Lead Opinion
Judge BRIEANT concurs in a separate opinion; Judge CALABRESI dissents in a separate opinion.
This petition presents the question of whether substantial evidence supports the National Labor Relations Board’s (Board) conclusion that Local 46, Metallic Lathers Union and Reinforcing Iron Workers of New York and Vicinity of the International Association of Structural and- Ornamental Iron Workers (“Local 46” or “the Union”) violated sections 8(b)(1)(A) and (b)(2) of the National Labor Relations Act (Act) by refusing to refer work to a member-ironworker in retaliation for that ironworker’s earlier racial discrimination charge against Local 46. See Local 46, Metallic Lathers Union and Reinforcing Iron Workers of New York and Vicinity of the International Association of Structural and Ornamental Iron Workers,
BACKGROUND
This is a petition by the NLRB for enforcement of an order to redress allegedly unfair labor practices. We have jurisdiction to enforce that petition pursuant to § 10 of the Act, 29 U.S.C. § 160. The petition arises from the Board’s finding that Local 46 engaged in unfair labor practices by refusing to refer work to one Fred James (James), an African-American ironworker and Union member, because James filed an earlier charge with the Board that alleged racial discrimination in the Union’s work referral process. At the center of this action is the system by which Union members are referred work. We review that system before discussing James’ complaint.
1. The Work Referral System
The Union is a signatory to a multi-party collective bargaining agreement with the Cement League (the League), an association composed of various employers engaged in the erection of concrete and cement structures. Pursuant to an exclusive work referral provision contained within that agreement, the Union refers its members, lathers and ironworkers, to League employers for work at various job sites in Manhattan. On July 16, 1971, following a labor dispute, Judge Marvin Frankel of the United States District Court for the Southern District of New York endorsed a Consent Decree setting forth the rulés governing that exclusive work referral process. The objective of the rules was to ensure that all eligible workmen, regardless of race or union membership, share equally in available employment.
Under the rules, workers seeking referrals must personally appear at the Union hiring hall and sign a “hiring hall sheet” no later than 8:30 a.m. on any given workday (Rule II). After sign-in, the Union business agent announces to all registrants present in the hiring hall each available job, its location, expected duration if known, type of work, and any specific work experience required (Rule IV(B)(2)). The business agent then reviews the register and makes referrals based on a priority system that serves first those workers who have been out of work for the longest period of time.
Under the priority system, the business agent is required to maintain a cumulative, daily list for the previous two weeks of all workers who registered at the hiring hall and were not refеrred employment (Rule IV(C)(1)). Those workers whose names appear on the list more than five times in a two week period are entitled to priority of referral (Rule IV(C)(2)). For those workers counted on the priority list, a priority sequence is then established corresponding to the number of days that a worker registered but was not referred for employment. If more than one worker is entitled to the same priority, the worker who registers earlier on the day of referral is entitled to the first referral (Rule IV(C)(3)).
There are some exceptions to the priority system. If a job calls for certain specified skills, only workers having those skills will be eligible for that referral (Rule 111(A)(4) and IV(B)(2)). Further, employer requests for minority workers are explicitly exempt from the priority system by Rule III(B), which provides that “[njothing contained herein shall limit the Union’s obligation to grant employer’s requests, pursuant to requirements of Federal, State and Local law, that non-white workmen be referred.” When employers request minority workers, the Union’s practice is to write the letter “M” next to that minority worker’s name on the contractor’s sheet.
As with all rules governing the hiring hall, only the court-appointed Administrator has the power to modify or change the rules, and the administrator may do so only after consulting with “the Union and the Government.”
2. Fred James’ Complaint
On April 25, 1994, James filed with the Board his initial unfair labor practice charge against the Union, alleging that since mid-November 1993 the Union had racially discriminated against him by refusing to refer work to him, in violation of sections 8(b)(1)(A) and (2) of the Act.
