Steven Lucas v. National Labor Relations Board

REMANDED. REVERSED

Award of costs VACATED. Petitioner, LUCAS,

Steven

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 00-71452. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Feb. 2002. April

Filed

Dylan Francisco, CA, Carp, B. San ar- gued petitioner. the case for the Glenn M. Taubman, VA, Springfield, assisted on the briefs. Horowitz, NLRB,

Jeffrey L. Washing- ton, DC, argued respon- the case for the Havard, NLRB, dent. Frederick C. DC, Washington, assisted on the briefs. WALLACE, Before: KOZINSKI and PAEZ, Judges. Circuit PAEZ; Opinion Judge Concurrence by Judge WALLACE.

PAEZ, Judge: Circuit petitions Steven Lucas for review of a decision of the National Labor Relations (“Board”)- appropriate remedial order Lucas claims that enter Board Stage Alliance of Theatrical favor of Lucas. International Picture Moving Machine Employees and Cana- of the United States Operators BACKGROUND (“Union”)

da, violat- Local AFL-CIO operates an hiring The Union exclusive 8(b)(2) 8(b)(1)(A) and of the ed sections Vegas, in pur- hall2 the Las Nevada area (the Act1 Labor National Relations bargaining agreement suant to a collective “Act”) by refusing to read- “NLRA” or the with the Production Services Contractors hiring in him exclusive hall mit to its Vegas. Association of Las Between 1981 an administrative 1995. After March 1992, in good and Lucas was a member Judge Administrative Law hearing, the standing with the Union and referred (“ALJ”) to found that the Union’s refusal assignments through hiring to work unfair, arbitrary and Lucas was reinstate 1992, hall. Lucas took an honorable constituted an unfair labor and therefore withdrawal from the but the 8(b)(1)(A) and practice under sections employ- hall continued to refer him out for 8(b)(2) of the NLRA. May until ment Board reversed and dismissed range complaint. Applying ‘‘wide 1994, In early May Lucas entered the articulated in reasonableness” standard pick up hall to an overdue Union O’Neill, Air Line Pilots Ass’n by employee check and was told a Union 113 L.Ed.2d 51 S.Ct. him longer Union would no refer (1991) (internal omitted), quotation marks 16, 1994, assignments. May to work On to the Union’s refusal determined that Board, charge alleg- Lucas filed a with the re-register to was not arbi- permit Lucas ing that the Union’s refusal to refer him had trary finding in of its that he thereafter, Shortly was unlawful. the Un- permanently expelled from the been expel Board decided to Lu- ion Executive years in misconduct. 1994 for fifteen of. hall, claiming cas that he a fifteen- engaged had in misconduct over dismissing in conclude that Lucas’s any year period, Neither the Union nor (1) complaint, applying the Board erred Lucas that he had agents informed highly deferential standard O’Neill’s Instead, expelled. only when the been dealing heightened lieu of the (“Re- Regional Director Acting Board’s applies the exclusive Director”) that he (2) gional notified Lucas context, finding that and the Board’s complaint on Lucas’s not issue Lucas to re- the Union’s refusal allow would learn that charge did Lucas register necessary protect the ef- on his constituency refusal to refer him was based of its fective expelled alleged due to com- by having evidence. been supported was not substantial assign- plaints about his behavior work Accordingly, we reverse the Board’s deci- Lucas towards Union officials.3 and remand so that the Board ments and sion did not cite Regional Director’s letter § 3.The 1. 29 U.S.C. 158. any nor any specific instance of misconduct hiring hall is akin to an em- 2. An exclusive specific employer or Union official who had ployment agency employees hired where conduct. complained about Lucas’s by employer are those referred Plumbers, (Stone Local Union 198 union. See 611-12, Webster), 319 N.L.R.B. & WL 669121 Regional practice complaint Director’s de- sued an unfair labor appeal did not alleging that the Union violated 29 cision. U.S.C. 158(b)(1)(A) 158(b)(2) §§ by refusing later, ten months Approximately by denying to reinstate Lucas and him sought Lucas re-admission to March through work referrals hall. An but Union refused and, evidentiary hearing ALJ held an on Lucas, in According him. ear- reinstate February issued decision find hiring hall and ly he went ing that the Union had violated the Act. list for attempted sign out-of-work (AVW Stage Employees Local 720 Au See employer. to an A subsequent referral Visual), 28-CB-4351, No. dio 2000 WL refused to allow Lucas to employee (N.L.R.B. 2000) Sept.12, at *6 sign allegedly questioned his emo- decision). (reproducing the ALJ’s stability. tional and mental On March to the Lucas sent letter proof The ALJ found that there “no was President, explaining attempt- that he had that Lucas knew or should have know [sic] in referral had not sign ed to for but been only perma- in 1994 that not was he barred listing job dispatched, classifications nently hall, hiring use of the Union’s available, requesting for which he was and nothing that Lucas could do but[also] by referral. He attached a letter written change position.” Id. The Larson, Lynn psychologist, Dr. a clinical in rejected ALJ the Union’s contention that support request. opined of his Dr. Larson unfit, unfit,” always “once as the Union reason, psycho- that there was “no from a present any had failed to credible evidence [sic], logical point stand that Mr. Lucas “persuasive argument pre- or to rebut the fit should not be considered and able to be sumption that refusing the effect of to re- employed at this time.” register hiring Lucas in its hall is to en- courage union membership part on the time, early

