the International Brotherhood of Electrical Workers, Local No. 112 ("Local 112") for knowingly and repeatedly doing work that belonged to Local 77, thereby violating Local 77's jurisdiction. The disciplined union members were also foremen for Bruce-Cadet, Inc.
("Bruce-Cadet") Even though Local 77 neither had a collective bargaining relationship with Bruce-Cadet, nor aspired to one, the Board held that Local 77's actions violated Sec. 8(b)(1)(B). We enforce the Board's order.
Bruce-Cadet, an electrical subcontractor on construction projects, is party to a "Site Stabilization Agreement" ("SSA") that governs the terms and conditions of employment for all construction work at the Hanford Nuclear Reservation in the State of Washington. Bruce-Cadet regularly employs members of Local 112 to do electrical work at the Hanford site. Local 112, which has jurisdiction over inside or wireman's work, is also a party to the SSA. Local 77, whose jurisdiction encompasses outside or lineman's work, is not a party to the SSA. Bruce-Cadet does not have, and never has had, a formal collective bargaining relationship with Local 77, nor does it regularly employ members of Local 77.
Jurisdictional problems at the Hanford site developed between Local 77 and Local 112. Local 77 complained that Local 112's members were performing line work for Bruce-Cadet that was within Local 77's jurisdiction. Since Local 77 was not a party to the SSA, there was no formal method to settle a dispute between Bruce-Cadet and Local 77. The SSA, however, contains a non-party jurisdictional dispute procedure: with respect to jurisdictional disputes involving a non-party union, "such disputes shall be referred to the International Unions involved" and the International Unions' "jurisdictional determination shall be implemented immediately by the [employer] involved." Consequently, when the jurisdictional dispute arose concerning the electrical line work for Bruce-Cadet, the dispute was submitted, pursuant to the SSA, to the International Brotherhood of Electrical Workers ("IBEW") for resolution. The IBEW, Local 77 and Local 112 resolved the dispute in an informal agreement: when Bruce-Cadet called for a lineman, members of Local 77 would be dispatched through Local 112's hiring hall. Under this informal agreement, Local 77's members worked pursuant to the contract between Bruce-Cadet and Local 112. The SSA required Bruce-Cadet to accept this resolution of the jurisdictional problem. Thereafter, Bruce-Cadet obtained linemen from Local 77, through Local 112's hiring hall, "sporadically"--approximately four jobs over a two to three year period.
Dennis Dallas and James Reinkens are members of Local 112 and foremen for Bruce-Cadet. As foremen, they are responsible for handling problems that develop in the field, including resolving trade jurisdictional disputes--determining whether work is lineman or wireman work. They are also permitted, pursuant to the SSA, to work with tools whenever six or fewer electricians (including foremen) are working at a particular job site. Thus, on particular jobs, they function both as supervisors and rank-and-file workers.
On February 2, 1987, Local 77 filed internal union charges against Dallas and Reinkens. Local 77 alleged that Dallas' and Reinkens' personal performance of work within Local 77's jurisdiction violated the constitution of the IBEW. The charges against Dallas and Reinkens stemmed from a dispute concerning line work in certain areas of the Hanford construction site. On May 12, Local 77 tried Dallas and Reinkens in abstentia; both men were found guilty and fined. As a result of the Union's action, Bruce-Cadet filed charges against Local 77 alleging that Sec. 8(b)(1)(B) of the National Labor Relations Act was violated when Local 77 disciplined Dallas and Reinkens. Bruce-Cadet argued that Dallas and Reinkens were disciplined, not for actually performing work outside their local's jurisdiction, but for their role in interpreting the informal agreement between Bruce-Cadet and Local 77 and assigning work to members of Local 112 rather than members of Local 77.
