Pittsburgh Press Co. v. N.L.R.B., 22
| Decision Date | 27 October 1992 |
| Docket Number | I,No. 91-1465,No. 22,22,91-1465 |
| Citation | 977 F.2d 652 |
| Parties | 141 L.R.R.M. (BNA) 2537, 298 U.S.App.D.C. 177, 123 Lab.Cas. P 10,448 PITTSBURGH PRESS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Pittsburgh Mailers Union Localntervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor relations board.
John H.M. Fenix, Cleveland, Ohio, with whom Betty Southard Murphy, Washington, D.C., were on the brief, for petitioner.
Vincent J. Falvo, Attorney, N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, Supervisory Attorney, N.L.R.B., Washington, D.C., were on the brief, for respondent. Nancy J. Gottfried, Washington, D.C., entered an appearance for respondent.
Richard Rosenblatt, Philadelphia, Pa., for intervenor Pittsburgh Mailers Union Local No. 22.
Before WALD, SILBERMAN and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Petitioner Pittsburgh Press Company ("Press") seeks review of a decision and order of the National Labor Relations Board ("NLRB" or "Board") concluding that the Printing, Publishing & Media Workers Sector of Communication Workers of America, Mailers Union, Local No. 22, AFL-CIO ("Union") did not commit an unfair labor practice in violation of subsection 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A) ("NLRA" or "Act"), by charging part-time mailroom employees a $2-per-shift fee for being called by the Union to report for work on a particular shift. Overruling the decision of the Administrative Law Judge ("ALJ"), the Board found that this practice constituted a valid referral system for which the Union was entitled to collect a reasonable fee.
We are unpersuaded that this arrangement conforms to the Board's prior definition of a valid referral system for which the Union may collect a fee, or that the Board has adequately articulated and justified a new definition to cover this case. As a result, we are unable to conclude that the Board's interpretation of the Act as permitting the referral fee under the circumstances of this case is a reasonable one. Consequently we remand to the Board for reconsideration and a more adequate explanation of its ultimate decision.
The facts in this case are simple and undisputed. The Union represents a unit of mailroom employees at Pittsburgh Press's North Side plant. In 1987, the Press closed one of its buildings, citing safety considerations, and laid off fifty-seven employees who worked in that building. The Union filed a grievance on their behalf. In February 1988, the parties signed a Memorandum of Understanding ("Memorandum") to settle this grievance. In this Memorandum, the Press agreed to reopen the plant in exchange for certain concessions from the Union. To realize the Press's intention to minimize overtime, the Memorandum gave the Press the right to create a new class of part-time or temporary employees who would replace overtime shifts by regular employees. These part-timers were expressly excluded from the parties' collective bargaining agreement.
Part-timers are hired under the same procedures as other Press employees: The Press screens and interviews prospective employees and requires them to fill out an application and undergo a physical examination. Candidates who satisfy the Press's requirements are placed on the part-timer call-in list. The Union participates in this process by nominating persons to be screened and interviewed by the Press. Although the Press is free to reject any individual Union nominee, half of the part-timers on the list must have been referred by the Union.
The Memorandum charged the Press with compiling, and the Union with maintaining, the list of part-timers. In practice, however, the Press both compiles and maintains the list, printing an updated one each week. The Memorandum provided that the Union would "call in to work such number of part-timers on a rotation basis from the list as may be required by the [Press]." Every day except Sunday the company's representative (the mailing room superintendent) gives the Union's elected representative the call-in list for the week and a list of the shifts for which the Press needs workers. When no elected Union representative is available, the mailing room superintendent gives the list to a mailroom employee. The caller goes through the list, top to bottom, calling and scheduling workers until the shifts are filled. Each caller starts where the last one left off. The calls are made from the company's premises, using the company's phones, and the callers are all company employees who are paid their regular wages for the time they spend calling. Although fees are not mentioned in the Memorandum, the Union charges part-timers $2 for each shift worked. The Memorandum gives the company the right to terminate the call-in system if the Union abuses it.