At about the same March employees perceived who have the Un- Visuals, contacted Lucas AVW Audio display power.” ion’s Id. fur- The ALJ (“AVW”), signatory employer Inc. objective ther found that the Union lacked bargaining agreement collective with the operating standards for the referral ser- Union, and informed of his AVW availabili- vice, practice arbitrary and that this ty for at an upcoming work convention. and unfair to Lucas and to all wish- others name-request- On March AVW ing hiring access the Union’s exclusive ed Lucas from the hall to at work hall. See id. that convention. The hall refused ground to refer Lucas on the that it had exceptions appealed The Union filed permanently expelled him from the Board, the ALJ’s decision to the contend- in May it obligation that had no to readmit Lucas to the hall. The Board de- charge Lucas filed a second with the adopt Regional clined to the ALJ’s decision and alleging Director that the Union engaged complaint. Contrary in an dismissed the practice had unfair labor Id. ALJ, when it refused to readmit him the Board and to concluded him re-register refer to AVW 1995. The Union’s refusal to Lucas March Board’s subsequently arbitrary General Counsel is- not the Union had 5.03(f) who, Agree- previous 4. Under section of the Labor who is available and within the ment, months, employer request by (6) could name Employer six has worked for the "any qualified unemployed regis- individual seeking reemploy now him." regular tered on List 'A' for or extra work Dir., Shipyards Corp. v. Workers was neces- that its conduct “demonstrated Office of Programs, role that representative Comp. protect the sary to Cir.1990) (internal administering an exclusive quotation marks omit performs Recognizing ted). at *3. interpreta hall.” Id. defer to the Board’s representa- owed a the Union of the National Labor application tion and wishing to use the applicants to all Act, tion long as as the Board’s inter Relations Board concluded precluded pretation is “reasonable and not Lucas was well refusal to reinstate Union’s NLRB Supreme precedent.” Court range of reasonableness” the “wide within Int’l, Inc., Stretchforming Advanced Id. articulated O’Neill.5 standard (9th Cir.2000) (internal fif- pointed to Lucas’s *4-*5. The Board omitted). However, quotation marks which led alleged misconduct years teen its decision on a where the Board rests a reasonable basis expulsion his as prece misinterpretation Supreme Lucas March refusing to readmit dent, inter give we need not the Board’s necessary to this denial was noting pretation any particular deference. See efficiency of the integrity and maintain the NLRB, Jacoby According- operations. Union’s (D.C.Cir.2000) (“Chevron [U.S.A., Inc. v. that the Union had Board concluded ly, the Council, Inc., Resources Natural Defense represen- duty its of fair breached neither 837, 2778, 104 81 L.Ed.2d 467 U.S. S.Ct. prac- engaged in an unfair labor

