NLRB v. Teamsters \"General\"Local Union , 723 F.3d 778 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1586
N ATIONAL L ABOR R ELATIONS B OARD ,
Petitioner,
v.
T EAMSTERS “G ENERAL” L OCAL U NION N O . 200,
an affiliate of the International
Brotherhood of Teamsters,
Respondent.
Petition for Review of an Order of the
National Labor Relations Board.
No. 30-CB-5303.
A RGUED S EPTEMBER 5, 2012—D ECIDED JULY 23, 2013
Before B AUER, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. After losing a contentious union
election, Timothy Buban went to work as a shuttle bus
driver at a construction site. A year later, Buban faced
more bad news: His employer laid him off from this
position. When Buban approached the current union
leadership—his former political rivals—for help in re-
turning to work, his troubles continued. Specifically, the
2 No. 12-1586
National Labor Relations Board determined that the
union, as the exclusive source of referrals for their mem-
bers to the construction company, did not consistently
use objective criteria in determining which job-seekers
to refer to the company; discriminatorily failed to refer
Buban for employment; and failed to provide him
with specifically requested information concerning the
union’s job-referral procedures. All three determinations
constitute violations of the National Labor Relations Act.
The union appeals the Board’s decision. We affirm.
I.
Buban is a member of Teamsters General Local Union
No. 200 in Wisconsin. He participates in union politics as
a member of the dissident group “Teamsters for a Demo-
cratic Union,” and served as secretary-treasurer of Local
200 from 2004 to 2006. Buban lost his bid for reelection
in 2006, following an acrimonious campaign against the
rival “Teamsters 4 Teamsters” slate of candidates. He
resigned his position in October 2006, shortly after his
electoral defeat but before his term was to expire.
At the time of his resignation—but presumably before
he had completely relinquished power—Buban, in his
capacity as a union official, referred himself for work at
the Bechtel Construction Company’s Elm Road Power
Generating Station Project in Oak Creek, Wisconsin.
Bechtel hired him as a shuttle bus driver, transporting
workers to and from the construction site. Bechtel laid
Buban off—along with all other drivers who lacked a
certain license—in September 2007.
No. 12-1586 3
That month, Buban filed a grievance with Local 200
regarding the layoff. Union business agent Mike Gurich
was assigned to handle Buban’s grievance. Gurich and
Buban had been rivals during the previous union local
election campaign—Gurich was affiliated with the “Team-
sters 4 Teamsters” group, and was appointed to his
position as union business agent following that group’s
electoral victory. Buban and Gurich clashed throughout
the grievance process, with Buban alleging that the
union was responsible for the loss of his job and had
improperly handled his grievance. In an October 2007
letter to Burich detailing the steps that the union had
taken to resolve Buban’s grievance, Gurich called Buban’s
allegations “somewhat hysterical.”
Buban claims that, from at least as early as January
until April 2008, he repeatedly told Gurich that he
wished to return to work as a bus driver, truck driver, or
warehouse worker at the Elm Road site. Although Local
200 disputes the particular jobs for which Buban
expressed an interest, the union does not deny that
Buban informed Gurich of his interest in returning to
work at the Elm Road site. Regardless, Buban’s conversa-
tions with Gurich were for naught; he remained unem-
ployed throughout this period.
In April 2008, Carol Simon, a fellow union member and
political ally of Buban’s, informed Buban that Gurich had
told her that Buban “hasn’t put his name on the out-of-
work list.” The existence of such a list was news to
Buban. In all his conversations with Gurich regarding his
desire to return to work, Gurich had never mentioned it.
4 No. 12-1586
But once Simon alerted him to the existence of the list,
Buban called Gurich to expressly request to be placed on
it. Gurich complied with his request, placing Buban’s
name and telephone number on the list. Gurich also
placed a question mark next to Buban’s name—a designa-
tion that appears alongside only nine other names on
the list. According to Gurich, this was the first time that
Buban had asked to be placed on the list since he was
laid off in September 2007.
