885 F.3d 1123
8th Cir.2018Background
- IATSE Local No. 151 supplies stagehands and technicians to employers including Freeman Decorating Services and SMG's Pershing Center in Lincoln, NE. The NLRB charged IATSE with operating exclusive hiring halls and discriminating against nonmembers.
- Allegations included: priority referrals for members, refusal to refer two employees to a February 2013 job, suspension of seven members from the referral list, improper referral rules and fines, and failure to remit bonuses to nonmembers. IATSE denied the allegations.
- ALJ found most allegations supported by evidence (except a bylaws ratification technicality); the Board adopted the ALJ opinion with limited modifications. IATSE petitioned for review; the Board cross-applied for enforcement.
- Key factual findings credited by the Board/ALJ: Freeman’s CBA required hiring through the union; SMG Pershing routinely used IATSE referrals (supported by Pershing managers’ testimony); business agent Gillaspie prepared and administered referral lists even after taking a role with Complete Payroll.
- The Board concluded IATSE prioritized members on referral lists, suspended seven members without a valid necessity defense, and refused to refer two qualified members; IATSE’s 10(b) timeliness defense failed because control over referrals continued into the charging period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board jurisdiction over SMG Pershing | Board lacks jurisdiction because alleged conduct centered only at the Pershing location | Board may aggregate all SMG locations; SMG had >$50,000 interstate commerce activity | Jurisdiction proper; Board may consider employer’s total operations and evidence showed threshold met |
| Whether hiring hall was exclusive (Freeman) | IATSE: CBAs invalid because membership ratification lacked; practice not exclusive | Freeman: CBA language and practice show exclusive referral use; employers hired via union referrals | Exclusive hiring hall found as to Freeman based on CBA language and Freeman manager’s credible testimony |
| Whether hiring hall was exclusive (SMG Pershing) | IATSE: Pershing could hire independently; some workers hired without referral | SMG Pershing managers: routinely use IATSE referrals; Letter of Understanding showed union staffing role | Exclusive (de facto) hiring hall found for Pershing based on consistent practice and manager testimony credited by ALJ/Board |
| Alleged NLRA violations (suspensions, refusal to refer, member-priority referrals; timeliness) | IATSE: suspensions, refusals and list practices necessary to protect business relationships, applied uniformly; referral practice ended >6 months before charge | Board: suspensions/ refusals discouraged protected activity; prioritization discriminated against nonmembers; Gillaspie continued to control referrals so charge timely | Court enforced Board: substantial evidence supports findings that suspensions and refusal to refer violated §8(b)(1)(A) & (2); member-priority referrals were discriminatory; 10(b) defense rejected |
Key Cases Cited
- Midwest Precision Heating & Cooling, Inc. v. N.L.R.B., 408 F.3d 450 (8th Cir. 2005) (standard of review—substantial evidence and deference to credibility findings)
- N.L.R.B. v. Erlich's 814, Inc., 577 F.2d 68 (8th Cir. 1978) (Board’s broad commerce power and discretion over jurisdictional yardsticks)
- N.L.R.B. v. Jerry Durham Drywall, 974 F.2d 1000 (8th Cir. 1992) (Board’s discretionary jurisdictional standards for non-retail enterprises)
- JCR Hotel, Inc. v. N.L.R.B., 342 F.3d 837 (8th Cir. 2003) (deference to Board’s construction of the NLRA)
- Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67 (1989) (definition and limits of exclusive hiring halls; duty of fair representation)
- N.L.R.B. v. Moving Picture & Projection Mach. Operators Union, Local No. 143, 649 F.2d 610 (8th Cir. 1981) (past practice can demonstrate de facto exclusivity)
- Teamsters "Gen." Local Union No. 200, 723 F.3d 778 (7th Cir. 2013) (exclusive referral practices can be inferred from employer hiring only union-referred applicants)