tation nor (1984)] help agency 694 does membership. by encouraging union tice misinterpretation on a rests its decision that, further determined id. at *5. It See precedent, as the Board Supreme Court had not acted in accor- although the Union here.”). did policy govern- specific a written dance with re-admission, inappropriate would DISCUSSION6 operating to dictate the for the Board hiring hall must particular that a rules I. id. at *4. follow. See A. OF REVIEW STANDARD rec Supreme long has The Court by uphold will decision We statutory duty union has a ognized that a findings supported if of fact are Board the NLRA. representation fair under correctly if it evidence and by substantial 171, 177, 87 Sipes, Vaca v. Calkins, See NLRB v. applied the law. See (1967). Al 903, Cir.1999). 17 L.Ed.2d 842 (9th S.Ct. 1080, Sub 1085 187 articu explicitly Act does not though the “more than a mere stantial evidence means duty, the has held late this such relevant evidence scintilla. It means under duty implied grant from “the is might accept mind as ade as a reasonable 159(a) 9(a) NLRA, § § 29 U.S.C. Pac. of the support a conclusion.” Todd quate to AVW, Union had not whether the 1127. him to 5. 499 U.S. at 111 S.Ct. expel justification May to adequate 1994 matter, agree with both preliminary we 6. As As the ALJ and the him from the hall. challenge and the ALJ that Lucas’s the Board determined, re- refusal to Board 10(b) by section here is not time-barred that oc- separate was a event instate Lúeas Act. filing of the months of the curred within six 160(b). § In his March 1995 See 29 U.S.C. charge. challenged refusal charge, Lucas the Union's hiring hall and refer to readmit him to the 932

(1982 by role, ed.), power assuming employer’s the union’s exclusive re- employees particular sponsibility power fairly in a represent all exercise Breininger v. Sheet increases rather than decreases. That bargaining unit.” has logic duty represen- Int’l Ass’n Local Union been the of our of fair Metal Workers 67, 87, 110 tation No. 493 S.Ct. 107 cases since Steele v. Louisville & U.S. Co., [192,] 200, In Breininger, the Nashville R.R. 323 65 L.Ed.2d U.S. (1944)].”). authority this to rep- Court reasoned that S.Ct. 89 L.Ed. 173 [ employees necessarily included resent recognized have also in obligation to do so a non-discrimina- creased union control over workers’ access 79, 87-88, tory manner. See id. at employment opportunities noting duty of fair S.Ct. hiring halls first came into existence to prevent therefore “serves as a ‘bulwark to wasteful, time-consuming, “eliminate arbitrary against union conduct individuals repetitive jobs scouting by individual stripped by of traditional forms of redress workmen, haphazard, uneconomical ” provisions of federal labor law.’ Id. by employers.” searches NLRB v. Wis Vaca, (quoting at 110 S.Ct. 424 Becker, mer & 903). U.S. S.Ct. Cir.1979) curiam). (per Because Breininger, the Supreme Court also provide halls gen a centralized source for Co., noted that in Miranda Fuel id., erating employment, continued see we (1962), N.L.R.B. 1962 WL 16149 have held that unions not use a had the Board broadened the remedies discipline particular individuals or to union holding available members against discriminate nonunion members represen that a breach of the encourage in order to discourage or prac tation also could be an unfair labor 1388; membership, id. at Carpenters Un 8(b)(1)(A) 8(b)(2) tice under sections of NLRB, 574, ion Local No. 769 25 86, 110 the Act. 493 U.S. at S.Ct. 424. The (9th Cir.1985). Thus, 580 when a union rejected “proposition that hall, operates an exclusive it cannot “ duty representation fair of should be de unreasonable, act in ‘an arbitrary, or in fined terms of what is an unfair labor regard invidious manner in employ to an ” Thus, practice.” Id. a union breach Becker, ee.’ Wismer & 603 F.2d at 1388 duty representation its of fair without com NLRB, 1044, (quoting Kling v. mitting practice an unfair labor and vice (9th Cir.1975)). However, 1046 we have 86-87, versa. See id. at 110 S.Ct. 424. yet not opportunity had the to consider “arbitrary” component whether the of that defining scope duty of the of duty applied must be in accordance with representation, fair the Court has held “highly deferential” interpretation set “applies that it activity,” forth in in O’Neill hall context. O’Neill, 67, 1127, 499 at 111 U.S. S.Ct. Because the D.C. Circuit has dealt with including operation its of an hir exclusive issue, very we look to its decisions to hall, 87-88, Breininger, see 493 at U.S. guide analysis our respect. in this Further, 1944, 110 S.Ct. since recognized Court has that when a union In determining that the Union did not operate a hiring decides to it takes on duty representation violate its of fair in responsibility Lucas, added refusing because wields a to readmit the Board re- special power over workers’ livelihood. lied on O’Neill to conclude that the Union’s (“[I]f See at id. S.Ct. 424 a union range action was not “so far outside a wide power does wield in hiring additional ... reasonableness as to be irrational.” rig 50 F.3d at 34-35. The 2000 WL welders. Employees Local Stage O’Neill, at 1311111, *4 499 U.S. D.C. Circuit noted that because of the (quoting at 1127). Although authority” em “union’s tremendous and the 111 S.Ct. O’Neill representa duty dependence,” of fair utter phasized that “workers’ more activity, in the to all union applies interpretation tion deferential of the “arbi- halls, trary” component duty repre- context of exclusive O’Neill of the of fair must, recently ex the D.C. Circuit inappropriate as was in the sentation NLRB, (internal Jacoby plained in id. at 32-34 hall context. See (D.C.Cir.2000), in light omitted). read of the be It quotation marks further ex- have over responsibility that unions added that the focus in plained Court’s O’Neill Indeed, arose workers’ livelihood. O’Neill negotiat- “protecting on the content of negotia of union contract in the context judicial agreements second-guess- ed tions, in the context of exclusive ing,” “repeated evidenced references operations. negotiated agree- to ‘the substance product and ‘the final of the bar- ments’