After Buban had been placed on the referral list, Gurich
referred several other union members for positions at the
Elm Road project. The parties in the case disagree on
whether these individuals were referred ahead of
Buban. According to Local 200, Gurich referred these
individuals to Bechtel based on objective criteria; the
Board, however, sees these referrals as arbitrary at best,
and favoritism based on loyalty to union leaders at worst.
By August, a still-unemployed Buban visited Local 200’s
office to request information about the workings of the
referral system. Buban met with another union business
representative, who said that he was unable to help
Buban and that the relevant union officials were not
available. The business representative agreed to take a
message though—but no one from the union office ever
followed-up with Buban regarding his visit.
By this point, Buban had filed charges against the
union with the National Labor Relations Board. In May 15,
2009, the Regional Director for Region 30 of the Board
issued a complaint against the union, alleging violations
of Section 8(b) of the National Labor Relations Act
No. 12-1586 5
(“NLRA”), 29 U.S.C. § 158(b). The next year, an administra-
tive law judge (“ALJ”) issued a decision finding that
the union: violated § 8(b)(1)(A) of the NLRA by operating
an exclusive hiring-hall without consistently applying
objective criteria; violated §§ 8(b)(1)(A) & 8(b)(2) by
discriminatorily failing and refusing to refer Buban for
employment at the Elm Road site; and § 8(b)(1)(A) by
failing and refusing to provide him with pertinent infor-
mation, including the union’s job referral list and the
procedures that the union used to select applicants from
this list for referrals. The Board affirmed these specific
findings, and ordered the union to (i) compensate
Buban for his lost earnings stemming from the union’s
discriminatory treatment of him; (ii) refer Buban to
Bechtel for employment; (iii) operate its referral system
using objective, consistently applied criteria; and (iv)
provide Buban with information regarding these criteria.
The union appeals.
To understand the issues in this case, some discussion
of the referral list is necessary. This document has its
origins in the Area Agreement between Local 200 and
Bechtel governing labor relations at the Elm Road site.
This agreement provides for a procedure by which the
union participates in Bechtel’s hiring decisions. After
Bechtel places a request for additional workers with
Local 200, the union has the exclusive right to refer union
members for employment for a 48-hour period. Although
the union enjoys an exclusive right of referral during
this 48-hour window, Bechtel is not required to hire
those job-seekers that the union refers. If Local 200
6 No. 12-1586
does not make the requested number of referrals during
the 48-hour period, Bechtel may look elsewhere for work-
ers. In practice, however, Local 200 responded to every
request for workers that Bechtel made within 48 hours,
and Bechtel only hired those workers that the union
referred.
To determine which union members to refer for em-
ployment, Gurich maintained a document with
the names and other descriptive information for union
members seeking work. Each entry in the document
contains the name and contact information for each
union member seeking a referral. Some entries also
include an assessment of the individual’s qualifications,
written by Gurich. Gurich claims to have added job-
seekers to the list in chronological order. Although the
first portion of the list is indeed numbered, Gurich also
placed sticky notes throughout the list with the names
of other job-seekers; these notes were unnumbered. A
small number of entries also include additional com-
ments, such as “seems like [a] good guy,” “friend of
Rick Badnik,” and “good driver.” Some sections of this
document were organized as an ordered list, while others
were not. (For simplicity, we refer to the entire document
as a list because that is the term used by the parties.
The document actually appears to be more of a loose
conglomeration.)
Gurich claims to have considered the following factors
in determining which individuals to refer for positions
at Elm Road: order in which the individual requested
placement on the list, layoff status, seniority, experience,
No. 12-1586 7
foreman requests, and work history. Gurich did not
apply these factors in any set formula; he acknowledges
that his referral system was not an “exact science.” While
there were no formal rules regarding Gurich’s methods,
Gurich stated that his system was governed by
unwritten rules, including a degree of discretion. These
unwritten rules remain a mystery to us, however; in one
particularly perplexing instance, Gurich referred a
union member who could not recall having taken any
steps to place his name on the list.
