International Alliance v. NLRB ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3686
___________________________
International Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United States, its Territories and
Canada, Local Union No. 151
lllllllllllllllllllllPetitioner
Katie Martens
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
___________________________
No. 16-3940
___________________________
National Labor Relations Board
lllllllllllllllllllllPetitioner
v.
International Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United States, its Territories and
Canada, Local Union No. 151
lllllllllllllllllllllRespondent
Katie M. Martens
____________
National Labor Relations Board
____________
Submitted: October 18, 2017
Filed: March 26, 2018
____________
Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
____________
SMITH, Chief Judge.
The International Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada,
Local No. 151 (IATSE) petitions for review of the National Labor Relations Board
(“Board”) decision finding IATSE violated the National Labor Relations Act (NLRA)
through its hiring practices. The Board cross-applies for enforcement of the decision
and order. We deny the petition for review and grant the cross-application for
enforcement.
I. Background
IATSE furnishes labor for entertainment-venue employers, supplying
stagehands, riggers, and lighting technicians to employers who require such services
for entertainment events. Two such employers are The Freeman Companies, d/b/a
Freeman Decorating Services, Inc. (“Freeman”) and SMG, specifically SMG’s place
of business called the Pershing Center in Lincoln, Nebraska (“SMG Pershing”). The
Board issued a complaint alleging IATSE had operated an exclusive hiring hall with
respect to Freeman and SMG Pershing and had violated section 8(b)(1)(A) and (2)
of the NLRA. The Board alleged that IATSE: (1) discriminated against nonunion
employees by granting priority to its own members for job referrals; (2) refused to
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refer two employees to a particular job in February 2013; (3) suspended seven
members from its referral list; (4) had maintained a rule in its constitution and bylaws
prohibiting legal proceedings against it by its members without providing for the
four-month limitation required by section 101(a)(4) of the Labor Management
Reporting and Disclosure Act; (5) followed a job-referral rule that allowed IATSE to
refuse to refer an employee in order to collect a fine; (6) failed to remit certain
bonuses to employees who are not IATSE members; and (7) failed to remit such
bonuses to certain individuals for improper reasons. IATSE denied all allegations.
After a trial in early 2014, the administrative law judge (ALJ) found all the
allegations to be supported by the evidence, except the fourth: that IATSE violated
the NLRA by failing to include certain language in its constitution and bylaws. The
Board affirmed the ALJ’s rulings and findings, adopting her opinion with limited
modifications, in fall 2016.
IATSE petitions for our review of the Board’s decision, and the Board cross-
applies for enforcement. First, IATSE argues the Board lacked jurisdiction over
employer SMG Pershing. Second, it contends that it did not operate exclusive hiring
halls with respect to either SMG Pershing or Freeman. Third, IATSE argues that it
did not violate the NLRA by removing individuals from its referral list, failing to
refer the two employees to a February 2013 job, or prioritizing members over
nonmembers. Finally, IATSE contends that the Board’s charge of discriminatory
referrals was time-barred.1
1
In its opening brief IATSE also raises an argument regarding the remedy
imposed. In its reply, IATSE agrees with the Board that it will handle this issue with
the Board at a later time.
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II. Discussion
A. Standard of review
We review the Board decision for substantial evidence on the record as a
whole. Midwest Precision Heating & Cooling, Inc. v. N.L.R.B., 408 F.3d 450, 457–58
(8th Cir. 2005) (citations omitted). Credibility determinations are also considered
under the substantial evidence test. Id. at 457. We will not displace the Board’s
choice between two fairly conflicting views, even if we would have made a different
choice had the matter been before us de novo. Id. at 458 (citation omitted). Instead,
we afford great deference to the Board’s credibility determinations, “and will not
overturn them unless they shock the conscience.” N.L.R.B. v. RELCO Locomotives,
Inc., 734 F.3d 764, 787 (8th Cir. 2013) (citation omitted). Finally, we defer to the
Board’s conclusions of law in construing the NLRA, so long as “they are based upon
a reasonably defensible construction of the Act.” JCR Hotel, Inc. v. N.L.R.B., 342
F.3d 837, 841 (8th Cir. 2003) (citation omitted).
B. Jurisdiction over SMG Pershing
We first consider whether the Board has jurisdiction over employer SMG
Pershing. By statute, “[t]he Board is empowered . . . to prevent any person from
engaging in any unfair labor practice . . . affecting commerce.” 29 U.S.C. § 160(a).
