Nat'l Labor Relations Bd. v. Teamsters “General” Local Union No. 200

• Decision Date: 23 July 2013
• Docket Number: No. 12–1586.,12–1586.
• Citation: 723 F.3d 778
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS “GENERAL” LOCAL UNION NO. 200, an affiliate of the International Brotherhood of Teamsters, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

723 F.3d 778

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.TEAMSTERS “GENERAL” LOCAL UNION NO. 200, an affiliate of the International Brotherhood of Teamsters, Respondent.

No. 12–1586.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 5, 2012.

Decided July 23, 2013.

Usha Dheenan, Attorney, Linda Dreeben, Attorney, Ruth E. Burdick, Attorney, National Labor Relations Board, Office of the General Counsel, Dorit Radzin (argued), Attorney, National Labor Relations Board, Washington, DC, Benjamin Mandelman, Attorney, National Labor Relations Board, Milwaukee, WI, for Petitioner.

Kyle Addison McCoy (argued), Attorney, Soldon Law Firm, Rochester, MN, Scott D. Soldon, Attorney, Soldon Law Firm, LLC, Shorewood, WI, for Respondent.

Before BAUER, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

After losing a contentious union election, Timothy Buban went to work as a shuttle bus driver at a construction site. A year later, Buban faced more badnews: His employer laid him off from this position. When Buban approached the current union leadership—his former political rivals—for help in returning to work, his troubles continued. Specifically, the National Labor Relations Board determined that the union, as the exclusive source of referrals for their members to the construction company, did not consistently use objective criteria in determining which job-seekers to refer to the company; discriminatorily failed to refer Buban for employment; and failed to provide him with specifically requested information concerning the union's job-referral procedures. All three determinations constitute violations of the National Labor Relations Act. The union appeals the Board's decision. We affirm.

I.

Buban is a member of Teamsters General Local Union No. 200 in Wisconsin. He participates in union politics as a member of the dissident group “Teamsters for a Democratic Union,” and served as secretary-treasurer of Local 200 from 2004 to 2006. Buban lost his bid for reelection in 2006, following an acrimonious campaign against the rival “Teamsters 4 Teamsters” slate of candidates. He resigned his position in October 2006, shortly after his electoral defeat but before his term was to expire.

At the time of his resignation—but presumably before he had completely relinquished power—Buban, in his capacity as a union official, referred himself for work at the Bechtel Construction Company's Elm Road Power Generating Station Project in Oak Creek, Wisconsin. Bechtel hired him as a shuttle bus driver, transporting workers to and from the construction site. Bechtel laid Buban off—along with all other drivers who lacked a certain license—in September 2007.

That month, Buban filed a grievance with Local 200 regarding the layoff. Union business agent Mike Gurich was assigned to handle Buban's grievance. Gurich and Buban had been rivals during the previous union local election campaign—Gurich was affiliated with the “Teamsters 4 Teamsters” group, and was appointed to his position as union business agent following that group's electoral victory. Buban and Gurich clashed throughout the grievance process, with Buban alleging that the union was responsible for the loss of his job and had improperly handled his grievance. In an October 2007 letter to Burich detailing the steps that the union had taken to resolve Buban's grievance, Gurich called Buban's allegations “somewhat hysterical.”

Buban claims that, from at least as early as January until April 2008, he repeatedly told Gurich that he wished to return to work as a bus driver, truck driver, or warehouse worker at the Elm Road site. Although Local 200 disputes the particular jobs for which Buban expressed an interest, the union does not deny that Buban informed Gurich of his interest in returning to work at the Elm Road site. Regardless, Buban's conversations with Gurich were for naught; he remained unemployed throughout this period.

In April 2008, Carol Simon, a fellow union member and political ally of Buban's, informed Buban that Gurich had told her that Buban “hasn't put his name on the out-of-work list.” The existence of such a list was news to Buban. In all his conversations with Gurich regarding his desire to return to work, Gurich had never mentioned it. But once Simon alerted him to the existence of the list, Buban called Gurich to expressly request to be placed on it. Gurich complied with his request, placing Buban's name and telephone number on the list. Gurich also placed a question mark next to Buban's name—a designation that appears alongside only nine other names on the list. According to Gurich, this was the first time that Buban had asked to be placed on the list since he was laid off in September 2007.

