878 F2d 1439 Pile Drivers Dock Wharf and Bridge Carpenters Drivers Local Union v. National Labor Relations Board

878 F.2d 1439

Unpublished Disposition

PILE DRIVERS, DOCK, WHARF AND BRIDGE CARPENTERS & DRIVERS,
LOCAL UNION 2396, affiliated with United
Brotherhood of Carpenters & Joiners of
America, Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Nos. 88-7020, 88-7075.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1989.
Decided June 29, 1989.

Before GOODWIN, Chief Judge, and EUGENE A. WRIGHT and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM*

2

Pile Drivers Local 2396 ("the Union") petitions for review of a Board order affirming the ALJ's determination that the Union had, by causing and attempting to cause Tri-State Ohbayashi ("the Company") unlawfully to refuse to employ Richard Westberg, engaged in unfair labor practices within sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, 29 U.S.C. Secs. 158(b)(1)(A) and 158(b)(2). The Board applies for enforcement of its order. We agree with the Board.

Direct Interference

3

A union may operate an exclusive hiring hall for its members where a contract with the employer so provides, so long as it does not operate the hall in a discriminatory or arbitrary manner. NLRB v. Iron Workers Local 433 (Associated General Contractors), 600 F.2d 770, 777 (9th Cir.1979). Where it lacks such a contract, as the Union did with regard to the Company's work at ETS-9 (the project where Westberg would have worked), it violates Section 8(b)(2) if it refuses to dispatch an applicant or otherwise interferes with his employment status for reasons related to his exercise of statutory rights--in this case because he did not belong to the Union. See NLRB v. Wismer and Becker, 603 F.2d 1383 (9th Cir.1979); Teamsters, Chauffeurs, Etc., Local 17 (Universal Studios), 251 NLRB 1248, 1255 (1980).

4

The Board found that the Union and its agents caused the Company to rescind its previous offer of employment to Westberg. This finding is supported by substantial evidence in the record.

5

Although nothing in the record indicates that the Union demanded the Company not hire Westberg, as the Board argues, the law is settled that 'an express demand or request is not essential to a violation of Section 8(b)(2) of the Act.' Northwest Montana District Council of Carpenters' Unions (Glacier Park Co), 126 NLRB 889, 897 (1960). Rather, '[i]t suffices if any pressure or inducement is used by the union to influence the employer.' Id. Accord NLRB v. Jarka Corp. of Philadelphia, 198 F.2d 618, 624 (3d Cir.1952). Neither the Board nor reviewing courts have required an explicit union demand upon a company before finding direct interference. So long as the relationship of cause and effect is present, it does not matter whether the interference is in terms of a suggestion, an indication of displeasure, or a threat.

6

There is sufficient evidence in the record that Westberg was offered and accepted a job. There is also evidence that the Union interfered with Westberg's employment opportunity. Together, these events support the Board's finding that the Union directly interfered with Westberg's employment opportunity.

7

Finally, there is evidence in the record to indicate that the interference resulted in Westberg losing the employment opportunity. The reason Westberg did not go back to the Company after his second visit to the hiring hall was that Bill and Pat Sullivan had confirmed his mistaken impression that a dispatch was required and had told him that such a dispatch would not be forthcoming. By pressuring the Company and misleading Westberg, the Union caused him to lose his employment opportunity.

Full and Fair Opportunity to Litigate

8

Westberg's original charge claimed that the Union had "failed and refused" to dispatch him for work with the Company because he was not a member of the Union. The Board's complaint claimed that the Union violated Sections 8(b)(1)(A) and 8(b)(2) of the NLRA by (1) telling Westberg that the Union would not dispatch him; (2) refusing to honor the Company's request that Westberg be dispatched; and (3) causing and attempting to cause the Company to discriminate against Westberg by failing to employ him.

9

The Union claims it was a denial of due process to find that the Union violated the Act by direct interference with Westberg's employment opportunity, a basis not charged. The Board responds that, so long as an issue is fully and fairly litigated, it is free to "render a decision based upon the issues actually tried without ordering amendment" of the complaint. The Frito Co. v. NLRB, 330 F.2d 458, 464 (9th Cir.1966). We agree with the Board that the issue was fully and fairly litigated.

10

The complaint did allege in general terms that the Union caused the Company to discriminate against Westberg by failing to hire him.

11

Although the Union claims that far more probative evidence would have been presented had direct interference been alleged in the complaint, much evidence concerning direct interference was placed in the record at the hearing, all without objection.

12

The General Counsel's brief to the ALJ begins its argument with a recitation of applicable legal principles, including the statement that

13

any union action which prevents an employer's hire of an employee will be presumed to encourage union membership among those who perceive the union's actions and hence will be found to violate Section 8(b)(1)(A) and (2) of the Act. ... [A] union's interference with an employer, causing the employer to refuse to hire an individual in violation of Section 8(a)(3) constitutes a violation of 8(b)(1)(A) and (2).

14

The Board relies on NLRB v. Iron Workers Local 433 (Associated General Contractors), 600 F.2d 770, 775-76 (9th Cir.1979), where this court, citing a line of Ninth Circuit precedent, upheld a Board finding that the respondent union had violated Sec. 8(b)(1)(A) by engaging in threats and acts of violence against workers opposing the union's hiring hall practices. The acts were not specifically alleged in the complaint, but were fully litigated. In that case, "the record [was] replete with evidence documenting the occurrences of these acts.... [and] the Board's position that the acts and threats of violence were within the general language of the complaint is reasonable." Id. Here as in Iron Workers Local 433, the record documents the Union's direct interference, and direct interference is within the general language of the complaint.

Remedy

The Board ordered that the Union:

15

make whole Westberg for any losses of wages or other rights and benefits that he may have suffered as a result of its action, until Westberg has been hired by [the Company], the project is completed, or he obtains substantially equivalent employment elsewhere,....

16

The Union argues that the Board's remedy was inappropriate because a dispatch was not required, because Westberg never asked the Company if he could work without a dispatch, and because according to the Union no one was hired in place of Westberg (an allegation that is intended to cast doubt on the claim that a job was offered).

17

These arguments cannot prevail in light of evidence in the record supporting the Board's determination that a job was offered to Westberg and that the Union did cause Westberg to lose his employment opportunity.

18

ORDER ENFORCED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3