The record is unclear as to how those union members
whose names appear on the list first learned of the exis-
tence of this document. Relatedly, no information was
presented about the proportion of the union member-
ship that was aware of the list’s existence. According to
the union, members could request to be placed on the
list either in-person at the Local 200 office or telephoni-
cally. But since there is no evidence that Gurich or other
union officials took steps to inform members on how to
be placed on the list, or even to publicize its existence,
the union failed to explain exactly how this process
worked in practice.
II.
Local 200 challenges three aspects of the Board’s order.
First, the union disputes the Board’s finding that the
union operated an exclusive hiring-hall without objec-
tive, consistently applied criteria to refer job-seekers.
Second, the union argues that, even if it did operate an
exclusive hiring-hall, substantial evidence does not exist
8 No. 12-1586
to support the Board’s determination that the union
discriminated against Buban by failing to refer him for
work. Third, the union claims that, even if it did operate
an exclusive hiring-hall, substantial evidence does not
exist to support the Board’s finding that the union vio-
lated the NLRA by failing to provide Buban with infor-
mation concerning the union’s job referral practices.
In reviewing a National Labor Relations Board order,
we review the Board’s legal determinations for a reason-
able basis. Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 502
(7th Cir. 2003). The Board’s legal conclusions “must be
upheld unless they are irrational or inconsistent with the
[NLRA].” ATC Vancom of Cal., L.P. v. NLRB, 370 F.3d 692,
695 (7th Cir. 2004) (citation and quotation omitted).
We review the Board’s factual findings under a “sub-
stantial evidence” standard. Sears, 349 F.3d at 502. Factual
findings must be supported by “such relevant evidence
that a reasonable mind might accept as adequate to
support the conclusions of the Board.” L.S.F. Transp., Inc. v.
NLRB, 282 F.3d 972, 980 (7th Cir. 2002). In making this
determination, “[t]he presence of contradictory evidence
is not of consequence as long as substantial evidence
supports the Board’s decision.” Id. The Board’s deter-
minations of witness credibility are subject to a par-
ticularly deferential standard; they are contravened only
“in extraordinary circumstances.” FedEx Freight E., Inc.
v. NLRB, 431 F.3d 1019, 1026 (7th Cir. 2005).
Where, as here, the Board adopts an ALJ’s findings of
fact and conclusions of law, the court will review the
judge’s determinations under the same standard. Sears,
349 F.3d at 508.
No. 12-1586 9
A.
A union breaches its duty of fair representation under
the NLRA when it acts toward its members in a manner
that is “arbitrary, discriminatory, or in bad faith.” Vaca v.
Sipes, 386 U.S. 171, 190 (1967). This duty applies to all
union activity, Air Line Pilots Ass’n, Int’l. v. O’Neill, 499
U.S. 65, 67 (1991), including the operation of an exclu-
sive hiring-hall. In this case, the union challenges the
Board’s determination that the union breached its
statutory duty by operating an exclusive hiring-hall
without using consistently applied, objective criteria. There
are two components of the Board’s assessment. First, the
Board determined that the union operated an exclusive
hiring-hall. Second, the Board determined that the
union did not operate the hall using consistent, objective
criteria. Since both components are necessary to the
conclusion that the union challenges, we address each
element in turn.
We first assess whether substantial evidence supports
the Board’s determination that the union operated an
exclusive hiring-hall. This determination is crucial to
addressing the second-stage question of whether
the union violated the NLRA by operating its exclusive
hiring-hall in an inconsistent, non-objective manner. See
NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16, 425
F.3d 1035, 1040 (7th Cir. 2005) (“A union is presumed to
have breached its duty of fair representation if, in the
administration of a hiring-hall agreement, it refuses to
refer a member who is eligible under that agreement.”).