On May 13, 1994, James filed a second charge with the Board alleging that on May 9,1994 the Union, acting through its business agent Robert Ledwith, refused to refer him to a League employer, Northberry Concrete Corporation (the “Northberry job”) because of his April 25, 1994 charge. On July 28, 1994, thе Board’s General Counsel, in turn, issued a complaint against the Union (the James Complaint) for refusing to refer James to the Northberry job. Specifically,
3. The Administrative Hearing
On May 3, 1995, the parties appeared before Administrative Law Judge (ALJ) Robert T. Snyder in New York City for a hearing on the James complaint. At the hearing, James testified to the facts that prompted his charge of retaliation, facts which the Union does not dispute'here. Specifically, on the morning of May 4, 1994, James reported to the hiring hall, signed the hiring hall sheet and approached Ledwith and asked for a referral because he had been out of work for a long period of time. Ledwith replied that Northberry Concrete Corporation, a League employer, would be starting a job the next week at 61st Street and West End Avenue in New York City, and that he would send James out on that job. The following week, on May 9, James reported to the hiring hall, signed the register, and learned that Ledwith had sent three men to the Northberry job earlier that morning. Upon learning of this, James approached Ledwith and reminded him of his earlier promise to send him out on that job. Ledwith, holding in his hand the letter from the Board regarding James’ charge of racial discrimination, told James that he had planned to send him out to the Northberry job, but changed his mind when he received the letter from the Board.
While disputing these facts at the hearing, the Union argued that even if Ledwith was unlawfully motivated by retaliation when he refused to refer James to Northberry, the Union did not violate the Act, as under its hiring hall rules, Ledwith could not have referred James to the Northberry job given his low standing on the priority list. See Radio-Electronics Officers Union v. NLRB,
The General Counsel, on the other hand, sought to show that the Union was precluded from relying on the hiring hall rules as a defense to the rеtaliation charge. See NLRB v. Laborers’ Int’l Union,
A. The Rodriguez Incident
James testified that he observed Ledwith circumventing the hiring hall rules during an incident that involved another Union member, Johnny Rodriguez. Specifically, James stated that he observed Ledwith, four or five months after the Northberry incident, skip over Rodriguez’s name when calling out names for referral from the priority list — a bypass that James stated he was able to confirm by reviewing the weekly priority list posted in front of the hiring hall. According to James, Ledwith had skipped over Rodriguez because “[t]here had been some kind of confrontation between Rodriguez and Led-with.” Local 46,
B. The 1995 James Incident
James also testified that Ledwith violated the hiring hall rules in January 1995 when he referred a job to James even though James reported to the hiring hall late, had not signed the hiring hall sheet and had not been present in the hiring hall when the job was called. The ALJ found that this testimony evinced Ledwith’s “wide degree of discretion ... in administering the hiring hall rules.” Id. at 989.
C. Jobs of Varying Duration
The General Counsel maintained, and the ALJ agreed, that Ledwith had the discretion at times to arbitrarily decide which workers received the more coveted, longer duration jobs. Id. at 987-88, 990. This finding was predicated on the ALJ’s determination that there is nothing in the hiring hall rules to guide the business agent’s discretion when multiple employers submit worker requests on the same day for jobs of varying duration. Id. at 990. Ledwith, however, testified that he did not have this discretion and used the priority list in making all referrals.
D. Ledwith’s Discretion and Minority Referrals
Ledwith also testified that in accordance with the hiring hall rules, it was his practice to refer non-white workers by name regardless of whether their names appeared on the priority list. In this regard, Ledwith testified that he referred minority ironworkers James Hatcher and Howard Golding to a Pinnacle Concrete job on May 9, 1994 even though Hatcher’s name did not appear on the priority list, and despite the existence of other non-white workers on the priority list who had registered that morning at the hiring hall. In connection with this testimony, the Union produced for the hearing the contractor sheets for May 9, 1994 which indicated that Hatcher and Golding had been requested by name as minorities. The ALJ, however, determined that Ledwith’s practice constituted an impermissible exercise of discretion under the referral rules because League employers may only request a foreman or deputy foreman by name (Rule 111(B)) and, further, under the practice, “non white workers who [were not on the priority list] would be referred ahead of their brethren who [were on the priority list].” Id. at 987. Moreover, the ALJ noted that because the Union had failеd to produce the actual worker request records from Pinnacle Concrete, the “lack of detailed request records,” id. at 991, indicated that Ledwith had the discretion to arbitrarily select among nonwhite workers for referral in a manner “which precluded verification.” Id. at 990.