We have noted that “Congress gave and intended to give the Board the fullest
possible jurisdiction under the commerce clause of the Constitution.” N.L.R.B. v.
Erlich’s 814, Inc., 577 F.2d 68, 70 (8th Cir. 1978) (citations omitted). The Board has
also imposed discretionary jurisdictional standards upon itself. See id. The Board will
exercise discretionary jurisdiction over a non-retail enterprise if the enterprise has a
gross outflow or inflow of $50,000 across state lines. N.L.R.B. v. Jerry Durham
Drywall, 974 F.2d 1000, 1002 (8th Cir. 1992); see also N.L.R.B. v. Somerville Constr.
Co., 206 F.3d 752, 754 n.3, 754–55 (7th Cir. 2000).
In assessing whether the $50,000 threshold has been met by a multi-state
employer, the Board considers all the employer’s locations, not just the particular
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location at issue. This has long been the established standard. Siemons Mailing Serv.,
122 N.L.R.B. 81, 84 (1958) (“[T]he Board will continue to apply the concept that it
is the impact on commerce of the totality of an employer’s operations that should
determine whether or not the Board will assert jurisdiction over a particular employer.
Accordingly, the Board will continue its past practice of totaling the commerce of all
of an employer’s plants or locations to determine whether the appropriate
jurisdictional standard is met.” (footnote omitted)).
IATSE says it is improper for the Board to consider SMG as a whole in the
jurisdictional analysis because the alleged violations are only relevant to SMG’s
Pershing location. The general manager for SMG’s two Lincoln, Nebraska locations
testified as to SMG’s business operations. He stated that SMG “manages over 200
different facilities across the country and across the world.” J.A. vol. I, 50. And he
was asked, “[i]n your position as general manager for SMG, are you familiar with
whether or not the company has purchased greater than $50,000 worth of services
from entities outside the State of Nebraska within the last 12 months?” Id. The
manager answered in the affirmative. Id.
On this record, we hold that the Board has jurisdiction over SMG Pershing. We
acknowledge the seeming discrepancy in the Board’s consideration of all of SMG’s
locations for jurisdictional purposes, but only SMG Pershing for the purposes of the
charge. But IATSE has provided no legal authority that the Board’s use of SMG’s
activities outside of Pershing was error. And the Board followed its own discretionary
jurisdictional guidelines. The ALJ, in her decision, referenced the local SMG general
manager’s testimony that SMG has purchased services in excess of $50,000 from
outside of Nebraska within the previous year. The Board adopted the ALJ’s use of
this testimony. The Board’s opinion stated, “[i]t is irrelevant whether [the $50,000]
amount applies to SMG globally or only SMG/Pershing,” and it cited the established
law dictating that the Board consider the impact on commerce of all the employer’s
plants or locations. Int’l All. of Theatrical Stage Emps., Moving Picture Techns.,
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Artists & Allied Crafts of the United States, Its Territories & Canada Local No. 151
(Smg & the Freeman Cos. d/b/a Freeman Decorating Servs., Inc.) & Katie M.
Martens (IATSE Local No. 151), 2016 WL 4548855, at *9, 364 N.L.R.B. No. 89
(Aug. 26, 2016) (citing Siemons Mailing Serv., 122 N.L.R.B. at 84). We hold that the
Board’s conclusion that it had jurisdiction over SMG Pershing is supported by
substantial evidence.2
C. Exclusivity of Hiring Halls
We first address whether IATSE operated an exclusive hiring hall with respect
to Freeman and SMG Pershing. As the Board has previously explained:
A union’s duty of fair representation derives from its status as the
exclusive bargaining representative of employees in a specified unit.
Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enf. denied 326 F.2d 172 (2d
Cir. 1963). Where a union has a nonexclusive referral arrangement with
an employer, the union has no exclusive status relating to potential
employees. Individuals can obtain employment either through the
union’s hiring hall or through direct application to the employer.
Without the exclusive bargaining representative status, the statutory
justification for the imposition of a duty of fair representation does not
exist. Accordingly, no duty of fair representation attaches to a union’s
operation of a nonexclusive hiring hall. See Laborers Local 889
(Anthony Ferrante & Sons), 251 N.L.R.B. 1579 (1980).
