Carpenters Local 720

CARPENTERS LOCAL 720 Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America (UMC of Louisiana, Inc.) and Leland H. Johnson . Case 15-CB-2984 16 December 1987 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 27 August 1985 the National Labor Relations Board issued a Decision and Order in this proceed- ing,' in which it found that the Respondent violat- ed Section 8(b)(1)(A) of the Act by imposing disci- pline on employee-member Leland H. Johnson pur- suant to charges that reflected a change made in the Respondent's hiring hall policy without ad- vance notice to its membership. On a petition for review and a cross-application for enforcement of the Board's Order, the United States Court of Ap- peals for the Fifth Circuit set aside the Board's Order and remanded the case to the Board for fur- ther consideration consistent with the court's opin- ion. 2 The Board thereafter accepted the court's remand and notified the parties that they could file statements of position. The Respondent has filed a statement of position. We have carefully reviewed the record in this case, as well as the statement of position and, for the reasons discussed below, we have decided to vacate our prior decision in this case and dismiss the complaint. The relevant facts, which are not in dispute, are as follows. The Respondent operates an exclusive hiring hall, referring millwrights to various em- ployers in the greater Baton Rouge, Louisiana area The hall's referral rules grant all job applicants turn-down rights, that is, an applicant may decline a job offered him by the Respondent's business manager without sacrificing his place on the job register. Applicants who are members of the Respondent have certain obligations by virtue of membership that nonmembers do not have. Until the event that precipitated this case, however, the Respondent had not imposed any obligation on members to re- frain from working for nonunion contractors. The Respondent had acquiesced in its members' work- ing for such employers because of the declining availability of union jobs in the economically de- pressed Baton Rouge market. In particular, it had 1 276 NLRB 59 2 798 F 2d 781 (5th Cir 1986) 545 allowed them to turn down referrals to union jobs while holding a nonunion job, without losing their place on the hiring hall register. There was senti- ment in the membership against this policy, howev- er, because of concern that the nonunion contrac- tors were undercutting the wage standards of the union signatory contractors. Leland H. Johnson, a member of the Respond- ent, signed the hall's out-of-work list on 10 Septem- ber 1984. The next day, the Union's business man- ager, Joe W. Bennett, offered Johnson a job with a union company, which Johnson declined in favor of retaining a job with a nonsignatory employer on which he had been working for 2 months. Bennett filed union disciplinary charges against Johnson and announced his action to the Union's member- ship on 14 September 1984. Johnson was subse- quently ' tried, found guilty, and fined for violating his "Obligation" of allegiance to the Union. In its prior decision in this case, the Board adopted the judge's conclusion that the Respond- ent's unannounced adoption of a rule restricting members' freedom to decline hiring hall referrals breached its duty of fair representation in violation of Section 8(b)(1)(A). The judge noted that a union's duty of fair representation has been held to impose on it the duty not to purposely keep em- ployees uninformed or misinformed concerning matters affecting employment. The judge relied on Teamsters Local 282 (Transit-Mix Concrete), 267 NLRB 1130, 1131 (1983), citing Auto Workers Local 417 (Falcon Industries), 245 NLRB 527 (1979). The judge further observed that while it is true that a union is free to enforce against its mem- bers a rule that reflects a legitimate union interest, the rule must be "properly adopted." Scofield v. NLRB, 394 U.S. 423, 430 (1969). The judge held that that standard means, at the very least, fair ad- vance notice The judge found, and the Board agreed, that the Respondent had given no such notice to its membership of the change in its policy regarding members who signed the out-of-work list but then declined a job referral and remained working nonunion. In refusing to enforce the Board's Order, the Fifth Circuit stated that unions have been held to have breached their duty of fair representation only when a change made in hiring hall procedures without informing the membership has resulted in denial of employment opportunities, citing Operat- ing Engineers Local 406 (Ford, Bacon & Davis Con- struction), 262 NLRB 50, 51 (1982), enfd. 701 F.2d 504 (5th Cir. 1983). Accord: NLRB v. Teamsters, 778 F.2d 207, 213-215 (5th Cir. 1985). The court noted, however, that neither the Board nor the ad- ministrative