After Buban had been placed on the referral list, Gurich referred several other union members for positions at the Elm Road project. The parties in the case disagree on whether these individuals were referred ahead of Buban. According to Local 200, Gurich referred these individuals to Bechtel based on objective criteria; the Board, however, sees these referrals as arbitrary at best, and favoritism based on loyalty to union leaders at worst.

By August, a still-unemployed Buban visited Local 200's office to request information about the workings of the referral system. Buban met with another union business representative, who said that he was unable to help Buban and that the relevant union officials were not available. The business representative agreed to take a message though—but no one from the union office ever followed-up with Buban regarding his visit.

By this point, Buban had filed charges against the union with the National Labor Relations Board. In May 15, 2009, the Regional Director for Region 30 of the Board issued a complaint against the union, alleging violations of Section 8(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(b). The next year, an administrative law judge (“ALJ”) issued a decision finding that the union: violated § 8(b)(1)(A) of the NLRA by operating an exclusive hiring-hall without consistently applying objective criteria; violated §§ 8(b)(1)(A) & 8(b)(2) by discriminatorily failing and refusing to refer Buban for employment at the Elm Road site; and § 8(b)(1)(A) by failing and refusing to provide him with pertinent information, including the union's job referral list and the procedures that the union used to select applicants from this list for referrals. The Board affirmed these specific findings, and ordered the union to (i) compensate Buban for his lost earnings stemming from the union's discriminatory treatment of him; (ii) refer Buban to Bechtel for employment; (iii) operate its referral system using objective, consistently applied criteria; and (iv) provide Buban with information regarding these criteria.

The union appeals.

To understand the issues in this case, some discussion of the referral list is necessary. This document has its origins in the Area Agreement between Local 200 and Bechtel governing labor relations at the Elm Road site. This agreement provides for a procedure by which the union participates in Bechtel's hiring decisions. After Bechtel places a request for additional workers with Local 200, the union has the exclusive right to refer union members for employment for a 48–hour period. Although the union enjoys an exclusive right of referral during this 48–hour window, Bechtel is not required to hire those job-seekers that the union refers. If Local 200 does not make the requested number of referrals during the 48–hour period, Bechtel may look elsewhere for workers. In practice, however, Local 200 responded to every request for workers that Bechtel made within 48 hours, and Bechtel only hired those workers that the union referred.

To determine which union members to refer for employment, Gurich maintained a document with the names and other descriptive information for union members seeking work. Each entry in the document contains the name and contact information for each union member seeking a referral. Some entries also include an assessment of the individual's qualifications, written by Gurich. Gurich claims to have added jobseekers to the list in chronological order. Although the first portion of the list is indeed numbered, Gurich also placed sticky notes throughout the list with the names of other job-seekers; these notes were unnumbered. A small number of entries also include additional comments, such as “seems like [a] good guy,” “friend of Rick Badnik,” and “good driver.” Some sections of this document were organized as an ordered list, while others were not. (For simplicity, we refer to the entire document as a list because that is the term used by the parties. The document actually appears to be more of a loose conglomeration.)

Gurich claims to have considered the following factors in determining which individuals to refer for positions at Elm Road: order in which the individual requested placement on the list, layoff status, seniority, experience, foreman requests, and work history. Gurich did not apply these factors in any set formula; he acknowledges that his referral system was not an “exact science.” While there were no formal rules regarding Gurich's methods, Gurich stated that his system was governed by unwritten rules, including a degree of discretion. These unwritten rules remain a mystery to us, however; in one particularly perplexing instance, Gurich referred a union member who could not recall having taken any steps to place his name on the list.

The record is unclear as to how those union members whose names appear on the list first learned of the existence of this document. Relatedly, no information was presented about the proportion of the union membership that was aware of the list's existence. According to the union, members could request to be placed on the list either in-person at the Local 200 office or telephonically. But since there is no evidence that...