2
We note that even if the discretionary jurisdictional threshold were not met,
“[w]here statutory jurisdiction exists, as it clearly does here, the Board has the
administrative discretion to disregard its own self-imposed jurisdictional yardstick.”
Erlich’s 814, 577 F.2d at 71 (citations omitted). When the Board disregards this self-
imposed guideline, we do “not intervene unless compelled to do so by extraordinary
circumstances, or unless the Board has abused its discretion.” Id. (citations omitted).
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Teamsters Local 460 (Superior Asphalt), 300 N.L.R.B. 441, 441 (1990). Determining
whether a hiring hall is “exclusive” is crucial. The Supreme Court has defined
“exclusive” as it pertains to hiring halls as follows:
The word “exclusive” when used with respect to job referral systems is
a term of art denoting the degree to which hiring is reserved to the union
hiring hall. Hiring is deemed to be “exclusive,” for example, if the union
retains sole authority to supply workers to the employer up to a
designated percentage of the work force or for some specified period of
time, such as 24 or 48 hours, before the employer can hire on his own.
Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 71 n.1
(1989) (citation omitted). Thus, all hiring authority need not be reserved to the union
for a hiring hall to be considered “exclusive.” An exclusive hiring hall can exist
where the employer has the right to hire a certain number or certain percentage of the
employees on a job. Carpenters Local 608 (Various Emp’rs), 279 N.L.R.B. 747, 754
(1986). A hiring hall may be exclusive even if the employer obtains personnel on its
own “on a minimum number of occasions when the Union [] exhaust[s] its referral
list.” Theatrical Wardrobe Union Local 769, IATSE (Broadway in Chi.), 349
N.L.R.B. 71, 73 (2007). Likewise, a hiring hall may be exclusive even where the
employer can reject any applicant referred. Ironworkers Local 843, Int’l Ass’n of
Bridge, Structural & Ornamental Ironworkers, AFL-CIO, 327 N.L.R.B. 29, 30
(1998).
Even if a collective bargaining agreement (CBA) does not require employers
to hire only those employees recommended by the union, the parties’ past practice can
nevertheless demonstrate exclusivity. N.L.R.B. v. Moving Picture & Projection Mach.
Operators Union, Local No. 143, 649 F.2d 610, 612 (8th Cir. 1981). For example, an
employer’s practice of hiring only job-seekers recommended by the union, and not
hiring job-seekers not referred by the union, evidences an exclusive hiring hall.
N.L.R.B. v. Teamsters “Gen.” Local Union No. 200, 723 F.3d 778, 785 (7th Cir.
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2013). The Board can infer a de facto exclusive hiring hall from an implicit
understanding between a union and an employer. Id. (citation omitted). An
employer’s credited testimony “that a de facto exclusive hiring hall arrangement
existed” supports the finding of an exclusive hiring hall. Laborers Local 135 (Bechtel
Corp.), 271 N.L.R.B. 777, 779 n.8 (1984).
I. Exclusive Hiring Hall With Respect to Freeman
The Board found that IATSE operated an exclusive hiring hall with respect to
Freeman. IATSE and Freeman entered into CBAs containing the following language:
“The Employer agrees that the work described above shall be performed only by
qualified workers assigned by the Union through its job referral procedure.” IATSE
Local No. 151, 2016 WL 4548855, at *9. Freeman’s sales manager, Scott Young,
testified that his practice tracks this language. He always requests IATSE to provide
workers. IATSE, in response, identifies conflicting testimony; however, the Board
credited Young’s testimony on this point. Some evidence showed that Freeman
occasionally uses its own foremen to oversee the labor, may reject a referred worker,
and can hire other employees if IATSE cannot fill Freeman’s needs. These exceptions
do not make an otherwise exclusive referral arrangement nonexclusive. Carpenters
Local 608, 279 N.L.R.B. at 754; Theatrical Wardrobe Union Local 769, 349
N.L.R.B. at 73; Ironworkers Local 843, 327 N.L.R.B. at 30.