E. Specialty Referrals
Zaid Abdullah, a fellow ironworker, also testified that Ledwith had bypassed the hir
On cross-examination, however, Abdullah conceded that he had told Ledwith that he was not able to operate a bending machine. Id. From this testimony, the ALJ nevertheless found that Ledwith, by utilizing “subjective determinations of skill levels” had breached the hiring hall rules by referring “three workmen who could not have been on the priority list ... ahead of workmen who may have and probably did possess the special bending machine skills,” and that “Ab-dullah’s skill level in this area ... was probably satisfactory.” Id. at 990.
F.Ledwith’s Promise to Refer James to Northberry
Based on James’ testimony, the ALJ found that Ledwith in fact promised James the Northberry referral, a finding the Union does not dispute. This promise, .the ALJ concluded, “alone show[ed] that Ledwith had the discretion to offer referrals when it suited the Union strategically to do so.” Id. at 991.
G. Referrals and Equal Priority
Ledwith testified that it was his practice to select workers of equal priority based on an alphabetical sequence. Rule IV(C)(3) requires, however, that if more than one worker is entitled to the same referral priority, the worker who registers at the hiring hall earlier on the day of referral is entitled to first referral. The ALJ found that this practice constituted “an arbitrary device that clearly impacted the job duration of workmen.” Id. at 990.
H. Additional Evidence
The evidence adduced at the hearing also indicated that Ledwith referred Daryl Moore to the Northberry job even though Moore, while present in the hiring hall and on the priority list, had not signed the hiring hall sheet on the morning of referral. Consequently, the ALJ determined that Moore’s referral to Northberry violated the “sign-in” requirements of the rules. Id. at 988. Further, at the time of the hearing in 1995, Abdullah testified that he had received a job directly from a contractor in contravention to the exclusivity of the referral system, with the Union ratifying that action by providing Abdullah with a workslip to go to the job. The ALJ determined that such direct referrals constituted “[ajnother example of an informal variance[] from the referral rules.” Id. at 990.
On September 25,1995 the ALJ issued his Decision and Order, concluding that based on the evidence and predicate findings discussed above, Ledwith had administered the hiring hall rules in an “ambiguous atmosphere.” Id. at 991. While the ALJ’s discussion is unclear, it appears that he then reasoned that through this ambiguous atmosphere, Ledwith had acquired the “authority” to refer James to Northberry notwithstanding the hiring hall rules to the contrary. Id. at 991. Consequently, Ledwith, having the authority to refer James to Northberry, violated sections 8(b)(1)(A) and (b)(2) of the Act by reneging on his promise to refer James on
As a remedy for the violations found, the ALJ recommended, inter alia, that the Board order the Union to cease and desist from refusing to refer any applicant for employment because of that applicant’s exercise of a right protected by the Act, and cease and desist from operating the hiring hall in an arbitrary and discriminatory manner. Furthermore, he recommended that the Board order the Union to compensate James with interest for any loss of earnings and benefits which he may have suffered since May 9, 1994 and recommended that the Board order the Union to post in the hiring hall for sixty days notice of the Board’s findings and conclusions in this matter. Id. at 991-92.
On October 20, 1995, the Union filed with the Board exceptions to the ALJ’s ruling and a supporting brief and the General Counsel filed an answering brief. After considering the issues raised, a three-member panel of the Board issued a Decision and Order dated March 22, 1996 adopting the ALJ’s recommended order in its entirety.
