ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board Nos. 22-CB-3301, 22-CB-3302, & 22-CB-3514)
Before Adams, Van Dusen and Sloviter, Circuit Judges.
In this case, the National Labor Relations Board (Board) makes application for enforcement of its March 3, 1980, order*fn1 directing the respondent local unions to cease discriminating against non-members, in violation of sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (Act), 29 U.S.C. §§ 158(b)(1)(A) & 158(b)(2) (1976),*fn2 in the operation of their exclusive hiring halls and to make the named discriminatees whole for their lost earnings. In addition, the order extends the same remedies to "all others similarly situated." The respondents maintain that the Board's findings of discrimination are not supported by substantial evidence and that their extension of the remedies to unnamed, "similarly situated" discriminatees is improper. This court has jurisdiction under 29 U.S.C. § 160(e) (1976).
Because we believe that the Board's opinion does not provide an adequate basis upon which to review its decision and order, we will deny the petition for enforcement and refer the case to the Board for such further proceedings and more particularized findings of fact as it deems appropriate.
This is the latest in a series of cases involving member locals of the District Council of Northern New Jersey, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (the District Council). At all relevant times, the District Council had a collective bargaining agreement (the contract) with the Building Contractors Association of New Jersey which provided in pertinent part:
"15.1 Every Employer bound hereby agrees that he will recruit all employees covered hereby exclusively through the several hiring halls operated by the Union and/or its Locals. The said hiring halls shall be operated by the Union and its Locals in a non-discriminatory manner and on a non-discriminatory basis in accordance with the said Decree in U.S. v. Plumbers Local 24 et al Civil Action No. 444-71 etc ..."
"15.2 The said hiring halls shall be operated in accordance with the provisions of said decree mentioned in the preceding Article."
The consent decree referred to was entered in 1972 as part of the settlement of an employment discrimination suit brought by the United States against the District Council and others under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976) (Title VII). The provisions of the consent decree set forth in detail how the mechanics of the hiring hall system were to operate in order to prevent future discrimination.
The gist of the system is that any ironworker, whether a member of the local or not, may request referral at the hiring hall and must be referred to a job in the chronological order of his request. In order to ensure fairness, the consent decree requires that each local maintain two bound registers: a "Referral Register" and a "Contractor's Requisition Register." An ironworker seeking referral comes to the hiring hall and signs the referral register with his name, the date, his union affiliation, and the ironworker skills (there are about 12) in which he is qualified. When a contractor calls to request workers, the requisite number of those available who have the needed skills are called in the order in which they signed the register. If present in the hall, they are referred to the job; if not, their names are removed from the list and they must re-sign the register and begin working their way back to the top of the list.*fn3 At the same time, the contractor, the contractor's representative making the request, and the names of those workers referred are entered in the contractor's requisition register. When the job is completed, the workers must return to the hall, re-sign the register, and await another referral.*fn4
Under the terms of the decree, there are several instances in which it is proper to refer workers out of chronological order. The first two of these exceptions do not play a major role in this case. First, the union may refer a senior, experienced local member to act as steward on the job. Second, contractors who are required to meet affirmative action criteria may request workers of a given race and such workers may then be referred out of order. The third principal exception is the primary one at issue here. Under this provision, if a contractor requests a certain worker or workers by name, they may be referred out of order. In such a case, the reason for the out-of-order referral must be noted in the "remarks" column of the referral register and the "union shall request written confirmation from the contractors of each request or referral of applicants by name." Consent Decree P 27(c), reprinted in Brief for Respondent at 6 (emphasis added). There is no provision in the decree or the contract requiring the contractor to send the letter upon request or forbidding the union from referring the worker unless a letter is received.*fn5
In addition, the unions here evolved another informal exception which they designate variously as "recalled" or "returned to work." Under this exception, a worker who is referred to a job which is suspended before completion-due, for instance, to weather, strikes, or the scheduling of the work of other trades-and who re-signs the register in the meantime may be referred back to the original job out of order if it resumes. The Board does not recognize this as a distinct exception but treats it as a "requested" referral.
In several earlier cases*fn6 involving other northern New Jersey ironworker locals, all of which are parties to the same contract and consent decree and operate hiring halls identical to those at issue here, the Board found widespread discrimination by the locals in favor of their own members, highlighted by grossly disproportionate referral statistics and what the Board found to be an "inescapable inference of deceit" in maintaining the referral register. This inference was raised by findings such as the out-of-order referral of member-apprentices as stewards ahead of experienced non-members;*fn7 that one local referred its own members out of order fully 75% of the time during one 11-month period*fn8 and 82% of the time during one five-month period;*fn9 and the locals' failure to substantiate these large numbers of out-of-order referrals with any documentary evidence-including, in one case, the failure even to produce the contractor's requisition register.*fn10 Thus concluding that the referral registers had been kept as a sham or pretext to hide discrimination, the Board decided that, with limited exceptions, each unexplained or "requested" designated out-of-order referral of a local member appearing on the face of the referral register would constitute a prima facie violation of the Act and that the burden would be upon the local to prove the validity of each referral by producing the requisition register, the confirming request letter from the contractor, or "other evidence of sufficient probity." Ironworkers, Local 373, 235 N.L.R.B. at 233 n.7.*fn11 The ...