Before the Board, IATSE contended that the CBAs were not valid. IATSE
noted that its constitution and bylaws require that CBAs be ratified by the members
and that there was evidence that they had not been so ratified. But the Board
concluded there was “no credible evidence to show that it was a requirement or
standard practice for the membership to ratify all contracts (or any contracts) that the
executive board entered into on behalf of the Respondent.” IATSE Local No. 151,
2016 WL 4548855, at *9. We agree. The Board credited a former IATSE business
agent’s testimony that contracts were never put up for a ratification vote by the
membership. It also relied on corroborating testimony that it was not IATSE’s normal
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practice to put contracts before the general membership for a ratification vote. The
ALJ believed this testimony, and we afford that credibility determination great
deference. RELCO Locomotives, Inc., 734 F.3d at 787.
Even discounting the validity of the written agreements, the parties actually
operated in accordance with the agreements’ terms. The Board concluded “the job
referral practice was carried out by Freeman according to the terms of the agreement
and, except in rare circumstances, workers were not hired outside of the referral
system.” IATSE Local No. 151, 2016 WL 4548855, at *9. An exclusive hiring hall
can be inferred from the implicit understanding between IATSE and Freeman. See
Teamsters “Gen.” Local Union No. 200, 723 F.3d at 785. Moreover, Young’s
testimony regarding exclusivity supports the finding of an exclusive hiring hall.
Laborers Local 135 (Bechtel Corp.), 271 N.L.R.B. at 779 n.8. Based on the parties’
practice, and Young’s credited testimony that Freeman abides by the CBA’s
exclusivity provision, an exclusive hiring hall can be inferred. The Board’s finding
that the IATSE operated an exclusive hiring hall with respect to Freeman is therefore
supported by substantial evidence.3
ii. Hiring Hall with Respect to SMG Pershing
The Board found that IATSE operated an exclusive hiring hall with respect to
SMG Pershing. There was no CBA between IATSE and SMG Pershing. To reach its
decision, the Board instead relied on testimony showing the “practice of
SMG/Pershing utilizing labor referred through [IATSE] before obtaining labor
elsewhere.” IATSE Local No. 151, 2016 WL 4548855, at *9.
The law is clear that the parties’ practice alone can provide the required
evidence to demonstrate exclusivity. Moving Picture & Projection Mach. Operators
3
At oral argument, IATSE’s counsel conceded there was likely an exclusive
hiring hall with respect to Freeman.
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Union, Local No. 143, 649 F.2d at 612. IATSE presented testimony that SMG
Pershing did not exclusively use workers referred by IATSE, but the ALJ largely
discredited this testimony. IATSE member Brian Wait testified that he had previously
worked jobs for SMG Pershing without being referred by IATSE. But the ALJ
explained that it did
not find [Wait’s] testimony on these points persuasive because it
lack[ed] specificity about when he worked the events, if SMG was the
management company, how many laborers he worked with on those
jobs, the percentages that were union workers, the members that were
hired directly by SMG, the Respondent, or another source. Equally
important, Wait failed to establish that he had direct knowledge
regarding how each person was hired to work the aforementioned
events.
IATSE Local No. 151, 2016 WL 4548855, at *9. In addition to Wait, IATSE member
Sheila Brunkhorst admitted she worked for SMG Pershing after she was suspended
from IATSE’s referral list, but as the Board argues and the ALJ observed, this
particular job initially was scheduled at an outdoor venue, then it was moved to the
Pershing Center as a last minute emergency substitution. This isolated instance does
not negate the exclusivity typically evident in their dealings.
The record evidence supports the Board’s conclusion that SMG Pershing hires
its labor through IATSE. Lorenz, the SMG Pershing general manager, testified that
SMG Pershing obtains all its labor through IATSE and has never hired elsewhere.
This testimony alone could establish exclusivity. Laborers Local 135 (Bechtel Corp.),
271 N.L.R.B. at 779 n.8. Lorenz’s testimony was corroborated by SMG’s Lincoln,
Nebraska production manager. On appeal, IATSE points to testimony by IATSE
business agent Perry Gillaspie, who testified that SMG Pershing does not have to call
IATSE first before hiring elsewhere and could hire whomever it wanted. But, again,
the ALJ did not credit Gillaspie’s testimony on this point, but Lorenz’s. She was
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entitled to make this credibility determination by choosing between two fairly
conflicting views. On this record, we will not disturb this finding on appeal. Midwest
Precision Heating & Cooling, Inc., 408 F.3d at 458.
