Petition by National Labor Relations Board to enforce order requiring union to honor members' requests to inspect and duplicate hiring records. Order Enforced.
Before: FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of an order requiring Carpenters Local 608, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the union), to permit union members to inspect and duplicate hiring hall records that contain the names, addresses and telephone number of persons who had used the hiring hall. The union objects to enforcement, arguing that its refusal to supply those records did not constitute a breach of its duty of fair representation under section 8(b)(1)(A) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(1)(A), and contending that the Board's order conflicts with section 401(c) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 481(c), which permits a union to keep its membership lists confidential. For the reasons that follow, we enforce the Board's order.
The order under review concerns the efforts of three union members, John Harte, Franklin McMurray and Eugene Clarke (the dissidents), to obtain information concerning the unions's hiring hall and referral practices. The union operated its hiring hall through a telephone referral system; members seeking work as well as employers needing workers would call the union, and the union would refer workers to particular jobs. The union maintained daily and monthly "shape-up" and "referral" lists. The former contained names and telephone numbers of persons requesting referrals; the latter contained the names of workers and the employers to whom they were referred. According to the union, workers were referred to jobs in the order in which they called in, taking into account any special qualifications requested by the employer and any worker's preference for certain types of work.
Harte, McMurray and Clarke were founders of a dissident group within the union called "Carpenters for a Stronger Union," and each had been involved in unsuccessful election campaigns against incumber union officers. At union meetings and in publications distributed to union members, the dissidents object to various union policies and criticized the performance of several union officers. Some of their concerns related to the operation of the hiring hall. The dissidents maintained that the referral system was unfair and arbitrary, did not allow members to check whether referrals were being administered fairly, and gave Paschal McGuiness, the unions's business manager, and his staff, too much control.
Beginning in the summer of 1982 and continuing into the first half of 1983, the dissidents made several requests of union officials to inspect hiring hall records. The dissidents were concerned that their activities with the union were adversely affecting their referral opportunities. The dissidents, however, were never permitted to inspect those records. Instead, they were shown their individual work cards, which reflected when each had called the union for work and when each had been referred to a job.
In February and March 1983, the dissidents filed unfair labor practice charges against the union, claiming that the union violated its duty of fair representation when it refused their requests to inspect the hiring of hall records. In March 1985, the Administrative Law Judge (ALJ) held that the union had violated section 8(b)(1)(A) of the NLRA by arbitrarily refusing the dissidents' requests to inspect the records and by refusing to supply them with information concerning the operation of the hiring hall. In April 1986, the Board affirmed the ALJ's rulings, findings and conclusions, and ordered the union, among other things, to allow its members to "review, inspect, photocopy, or duplicate all hiring hall records." This petition by the Board for enforcement followed.
A union breaches its duty of fair representation in violation of section 8(b)(1)(A) of the NLRA when it arbitrarily denied a member's request for job referral information, when that request is reasonably directed toward ascertaining whether the member has been fairly treated with respect to obtaining job referrals. See NLRB v. Local 139, International Union of Operating Engineers, 796 F.2d 985, 992-94 (7th Cir. 1986 (hereinafter Local 139). See generally Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Unions must "deal fairly" with such requests, Local 139, 796 F.2d at 993, and in resolving disputes over disclosing information the Board must balance the member's need for information against the unions legitimate interest in keeping the information confidential. See Id. Cf. Detroit Edison Co. v. NLRB, 440 U.S. 301, 314-15, 59 L. Ed. 2d 333, 99 S. Ct. 1123 (1979) (union requests for information from employer); NLRB v. Local 497, International Brotherhood of Electrical Workers, 795 F.2d 836 (9th Cir. 1986) (hereinafter Local 497) (employer requests for hiring hall information).
The union argues that the Board erred in finding that the dissidents had a good faith reason for seeking the hiring hall records, contending that the dissidents' requests should be considered within the context of their efforts to gain elective office within the union. The union claims that the dissidents requested the information in connection with their intra-union political activities and maintains that the union justifiably rejected their demands since the leadership was properly elected. We disagree. Characterizing this dispute solely as part of the dissidents' attempt to wrest control of the union from the incumbents would unnecessarily constrict the rights of member seeking union office and penalize them for exercising activities that are protected under NLRA. See 29 U.S.C. 158(b)(1)(A). Even if the dissidents had political purposes for the information, the union could not deny their requests as long as the dissidents were also motivated by a reasonable belief that they were being treated unfairly by union officials in connection with work assignments. See NLRB v. Leonard B. Hebert, Jr. & Co., 696 F.2d 1120, 1126 (5th Cir.), cert. denied, 464 U.S. 817, 78 L. Ed. 2d 88, 104 S. Ct. 76 (1983); Utica Observer-Dispatch, Inc. v. NLRB, 229 F.2d 575, 577 (2d Cir. 1956).
The union's arguments challenging the dissidents' motives do not require extended discussion, and only two arguments warrant any discussion at all. The union claims that McGuiness' determination that the dissidents had received their "fair share" of work was a satisfactory response to their requests for information. McGuiness, however, only reviewed the dissidents' individual work records. That investigation could not have addressed the dissidents' concern that they were being treated unfairly as compared to other workers because McGuiness did not analyze the job referral records of any other persons using the hiring hall. In any event, a union is not permitted to refuse a request for information based on its own determination that the grievance underlying the request is non-meritorious or that the information sought is not essential. Cf. NLRB v. Associated General Contractors, 633 F.2d 766, 771-72 (9th Cir. 1980), cert. denied, 452 U.S. 915, 101 S. Ct. 3049, 69 L. Ed. 2d 418 (1981). If the request is made in good faith, members are entitled to receive the information and determine for themselves whether they have a claim that the union has discriminated against them.
The union also notes that McMurray, who ran against McGuiness in a June 1983 election, attempted to obtain the names and addresses of union members by recording this information without the union's knowledge or consent. The ALJ properly found that this event did no affect McMurray's good faith basis for seeking the hiring hall records because it occurred after he had made almost all of his requests. Moreover, as the Board points out, the hiring hall information "would not have done [the dissidents] much good" in ...