10 No. 12-1586
To determine whether an exclusive hiring-hall exists, the
Board examines the “totality of the circumstances.” NLRB
v. Laborers Local 334, 481 F.3d 875, 881 (6th Cir. 2007);
Teamsters Local Union No. 174 (Totem Beverages, Inc.), 226
N.L.R.B. 690, 690 (1976). These circumstances may
include any contractual language between the union
and the employer, as well as the actual hiring practices
that these parties follow. See Laborers Local 334 (Kvaerner
Songer, Inc.), 335 N.L.R.B. 597, 599-600 (2001).
We begin our analysis by examining the Area Agree-
ment between the union and Bechtel.1 On the surface, the
language in this agreement may appear to support the
union’s position. Specifically, the Agreement allows
Bechtel to look to any source for employees after the
1
Local 200 refers us to a separate Area Agreement, between
the Teamsters and Wisconsin Power Constructors, which
covered the latter entity’s construction of a power plant in Port
Washington, Wisconsin. Local 200 notes that an NLRB adjudica-
tor in the Board’s Milwaukee Regional Office (Region 30)
determined that this Area Agreement—which contains very
similar language as the Agreement in the instant case—did not
establish an exclusive hiring-hall. But a NLRB Region 30
decision concerning a separate matter does not have
precedential weight in our court. (Local 200 also claims that this
Area Agreement involves the “same [p]roject” as the Agreement
in the instant case. Given the location of the two sites on
opposite sides of the Milwaukee metropolitan area and the
fact that they involved different employers, this claim, without
more, seems implausible.)
No. 12-1586 11
union’s 48-hour exclusive referral period. The union
argues that the temporary nature of this exclusive
referral period indicates that the Agreement was non-
exclusive.
The fact that the union’s sole right to refer employees
is temporary does not mean that it is non-exclusive,
however. Rather, the 48-hour window simply requires
that the union exercise its exclusive right within a given
time frame. “Hiring is deemed to be ‘exclusive’ . . . if the
union retains sole authority to supply workers . . . for
some specified period of time, such as 24 or 48 hours.”
Breininger v. Sheet Metal Workers Int’l Ass’n Local Union
No. 6, 493 U.S. 67, 73 n.1 (1989). Thus, the fact that the
union’s referral rights were time-limited will not save
the union from a finding that it operated an exclusive
hiring-hall.
Next, we turn to the parties’ hiring practices. Where
there is an implicit understanding between a union and
an employer regarding hiring practices, the Board infers
that a de facto exclusive hiring-hall exists. Elec. Workers
Local 2115 (Nat’l Elec. Contractors Ass’n), 136 N.L.R.B.
1618, 1619 (1962). Here, Bechtel only hired those job-
seekers that the union recommended. Whenever job-
seekers would show up at the Elm Road site without
the union’s seal of approval, Bechtel would direct them
to the Local 200 office for placement on the referral list.
Moreover, when Bechtel declined to hire job-seekers
that were referred by the union, the union’s practice was
to file a grievance. As significantly, the testimony of two
union officials before the ALJ in this case led the judge
to concluded that Local 200 believed that it held the
12 No. 12-1586
exclusive right to refer workers to Bechtel. These
practices of both the union and Bechtel, when viewed in
tandem with the language of the Area Agreement,
provide substantial evidence to support the Board’s
finding that the union operated an exclusive hiring-hall.
