N.L.R.B. v. International Broth. of Elec. Workers, Local 11, AFL-CIO, AFL-CI
| Decision Date | 24 September 1985 |
| Docket Number | AFL-CI,R,No. 84-7439,84-7439 |
| Citation | 772 F.2d 571 |
| Parties | 120 L.R.R.M. (BNA) 2647, 54 USLW 2219, 103 Lab.Cas. P 11,594 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Steven R. Loveall, Vincent J. Sokol and William G. Mott, Petitioners-Intervenors, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 11,espondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William R. Stewart, Deputy Asst. Gen. Counsel, Frederick Havard, Atty., Washington, D.C., for petitioner N.L.R.B.
Robert Newman, Los Angeles, Cal., for petitioners-intervenors Loveall, Sokol and Mott.
Elizabeth R. Lishner, Davis, Frommer & Jesinger, Los Angeles, Cal., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before GOODWIN, FLETCHER and PREGERSON, Circuit Judges.
The National Labor Relations Board (NLRB) applies for enforcement of an order finding Local 11 of the International Brotherhood of Electrical Workers, AFL-CIO, (Local 11) guilty of an unfair labor practice in the operation of its hiring hall. We grant the application and enforce the NLRB order.
Local 11 has a collective bargaining agreement with the Los Angeles County Chapter of the National Electrical Contractors Association under which it is empowered to operate an exclusive hiring hall within Los Angeles County. Sections 4.01 through 4.16 of the agreement set forth the referral procedures by which employees are dispatched to employers from the Local 11 hiring hall. Under Sec. 4.05, Local 11 registers applicants for employment into one of four different groups. Referrals for employment are made from Groups I, II, III, and IV in that order. Section Sec. 4.05 of the agreement defines the requirements for Group I eligibility as follows:
GROUP I. All applicants for employment who have four or more years' experience in the trade, are residents of [Los Angeles County], have passed a journeyman wiremen's examination given by a duly constituted Inside Construction Local Union of the IBEW or have been certified as a journeyman wireman by any Inside Joint Apprenticeship and Training Committee and who have been employed for a period of at least one year in the last four years under a collective bargaining agreement between the parties to this agreement.
Section 4.09 defines "resident" as
"a person who has maintained his permanent home in [Los Angeles County] for a period of not less than one year or who, having a permanent home in this area, has temporarily left with the intention of returning to this area as his permanent home." (emphasis in original)
In late 1982 and early 1983, Steven R. Loveall, Vincent J. Sokol, and William G. Mott, charging parties below and intervenors on appeal, individually sought and were denied permission by the local's business manager to register for Group I referrals. At the time of their application for Group I referrals, each of the intervenors was a traveller--a member of a local of the International Brotherhood other than Local 11--and was registered for Group II referrals. Eligibility for Group II is the same as for Group I except for the residency requirement.
The intervenors individually appealed the business manager's decision to an Appeals Committee convened pursuant to Sec. 4.16 of the agreement. Section 4.16 authorizes the Appeals Committee to consider complaints arising out of the operation of the hiring hall.
The Appeals Committee, comprised of a representative of Local 11, a representative of the Contractors Association, and a public member, denied each appeal on the grounds that none of the intervenors met the Group I residency requirements. According to the Appeals Committee, a minimum of three-years residency in Los Angeles County and 4000 hours-worked (approximately 2 years) under the agreement were required for Group I eligibility. These requirements are not written, contained in any notice to employees, or stated in the agreement.
The intervenors filed individual charges with the NLRB which were heard by an administrative law judge. Concluding that the agreement terms regarding residency were ambiguous, the judge adopted the interpretation of the Appeals Committee. He found that the three-year residency and 4000 hours-worked requirements were established by the Appeals Committee to assist them in determining an applicant's permanent home. The judge found that the Appeals Committee's minimum requirements were applied to applicants for Group I status while the provisions stated in Secs. 4.05 and 4.09 of the agreement applied to employees desiring to maintain their Group I status. He also found that although the requirements were unpublished, they had been routinely applied. Finally, he concluded that allegations that Local 11 officials had expressed animus toward travellers were not enough to discredit his conclusion that the Appeals Committee properly interpreted and applied the agreement.
Contrary to the administrative law judge, the NLRB found that the collective bargaining agreement clearly and unambiguously defines resident and explicitly states a one-year, 2000-hours worked requirement for Group I eligibility. Accordingly, the NLRB concluded that each intervenor qualified for Group I status. The NLRB found that Local 11 had committed unfair labor practices in violation of Secs. 8(b)(1)(A) and (b)(2) of the National Labor Relations Act, 29 U.S.C. Secs. 158(b)(1)(A), (b)(2), by failing to follow the referral procedures set forth in the collective bargaining agreement. Alternatively, the NLRB found that even if the additional requirements were legitimate, failure to give notice of them to employment applicants constituted an independent violation of Secs. 8(b)(1)(A) and (b)(2).
The NLRB issued a cease-and-desist order directing the local to (1) operate the hiring hall in accordance with the procedures set forth in the collective bargaining agreement; (2) refer intervenors and other applicants for employment to positions for which they are entitled under the agreement; and (3) make intervenors whole for loss of earnings and other benefits resulting from the local's discrimination against them. This application for enforcement followed.
Local 11 argues that the NLRB was under a legal obligation to adhere to the Appeals Committee's interpretation of the collective bargaining agreement because the Committee is an arbitration board selected by the parties. See United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). 1
This court has acknowledged that the Board has considerable, though not unlimited, discretion to respect or disregard an arbitration decision. Servair, Inc. v. NLRB, 726 F.2d 1435, 1438 (9th Cir.1984). See Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964). In exercising its discretion, the Board must balance the policy in favor of settling labor disputes by arbitration with its statutory duty and authority to prevent unfair labor practices. NLRB v. Max Factor & Co., 640 F.2d 197, 201 (9th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 840 (1981). The Board may decline to defer to an arbitration decision "in which there is an apparent conflict of interest between the employee and the union representing him." NLRB v. International Longshoremen's & Warehousemen's Union, 514 F.2d 481, 483 (9th Cir.1975) (citation omitted).
While courts generally defer to arbitration decisions, our review here is not so limited because we are reviewing not an arbitration decision but the NLRB's refusal to enforce such a decision. NLRB v. South Central Bell Telephone Co., 688 F.2d 345, 349 & nn. 2-4 (5th Cir.1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983). See also NLRB v. Acme Indus. Co., 385 U.S. 432, 436-37, 87 S.Ct. 565, 568-69, 17 L.Ed.2d 495 (1967) (). This court's review of the Board's deferral decision is limited to determining whether the Board has abused its discretion. Servair, 726 F.2d at 1438-39; Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 675-76 (9th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1977). Enforcement cannot be denied " 'unless the Board clearly departs from its own standards or its standards are themselves invalid.' " Servair, 726 F.2d at 1439 (quoting Hawaiian Hauling Service, 545 F.2d at 676).
It is evident from the record that a conflict of...
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