At was a claim issue O’Neill gaining process.’” (quoting Id. at 33 breached Air Line Pilots Association had 1127). O’Neill, 77-78, 111 499 U.S. at S.Ct. negotiat duty representation of fair especially “[attentive Because O’Neill accepting a settlement. 499 ing and strike special negoti- role of the union as 68-70, 111 1127 The Court at S.Ct. . U.S. in holding reviewing ator” courts must held high degree afford a deference to union activity,” including applied to “all union decisions, “set forth the contract the Court negotiations, contract but stated stating that ‘wholly language, irrational’ process, courts should be reviewing product process bargaining ‘the final of the deferential, highly “recognizing the wide may constitute evidence of a breach of negotiators latitude that need for the effec- duty only fairly if it can characterized performance bargaining tive of their re- range as so far outside a wide of reason- sponsibilities.” Id. at S.Ct. 1127. that it is irrational or wholly ableness arbi- cases, In two recent the D.C. Cir ” O’Neill, trary.’ (quoting Id. that, recognized cuit even has (internal quotation S.Ct. standard, the deferential O’Neill omitted)). con- marks The D.C. Circuit halls, unions have a hiring context of Supreme the cluded that because all heightened duty dealing of fair toward stan- had articulated the more deferential employees. Jacoby, See 233 F.3d at 616- negotia- in context of contract dard the 18; Pipe Plumbers & Fitters Local Union tions, implicate a context that did NLRB, 29, 33-34 No. 32 v. 50 F.3d employer and in special role union as of (D.C.Cir.1995). recognizing height In discouraged “judicial public policy which duty, emphasized Circuit ened D.C. labor second-guessing” negotiated of “operation hiring easily of a hall is that the agreements, “did not intend to O’Neill where distinguishable from other activities applied to a weaken the standard of review the role of the union does not assume Id. operation of a' hall.” union’s Fitters, Pipe 50 employer.” Plumbers & F.3d at 33. reiterated Jacoby, the D.C. Circuit Fitters, in Plumbers & reasoning it articulated Pipe

In Plumbers & two em- duty of fair Pipe holding hir- Fitters in that the ployees established that union-run departures representation precludes also ranking system failed to use a ing hall had pro- hall exclusive objective in its referral of from established or other criteria 934 id.; Union,