A union is subject to the duty of fair representation in
its operation of a hiring-hall, and must exercise its hiring
authority “in a nonarbitrary and nondiscriminatory
fashion.” Breininger, 493 U.S. at 88; see also Boilermakers
Local No. 374 v. NLRB, 852 F.2d 1353, 1358 (D.C. Cir. 1988)
(A union’s operation of an exclusive hiring-hall creates
“a fiduciary duty on the part of the union not to conduct
itself in an arbitrary, invidious, or discriminatory
manner when representing those who seek to be
referred out for employment. . . . [A]ny departure from
established exclusive hiring hall procedures which
results in a denial of employment . . . breaches the duty
of fair representation . . . and violates Section 8(b)(1)(A)
and (2) of the [National Labor Relations] Act.” (quoting
Teamsters Local 519 (Rust Eng’g Co.), 276 N.L.R.B. 898, 908
(1985))). The Board considers a union to have violated its
duty of fair representation “if it administers an exclusive
hiring hall arbitrarily or without reference to objective
criteria.” Stagehands Referral Serv., LLC, 347 N.L.R.B. 1167,
1170 (2006). In other words, in the Board’s, view an ex-
clusive hiring-hall must utilize job-referral criteria that
are both objective and consistently applied.2
2
Without adopting or rejecting this requirement as the legal
standard in our circuit, we note that the Board employed this
(continued...)
No. 12-1586 13
Here, the ALJ determined that, although union officials
can point to objective criteria—e.g., seniority, work experi-
ence, etc.—to explain their job referral decisions,
Local 200 did not apply these criteria consistently.
Instead, the union relied on what the ALJ deemed “clearly
subjective” factors in some instances. For example,
Gurich referred a union member for employment even
though that individual had not requested to be placed
on the list; allowed another individual whom Gurich
believed did not get “a fair shake” to bypass other, more
senior union members on the list; and wrote notes on the
list, such as “friend of Rick Badnik” and “seems like
good guy.” This evidence supports the notion that sub-
jective factors may have come into play. Based on
these facts, the ALJ stated that Gurich considered the
referral list “as an informal referral system that relied
in part on his discretion.” The Board concurred with the
ALJ’s assessment, finding that the union did not con-
sistently apply objective criteria in referring applicants
to Bechtel.
Between Gurich’s testimony and the haphazardly
compiled referral list that appears in the record, there
2
(...continued)
standard in this case and many other decisions; that the parties
here agree that this standard ought to apply; and that several
of our sister circuits have favorably cited this standard. See
Lucas v. NLRB, 333 F.3d 927, 934 (9th Cir. 2003); Jacoby v.
NLRB, 325 F.3d 301, 309 (D.C. Cir. 2003); NLRB v. Iron Workers
Local 46, 149 F.3d 93, 107 (2d Cir. 1998)
14 No. 12-1586
is substantial evidence to support the factual finding
that Local 200 did not consistently rely on objective
criteria, and the Board’s legal conclusion that the
shifting, amorphous factors that the union employed
constitute a breach of the duty under the NLRA has a
reasonable basis. See Breininger, 493 U.S. at 88 (Unions
must exercise their authority “in a nonarbitrary and
nondiscriminatory fashion.”); Jacoby v. NLRB, 325 F.3d
301, 309 (D.C. Cir. 2003) (stating that unions have a duty
to use “ ‘objective criteria’ and ‘consistent standards’ ” in
the operation of hiring-halls). Accordingly, we affirm
the Board’s holding that the union operated an
exclusive hiring-hall without consistently using objec-
tive criteria, in violation of Section 8(b)(1)(A) of the NLRA.
B.
Local 200 also takes issue with the Board’s conclusion
that it discriminatorily failed and refused to refer Buban
for employment. This holding, if affirmed, constitutes
an additional violation of the NLRA. See Breininger,
493 U.S. at 88 (stating that when a union operates an
exclusive hiring-hall, it must do so in a nondiscrim-
inatory manner).
In this case, the Board adopted the ALJ’s findings that
the union failed to refer Buban for employment based
on Buban’s years-long political opposition to the current
union leadership. On appeal, the union claims that
the ALJ “did not support his findings with factual refer-
ences, and even if [Local 200] did Buban no favors, such
is far from constituting evidence of discrimination.”
No. 12-1586 15
Local 200 argues that its failure to refer Buban could be
due to negligence or mistake, rather than animus, and
that the ALJ’s decision that the union’s actions were
discriminatory is grounded in little more than a hunch.
