Petition for review of National Labor Relations Board order modifying findings and recommended order of Administrative Law Judge. The NLRB ruled that union did not violate National Labor Relations Act by considering loyalty as selection criterion for referral to working teamster foreman positions and that loyalty standard was not arbitrarily applied. Vacated in part and remanded.
KEARSE, WINTER and MINER, Circuit Judges.
Petitioner Walter Kudla and intervenors John Kuebler and Richard Van Romer seek review of an order by the National Labor Relations Board (the "NLRB" or "Board") modifying the findings and recommended order of the Administrative Law Judge (the "ALJ"). The NLRB ruled that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America (the "union" or "Local 282") did not violate the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (1982 & Supp. 1985) (the "Act" or "NLRA"), by refusing to refer petitioner, a dissident union member, to a working teamster foreman ("WTF") position because the union considered him to be insufficiently loyal. The NLRB reasoned that such discrimination against a dissident union member merely was incidental to the furtherance of legitimate union objectives because the WTF was analogous to a shop steward and responsible for administration of the collective bargaining agreement. The NLRB also ruled that there was no evidence that the loyalty standard had been applied in an arbitrary and capricious manner.
We uphold the Board's determination that loyalty is an appropriate consideration for referral to a position that entails contract administration duties. We remand, however, for an evidentiary hearing on whether the loyalty standard was applied to petition in an arbitrary and capricious manner.
Local 282 represents chauffeurs, drivers and warehousemen in the construction industry in New York City, and has negotiated separate collective bargaining agreements with two associations of employers engaged in heavy construction and high-rise construction -- the General Contractors Association ("GCA") and the Building Contractors Association ("BCA"). Under the terms of the contracts, Local 282 has the exclusive right to refer a working teamster foreman for employment on any construction site where the total gross cost of construction is $5,000,000 or more. Joint App. at 421, 424. The employer may accept or reject a referral to the WTF position but, upon rejection, the union refers another candidate. Id. at 418.
During the period of construction, a WTF works at the job site for which he is hired. In addition to checking truck deliveries to the site and routing trucks to the appropriate location, a WTF
shall handle all grievances involving the application of this Agreement on the site, shall coordinate safety efforts relating to Teamsters on the site, and shall be allowed a reasonable amount of time to conduct union business consistent with the concept that he is a working Teamster.
On April 2, 1981, union member Ted Katsaros wrote to Robert Sasso, then Secretary-Treasurer of Local 282, requesting both a referral to a WTF position and a list of other applicants awaiting referral to WTF position and a list of other applicants awaiting referral to WTF positions. On May 12, 1981, union member Walter Kudla wrote a similar letter requesting referral and information. They received virtually identical letters in response, stating that they had been "added to that list" but containing no information regarding the length of the list or the names of other applicants. On May 6, 1981, Katsaros sent another letter to Sasso, requesting both the names of applicants on the list and the names of applicants who had been referred in the preceding six months. By letter dated May 19, 1981, Sasso responded that "[WTF] hiring is not done through a union hiring list." Id. at 468. At about the same time, Kudla met Sasso in the union office, and again requested referral to a WTF position. Sasso told Kudla that his name was on the list, but refused to show Kudla either a copy of the list or a copy of the contract. Neither Katsaros nor Kudla was referred to a WTF position.
In August of 1981, Katsaros filed an unfair labor practice charge against the union, in which Kudla subsequently joined, claiming that the union's refusal to refer him to the WTF position was in retaliation for his opposition to the union leadership. Katsaros and Kudla, both long-time Local 282 members, were active union dissidents, who supported opposition candidates in union elections through a group called "FORE" (Fear of Reprisal Ends), and who ran unsuccessfully for union office on the FORE slate between 1966 and 1981. Additionally, Katsaros had prevailed in several suits against the union: Expelled from the union in 1978, he successfully appealed to the NLRB, which found his expulsion to be in retaliation for his opposition to the incumbent union officials. Frank Mascali Constr. Co., 251 N.L.R.B. 219 (1980), enf'd, 697 F.2d 294 (2d Cir.), cert. denied, 459 U.S. 988, 103 S. Ct. 342, 74 L. Ed. 2d 383 (1982). He also succeeded in an action against John Cody, a former Local 282 president, Robert Sasso and others, in their capacities as trustees of the union pension trust fund. As a result, those individuals were removed as trustees. Katsaros v. Cody, 744 F.2d 270 (2d Cir.), cert. denied, 469 U.S. 1072, 83 L. Ed. 2d 506, 105 S. Ct. 565 (1984).
In response to the unfair labor practice charge, the NLRB issued a complaint alleging that Local 282 violated sections 8(b)(1)(A) and 8(b)(2) of the Act, 29 U.S.C. §§ 158(b)(1)(A), 158(b)(2) (1982), by discriminating and causing employers to discriminate against union dissidents in referrals for WTF positions. The General Counsel of the NLRB, on behalf of the charging parties, subpoenaed various records concerning individuals actually referred by the union to those positions. The union moved to revoke the subpoena and the ALJ granted the motion.
At a hearing before the ALJ, Sasso, now the President of Local 282, testified that a WTF is responsible for enforcing the contract on the job site, for representing union members in on-site grievances and for monitoring on-site safety problems. He also testified that he did not refer Katsaros or Kudla to WTF ...