Parsons Electric Company v. National Labor Relations Board, National Labor Relations Board v. Parsons Electric Company

WOLLMAN, Circuit Judge.

Parsons Electric Company appeals from an order of the National Labor Relations Board requiring Parsons to furnish the local union, as administrator of an exclusive hiring hall, with the reason it refused to hire an applicant referred by the hiring hall. The Board cross-appeals for enforcement of its order. We reverse the order of the Board and deny the Board’s application for enforcement.

I.

Parsons Electric Company (Parsons), an electrical contractor, is a member of a mul-ti-employer bargaining unit represented by the Minneapolis chapter of the National Electrical Contractors Association (NECA). NECA is a construction trade association of approximately 4400 electrical contractors, with local chapters throughout the United States. The primary purpose of each local chapter is to act as a bargaining agent. In this capacity, the local chapter negotiates and administers collective bargaining agreements (CBA) both for member employers and for non-member employers which designate NECA as its agent.

The Minneapolis chapter of NECA entered into a collective bargaining agreement with Local 292 of the International Brotherhood of Electrical Workers (Union). This agreement established an exclusive hiring hall system of referral. Under this system, companies represented by NECA may, except in certain limited circumstances, hire electricians only from applicants referred to them by the Union hiring hall.¹ To balance this power given to the Union, each employer has the right to hire or reject any applicant.²

In August 1990, the Union twice referred Charles Yon Ruden to Parsons Electric, and on both occasions Parsons refused to hire Yon Ruden. After Von Ruden complained to the Union, the Union’s business representative asked Parsons’ superintendent why Von Ruden had been rejected. The superintendent cited “past problems,” but would not elaborate.

The business representative reviewed Yon Ruden’s record and found that he was a well-qualified electrician. Von Ruden had worked for Parsons on two previous occasions. The first period of employment was while Von Ruden was an apprentice and lasted approximately one month. The second period was while Von Ruden was a journeyman electrician and lasted approximately one year. During the latter period, Von Ruden acted as job steward. (The Union may appoint a job steward at any shop or jobs where applicants it has referred were hired. The second to last journeyman acts as the steward. Under this system, the steward is appointed after being hired.)

The Union filed a grievance against Parsons, alleging that Parsons discriminated against Von Ruden on the basis of his union involvement. The grievance cited sections 4.01 and 4.04³ of the CBA. During the course of this grievance, the Union requested that Parsons give a written explanation of the reason it rejected Von Ru-den. Parsons responded that it had not violated the CBA and instructed the hiring hall to stop requesting reasons for the rejection of applicants. The grievance committee has now tabled this grievance.

The Union then filed an unfair labor practice charge with the National Labor Relations Board (Board). An administrative law judge (ALJ) determined that the plain language of section 4.03 precluded the Union from inquiring into the reasons for the rejection of any applicant by an employer. The ALJ further determined that the Union had, through its inability to remove section 4.03 from the CBA during the last bargaining process, waived its right to information of this sort.

The Board, with one member dissenting, reversed the decision of the ALJ. Parsons Elec. Co., 304 N.L.R.B. No. 115 (1991). It found that the Union had a right to the requested information because the information pertained to a grievance over the rejection of a former steward⁴ and to the Union’s general responsibility for administering the hiring hall provisions of the CBA. The Board further found that the Union had not waived its right to the requested information, stating that no waiver had been demonstrated by clear and unmistakable evidence. The Board ordered Parsons to state its reasons for rejecting Von Ru-den.

Parsons now appeals. The Board cross-appeals, requesting enforcement of its order.

II.

An employer has a duty to bargain collectively with the representative of its employees, and failure to do so is an unfair labor practice. 29 U.S.C. § 158(a)(5). The duty to bargain includes the duty to supply information necessary to intelligently carry out the bargaining process, including information needed to process grievances. N.L.R.B. v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); WCCO Radio, Inc. v. N.L.R.B., 844 F.2d 511, 514 (8th Cir.), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). With respect to matters for which the union would have no authority to bring a grievance, however, an information request cannot be enforced because the information requested is not relevant to the union’s duties. N.L.R.B. v. Western Elec., Inc., 559 F.2d 1131 (8th Cir.1977).

The Board found that the Union was entitled to the requested information because the information pertained to a grievance over the rejection of a former steward and to the Union’s general responsibility for administering the hiring hall provisions of the CBA.

The Board reasoned that the requested information was related to a colorable grievance. We disagree. The grievance claims that Parsons discriminated against Von Ruden because of union involvement and cites sections 4.01 and 4.04 of the CBA. Section 4.01 is a general provision, setting out the purposes of the hiring hall, one of which is to “eliminat[e] discrimination in employment because of membership or non-membership in the Union.” Section 4.04 prohibits the Union from discriminating against applicants because of membership or non-membership in the Union. Because these two provisions relate to discrimination on the part of the Union, neither gives the Union authority to bring a grievance against Parsons for discrimination. The plain language of the CBA states that “[t]he Employer shall ... have no restrictions except those specifically provided for in the Collective Bargaining Agreement in ... deciding the number and kind of Employees to properly perform the work ... [and] in hiring and laying off Employees.” Section 3.03 of the CBA (emphasis added). Thus, the Board has no power to enforce a request for information related to a grievance based on sections 4.01 and 4.04 of the CBA. See N.L.R.B. v. Western Elec., Inc., 559 F.2d at 1134 (union has no right to information related to non-grievable matters).

Even reading the grievance broadly and assuming that the grievance includes allegations of discrimination against a former job steward (although section 3.18 is not cited in the grievance), Von Ruden was a job applicant, not a job steward, at the time Parsons refused to hire him. Had the Union been able to negotiate a clause stating that no person could be discriminated against for the faithful performance of duties as a job steward, a valid grievance might have existed and the information sought might have been relevant. Because the clause states only that a job steward may not be discriminated against, however, the Union had no authority to bring a grievance against Parsons under section 3.18.

Because we reverse the Board’s order on other grounds, we need not address the AU's and the Board's findings regarding waiver.

The Board’s order is reversed, and the Board’s application for enforcement is denied.

1 . Section 4.02 of the CBA provides that "[t]he Union shall be the sole and exclusive source of referral of applicants for employement (sic).”

2 . Section 4.03 of the CBA states that ‘‘[t]he Employer shall have the right to reject any applicant for employment."

Section 3.03 of the CBA provides that "[t]he Union understands the Employer is responsible to perform the work required by the owner. The Employer shall therefore have no restrictions except those specifically provided for in the Collective Bargaining Agreement in planning, directing and controlling the operation of all his work, in deciding the number and kind of Employees to properly perform the work, in hiring and laying off Employees, in transferring Employees from job to job within the Local Union’s geographical jurisdiction, in determining the need and number as well as the person who will act as foremen (sic), in requiring all Employees to observe the Employer’s and/or Owner’s rules and regulations not inconsistent with this Agreement, in requiring all Employees to observe all safety regulations, and in discharging Employees for proper cause.”

3 . Section 4.01 of the CBA states that "[i]n the interest of maintaining an efficient system of production in the industry, providing for an orderly procedure of referral of applicants for employment, preserving the legitimate interests of the employees in their employment status within the area and of eliminating discrimination in employment because of membership or non-membership in the Union, the parties hereto agree to the following system of referral of applicants for employment.”

Section 4.04 of the CBA states that "[t]he Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, bylaws, constitutional provisions or any other aspect or obligation of Union membership policies or requirements. All such selection and referral shall be in accord with the following procedure.”

4 . Section 3.18(a) of the CBA states that “[n]o Steward shall be discriminated against by any Employer because of his faithful performance of duties as Steward.”