DISCUSSION
The Union now challenges the Board’s Decision and Order, arguing that it is not supported by substantial evidence and is, accordingly, contrary to law. Specifically, the Union argues that the evidence does not support the Board’s finding that Ledwith, and hence the Union, had the discretion to refer James to Northberry on May 9, 1994. Consequently, without this discretion, the Union asserts that Ledwith was required under the hiring hall rules to refuse to refer James to Northberry, regardless of whether he was also motivated by retaliation. Because Ledwith could not have referred James to Northberry, the Union, citing Wright Line,
In cases involving hiring halls, the Board has held that a Wright Line analysis is appropriate where there is an allegation of discrimination in hiring or referral procedures. See Pacific Maritime Ass’n,
In this regard, a union may validly refuse to refer a worker to an employer where the referral would result in a violation of non-discretionary hiring hall rules. See NLRB v. International Ass’n of BSR & OIW (Local 75),
In this case, the Union does not dispute the Board’s finding that Ledwith promised James the Northberry referral on May 4, 1994 and then refused to refer him on May 9, 1994 in retaliation for James’ April 25, 1994 charge. Rather, the Union avers that the Board erred in adopting the ALJ’s finding that Ledwith, and hence the Union, inconsistently enforced the hiring hall rules, or had impermissibly injected discretion into the enforcement of otherwise non-discretionary rules, so as to deprive the Union of the affirmative defense under Wright Line. Specifically, the Union argues that the two incidents upon which the ALJ relied in making this finding, i.e., the Rodriguez incident and the AbduEah incident, do not constitute substantial evidence that Ledwith inconsistently enforced the referral rules. In this regard, the Union argues that the Rodriguez incident is nothing more than hearsay that describes an incident occurring months after James’ encounter with Ledwith, and the AbduEah incident is not probative of a violation of the referral rules. These incidents, however, were only two of many cited by the ALJ in support of his finding. Accordingly, whüe we disagree with the Union that the ALJ relied only on two incidents, we nevertheless agree with the Union that considering all of the incidents the ALJ considered, the record is devoid of substantial evidence that Ledwith inconsistently enforced the hiring haE rules, or had impermissibly injected discretion into the enforcement of otherwise non-discretionary rules.
Before discussing that evidence, we pause to correct an error in the ALJ’s reasoning. Specifically, the ALJ concluded that, based on Ledwith’s disregard for the hiring hall rules on other occasions, he had acquired the authority to disregard those rules and thus to refer James to Northberry. We know of no rule of law enabhng one to attain the authority to disregard the provisions of a
The Board’s adoption of the ALJ’s findings of fact can be overturned on review if those findings are not supported by substantial evidence on the record considered as a whole. See Universal Camera Corp. v. NLRB,
1. Post-Complaint Evidence
We begin our review by observing that the ALJ, in reaching his conclusion that Ledwith had operated the referral process in a manner contrary to the hiring hall rules, relied in part on evidence of rule deviations occurring months after the Northberry incident. While we are mindful of the importance of “flexibility” in administrative procedure, that flexibility “does not go so far as to justify orders without a basis in evidence having rational probative force.” Consolidated Edison Co. of New York v. NLRB,
To be sure, when a union fails to respect its hiring hall rules in making referral decisions, it loses its right to invoke those rules as a defense to its future referral decisions. See, e.g., Laborers’ Int’l Union,
2. Jobs of Varying Duration
The ALJ found that Ledwith had the discretion to decide arbitrarily which workers received the more coveted, longer duration jobs because the hiring hall rules do not articulate how the business agent should go about making referrals when multiple employers submit requests for workers on the same day. See Local 46,
3. Ledwith’s Discretion and Minority Referrals
Ledwith testified that he referred minority workers by name regardless of whether their names appeared on the priority list. The ALJ found that this practice constituted an impermissible exercise of discretion under the referral rules because League employers may only request a foreman or deputy foreman by name (Rule 111(B)) and furthermore, under Ledwith’s practice “nonwhite workers who [were not on the priority list] would be referred ahead of their brethren who [were on the priority list].” See Local 46,
