N.L.R.B. v. International Broth. of Elec.

• Decision Date: 12 October 2005
• Docket Number: No. 04-2329.,04-2329.
• Citation: 425 F.3d 1035
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 16, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 1035

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 16, AFL-CIO, Respondent.

No. 04-2329.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2005.

Decided October 12, 2005.

COPYRIGHT MATERIAL OMITTED

Julie B. Broido, Ruth E. Burdick (argued), National Labor Relations Board Office of the General Counsel, Washington, DC, for Petitioner.

Charles L. Berger (argued), Berger & Berger, Evansville, IN, for Respondent.

Before FLAUM, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

FLAUM, Chief Judge.

Petitioner National Labor Relations Board ("NLRB" or "Board") petitions this Court for enforcement of its order declaring that the International Brotherhood of Electrical Workers, Local Union 16, AFL-CIO ("the Union" or "IBEW") committed an unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A) ("NLRA" or "Act"). Because the board's decision is supported by substantial evidence and has a reasonable basis in law, we enter judgment enforcing the Board's order.

I. Background

The Union is a party to two collective bargaining agreements ("CBAs") that are relevant to this case. The first relevant CBA is between the Union and the Evansville Division of the National Electrical Contractors Association ("NECA"). The NECA Agreement covers nearly all work performed by the Union's members in southwestern Indiana and one county in Illinois. Signatories to that document agree to hire electrical workers exclusively through the Union's referral or "hiring hall" system. That system requires the Union to maintain a list of eligible electricians, categorized by experience and skill level, who are available to work. Signatory employers to the CBA agree to advise the Union when they require electricians. The Union then refers members from its list; those who have been out of work the longest are dispatched first.

The NECA Agreement also contains the following union security clause:¹

All Employees in the bargaining unit who are members of the Union in good standing on the effective date of this Agreement as a condition of employment must maintain their membership in good standing for the life of this Agreement.

Any Employee who is not a member of the Union, and any Employee who is hired after the effective date of this Agreement or the date of its execution, shall be required to join the Union eight (8) days following the effective date of this Agreement or the date of its execution or following the date of his employment whichever is the latter and may be required as a condition of his employment maintain [sic] his membership in good standing for the life of this Agreement.

The second CBA relevant to this case is an agreement between the Union and Koester Contracting Corporation ("Koester"). The Toyota Corporation awarded Koester a substantial contract to construct a truck manufacturing plant in Gibson County, Indiana. A collective bargaining agreement between the Union and Koester governs the work that the Union does for Koester and other contractors in constructing the plant ("Toyota Agreement"). The Toyota Agreement states that it "represents the complete understanding of the parties." It also provides that "the terms and conditions of this Project Agreement shall supersede and override terms and conditions of any and all other national, area, or local collective bargaining agreements." Like the NECA Agreement, the Toyota Agreement contemplates that signatories will hire employees through a union referral system. It states, moreover, that contractors performing work at the Toyota plant "agree to recognize and be bound by the legal referral facilities maintained by the union(s) and shall notify the appropriate union either in writing or by telephone when workmen are required." The Toyota Agreement does not, however, contain a union security clause nor mention the NECA Agreement.

Darvin Collins was a member of the Union. In August of 2002, a project that he was working on ended. Out of work, he registered on the Union's referral list. On August 19, 2002, ACCL Enterprises, a construction contractor working under Koester's Toyota Agreement, contacted the Union and requested that it refer an available electrician for work on the Toyota project. Collins was qualified for the position and next in line for referral; however, he owed the Union $64.70 in back dues. The Union informed him that it would not refer him for the Toyota project until he paid the back dues. Collins refused to pay. The Union's assistant business manager informed Collins that the Union would not refer him for the Toyota project until he fully satisfied his dues obligation.

In response to the Union's action, the General Counsel for the National Labor Relations Board issued a complaint against the Union, alleging that the Union's refusal to refer Collins was an unfair labor practice. On September 4, 2003, Administrative Law Judge Ira Sandron ruled in favor of the Board, concluding that the governing CBA did not contain a union security clause and, therefore, the Union could not refuse to refer Collins. Additionally, the ALJ found that the Toyota Agreement did not incorporate the NECA Agreement's union security clause. The ALJ held that the Union's actions violated 29 U.S.C. § 158(b)(1)(A) and ordered the Union to pay Collins two days of missed wages. The Board affirmed the ALJ's order with minor revisions. The Board now petitions this Court for enforcement of the order and the Union has responded with an answer and objections.

II. Discussion

In this case, the Board seeks to enforce its ruling that the Union has committed an unfair labor practice in violation of 29 U.S.C. § 158(b)(1)(A). An agency that seeks enforcement of its decision must file the record with the circuit court clerk "within 40 days after it files an application for enforcement." FED. R. APP. P. 17(a). In this case, the Board did not file the administrative record until 74 days after the application for enforcement was filed.² Lawyers appearing before this Court are responsible for knowing and following all applicable procedural rules.³

In this case, however, the Court will excuse the late filing by the Board. There has been no demonstration of prejudice to the Union as a result of the delay. Moreover, other than the time limits on filing an appeal, "a court of appeals may — to expedite its decision or for other good cause — suspend any provision of [the Federal Rules of Appellate Procedure] in a particular case." FED R. APP. P. 2; see also FED R. APP. P. 26(b). The infraction in this case was harmless and dismissal would be an inappropriate sanction. Cf. Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir.1989) (dismissal may be avoided despite failure to file a transcript if the transcript is subsequently filed and the court can engage in meaningful review).

This Court has jurisdiction to review applications for enforcement and petitions for review of Board decisions pursuant to sections 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. § 160(e)-(f). This Court will uphold decisions by the Board if they are supported by substantial evidence and the Board's conclusions have a reasonable basis in the law. See, e.g., Ryder Truck Rental v. NLRB, 401 F.3d 815, 825 (7th Cir.2005). There are no questions of fact in this case, no witnesses were presented and the parties stipulated to all relevant facts. Instead, this case turns on the NLRB's interpretation of two collective bargaining agreements. The Board has no special expertise in interpreting contracts. Accordingly, this Court reviews the Board's interpretations of collective bargaining agreements de novo. Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 202-03, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); NLRB v. Cook County School Bus, Inc., 283 F.3d 888, 892 (7th Cir.2002); Chicago Tribune Co. v. NLRB, 974 F.2d 933, 937 (7th Cir.1992).

Section 9(a) of the NLRA grants unions the exclusive power to represent all employees in a particular bargaining unit. 29 U.S.C. § 159(a). The Supreme Court has held that the grant of this power imposes a concomitant duty upon the union to represent all members of the collective bargaining unit fairly. Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 86-87, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989). The implied duty of fair representation obligates the union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (citing Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964)).

Section 8(b)(1)(A) of the NLRA declares that "[i]t shall be an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title." 29 U.S.C. § 158(b)(1)(A). Section 157 of Title 29 guarantees employees "the right . . . to bargain collectively through representatives of their own choosing." 29 U.S.C. § 157. The NLRB has read § 157's right of representation to include "the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment." Miranda Fuel Co., 140 N.L.R.B. 181, 185, 1962 WL 16149 (1962). In other words, although the duty of fair representation arises out of § 159(a), the breach of that duty "restrain[s] or coerce[s]" an employee's rights under § 157, thereby constituting an unfair labor practice under § 158(b)(1)(A). Miranda Fuel Co., 140 N.L.R.B. at 185-86. The Seventh Circuit generally has approved of this doctrine. See Kesner v. NLRB, 532 F.2d 1169 (7th Cir.1976).

The duty of fair representation extends to a union's administration of an exclusive hiring hall...