law judge found that the Respondent's 287 NLRB No. 54 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discipline of Johnson affected his employment or employment opportunities. The court rejected the argument advanced by the Board that the Union's sanctions were "employment -related" because they restricted Johnson's freedom to work for nonunion contractors. The court noted that Johnson kept the nonunion job, and that, even when he turned down the union job offered by Bennett, he retained his full hiring hall privileges. Acknowledging the fact that the Respondent's change in its hiring hall policy compelled Johnson to choose between re- taining the nonunion job and paying a fine or re- signing from that job and accepting the offer of work with a signatory employer, the court empha- sized that neither choice presented Johnson with a loss of employment. Citing Scofield (upholding fines imposed on members for exceeding union -imposed production standards on the job) and Allis- Chalmers (upholding fines for working behind a picket line),3 the court also observed (emphasis in the original) that "all union discipline which con- cerns a union member 's employment-related activi- ties may affect the member's employment status or employee-employer relationship in the sense that the employee threatened with or coerced by such discipline may be or feel compelled to choose be- tween the desired employment-related activity" and union membership ; but the court did not find such a coerced choice to be the kind of direct in- terference with employment that the Act generally forbids. Having found that the Respondent 's new rule forbidding members from turning down union job referrals in order to continue in nonunion employ- ment did not have any direct effect on Johnson's employment opportunities , the court next consid- ered the Board 's finding that the rule was unlawful because it was not "properly adopted." In particu- lar, the court looked to see if the rule satisfied the two-prong test established in Scofield. According to the court, Scofield suggests two general areas in which a union's discretion regarding internal mat- ters may be limited by Section 8(b)(1)(A): (1) when the union adopts a rule that does not reflect a le- gitimate union interest or impairs a policy that Congress has imbedded in the labor laws; or (2) when a union rule is not properly adopted or rea- sonably enforced. Scofield, supra at 430. Analyzing this second aspect of Scofield in light of Allis- Chalmers and its progeny, however, the court held that Congress did not intend Section 8(b)(1)(A) to proscribe the manner in which a union imposes in- ternal sanctions that do not affect - a member's em- ployment. Further, the court stated, it was unable 3 NLRB v Allis-Chalmers Mfg Co, 388 U S 175 (1967) to discover any decisions finding internal union dis- cipline not directly affecting a member's employ- ment to violate the Act solely on the basis that the union's rule was not "properly adopted" or "rea- sonably enforced." The court accordingly rejected the Board's finding that the Respondent's discipline of Johnson for transgressing its policy regarding members' rights to decline hiring hall referrals while retaining nonunion employment constituted a violation of the Act merely because Johnson had not received notice of the change in the policy. The Fifth Circuit next turned to the other part of the Supreme Court's Scofield analysis, noting that the Board had declined to answer the questions whether the Respondent's rule reflects a legitimate union interest and does not frustrate a policy that Congress has imbedded in the labor laws. The court concluded that the present case did not sup- port the' type of 8(b)(1)(A) violation found in NLRB v. Shipbuilders, 391 U.S. 418 (1968), where a union impeded enforcement of the Act by disciplin- ing a member who filed an unfair labor practice charge against the union without first exhausting his available union remedies, and its progeny. Thus, the Respondent's conduct in the present case, the court decided , at least did not impair policies un- derlying the National Labor Relations Act. The court, however, reserved for the Board's de- termination on remand the questions whether the Respondent's conduct impairs policies embodied in labor statutes other than the NLRA and whether the Board in this type of case may properly consid- er other, non-NLRA policies. The court also left for the Board's initial determination the question whether the Respondent's policy forbidding mem- bers to decline hiring hall referrals while retaining a nonunion job reflects a legitimate union interest. We accept the court's opinion as the law of the case. Addressing first the question whether a union rule that prohibits a union member from declining a hiring hall referral in order to keep a job with a nonsignatory contractor