cechires and that the Board had Carpenters articulated See accord 769 an in concluding erroneous view the law F.2d at Essentially, 581-82. unspoken representation that the of fair did not message conveyed by such actions is that apply departures when such were caused union likely considerations affect the abili- by negligence. ty union 233 F.3d at 616-17. to individuals obtain favorable treat- although The court further noted that in thereby sev- ment referrals and secure em- O’Neill, eral if ployment. Local, statements read in iso- Stage Employees See lation, might support the Board’s determi- Thus, 2000 WL at *3. when a highly nation that a deferential standard of union causes a pre- worker to be fired or apply evaluating review should hired, union’s vents a worker being from the bur- operations, O’Neill’s focus on den shifts to justify the union to its ac- “negotiation^]” revealed critical differ- Jacoby, 615; tions. See 233 F.3d at accord ence in context that did not account for Carpenters 769 F.2d at 581-82. potential coercing union’s union mem- This presumption only can be by rebutted bership through operation showing of a either that the union acted ac- hall. Id. at 616. cording to a security valid union clause or “ ‘necessary union’s action was In remanding to the Board to reconsider performance effective of its function of whether negligent the Union’s deviations representing constituency.’” Radio- procedures established NLRB, Elecs. 16 F.3d Officers practice constituted unfair labor (D.C.Cir.1994) (quoting Road heightened duty of fair deal- Sprinkler Fitters Local Union No. 669 v. ing, Jacoby reiterated the standard for NLRB, (D.C.Cir.1985)); establishing practice an unfair labor that it Int’l Stage Alliance Theatrical Employ- had set out in Boilermakers Local No. 374 ees, 312 N.L.R.B. 1993 WL NLRB, (D.C.Cir. 1988). Jacoby, See at 615. The recognized, court previously as it had ex Following the Board’s decision in Boilermakers, plained in aggrieved that an present case, Board, reconsider employee prove need not that a union had ing its initial decision in Local Steamfitters specific intent discriminate on the (Jacoby) Union No. after remand basis of membership activity, union or as a Circuit, the D.C. acknowledged the court’s practice commits an unfair labor if it holding Jacoby and held that in operat operates its exclusive hall arbitrari- an exclusive hiring a union owes a ly or objective without reference crite- heightened duty ria, thereby adversely affecting the em- applicants using hall. See ployment status of the individuals it is (Jaco Local Union No. 342 Steamfitters expected represent. See id. at 615. by), 32-CB-4435, No. 2001 WL (N.L.R.B. In addition, power 2001) because the that is *3 Sept.28, (applying the operating associated with a hiring hall is in Jacoby, standard set forth in although ulti likely itself encourage to mately union member- finding that negligent the union’s ship, the Jacoby court held that it would conduct did not amount to an unfair labor presume in practice). exclusive hall con- agree Circuit, We with the D.C. text, held, as we any have also that Board, union and as recognized by now that action that a causes worker to be fired or O’Neill did not intend to weaken the prevents that a being heightened worker from hired is duty of fair dealing applies designed encourage to membership. union a operation to union’s anof exclusive hir- Group Med. Health Rather, a v. HMO administering ing hall. Int’l/Cal. (9th Plan, Inc., duty of fair 678 F.2d 810-11 Cir. hall, heightened has a a union 1982) operate by (concluding “ref- that where the correct requires to dealing that depends criteria.” Plumbers & objective upon to ness of the decision determi erence Fitters, Jacoby, 233 body 50 F.3d at an Pipe nations of fact that administrative made, yet reviewing F.3d at 616-17. has not a court must body’s administrative anal remand for the Here, to reviewing the refusal Union’s issue). Upon review of the ysis of the hall, Lucas to the reinstate record, we conclude that the Board’s de the more deferential O’Neill applied Board termination that the Union’s refusal to re because a This was error standard. to its exclusive hall was admit Lucas dealing applies to duty heightened necessary promote efficiency to exclusive operation union’s operations integrity of its hall. by substantial evidence. supported B. ordinarily we would re