Rule III(B) provides, in pertinent part, that “[njothing contained herein shall limit the Union’s obligation to grant employer’s requests ... that non-white workmen be referred” (emphasis added). The phrase “nothing contained' herein” is absolute in its command. Because the phrase explicitly exempts employer requests for minority refer
4. Specialty Referrals
Abdullah testified that Ledwith referred three workers ahead of him to a specialty job requiring skills in layout and bending machine operation. As Abdullah explained, Ledwith made this referral even though “a bunch of us” could have done this work and despite Abdullah’s assertion that, at the time of the incident, he had just finished a job on 92nd Street involving layout work. However, Abdullah conceded on cross-examination that he had previously told Ledwith that he did not have the skills to operate a bending machine. Nevertheless, the ALJ found that “Abdullah’s skill level in this area ... was probably satisfactory,” and that others present in the hiring hall “probably ... possessed] the special bending machine skills.” Local 46,
Failure to follow objective standards in assessing worker qualifications for specialty referrals may constitute a breach of a union’s duty of fair representation to all qualified applicants. See Plumbers and Pipe Fitters Local Union No. 32 v. NLRB,
5. Ledwith’s Promise to Refer James to Northberry
As determined by the ALJ, and undisputed here by the Union, Ledwith did in fact promise James the Northberry job on May 4,1994. The ALJ found that the promise “alone show[ed] that Ledwith had the discretion to offer referrals when it suited the Union strategically to do so.” Local 46,
When a union official in an oral statement introduces an element of discretion into non-discretionary referral rules, that statement alone does not preclude the union from relying on the referral rules as a défense to a charge of discrimination. Rather, the union crosses the line and vitiates the defense when it injects that discretion into the “enforcement of hiring hall provisions.” Laborers’ Iht’l Union,
6. Violations Not Indicative of Impermissible Discretion
We leave undisturbed the Board’s findings that Ledwith violated the hiring hall rules on the following two occasions. First, Ledwith’s practice of referring workers of equal priority in the order in which they appeared alphabetically is contrary to the first-to-sign-in rule, Rule IV(c)(3). We conclude, however, that because an alphabetical sequence is as objective as the first-to-sign-in rule and as practiced, was not objected to and did not afford Ledwith the discretion arbitrarily to make referral decisions, the practice is not relevant to whether the Union is precluded from asserting an affirmative defense under Wright Line. Cf. Boilermakers Local No. 374 v. NLRB,
Second, Ledwith violated the sign-in rules when he referred Daryl Moore to the Northberry job on May 9, 1994, even though Moore had not signed the hiring hall sheet. However, because Moore was ahead of James on the priority list and present in the hiring hall when the job was called, Led-with’s conduct in referring him despite Moore’s failure to sign in is more akin to a simple oversight than evidence of union disregard for the referral rules and did not result in unfair prejudice to anyone. Accordingly, we conclude that this finding is not relevant to whether the Union is precluded from asserting an affirmative defense under Wright Line.
In any event, as with hiring hall rule deviations that occur as a result of temporary and exigent circumstances and are not indicative of a Union’s invidious wield of authority, the hiring hall rule deviations here “cannot justify requiring the union to repeat its violation in another case.” Int’l Ass’n of BSR & OIW (Local 75),
In sum, because the ALJ’s findings of faсt do not constitute substantial evidence that Ledwith, and hence the Union, inconsistently enforced the hiring hall rules or impermissi-bly injected discretion into the enforcement of otherwise non-discretionary rules, the Union may assert the hiring hall rules as a valid defense.
CONCLUSION
We conclude that substantial evidence supports the Board’s finding that Local 46 was unlawfully motivated in its refusal to refer James to the Northberry job. However, because Local 46 has demonstrated by a preponderance of the evidence in the form of its referral rales that it would not have referred James even in the absence of an unlawful motive, we conclude that substantial evidence does not support the Board’s denial to Local '46 of an affirmative defense under Transportation Mgmt. Corp.,
Notes
. Rule VIII does not reflect whether the term "Government” refers to the NLRB or the Secretary of Labor.
. The Act provides in pertinent part:
It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; ...
