The National Labor Relations Board petitions for enforcement of its order against respondents, Local Union No. 46, Metallic Lathers and Reinforcing Iron Workers and United Brotherhood of Carpenters and Joiners of America, based on violations of sections 8(b)(1)(A) and 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(1)(A) and 158(b)(1)(B). Enforcement granted as to Local 46 but denied as to the United Brotherhood of Carpenters.
Oakes and Van Graafeiland, Circuit Judges, and Brieant,*fn* District Judge. Oakes, Circuit Judge (concurring in part and dissenting in part).
VAN GRAAFEILAND, Circuit Judge:
This is a petition by the National Labor Relations Board for enforcement of an order finding respondent, Local Union No. 46, Metallic Lathers and Reinforcing Iron Workers, guilty of certain unfair labor practices and respondent, United Brotherhood of Carpenters and Joiners of America (Carpenters), secondarily liable for remedying the violations. We grant enforcement as to Local 46 but deny enforcement as to Carpenters.
On August 18, 1978, Local 46 disciplined three of its members, Michael Cahill, William Murtha, and Lawrence McDermott, for their conduct in disrupting a union meeting, by precluding them from serving as foremen or shop stewards for a period of two years. This decision was affirmed on appeal by Wood, Wire and Metal Lathers International Union (International), with whom Local 46 was affiliated, except that the suspension period was reduced to one year. Cahill filed unfair labor practice charges against both Local 46 and International alleging violations of sections 8(b)(1)(A) and 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(1)(A) & (B), and complaints were issued.
Prior to the first scheduled hearing, International affiliated with Carpenters, and Local 46 affiliated with the International Association of Bridge, Structural and Ornamental Iron Workers. The complaints then were amended to add Carpenters as an additional respondent.
At the time Cahill, Murtha, and McDermott were disciplined, they were employed as lathing foremen by three contractors who had bargaining agreements with Local 46. Although these agreements permitted the employers to designate which lather on a job would be foreman, the union determined which lathers were eligible for that position. The Administrative Law Judge found that, in their positions as foremen, the three men were employers' representatives for the purpose of adjusting grievances. He concluded, therefore, that their suspension constituted a violation of section 8(b)(1)(B) which makes it an unfair labor practice for a labor organization "to restrain or coerce . . . an employer in the selection of his representatives for the purpose of . . . the adjustment of grievances." He held that both Local 46 and International were guilty of the violation and that the Lathing Subdivision of Carpenters was jointly and severally responsible with Local 46 for remedying the violation and Carpenters was secondarily responsible. He also held that Local 46 and International had violated section 8(b)(1)(A) which makes it an unfair labor practice to restrain or coerce employees in the exercise of their rights to organize, bargain, etc., as provided in section 7 of the Act, 29 U.S.C. § 157, and again imposed remedying responsibility on Carpenters and its Lathing Subdivision. The ALJ's decision was affirmed by the Board with only a slight modification which eliminated the remedying responsibility of Carpenters' Lathing Subdivision.
THE SECTION 8(b) (1)(B) VIOLATION
Citing our decision in NLRB v. Rochester Musicians Ass'n Local 66, 514 F.2d 988 (2d Cir. 1975), Local 46 argues that, before a violation of section 8(b)(1)(B) can be found, "there must be separate findings that the employee was a supervisor and that the employee had the authority to adjust grievances." This is a misreading of Rochester Musicians. We held in that case that an employee's status as supervisor did not entitle him to protection under section 8(b)(1)(B) unless he had the authority to adjust grievances. Id. at 991-93. See also Local 926, International Union of Operating Eng'rs v. Jones, 460 U.S. 669, 103 S. Ct. 1453, 75 L. Ed. 2d 368, 51 U.S.L.W. 4343, 4346 (1983); Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790, 804-05, 811 n.21, 41 L. Ed. 2d 477, 94 S. Ct. 2737 (1974).
The issue here, therefore, is not, as Local 46 would have it, whether Cahill, Murtha and McDermott had authority to hire, fire, lay off, and assign work, but whether they had authority to adjust grievances. The ALJ found that all three of them had this power, and, while the evidentiary support for this finding was not overwhelming, particularly in the case of McDermott, it was sufficient to satisfy the requirement of substantiality. This being so, the discipline imposed, which deprived the employers of the opportunity to designate the three men as their representatives for the adjustment of grievances for a period of one year, constituted a violation of section 8(b)(1)(B). American Broadcasting Cos. v. Writers Guild of America, West, Inc., 437 U.S. 411, 432, 57 L. Ed. 2d 313, 98 S. Ct. 2423 (1978).