Although II. that it could recon to the Board so mand noted, previously we have rec As legal the correct its decision under sider any activity pre union ognized standard, Termi Perkins v. Marine see being hired is employee vents an Cir. Corp., nals encourage un designed to presumptively 1982), necessary in this case. is not remand membership, thereby placing the bur ion complaint, dismissing Lucas’s justify on union to its actions. See den ALJ, Board, contrary to the found at 581-82. Carpenters necessity supported the Union’s evidence agree also with the D.C. Circuit factual Having made this critical defense. only by presumption can be overcome determination, responsibility to it is our that the union acted establishing either is the Board’s decision determine whether security with a valid accordance Com by substantial evidence. supported union action was neces or that the clause7 Shipyards Corp., 914 F.2d pare Todd Pac. performance of sary to the effective thé Board had (holding at 1320 that where constituency. See represent factual evalua already necessary made the 16 F.3d at 1284. Officers, Radio-Elecs. legal standard underlying tion Here, determining that the court’s re applied, it then becomes necessary for the effective actions were independent re to conduct an sponsibility operation of its exclusive record to determine whether view of the alleged rely on Lucas’s purported Board findings supported Board’s were Perkins, years fifteen of misconduct. evidence), 673 record of with substantial administrative admitted at evidence (holding that where F.2d at 1105 however, any not include hearing, does misapplied the law and declined Board alleged Lucas’s misconduct evidence of determinations as the ALJ’s factual review mem- towards Union result, assignments, work decline to reach the court should instance) Although evi- or officials.8 NLRB bers in the first the issue prac- labor response Lucas’s 1994 unfair include a Agreement does not 7. The Labor spe- detailed security charge. documents clause. tices These union that formed of misconduct the instances cific letters and vol- submitted several 8. The Union dis- Union’s decision to of both basis the. Regional Director in untary statements alleged expulsion dence of Lucas’s misconduct was permanent his was and that Regional during submitted to the Director there nothing he could qualify do to investigation May his of Lucas’s 1994 for re-admission to the hall.9 charge, charge was dismissed when Further, acknowledged, as the Union Regional Director refused to issue a re-register refusal to guid- Lucas was not noted, complaint in June 1994. As objective by any ed criteria.10 It offered investigation pro- was distinct from the explanation no for its refusal to consider ceedings complaint. related Lucas’s 1995 opinion Dr. Larson’s regarding Lucas’s that, The administrative record reflects de- psychological well-being ability and his spite attempts several sum, productively. just work In any why ALJ did not admit specific evidence of alleged instances of Lucas’s Union’s misconduct. continued refusal to readmit Lucas necessary operation to the effective of What the record reflects is that the Un- mystery. hall is a In order to expelled ion Lucas from hall for overcome presumption these ac- misconduct, alleged but the nature of the designed tions were encourage union misconduct, alleged frequency, membership, the Board relied on docu- alleged identities of the victims and the ments that were not employers’ responses, any, if admitted into evi- were not ad- mitted into evidence. dence at The record also administrative hearing. re- veals that the Union neither informed Lu- Without an evidentiary basis in the record expulsion cas of his nor notified him support the Board’s resolution of this charge Regional Lucas and the Stage Employees, Director's re- 312 N.L.R.B. at Theatrical complaint fusal to a issue on that matter. At (finding that a union violated the Act hearing, the administrative the General Coun- where its stated permanently reasons for ex- sought sel to exclude these letters and state- pelling employee from the hall were by way ments of a motion in limine. The genuine); not Bridge, Int’l Ass’n Structural of ALJ, however, did not rule on that motion Ironworkers, & Ornamental Local “because material the General Counsel 808, 811, (1992) N.L.R.B. 1992 WL 389435 record, sought has, to exclude from the for (concluding that a union violated its part, the most not been admitted ... [S]aid fair departing from its own documents were not support admitted in contractual administering standards in its re- any substantive issue in this case.” system); ferral Plumbers & Local Steamfitters 1157, 1161, No. 242 N.L.R.B. 9. 1979 WL informing General Counsel’s letter Lu- (1979) (finding cas that a complaint that he would not union's resort to issue a on his May charge only self-help disregard was the proce- written notice of contractual informing that Lucas received resolving him that he dures for dispute estab- expelled had been from the hall. Con- Act). lished a violation of the See also Local trary argument, to the Board's notice did Teamsters, Int’l Bhd. 365 U.S. at not establish expul- that Lucas knew that his (holding 81 S.Ct. 835 that the Board permanent. sion was specific procedures dictate and rules that a union adopt, must not that the Board errs 10. The Board although determined that when it engaged determines that a union Union had not acted in accordance with a practices by unfair failing operate labor specific, policy governing written expulsion criteria). objective accordance with re-admission, legal there require was no of our determination that the Board’s deci- operating ment that a a supported by sion was not substantial evi- re-admission, system maintain ther, and fur dence, we need not determine whether the relying on Local Int’l Bhd. Team any objective absence of criteria sters, constitutes 81 S.Ct. separate concluding basis for (1961), L.Ed.2d 11 it concluded that it would arbitrary acted in an manner. inappropriate for the Board to dictate such see, e.g., rules for unions. But Int’l Alliance of