As an initial matter, we note that Local 200 misstates
the legal standard for discrimination. Local 200 claims
that evidence of “intentional, prima facie discrimination”
is needed, citing NLRB v. Operating Eng’rs Local 139, 796
F.2d 985, 993 (7th Cir. 1986) (“[I]ntentional union miscon-
duct [is required] to show a breach of the duty of fair
representation.”). Following the publication of Local 139,
however, “the Supreme Court in Air Line Pilots Ass’n, Int’l
v. O’Neill, 499 U.S. 65 (1991) rejected [our] court’s
narrow reading of the duty of fair representation stan-
dard.” Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d
1293, 1302 (7th Cir. 1992); see also id. at 1302 n.7 (explaining
that the Air Line Pilots Court rejected the Seventh
Circuit’s prior position that employees “do not need . . .
protection against representation that is inept but not
invidious” (internal quotation omitted)).
To determine whether a union’s conduct should be
classified as arbitrary, discriminatory, or in bad faith,
the Board applies the Wright Line analysis. Wright Line, A
Div. of Wright Line, Inc., 251 N.L.R.B. 1083, 1087 (1980). This
framework is particularly appropriate where, as here,
two differing rationales, one permissible (here, negli-
gence) and the other impermissible (i.e., a discriminatory
motive), could be claimed to have caused the outcome.
The Supreme Court and our circuit have endorsed the
application of the Wright Line framework in these cir-
16 No. 12-1586
cumstances. See NLRB v. Transp. Mgmt. Corp., 462 U.S.
393, 403-04 (1983), abrogated on other grounds by Dir.,
Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich
Collieries, 512 U.S. 267 (1994); NLRB v. GATX Logistics,
Inc., 160 F.3d 353, 356 (7th Cir. 1998).
Under the first step of the Wright Line framework, the
General Counsel of the Board must show that the em-
ployee or union member’s political activity was a “moti-
vating factor” in the employer or union’s adverse action
against that individual. Wright Line, 251 N.L.R.B. at 1087.
In NLRB v. So-White Freight Lines, Inc., we affirmed a
Board finding that the first prong of Wright Line was
satisfied based on similar evidence as in the instant case.
969 F.2d 401, 407 (7th Cir. 1992). In So-White, the Board
concluded that an employee was dismissed from his job
in retaliation for his union organizing. The Board
made this determination based on the facts that (i) the
employer had knowledge of the employee’s pro-union
activities, and (ii) a supervisor stated that the employee
was “a pain, causing trouble with the union.” Id. Buban’s
case involves analogous evidence. In the instant case,
the ALJ found that (i) the union was aware of Buban’s
political opposition to the union’s current leadership, and
(ii) union officials made derogatory statements against
Buban throughout the most recent union election. These
two findings are strongly similar to the factual findings
that undergirded the conclusion in So-White that the
employee’s political activities were a factor in motivating
his employer’s adverse actions. Moreover, the ALJ in
the instant case made a third factual finding: that
Buban and Gurich clashed during the grievance pro-
No. 12-1586 17
cess. We affirmed the Board’s conclusion that the
first Wright Line step was satisfied in So-White—a case
with only two out of the three relevant facts that are
present in the instant case. Accordingly, we think that the
So-White precedent provides a sufficient basis for the
Board’s legal conclusion concerning the first Wright
Line step in the instant case.