On December 14, 1989, the General Counsel of the NLRB issued a complaint charging that the Union's collection of a "referral" fee from part-timers constituted an unfair labor practice in violation of section 8(b)(1)(A) of the National Labor Relations Act. 1 On May 17, 1990, the case was tried before an ALJ. On January 11, 1991, the ALJ issued his decision and order, in which he concluded that the Union was not providing a job referral service to the part-timers, and therefore was not entitled to charge them a job referral fee, because the part-timers "did not gain employment through [the Union's] efforts." The ALJ determined instead that the By collecting a fee, concluded the ALJ, the Union had coerced the part-timers in the exercise of their right to refrain from assisting a labor organization, in violation of sections 7 and 8(b)(1)(A) of the NLRA.
The Union excepted to the ALJ's decision and sought review by the NLRB. On August 27, 1991, a three-member panel of the Board, with Member Oviatt dissenting, reversed the ALJ's decision. The Board found that, contrary to the ALJ's conclusions, the Union was operating a valid referral system for which it was entitled to charge a fee. The Press petitioned for review of the Board's order pursuant to section 10(f) of the Act, 29 U.S.C. § 160(f) (1988).
Under well-established principles of deference, we must uphold the Board's determination unless it has "acted arbitrarily or otherwise erred in applying established law to the facts at issue." North Bay Dev't Disabilities Servs. v. NLRB, 905 F.2d 476, 478 (D.C.Cir.1990) (citing United Food & Commercial Workers Int'l Union, Local 150-A v. NLRB, 880 F.2d 1422, 1428-29 (D.C.Cir.1989)). We thus affirm a decision of the Board decision if it is "reasonably defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 495-97, 99 S.Ct. 1842, 1848-49, 60 L.Ed.2d 420 (1979). Here, the Board's decision interprets the NLRA, a statute it administers, and addresses a specific issue--the threshold requirements of a compensable referral system justifying a union's collection of a fee from nonunion users--on which Congress has not made a clear statement. The Board's determination is, therefore, accorded particular weight. Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).
The Board, like any other agency, however, has a corresponding duty to give a reasoned justification for any departure from its prior policies or practices, Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983), and to present its decision "in such form as to enable this court to pass intelligently on that decision, and to determine whether it is rationally related to findings and supported by substantial evidence." Oil, Chem. & Atomic Workers Int'l Union v. NLRB, 362 F.2d 943, 946 (D.C.Cir.1966) (citing Retail Store Employees Union v. NLRB, 360 F.2d 494 (D.C.Cir.1965)).
Section 8(b)(1)(A) of the NLRA makes it an unfair labor practice for a union to restrain or coerce an employee in the exercise of his or her rights protected by the Act, including the right to refrain from assisting a labor union. Where, as here, the union exacts a fee from a nonunion worker, the question is whether the union is collecting the fee to cover the reasonable cost of providing a meaningful service to the worker or is, instead, coercing the nonunion worker to contribute to the union's coffers, without providing a relevant service to the worker. The former is permitted; the latter can constitute an unfair labor practice. See, e.g., Highway & Local Motor Freight Employees, Local 667 v. NLRB, 248 N.L.R.B. 260 (1980), enf'd, 654 F.2d 254 (6th Cir.1981) (Spector Freight ).
The operation of a "hiring hall" or job referral system is one of the services for which a union may collect a reasonable fee from nonunion workers. Highway & Local Motor Freight Employees, Local 667 v. NLRB, 248 N.L.R.B. 260 (1980), enf'd, 654 F.2d 254 (6th Cir.1981) (Spector Freight); NLRB v. Operating Engineers Local 138 (Hagerty Co.), 385 F.2d 874, 877 (2d Cir.1967). The Board determined here that the Union operated a valid hiring hall that justified the collection of the $2-a-shift fee. In our review of that determination, and in view of the fact that the text of the Act by itself provides no answer to the legitimacy of the practice we are concerned with, we consider first the legislative history of section 8(b)(1), then the case law governing hiring halls.
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