The ALJ held International equally responsible with Local 46 because it ratified the disciplinary measures which the latter took. Under the common law principles of agency which apply, see NLRB v. Local Union No. 3, International Brotherhood of Electrical Workers, 467 F.2d 1158, 1159 (2d Cir. 1972), this holding was not erroneous. International Brotherhood of Electrical Workers v. NLRB, 159 U.S. App. D.C. 242, 487 F.2d 1113, 1128 (D.C. Cir. 1972), rev'd on other grounds en banc, 159 U.S. App. D.C. 272, 487 F.2d 1143 (1973), aff'd sub nom., Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 41 L. Ed. 2d 477, 94 S. Ct. 2737 (1974); Local Union 984, International Brotherhood of Teamsters v. Humko Co., 287 F.2d 231, 242 (6th Cir.), cert. denied, 366 U.S. 962, 6 L. Ed. 2d 1254, 81 S. Ct. 1922 (1961).
Before the Board could impose responsibility on Carpenters to remedy International's unfair labor practice, it had to find that Carpenters had knowledge of the charges pending against International at the time the two unions affiliated. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 185, 38 L. Ed. 2d 388, 94 S. Ct. 414 (1973). Carpenters denied that it had actual knowledge, and no witness testified to the contrary. Our role in determining whether the Board misapplied the common law agency principles of imputed knowledge is not limited, as was that of the Supreme Court in Golden State, supra. See 414 U.S. at 173-74. We do not exceed our authority, therefore, in holding, as we do, that the ALJ erred in imputing the knowledge of International's President, Charles Brodeur, "at all times material herein" to Carpenters, by whom he became employed following affiliation. This holding simply does not square with long-established common law principles of agency. See Solow v. General Motors Truck Co., 64 F.2d 105, 107 (2d Cir.), cert. denied, 290 U.S. 629, 78 L. Ed. 547, 54 S. Ct. 48 (1933); Otsego Aviation Service, Inc. v. Glens Falls Ins. Co., 277 App. Div. 612, 618-20, 102 N.Y.S.2d 344 (1951). "The knowledge which an agent receives for which his principal is to be charged must be such as is received while acting for the principal, not for another whose interests may be adverse." Drilling v. New York Life Ins. Co., 234 N.Y. 234, 240, 137 N.E. 314 (1922).
We also conclude that the ALJ erred in inferring knowledge on the part of Carpenters because "neither General President Sidell nor any other Carpenter official testified ". The factual finding upon which this inference was based is clearly erroneous. Affiliation negotiations were conducted by committees of each union. Carpenters' committee consisted of its president and its first and second vice-presidents. Patrick Campbell, the second vice president, who had conducted affiliation discussions with International as far back as 1974, testified that he was present at all the 1978-79 negotiating sessions and was never advised of the pending unfair labor practice charges against International. Indeed, President Brodeur of International, in a July 1979 report to his own members in which he recommended approval of the affiliation referendum, Exhibit CX-4, stated that there was no litigation outstanding against the Union. While the ALJ is entitled to draw inferences which flow rationally from basic findings of fact, the basic findings themselves must be supported by evidence. See United States v. Baltimore & Ohio Railroad Co., 293 U.S. 454, 463-64, 79 L. Ed. 587, 55 S. Ct. 268 (1935); Bond v. Vance, 117 U.S. App. D.C. 203, 327 F.2d 901, 902 (D.C. Cir. 1964).
We conclude that the ALJ's finding of knowledge on the part of Carpenters was based upon a misunderstanding of the law and a misstatement of the facts, and, therefore, that portion of the Board's Order which holds Carpenters secondarily liable for the lost earnings of the three employees may not be enforced. In so holding, we need not reach the troublesome question whether there was a "substantial continuity of identity" between the International-Local 46-employee relationship, as it existed prior to affiliation, and the Carpenters-International-employee relationship, as it existed thereafter, at which time Local 46 and its members had left the fold and become affiliated with the Iron Workers.*fn1 See Howard Johnson Co. v. Detroit Local, Hotel Employees Union, 417 U.S. 249, 263, 94 S. Ct. 2236, 41 L. Ed. 2d 46 (1974); ...