After a hearing, the administrative law judge ("ALJ") found that Local 77 neither had nor sought a collective bargaining relationship with Bruce-Cadet and therefore union discipline of Dallas and Reinkens did not violate Sec. 8(b)(1)(B). The ALJ dismissed The NLRB rejected the ALJ's recommendation. First, the Board concluded that the lineman referral arrangement was sufficient to constitute a collective bargaining relationship for Sec. 8(b)(1)(B) purposes. The Board held that it was "unnecessary to determine whether the informal agreement, by itself, would rise to the level of a collective-bargaining agreement enforceable in law, as it is apparent that the parties abided by the informal agreement, as directed to under the Site Stabilization Agreement, and, by doing so, established a collective-bargaining relationship...." Next, the Board found that Dallas' and Reinkens' duties as foremen included interpreting the "informal agreement" between Bruce-Cadet and Local 77 to determine what work was line work within Local 77's jurisdiction. Although the Board noted that Local 77's fines concerned Dallas' and Reinkens' actual performance of line work, the Board concluded that Local 77 fined Dallas and Reinkens to punish them for their performance of a Sec. 8(b)(1)(B) activity--contract interpretation. The Board ordered Local 77 to rescind the fines levied against Dallas and Reinkens and to restore them to membership in good standing. The NLRB filed this application for enforcement on October 3, 1988.
the argument that the referral system, through which Bruce-Cadet secured Local 77 member linemen from Local 112's hiring hall, was a collective bargaining arrangement within the scope of Sec. 8(b)(1)(B). Consequently, since there was no collective bargaining relationship between Local 77 and Bruce-Cadet, the ALJ recommended that the complaint be dismissed.
Decisions of the NLRB will be upheld on appeal if substantial evidence supports its findings of fact and if it has correctly applied the law. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989). The court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the agency's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986). Under the substantial evidence standard of review, the court of appeals must affirm where there is "such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence." Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.1987).
The standard of review does not change when an administrative agency disagrees with the hearing officer; rather, the hearing officer's findings become part of the record for review to be weighed against the other evidence supporting the agency. Laipenieks v. INS, 750 F.2d 1427, 1429-30 (9th Cir.1985).
Section 8(b)(1)(B) of the Act, 29 U.S.C. Sec. 158(b)(1)(B), makes it an unfair labor practice for a labor organization or its agents "to restrain or coerce ... an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The purpose of Sec. 8(b)(1)(B) is "to protect the integrity of the processes of grievance adjustment and collective bargaining--two private dispute-resolution systems on which the national labor laws place a high premium." NLRB v. IBEW, Local 340, 481 U.S. 573, 595, 107 S.Ct. 2002, 2015, 95 L.Ed.2d 557 (1987). To determine whether Local 77's discipline of Dallas and Reinkens violated Sec. 8(b)(1)(B) three findings must be made. First, Dallas and Reinkens must have had Sec. 8(b)(1)(B) duties. Second, Local 77's discipline of Dallas and Reinkens must have adversely affected their performance of their Sec. 8(b)(1)(B) duties. A nexus must exist between the union discipline and a supervisor's actual performance of a Sec. 8(b)(1)(B) activity. Finally, there must have been a collective bargaining relationship between Local 77 and Bruce-Cadet.
The NLRB found that the duties of Dallas and Reinkens, as foremen, included
purchasing material, ordering men from the union hall, handling field disputes Jurisdictional problems arose because the informal agreement between Local 77 and Bruce-Cadet did not specifically state who was entitled to do what work. The NLRB held that Dallas and Reinkens had to interpret the agreement to determine whether specific work belonged to Local 77 or Local 112. Contract interpretation is so closely related to collective bargaining that it is considered to be a Sec. 8(b)(1)(B) activity. See IBEW, Local 340, 481 U.S. at 586, 107 S.Ct. at 2011. Thus, if Dallas and Reinkens were responsible for interpreting the informal agreement, they had Sec. 8(b)(1)(B) duties.
such as straightening out wage questions, dealing with jurisdictional problems, and, in general, handling...
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