Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., AFL-CIO

• Decision Date: 06 December 1985
• Docket Number: Nos. 84-1224,84-1225,AFL-CIO,s. 84-1224
• Citation: 778 F.2d 8
• Parties: 120 L.R.R.M. (BNA) 3541, 250 U.S.App.D.C. 135, 103 Lab.Cas. P 11,719 ROAD SPRINKLER FITTERS LOCAL UNION NO. 669 a/w United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ROAD SPRINKLER FITTERS LOCAL UNION NO. 669 a/w United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 8

778 F.2d 8

120 L.R.R.M. (BNA) 3541, 250 U.S.App.D.C. 135,

103 Lab.Cas. P 11,719

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669 a/w United

Association of Journeymen and Apprentices of the

Plumbing and Pipefitting Industry of the

United States and Canada

(AFL-CIO), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669 a/w United

Association of Journeymen and Apprentices of the

Plumbing and Pipefitting Industry of the

United States and Canada

(AFL-CIO), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 84-1224, 84-1225.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 13, 1985.

Decided Dec. 6, 1985.

William W. Osborne, Jr., with whom Jonathan G. Axelrod, Washington, D.C., was on brief, for petitioner.

Deborah M.P. Yaffe, Atty., N.L.R.B., of the Bar of the District of Columbia Court of Appeals, pro hac vice by special leave of the Court, with whom John G. Elligers, Atty., Wilford W. Johansen, Acting Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on brief, for respondent.

Before WRIGHT, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge.

These consolidated cases present for review two separate decisions in which the National Labor Relations Board found that the Road Sprinkler Fitters Local Union No. 669 violated Sec. 8(b)(2) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(b)(2) (1982), by causing employees to be fired or employment applicants not to be hired. In addition to the question of whether there was substantial evidence to support the Board's factual findings, the cases present the issues of the correct legal standard to be applied to such unfair-labor-practice determinations, and of the Board's authority to provide a remedy for a violation established by the evidence but not charged in the complaint.

I

The principles of law and the facts common to both the cases before us are as follows:

With an exception not applicable here, Sec. 8(b)(2) of the NLRA prohibits unions from causing or attempting to cause employers to discriminate against employees so as to encourage union membership. The object of the provision is "to insulate employees' jobs from their organizational rights ... [by allowing] employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood." Radio Officers' Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455 (1954) (footnote omitted).

The analysis that the Board and the courts apply to the implementation of this provision is laden with presumptions--and, like most analyses laden with presumptions, is highly artificial. Whether particular employer conduct caused by the union actually encourages union membership need not be proved by direct evidence, but may be presumed as "an inherent effect of certain discrimination." Id. at 51, 74 S.Ct. at 341. See also Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 675, 81 S.Ct. 835, 839, 6 L.Ed.2d 11 (1961) ("Teamsters Local 357 "). Similarly, although it is said to be "the 'true purpose' or 'real motive' in hiring or firing" which is the test of the statutorily required intent to encourage union membership, that need not be shown by specific proof, since "[s]ome conduct may by its very nature contain the implications of the required intent," Teamsters Local 357, 365 U.S. at 675, 81 S.Ct. at 839. "[W]here employer conduct inherently encourages or discourages union membership" there comes into play "the common-law rule that a man is held to intend the foreseeable consequences of his conduct." Radio Officers' Union, 347 U.S. at 45, 74 S.Ct. at 338. While the legal battles over these issues are conventionally conducted on the battleground of whether there genuinely was "encouragement" of union membership, or "intent" of such encouragement, it should be clear enough that all union-procured employment action demonstrates the union's power and thus encourages membership; and that all union action is motivated by a desire, proximate or ultimate, to encourage membership. In deciding that in some cases the "inference" or "presumption" of illegal encouragement or intent to encourage will not be applied (it will not, for example, be applied to a union-procured firing to enforce contractual provisions of a valid hiring-hall agreement, see Teamsters Local 357, 365 U.S. at 675, 81 S.Ct. at 839) what is in reality afoot is, as Justice Harlan suggested in his concurrence in Teamsters Local 357, application of the principle that "the [National Labor Relations] Act was not intended to interfere significantly with those activities of employer and union"--whether or not those activities encourage, and are intended to encourage, union membership--which are sufficiently important (and perhaps sufficiently commonplace) means by which employers achieve "non-discriminatory business purposes," or by which unions "attempt[ ] to benefit all the represented employees." 365 U.S. at 682, 81 S.Ct. at 843. Having made that obeisance to the reality of the matter, we shall revert in the balance of our opinion to conventional analysis.

