N.L.R.B. v. Pipefitters Union Local No. 120

• Decision Date: 26 October 1983
• Docket Number: No. 82-1296,82-1296
• Citation: 719 F.2d 178
• Parties: 114 L.R.R.M. (BNA) 2914, 99 Lab.Cas. P 10,501 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PIPEFITTERS UNION LOCAL NO. 120, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 178

719 F.2d 178

114 L.R.R.M. (BNA) 2914, 99 Lab.Cas. P 10,501

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PIPEFITTERS UNION LOCAL NO. 120, Respondent.

No. 82-1296.

United States Court of Appeals, Sixth Circuit.

Argued June 22, 1983.

Decided Oct. 13, 1983.

As Amended Oct. 26, 1983.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Mark McCarty, argued, Washington, D.C., for petitioner.

Anthony W. Hackenberg, Lawrence M. Oberdank and Thomas R. Skulina, Cleveland, Ohio, for respondent.

Before CONTIE, Circuit Judge, and PHILLIPS and CELEBREZZE, Senior Circuit Judges.

CONTIE, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of its order which, among other things, directs Pipe Fitters Union Local No. 120 (Union) to cease and desist from unfair labor practices in violation of Secs. 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(b). The Board's order issued on February 22, 1982 and is reported at 260 N.L.R.B. 392. This court has jurisdiction to hear this appeal under 29 U.S.C. Sec. 160(e).

I.

The Union represents journeymen pipefitters in the construction trade in and around Cleveland, Ohio and is affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (United Association). The employer, Schweizer Dipple, Inc., is a mechanical contractor who, in the fall of 1978, was engaged in the installation of piping and mechanical equipment at a nuclear power plant construction site in Perry, Ohio. The employer is also a member of the Mechanical Contractors Association of Cleveland, Ohio, a multiemployer bargaining group representing contractors in the mechanical piping industry and a signatory to the collective bargaining agreement with the Union. The collective bargaining agreement was administered by a Joint Conference Committee consisting of five representatives from the Mechanical Contractors Association and five representatives from the Union. The Committee also had the authority to amend the agreement.

During the construction of the Perry nuclear power plant, the Union determined that it could not meet the demands of local contractors for qualified welders who also possessed pipefitting skills. In order to alleviate this shortage, several Union representatives sought to establish a program to provide qualified welders with advanced welding and pipefitting training. After receiving approval from the United Association, the Union presented its proposal to the Joint Conference Committee, who accepted it on October 18, 1978. The Committee did not expressly incorporate the program into the collective bargaining agreement.

The Union's proposal called for the establishment of a four-year training program which would be financed by a local trust fund administered by management and union trustees. The Union recruited qualified welders for the program and referred them to Schweizer Dipple for employment. The employer agreed to hire the trainees for the duration of the training program and to pay them the same wages and benefits as received by journeymen pipefitters. The trainees were also placed on probation for six months to qualify for union membership. Upon completion of this probationary period, the trainees would receive their metal trades journeyman cards and would continue their training for three and one-half years. The trainees who completed this training would be upgraded to the status of building trades journeymen without having to take the examination which was normally required for such a promotion. ¹

In November 1978 and January 1979, respectively, Peter Dades and Joseph Bevaque passed the certified welder's examination and executed an agreement with the Union to participate in the training program. Both men were then referred to Schweizer Dipple for employment. The agreement which the two men signed reads as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

All trainees were given white tickets which enabled them to work at the Perry construction site without being union members. The trainees were also assessed normal union dues and a monthly administrative fee.

The first series of training classes began in March 1979 and continued through May of that year. The record indicates that Dades and Bevaque regularly attended these classes. In late May, however, Dades and Bevaque became disenchanted when the Union failed to confer memberships upon other trainees who had completed their probationary periods. Thereafter, a petition was circulated by the trainees which alleged that the Union was not honoring its commitment to provide Union memberships. In June 1979, Carl Gauntner, a Union business representative, met with the trainees and explained that the memberships were being delayed due to processing difficulties at the United Association's Washington D.C. office. Gauntner assured them, however, that the memberships would be forthcoming.

By the time the second series of classes began in October 1979, the Union still had provided no memberships to the trainees. Several trainees, including Dades and Bevaque, expressed their dissatisfaction by refusing to attend the training classes. Thereafter, the training program coordinator notified Gauntner of the absences. Gauntner instructed the union steward at the Perry site to notify the delinquent trainees that they were not abiding by the contract they had signed and that the Union would not tolerate repeated absences. Despite two separate warnings, Dades and Bevaque did not return to their training classes.

In May 1980, Gauntner met with the employer's president, Andrew Martin, and the general foreman at the Perry site, Ed McFaul. During this meeting Gauntner discovered that the employer intended to lay off approximately 20 employees for economic reasons. Gauntner indicated that there were several trainees who should be terminated for their failure to attend the training classes. Such terminations, Gauntner explained, would "set an example to the other people." Martin agreed with this suggestion and discharged Dades and Bevaque on May 27, 1980. The record indicates that Bevaque was rehired by Schweizer Dipple in August 1980 and became a union member in October 1980. Dades was also rehired by Schweizer Dipple in July 1980, but has not obtained a union membership. The employer continues, however, to deduct union dues from Dade's paycheck.

Based on the foregoing facts, the Board ruled that the Union had violated Secs. 8(b)(1)(A) and 8(b)(2) of the Act by inducing the employer to discharge Dades and Bevaque for their failure to attend the training sessions. The Board indicated that the training session attendance requirement was not the product of an agreement between the Union and the employer, but rather was an internal union regulation. Pipefitters Union Local No. 120, 260 N.L.R.B. 392, 396 (1982). The Board also ruled that the Union violated Sec. 8(b)(1)(A) "by charging Dades and Bevaque dues and fees at times, including their probationary periods, during which they were not members of the Union." Id. at 392 n. 4. The Board now seeks enforcement of its order. 29 U.S.C. Sec. 160(e).

II.

A.

We recognize at the outset that the Board's decision is subject to limited judicial review. NLRB v. Weingarten, Inc., 420 U.S. 251, 266-67, 95 S.Ct. 959, 968-969, 43 L.Ed.2d 171 (1975). "The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board's application of the rule, if supported by substantial evidence, must be enforced." ² Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978); Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 866 (6th Cir.1982). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). Although we are not free to substitute our judgment for that of the Board simply because we would have made a different decision had we heard the case de novo, Thomas Industries, Inc. v. NLRB, 687 F.2d at 866, we are also not "to stand aside and rubber stamp" Board determinations that run contrary to the language or tenor of the Act. NLRB v. Weingarten, Inc., 420 U.S. at 266, 95 S.Ct. at 968. Accordingly, we must review the evidence unfavorable to the Board's position as well as evidence supporting it.

B.

Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a union to "restrain or coerce" employees in the exercise of their Sec. 7 rights. 29 U.S.C. Sec. 158(b)(1)(A). Section 8(b)(2) makes it an unfair labor practice for a union to cause an employer to discriminate against an employee "with respect to whom membership in such [labor] organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." 29 U.S.C. Sec. 158(b)(2). These sections do not, however, prohibit all forms of coercion by a union to prevent the exercise of an employee's organizational rights. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195, 87 S.Ct. 2001, 2014, 18 L.Ed.2d 1123 (1967). Specifically, the Supreme Court has held that "Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status." Id. As a result, a union is permitted to expel members or assess fines in order to enforce an internal regulation, but may not enforce its regulation by inducing the employer to exclude an employee from the work force without triggering violations of Secs. 8(b)(1)(A) and 8(b)(2). NLRB v. Boeing Co., 412 U.S. 67, 73...