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
29 U.S.C. § 158(b)(1)(A) and (2).
. "The Board has consistently found a violation of section 8(b)(1)(A) and (2) of the Act where a union has discriminatorily refused to refer an employee for employment pursuant to the terms of an exclusive referral system in effect between the union and an employer. Such union conduct, by its very nature indirectly induces the Emplоyer to refuse employment to that employee in violation of Section 8(a)(3)." Electrical Workers IBEW Local 675,
. In Wright Line, the Board considered the burdens of proof in cases brought under the Act, 29 U.S.C. §§ 151-69, which made it unlawful to discharge a worker because of his union activity. The formulation adopted was that the General Counsel had the burden of proving that unlawful animus was a "motivating factor” in the decision to discharge the employee. Wright Line,
. Judge Calabresi, in dissent, points to cases for the proposition that hiring hall rule deviations occurring long after the action condemned are relevant to the issue of whether the Union failed to respect its referral rules at the time of that action. But, as those cases demonstrate, subsequent inconsistent applications of the rules are relevant only when the Union’s practices at a prior time are in issue. See Lewis v. Baker, 526 F.2d 470, 474 (2d Cir.1975) (“When the state of an object at a particular time is in issue, we have repeatedly upheld the relevancy of evidence of that object’s condition before and after the time in question.”); Missouri K. & T. Rye Co. v. Williams,
. The ALJ incorrectly noted in his opinion that "Ledwith agreed that nothing in the rales sets out how he should go about making referrals when he receives multiple contractor requests for workmen on the same day before seeking workers for these jobs.” Local 46,
. Subsumed in our conclusion is the rejection of the ALJ’s finding that there was a “lack of detailed request records" in connection with Led-with’s referral of minority workers Hatcher and Golding to the Pinnacle job. Local 46,
Concurrence Opinion
concurring:
I concur in the result reached by Judge Meskill and adopt his analysis so far as it goes, but rely on the additional reasoning set forth below.
Because a labor union is a voluntary organization it may be that, in an ordinary case, as our distinguished dissenting colleague points out, the union may enforce its hiring hall rules “inconsistently or selectively” with the express or implied consent of the members or their elected leaders. Local 46 is not an ordinary case. In Local 46 the rules of the-hiring hall are either prescribed or received as having the force of law, by reason of the Consent Decree of the Southern District of New York (Marvin Frankel, J.), issued February 25, 1970. United States v. Wood, Wire and Metal Lathers Int’l Union, Local 46, [2 EPD ¶ 10,226],
A consent decree carries the full force of a contested decision on the merits. “This is so because the entry of a consent judgment is an exercise of judicial power ... that is entitled to appropriate respect and because of the policy favoring finality of judgments.” Amalgamated Sugar Co. v. NL Indus., Inc.,
The record is clear that Local 46 Business Agent Robert Ledwith corruptly promised complainant Fred James that he would refer James to the Northberry job, not yet in the hiring hall but expected in the coming week. James knew, as did Ledwith, that such a reference would violate the Consent Decree and would be a breach of Ledwith’s fiduciary obligations to the other unemployed members. Ledwith later decided not to. keep his illegal contract with James, not because of a sudden return to virtue, but out of retaliatory animus for James having complained to the NLRB.
Under the circumstances, neither this Court nor the Board may lawfully order the Union to compensate James for the loss of the benefits of his illegal bargain with Lеd-with. To do so, we would be acting as a “paymaster of the wages of crime, or referee between thieves.” Stone v. Freeman,
While the 1971 Consent Decree remains in force, it must be obeyed. If changing times and circumstances have brought undue stric
Dissenting Opinion
dissenting:
Unlike the majority, I believe that substantial evidence supported the Board’s finding that the Union inconsistently enforced the hiring hall rules, and therefore that the Union was not еntitled to use those rules as an affirmative defense against the charges of discrimination. Accordingly, I respectfully dissent.