937 Scofield, 382 Workers, v. U.S. Local 283 Board’s deci- the issue, conclude we that 373, 272 212, 15 L.Ed.2d 205, 86 S.Ct. evi- by substantial supported not sion held, of the (1965), decision “[a] which dence. Board order to set aside a reviewing court de the we reverse Consequently, the effect of has dismissing complaint a entry for and remand Board of the cision for further to the Board returning the case See Int’l Lucas. of order favor of an normally results the This proceedings. Auto., Agric. & Aerospace Union, United the against entering an order Board’s Workers, Scofield, Local 283 Implement 205, 212, 86 382 U.S. charged party.” 373, 212, 15 L.Ed.2d 86 S.Ct. (1965). The 272 15 L.Ed.2d S.Ct. (“A reviewing (1965) of the decision 272 5 on the same ignores footnote majority dismissing a Board order set court to aside empha Supreme page, where the the returning of has the effect complaint are, course, cases sized, “[t]here proceedings. further for to the Board case remand to Appeals the Court of will which enter in the Board’s normally results This evidence.” take additional Board to the party.”); charged against the an order Id. n. 5. NLRB, F.2d 656 also Helton see majority language, this clear Despite the (D.C.Cir.1981) employee’s (granting Supreme interprets inexplicably directing the for petition review Board “nor- recognition Court’s decree proposed to submit NLRB charged against an order mally” enters not need opinion). with accordance to remand for the need obviating as party the Union request consider Lueas’s only does Not proceedings. further that he ex him for $500 reimburse text, it also unambiguous ignore Scofield’s testing. We pended psychological for com- later Supreme Court’s violates remedy to the appropriate leave correct- order a Board’s mand that Board.11 “exceptional only in the without remand ed is GRANT- for Review The Petition er- Board crystal-clear in which situation RE- Board is ED, of the the Decision unnecessary for- an a remand ror renders VERSED, is REMANDED and the case Employ- v. Food Store mality.” N.L.R.B. the Board. Union, 94 S.Ct. U.S. ees not This case does L.Ed.2d Judge, WALLACE, Circuit Senior It situation. exceptional an such present concurring: sub- present could appears majority’s conclusion misconduct. join I of Lucas’s While stantial evidence sup- finding not of fact in decision Board’s the Board’s To hold that the evidence, I cannot substantial supported by substantial this case was not ported entry an order substantial for not mean that in its remand join evidence does I remand not exist. Lucas. Because would does evidence favor separately. findings, I write further also at odds is majority’s disposition precedent. Circuit years Ninth entry of with remand for support of its In Inc. v. Machining, & Casting Lucas, majority cites Die SKS in favor of order Cir.1991) N.L.R.B., Automobile United International find- further Board for (remanding Implement Agriculture Aerospace & subpoena Counsel’s respond General disposition, we need of our ad- draw an tecum. refusal to duces the Board's address Union’s failure from the inference verse ings See, where the Board failed to make a e.g., 48 AM. JUR.2d Labor & Labor necessary § factual finding support Relations decision); Constructors, M.W. Kellogg Inc. N.L.R.B., Cir.

1986) (same); N.L.R.B., Dash v. (9th Cir.1986) (same, ex remand).

plaining that the court “must” majority attempt

The does not to distin SKS,

guish this case from Kellogg, M.W. and Dash. COCKETT, Janice Petitioner- Appellant,

Finally, disposition the majority’s is at odds with common The sense. Board de- termined that the Union satisfied the ne- RAY, Howard Warden of the Central cessity requiring defense without evidence Oklahoma Correctional D.C. No. Fa of the fact or nature of Lucas’s alleged cility; Attorney General Of The misconduct. The Union did not offer to Hawaii; State Prosecuting Of Attor the Board the majority evidence the now ney City County for the and Of Hono because, requires time, at the the Union lulu, Hawaii, State Respondents- Of did not need to. The Board found for the Appellees. Union on a Similarly, different basis. No. 02-15078. thought ALJ this evidence irrelevant to his decision and neither admitted nor excluded United States Court Appeals, it. It very could well be that the Union Ninth Circuit. had boxes and boxes of evidence it wanted Now, admitted. the majority Argued holds that May Submitted 2003. evidence, the Board needed this a holding Filed June with I fully agree. which But majority then concludes that Lucas is entitled to an

order in although his favor the Union nev- got

er opportunity a full present all its

evidence to a competent fact-finding au-

thority. We cannot the Union blame

sins the ALJ and Board.

I would remand to permit the Union an

opportunity present first —to evidence —its

that Lucas engaged either in misconduct

or, though he did not engage in miscon-

duct, he was accused of committing acts of

misconduct of such a nature that it was

necessary for the Union to refuse to refer opinion

Lucas. The expresses no opinion

as to whether evidence of the latter would

be sufficient defense, for the necessity

I would leave to the Board to decide.

Case Details

Case Name: Steven Lucas v. National Labor Relations Board

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 16, 2003

Citation: 333 F.3d 927

Docket Number: 00-71452

Court Abbreviation: 9th Cir.