The union argues that, in finding under the first Wright
Line step that Buban’s political activity was a motivating
factor in the union’s failure to refer him to work, the
ALJ relied on his own “inference and suspicion.” We
think that this criticism is misguided. Unless a union
official were to admit directly that he or she acted with
discriminatory intent, some degree of inference almost
always will be necessary to make assessments concerning
an individual’s motives. Cf. Wright Line, 251 N.L.R.B. at
1083 (“[A]n employer will rarely, if ever, baldly assert
that it has disciplined an employee because it detests
unions.”). Therefore, it is permissible to rely on circum-
stantial evidence to determine whether a union’s disap-
proval of a member’s intra-union political conduct was
a motivating factor of the union’s adverse action. See
NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613, 626
(7th Cir. 1981) (“[I]n making this determination [of motiva-
tion] the Board is free to rely on circumstantial as well
as direct evidence.”). Our deferential review of the
Board’s determinations of witness credibility, “which we
will disturb only in extraordinary circumstances,” FedEx,
431 F.3d at 1026, reflects the importance we place on
what Local 200 refers to as “inference and suspicion.”
18 No. 12-1586
Local 200 also argues against the finding that antipathy
towards Buban was a motivating factor in its treatment
of him by noting that it “placed Buban on the job referral
list on the same day he asked that his name be added.”
According to the union, this fact indicates that the
union’s failure to add him to the list earlier should be
attributed to negligence, not animus. But the issue of
when Gurich should have known that Buban wanted to
return to any position at the Elm Road site—even without
Buban specifically inquiring about a job-referral list—is
in dispute. Essentially, it’s Buban’s word against
Gurich’s. With the ALJ finding other aspects of Gurich’s
testimony “not credible,” it seems reasonable for the
ALJ and the Board not to regard as dispositive Gurich’s
claim that he placed Buban’s name on the list as soon as
he knew (or should have known) that Buban desired to
be added to it.
Since the first step of the Wright Line framework has
been satisfied, we turn our attention to the second step.
Under this second step, the burden shifts to Local 200
to show that the same outcome would have occurred
“even in the absence of the protected conduct.” Wright
Line, 251 N.L.R.B. at 1087. Given the haphazard process
by which Gurich referred job-seekers, it is unsurprising
that the union does not seriously attempt to make this
showing.
The union does, however, call our attention to the
following statement from the ALJ’s decision: “Gurich
did not consistently apply his proffered criteria for re-
ferrals, so this result [Buban being passed-over for job
No. 12-1586 19
referral] probably was unavoidable but, nonetheless,
was discriminatory in effect, especially to Buban and
others like him.” We agree with Local 200 that this state-
ment raises questions. If the ALJ means to say that
Buban would not have received a job referral regardless
of whether the union discriminated against him, then
this statement casts doubt on whether the requirements
of the second Wright Line step were met. There is,
however, an alternative interpretation of the ALJ’s state-
ment. This interpretation suggests that (i) in the absence
of animus, Gurich’s haphazard referral process proba-
bly—but not definitely—would have been sufficient to
cause Buban to be passed-over for employment, and (ii)
Gurich’s animus towards Buban also was sufficient to
cause Buban to be passed-over. This interpretation would
be entirely consistent with a finding that the union’s
animus towards Buban at least could have been
dispositive. In any case, the second prong of Wright Line
places the burden on Local 200 to show that this same
outcome would have occurred, absent the union leader-
ship’s clashes with Buban. The union has made no such
showing. Nor could it, given the union’s inconsistent
application of any job-referral criteria that it may
have considered, as well as its inability to explain how
it determined which job-seekers from the list to refer
to Bechtel.
Based on our Wright Line analysis, we hold that the
Board’s conclusion that Local violated the NLRA by
discriminatorily failing and refusing to refer Buban for
employment has a reasonable basis in law.
20 No. 12-1586
C.
Finally, the union disputes the Board’s conclusion that
it failed to provide Buban with pertinent information
concerning the job-referral list, including any written
rules, any notices posted in the halls, and a physical copy
of the list itself. The statutory duty of fair representa-
tion requires unions to “deal fairly with an employee’s
request for information as to his relative position on the
out-of-work register.” Operating Eng’rs Local 139, 796 F.2d
at 993. Thus, a failure to provide a union member with
this information violates the NLRA.