The Board noted that there was a “Letter of Understanding” in effect between
IATSE and SMG Pershing. This Letter of Understanding expired in 2012, but Lorenz
testified that even after it expired, IATSE and SMG Pershing continued to operate
under the same terms. This letter stated in part, “NON-EXCLUSIVE SERVICE
PROVIDER: On those occasions when Local 151 cannot meet the staffing demands
of an event, Pershing / SMG will supplement Local’s call with its own personnel or
with another service provider.” J.A. vol. III, 236.4 This letter—even though
purporting to describe a “non-exclusive” provider—supports the finding of
exclusivity. It shows that the parties agreed SMG Pershing would use IATSE to staff
events, but it could supplement with other personnel if IATSE could not sufficiently
supply employees. Even if SMG Pershing supplemented with other workers when
IATSE could not meet the staffing demands of an event, such atypical
supplementation does not preclude an exclusivity finding. Theatrical Wardrobe
Union Local 769, IATSE (Broadway in Chi.), 349 N.L.R.B. at 73.
The Board’s finding of exclusivity rested largely on credibility determinations,
which do not shock the conscience and will not be disturbed on appeal. See RELCO
Locomotives, Inc., 734 F.3d at 787. Its finding of an exclusive hiring hall between
IATSE and SMG Pershing is supported by substantial evidence.
4
IATSE raises the same argument regarding the membership’s alleged failure
to ratify the Letter of Understanding. This argument fails for the reasons explained
in Part II.C.i, supra.
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D. Alleged NLRA Violations
Under the NLRA, it is an unfair labor practice for a labor organization to
“restrain, or coerce employees in the exercise of the rights guaranteed in section 157
of this title.” 29 U.S.C. § 158(a)(1). Section 157 guarantees, among other things, the
right to engage in union activities or refrain from union activities. Id. § 157. The
NLRA also makes it an unfair labor practice for a labor organization “to cause or
attempt to cause an employer to discriminate against an employee in violation of
subsection (a)(3).” Id. § 158(b)(2). Section (a)(3) prohibits, among other things,
“discrimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.”
Id. § 158(a)(3).
These provisions impose upon labor organizations “a statutory duty of fair
representation.” Breininger, 493 U.S. at 73. Exclusive hiring halls must operate
consistent with that duty. Id. at 78. Exclusive hiring halls “are not illegal per se under
federal labor law, but rather are illegal only if they in fact result in discrimination
prohibited by the NLRA.” Id. According to the Supreme Court:
The Board has held that “any departure from established exclusive
hiring hall procedures which results in a denial of employment to an
applicant falls within that class of discrimination which inherently
encourages union membership, breaches the duty of fair representation
owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2),
unless the union demonstrates that its interference with employment was
pursuant to a valid union-security clause or was necessary to the
effective performance of its representative function.”
Id. at 75 n.3 (citations omitted). “[A] union cannot operate a hiring hall to
discriminate based on an employee’s lack of union membership.” Stagehands
Referral Serv., LLC, 347 N.L.R.B. 1167, 1170 (2006) (citations omitted); see also 29
U.S.C. § 157. When an exclusive hiring hall is used and the Union “prevents an
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employee from being hired or causes an employee’s discharge,” the Board adopts a
rebuttable presumption that the effect is to encourage union membership. Stagehands
Referral Serv., 347 N.L.R.B. at 1170 (citation omitted). The union can rebut this
presumption if it shows that the “conduct was necessary for effective performance”
in representing its constituency. Id. (citations omitted).
We now turn to IATSE’s challenge to the three alleged NLRA violations.
i. Suspensions from the Referral List
IATSE suspended seven members from receiving referrals for a year beginning
in February 2013. Their removal from the list prevented them from being hired.
IATSE thus bore the burden to show that the suspensions were necessary to enable
effective performance in representing its constituency. Stagehands Referral Serv., 347
N.L.R.B. at 1170. The Board found that the reasons IATSE gave for these
suspensions were not credible or were contradicted by record evidence. Thus, as the
Board concluded, IATSE failed to show the suspensions were necessary for effective
constituent representation.