For the most part, I agree with the majority’s statement of the law. As the majority explains, under the test established in Wright Line,
A union may not, however, rely on its hiring hall rules as a defense when the record shows that it inconsistently or selectively enforced those rules. See NLRB v. Laborers’ Int’l Union of North Am.,
The standard by which we review decisions of the NLRB is highly deferential. This court must enforce the NLRB’s order if the Board’s “factual findings are supported by substantial evidence on the record as a whole.” NLRB v. Katz’s Delicatessen of Houston St., Inc.,
The evidence included: (a) testimony that in the fall of 1994, four or five months after the Northberry incident, Ledwith skipped over Johnny Rodriguez’s name in violation of the hiring hall rules; (b) testimony that Led-with had violated the rules in January 1995 by referring James to a job even. though James had not signed the hiring hall sheet and had not been present in the hiring hall when the job was called; (c) evidence that Ledwith had the discretion to decide arbitrarily which workers received the longer duration jobs; (d) proof that, in May 1994, Ledwith referred minority workers to jobs when they were requested by name by employers, even though their names did not appear on the priority list, and despite the existence of other non-white workers on the priority list who had registered that morning at the hiring hall; (e) testimony that indicated that Ledwith, by utilizing “subjective determinations of skill levels” had breached the hiring hall rules by referring “three workmen who could not have been on the priority list .... ahead of workmen who may have and probably did possess the special bending machine skills”; (f) the fact that Ledwith had promised to refer James to the North-berry job, which suggested that Ledwith thought he had the discretion to make such a referral; (g) Ledwith’s testimony that it was his practice to select workers of equal priority based on an alphabetical sequence, rather than pursuant to the hiring hall rule that required referral according to which worker had registered earlier on the day in question; (h) evidence that Ledwith had referred Daryl Moore'to the Northberry job even though Moore had not signed the hiring hall sheet on the morning of referral.
The majority dismisses the bulk of this evidence by ruling that the NLRB was not allowed to consider rule deviations that occurred subsequent to the Northberry incident. The majority contends that “[e]vi-dence of hiring hall deviations occurring long after the action condemned is not relevant or probative to the issue of whether the Union failed to respect its referral rules at the time of that action.” Maj. Op. at 104.
But “[wjhen the state of an object at a particular time is in issue, we have repeatedly upheld the relevancy of evidence of that object’s condition before and after the time in question.” Lewis v. Baker,
The notion that prior or subsequent actions of an organization are relevant to prove the conduct of the organization on a particular occasion is acknowledged by Federal Rule of Evidence 406, which provides that “[e]vi-denee of the habit of a person or of the routine practice of an organization ... is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
In the ease before us, the NLRB was entitled to consider the evidence of the Union’s subsequent violations of the hiring hall rules in determining whether the Union had a habit or routine practice of violating those rules. The evidence that Ledwith, during the relevant timе frame, acted as if he had the authority to deviate from the rules, combined with the proof of his subsequent departures from the rules, was sufficient to support the Board’s finding. Ledwith, by promising to refer James to the Northberry job, acted as if he was willing to deviate from the rules at the relevant time. That same day, he referred Darryl Moore to the North-berry job, in clear violation of the rules and despite the fact that Moore had not signed the register. The majority inexplicably dismisses this event, which I emphasize once more occurred on the day of the retaliation, as “more akin to a simple oversight than evidence of union disregard for the referral rules.” Maj. Op. at 107. These facts, combined with the evidence of Ledwith’s deviations from the hiring hall rules on subsequent occasions, were, in my view, clearly sufficient to support the Board’s conclusion that the Union failed to prove that it would have taken the same action absent the improper motive.
Were it our job to review the evidence de novo, I might agree with the majority. But in light of our duty merely to determine whether the NLRB’s factual findings were supported by substantial evidence, I cannot countenance the majority’s reweighing of the evidence. Accordingly, I respectfully dissent.
. I also disagree with the majority's stated reasons for dismissing some of the other evidence that showed that Ledwith had discretion in applying hiring hall rules. In particular, I am puzzled by the majority’s assertions that "discretion alone is not conduct that can vitiate a union’s affirmative defense under Wright Line," and that "[tjhere must be some showing that the Union wielded that discretion invidiously or arbitrarily.” Maj. Op. at 105. The nature of discretion is that it allows one to make arbitrary decisions, and thus permits discrimination by those who are of a mind to discriminate. See Laborers’ Int'l Union,