Local 200 acknowledges that it did not provide Buban
with his requested information, but claims that this
failure does not violate the NLRA. Local 200 offers two
arguments in support of this claim. First, the union
claims that the information that it provided to Buban is
sufficient to meet its statutory duty. While it is true
that Local 200 provided Buban, along with all other job-
seekers, with some information on its job referral proce-
dures, it did not provide him with his specifically re-
quested information, including a copy of the referral list.
According to the Board, a union’s failure to produce a
referral list, when requested by a union member, violates
Section 8(b)(1)(A) of the NLRA. Int’l Ass’n of Iron
Workers Local Union 27 (Morrison-Knudson), 313 N.L.R.B.
215 (1993); see also Operating Eng’rs Local Union No. 3,
324 N.L.R.B. 14 (1997) (holding that Section 8(b)(1)(A)
requires unions to provide requested information that
is “reasonably directed toward ascertaining whether
the [union] member has been fairly treated with respect
No. 12-1586 21
to obtaining job referrals”). We think that the Board’s
interpretation of Section 8(b)(1)(A) to require the
provision of this specific information upon request has a
reasonable basis. Moreover, the Board’s past administra-
tive decisions in this area—see, e.g., id.; Iron Workers, Local
27, 313 N.L.R.B. at 215—should have put Local 200 on
notice of its obligations. Therefore, the union’s argument
that it is not required to provide Buban with the specific
information that he requested because it already pro-
vided union members with other information con-
cerning the referral process is unpersuasive.
Second, Local 200 argues in the alternative that if the
information that it provided to Buban was in fact inade-
quate, then this stems from a good-faith belief that the
union did not operate an exclusive hiring-hall (and there-
fore had no obligation to provide Buban with informa-
tion concerning hiring-hall practices), and that it did
not have a discriminatory intent in not providing
Buban with his requested information. Local 200 does
not cite any caselaw or Board decisions to support its
contention that a good-faith, but mistaken, belief of this
magnitude can serve as a defense to this violation. Instead,
Local 200 calls our attention to Steamfitters Local Union
No. 342, 336 N.L.R.B. 549 (2001). That case addresses
a clerical error regarding the treatment of specific job-
seekers at an exclusive hiring-hall. Id. at 553. We think
that a union’s claimed good-faith error regarding
whether it was operating an exclusive hiring-hall is a
“mistake” of a much greater magnitude than simple
negligence in the treatment of a particular job-seeker.
22 No. 12-1586
Concerning Local 200’s argument that there is “no
evidence that [it] had a discriminatory intent to forbid
criteria dissemination,” the union once again misstates
the intent requirement needed to find a breach of the duty
of fair representation. We refer back to our White Line
analysis evaluating whether the union’s failure to refer
Buban for employment can be classified as arbitrary,
discriminatory, or in bad faith; the same basic analysis
also supports the Board’s finding that the union’s failure
to provide Buban with his requested information.
We also note that whether the union’s failure to
respond to Buban’s information request is attributable to
an improper motive is a question best answered by the
ALJ, who is well-situated to determine witness credi-
bility. NLRB v. Overnite Transp. Co., 938 F.2d 815, 819
(7th Cir.1991). Here, the ALJ deemed Gurich’s claim that
Buban had never asked him or, to his knowledge,
any other union official for information concerning the
referral-list to be not “very convincing” and “not credible.”
Thus, we affirm the Board’s holding that Local 200
violated the NLRA by failing to provide Buban with the
information concerning the union’s job-referral process
that Buban requested.
III.
Substantial evidence exists to support the Board’s
findings that the union operated an exclusive hiring-
hall without applying consistent, objective factors;
discriminatorily failed and refused to refer Buban for
employment; and discriminatorily failed and refused to
No. 12-1586 23
provide Buban with job referral information to which
he was legally entitled. The Board’s conclusions that each
of these actions violates the National Labor Relations
Act are reasonable. Accordingly, we A FFIRM the Board’s
Decision and Order.
7-23-13