In faithful application of the case-law, the Board holds that conduct which causes firing or prevents hiring demonstrates the union's power so dramatically that its illegality is presumed. See United Brotherhood of Painters, Local Union No. 487 (American Coatings, Inc.), 226 N.L.R.B. 299, 301 (1976) ("Painters Local 487"); International Union of Operating Engineers, Local 18, 204 N.L.R.B. 681, 681 (1973) ("Engineers Local 18 "), enforcement denied on other grounds, 496 F.2d 1308 (6th Cir.1974). The union can rebut that presumption, however, by showing that its action " 'was necessary to the effective performance of its function of representing its constituency.' " Painters Local 487, 226 N.L.R.B. at 301 (quoting Engineers Local 18, 204 N.L.R.B. at 681). For this purpose, merely demonstrating that it would be "convenient for the Union, in enforcing its own internal rules of conduct, to have available an employment-related sanction" is insufficient. Engineers Local 18, 204 N.L.R.B. at 681.

Local 669 represents "sprinkler fitters," who specialize in the installation and maintenance of fire protection systems. It is a "road local," i.e., one with a national geographic jurisdiction, representing sprinkler fitters in 47 states and the District of Columbia. It 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 constitution of that organization, which Local 669 is required to observe, provides that a journeyman member of one affiliated local who seeks employment within the jurisdiction of another affiliated local (a "traveler") must file a "travel card" with the jurisdictional local before he begins work.

Under Local 669's 1979-82 collective bargaining agreement with the National Automatic Sprinkler and Fire Control Association ("NASFCA"), a multiemployer bargaining unit, employers were not limited to hiring members of Local 669 or locals affiliated with the United Association, but could also hire journeymen sprinkler fitters who belonged to other unions or to no union at all. However, journeymen who were not members of a union affiliated with the United Association were eligible for employment only after affidavits indicating that they had at least four years' experience in the industry had been presented to their employer and forwarded to Local 669.

II

Appeal No. 84-1225 involves an unfair-labor-practice charge against Local 669 arising from the dismissal of an employee by American Automatic Fire Protection, Inc. ("American"), a signatory to the national agreement between NASFCA and the union. In mid-January 1982, American's president, Harry Horton, hired Raymond Woodruff, who was not a member of any union, to perform installation work. In response to Woodruff's expressed desire to join Local 669, Horton suggested that he contact the union, but conceal his present employment by stating that American had agreed to hire him after he joined. Soon after this conversation, Woodruff contacted J.R. Lively, Local 669's regional business agent. Lively said that he would not permit Woodruff to join the union unless he produced check stubs proving that he had been employed in the industry for at least four years.

Lively later found out that Woodruff was doing installation work for American, and on February 10 told Horton that that employment should cease immediately. When, on February 12, Woodruff once again contacted Lively to inquire about joining the Local, Lively questioned him concerning the number of hours he had been working for American and indicated that if Woodruff were forthcoming in his responses, he would probably be permitted to join. Woodruff gave evasive answers and Lively stated that he would prevent Woodruff from joining Local 669 because he was a "liar and a scab." J.A. 732.

In a meeting of Horton, Lively and (for some of the meeting) Woodruff held in Horton's office, Horton urged Lively to permit Woodruff to join the Local. Lively initially refused, stating that he considered Woodruff to be a "liar," J.A. 734, but later revised his position to state that Woodruff would not be accepted until a new contract had been negotiated and all of Lively's men had been employed. Lively told Woodruff "I'm not going to keep you from joining the Union," but "I'm not going to let you in until April 1st, or until after the strike, if we have a strike, is settled." J.A. 735. He suggested that Woodruff get letters detailing his employment history and have them ready when the impending strike was settled. In early March, Woodruff gave such letters to Horton, who gave them to...