represents a legitimate union interest, we note that union rules forbidding members to work for nonunion employers reflect such traditional union objectives as encouraging members to work for signatory employers, preserv- ing union work and discouraging work done under nonunion conditions, maintaing the integrity of hiring hall arrangements with signatory employers, fulfilling contractual obligations with those em- ployers, and rallying the support of union mem- bers. Indeed, such rules have expressly been held lawful. See, e.g., Plumbers Local 119 (Kamtech, Inc.), 264 NLRB 688, 694 (1982), enfd. mem. 715 F.2d 578 (11th Cir. 1983); New York Typographical Union (Typemen, Inc.), 229 NLRB 886, 887 (1977). CARPENTERS LOCAL 720 In each case in which the Board has found an unfair labor practice associated with such a rule, the violation has concerned some aspect of the union's enforcement of the rule, not the union's action in promulgating the rule or the validity of the rule itself. See, e.g., Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428 (1984) (rule enforced against members who had resigned); and Plumbers Local 119 (Kamtech, Inc.), supra (rule enforced by threats of physical harm). We find, therefore, that the policy established by the Re- spondent in the present case reflects a legitimate union interest. Turning to the issue of whether in the present posture of this case the Board should consider whether the Respondent's rule impairs policies in- volving labor laws other than the NLRA, we reaf- firm the position taken by the Board in Carpenters Local 22 (Graziano Construction), 195 NLRB 1 at 2 (1972), that the language of Scofield implies that the Board is "charged with considering the full pano- ply of congressional labor policies in determining the legality of a union fine." After such consider- ation here, we find that neither the Respondent's rule nor the Respondent's discipline of Johnson frustrates any policy embodied in another, non- NLRA labor statute, including the Labor-Manage- ment Reporting and Disclosure Act of 1959. Having thus found that the Respondent's rule re- flects a legitimate union concern and contravenes no policy that Congress has imbedded in the labor laws, we conclude under the terms of the court's remand that there has been no violation of the Act. Applying the court's opinion as the law of the case, we shall dismiss the complaint. ORDER The National Labor Relations Board orders that the original decision in this case (276 NLRB 59) is vacated and that the complaint is dismissed. CHAIRMAN DOTSON, concurring. I concur with my colleagues' finding that the failure of the Union to give advance notice of its change in hiring hall procedures did not result in a 547 violation of Section 8(b)(1)(A) because the Union's sanctions did not affect Johnson's employment status. However, I reach that conclusion not on the traditional "law of the case" analysis applied by my colleagues, but on the basis of the considerations set forth in my dissenting opinion in Arvin Indus- tries, 285 NLRB 753 (1987). There, I reviewed the Board's policy of nonacquiescence in the law of the circuits in light of that policy's stated rational and its consistent repudiation by the circuit courts. I concluded that recognition of the Board's proper role within the Federal judicial and administrative system compels abandonment of this policy. Id at 761-762. Therefore, I determined that I would ac- quiesce in the law of the circuit in which the case arose, even if it requires that a result obtain which is contrary to Board law. Id. at 762. Thus, while I disagree with the Fifth Circuit's finding that unions breach their duty of fair representation only when a change made in hiring hall procedures without informing the membership has resulted in members' denial of employment opportunities, I acquiesce to the Fifth Circuit's decision on this issue until such time as the issue can be presented to the Supreme Court for review. I agree with my colleagues' resolution of the re- maining two issues which the Fifth Circuit left for the Board's initial determination. Thus, I agree with my colleagues, for the reasons set forth in their opinion, that in the absence of a fatal proce- dural flaw in the adoption of the rule which affects Johnson's employment status, the rule is not sub- stantively defective, since the Respondent has a le- gitimate union interest in imposing the rule in ques- tion. Finally, I agree with my colleagues' conclusion that the Board may properly consider whether the Respondent's hiring hall rule impairs policies in- volving labor laws other than the NLRA, and that in this case, neither the rule nor the Union's disci- pline of Johnson frustrates any policy embodied in any non-NLRA statutes. I would therefore vacate the original decision in this case (276 NLRB 59) and dismiss the complaint.