IATSE argues, and presented testimony at trial, that there were many reasons
the seven members were suspended. It emphasizes the decision was applied uniformly
to “all members engaging in the conduct that would damage IATSE’s relations with
the employers.” Pet’r’s Br. 36. IATSE says that, broadly speaking, the seven
individuals were suspended “for (1) violating work rules, (2) misconduct, and (3)
egregious conduct that affected the entire bargaining unit.” Id. at 37. The difficulty
with IATSE’s argument is that six of the seven suspension letters include among the
reasons bringing lawsuits against the union without first exhausting internal union
remedies. J.A. vol. III, 375–82. IATSE argues, and presented testimony at trial, that
the suspensions were necessary because the lawsuits damaged IATSE’s business
relationships. The Board explicitly rejected this contention as not credible. IATSE
Local No. 151, 2016 WL 4548855, at *9 (“[IATSE’s] contention that it ‘legitimately
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perceived it was in danger of losing those contracts’ is not credible.”). The Board
based its credibility conclusion on testimony from companies that conducted business
with IATSE. These companies stated that their awareness of the lawsuits did not
affect their business relationships with IATSE.
Moreover, as the Board pointed out, most of the reasons given in the letters
were also protected activity under the NLRA. See Automatic Screw Prods. Co., 306
N.L.R.B. 1072, 1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992) (holding that
employees’ discussions about wages are inherently concerted). In short, because
IATSE removed the seven members from the referral list, thus interfering with their
employment status, the burden was on IATSE to show that suspending these members
was necessary for effective performance of representing its constituency. See
Stagehands Referral Serv., 347 N.L.R.B. at 1170. Substantial evidence supports the
Board’s finding that IATSE failed to make this showing. Such evidence also supports
the Board’s finding that IATSE violated section 8(b)(1)(A) and (2) of the NLRA by
suspending these individuals from the referral list.
ii. Refusal to Refer Two Members to the Cornhusker Hotel Job
It is undisputed that IATSE refused to refer Sheila Brunkhorst and Tony
Polanka (“Polanka Jr.”) to a February 2013 job with Freeman at Cornhusker Hotel.
This, of course, prevented Brunkhorst and Polanka Jr. from getting hired. The burden
then shifted to IATSE to show that doing so was necessary for effective performance
of representing its constituency. See Stagehands Referral Serv., 347 N.L.R.B. at
1170.
IATSE business agent Gillaspie admitted that Brunkhorst and Polanka Jr. were
qualified to work the job, but they were not referred because they had visited
Complete Payroll—the company responsible for IATSE’s payroll—to discuss payroll
issues. The ALJ resolved disputed testimony on IATSE’s justification for not
referring Brunkhorst and Polanka. She explicitly rejected Gillaspie’s testimony on
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this point because she did not find him credible. The ALJ gave several reasons for
this credibility determination, including a lack of evidence that Brunkhorst and
Polanka Jr.’s meeting at Complete Payroll was anything but cordial and a lack of
credible evidence that IATSE’s business relationship with Complete Payroll was
negatively impacted by the meeting. We are not persuaded to go behind this
credibility determination. See RELCO Locomotives, Inc., 734 F.3d at 787.
IATSE failed to meet its burden that refusing to refer Brunkhorst and Polanka
Jr. was necessary to the effective performance of its representative function. See
Stagehands Referral Serv., 347 N.L.R.B. at 1170. Substantial evidence supports the
Board’s decision that the refusal to refer Brunkhorst and Polanka Jr. to the February
2013 Freeman job at the Cornhusker Hotel violated section 8(b)(1)(A) and (2) of the
NLRA.
iii. Prioritizing Members over Non-Members for Job Referrals
The Board found that IATSE discriminated against nonmembers in maintaining
its referral list. Normally, IATSE job referrals are based on qualifications, years of
experience, and availability. When Gillaspie became business agent for IATSE, he
was not provided a referral list. He was, however, given a list of then-current
members who used IATSE’s referral hall. Interestingly, when Gillaspie created the
new referral list, the first 30 names on the new list were IATSE members. Gillaspie
testified that when making referrals, he begins at the top and goes down the list in
order. After compiling the initial list, Gillaspie did subsequently add members and
nonmembers in the order in which they were chronologically added, but the record
is clear that in practice members were prioritized for job referrals. IATSE argues
Gillaspie “did the best that he could and acted in the most fair way that he was able
with the information he was given,” but it cites no law to support that this explanation
qualifies as a defense. Pet’r’s Br. 53.
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The Board found that members were prioritized over nonmembers in violation
of the NLRA. See Stagehands Referral Serv., 347 N.L.R.B. at 1170 (“[A] union
cannot operate a hiring hall to discriminate based on an employee’s lack of union
membership.”).5 Based on our review of the evidence, we agree. Substantial evidence
supports the Board’s finding that IATSE used union membership as a basis for
referrals, and prioritized members over nonmembers, in violation of section
8(b)(1)(A) and (2) of the NLRA.
E. Timeliness of NLRB Charge
IATSE’s final argument on appeal is that the charge with respect to the referral
lists was untimely. Section 10(b) of the NLRA provides that “no complaint shall issue
based upon any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board.” 29 U.S.C. § 160(b). IATSE argues that the
allegation pertaining to its referral list procedure with respect to SMG Pershing is
time-barred because IATSE did not maintain that referral list in the six months prior
to the filing of the amended charge. It says it has not made referrals since early 2013,
and the charge regarding the referral list was made in late October 2013. Thus, more
than six months passed between the allegedly illegal practice and the charge.
The ALJ, whose opinion the Board adopted on this issue, detailed her reasons
for rejecting this argument. Specifically, the ALJ found that IATSE did not stop
exercising control over the referral process in early 2013.
5
As the Board noted, this conclusion is bolstered by Gillaspie’s initial affidavit.
Gillaspie initially stated by affidavit that when he gets a request to refer workers, he
first goes down the list of local members; then contacts other local unions; then goes
through his “casual or extra list,” meaning a list of nonmembers. J.A. vol. I, 21, 23.
Gillaspie tried to go back on this statement and testified at trial that he misspoke and
he actually goes through a list of members and nonmembers alike. The ALJ did not
find this correcting testimony credible, partly because it was in response to leading
questions by counsel.
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In February or March 2013 Complete Payroll hired Gillaspie as its labor
director. IATSE contends that at this time Gillaspie stepped down from IATSE’s
referral committee (the group responsible for putting together a list of qualified
individuals), and Complete Payroll took over the referral function entirely. But after
his hiring at Complete Payroll, Gillaspie continued to represent IATSE as well: he
continued to serve as IATSE’s business agent through the time of trial. And after
beginning to work for Complete Payroll, he continued to decide job referrals. He
answered affirmatively when asked if he is “still the individual who makes the
decision as to who is going to be referred to a job, whether that’s as the business
agent or as the labor director for Complete Payroll.” J.A. vol I, 21. The Board’s
decision noted that Gillaspie’s employment contract with Complete Payroll
underscored his authority to represent IATSE in its dealings with employers. His
responsibilities at Complete Payroll included the following duties:
a. Hire, direct, and supervise the Complete Payroll employees that
IATSE Local No. 151 provides to the contractors through IATSE
Local No. 151’s organization . . . ; and
b. Collect the funds from the contractors that have contracted with
IATSE Local No. 151 and who have used Complete Payroll’s
employees through IATSE Local No. 151’s organization.
J.A. vol. III, 301. We agree with the Board’s conclusion that Gillaspie’s contract
simply reinforced his authority to represent IATSE in his dealings with employers.
Finally, the ALJ highlighted Gillaspie’s “shifting testimony.” IATSE Local No.
151, 2016 WL 4548855, at *9. Gillaspie testified, “At some point last year in early
spring, I turned [the referral list] over to the referral committee and then they turned
it back over to me to be used. So at that point, they took possession of the referral
list.” J.A. vol. I, 35. The ALJ took this to mean IATSE “maintains control of the
referral process but allows Gillaspie, as its agent and Complete’s labor director, to
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administer those duties.” IATSE Local No. 151, 2016 WL 4548855, at *9. Based on
Gillaspie’s dual roles as IATSE’s business agent and Complete Payroll’s labor
director in interacting with both employees as well as contractors, we conclude the
Board’s assessment of Gillaspie’s testimony is supported by substantial evidence.
IATSE relies solely on Gillaspie’s testimony that IATSE no longer maintains
a referral list to establish that IATSE ended its referral involvement in February or
March 2013. If not credible, this testimony does not invalidate the ALJ’s ruling. The
ALJ’s findings of fact, credibility determinations, and ultimate conclusion, which
were all adopted by the Board on this point, are supported by substantial evidence.
The Board’s conclusion that IATSE’s 10(b) defense is without merit is affirmed.
III. Conclusion
We therefore enforce the Board’s order and deny IATSE’s petition for review.
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