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International Alliance of Theatrical Stage Employees v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

March 26, 2018

International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local Union No. 151 Petitioner
v.
National Labor Relations Board Respondent Katie Martens National Labor Relations Board Petitioner
v.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local Union No. 151 Respondent Katie M. Martens National Labor Relations Board

          Submitted: October 18, 2017

          Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.

          SMITH, Chief Judge.

         The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, Local No. 151 (IATSE) petitions for review of the National Labor Relations Board ("Board") decision finding IATSE violated the National Labor Relations Act (NLRA) through its hiring practices. The Board cross-applies for enforcement of the decision and order. We deny the petition for review and grant the cross-application for enforcement.

         I. Background

         IATSE furnishes labor for entertainment-venue employers, supplying stagehands, riggers, and lighting technicians to employers who require such services for entertainment events. Two such employers are The Freeman Companies, d/b/a Freeman Decorating Services, Inc. ("Freeman") and SMG, specifically SMG's place of business called the Pershing Center in Lincoln, Nebraska ("SMG Pershing"). The Board issued a complaint alleging IATSE had operated an exclusive hiring hall with respect to Freeman and SMG Pershing and had violated section 8(b)(1)(A) and (2) of the NLRA. The Board alleged that IATSE: (1) discriminated against nonunion employees by granting priority to its own members for job referrals; (2) refused to refer two employees to a particular job in February 2013; (3) suspended seven members from its referral list; (4) had maintained a rule in its constitution and bylaws prohibiting legal proceedings against it by its members without providing for the four-month limitation required by section 101(a)(4) of the Labor Management Reporting and Disclosure Act; (5) followed a job-referral rule that allowed IATSE to refuse to refer an employee in order to collect a fine; (6) failed to remit certain bonuses to employees who are not IATSE members; and (7) failed to remit such bonuses to certain individuals for improper reasons. IATSE denied all allegations.

         After a trial in early 2014, the administrative law judge (ALJ) found all the allegations to be supported by the evidence, except the fourth: that IATSE violated the NLRA by failing to include certain language in its constitution and bylaws. The Board affirmed the ALJ's rulings and findings, adopting her opinion with limited modifications, in fall 2016.

         IATSE petitions for our review of the Board's decision, and the Board cross-applies for enforcement. First, IATSE argues the Board lacked jurisdiction over employer SMG Pershing. Second, it contends that it did not operate exclusive hiring halls with respect to either SMG Pershing or Freeman. Third, IATSE argues that it did not violate the NLRA by removing individuals from its referral list, failing to refer the two employees to a February 2013 job, or prioritizing members over nonmembers. Finally, IATSE contends that the Board's charge of discriminatory referrals was time-barred.[1]

          II. Discussion

         A. Standard of review

         We review the Board decision for substantial evidence on the record as a whole. Midwest Precision Heating & Cooling, Inc. v. N.L.R.B., 408 F.3d 450, 457-58 (8th Cir. 2005) (citations omitted). Credibility determinations are also considered under the substantial evidence test. Id. at 457. We will not displace the Board's choice between two fairly conflicting views, even if we would have made a different choice had the matter been before us de novo. Id. at 458 (citation omitted). Instead, we afford great deference to the Board's credibility determinations, "and will not overturn them unless they shock the conscience." N.L.R.B. v. RELCO Locomotives, Inc., 734 F.3d 764, 787 (8th Cir. 2013) (citation omitted). Finally, we defer to the Board's conclusions of law in construing the NLRA, so long as "they are based upon a reasonably defensible construction of the Act." JCR Hotel, Inc. v. N.L.R.B., 342 F.3d 837, 841 (8th Cir. 2003) (citation omitted).

         B. Jurisdiction over SMG Pershing

         We first consider whether the Board has jurisdiction over employer SMG Pershing. By statute, "[t]he Board is empowered . . . to prevent any person from engaging in any unfair labor practice . . . affecting commerce." 29 U.S.C. § 160(a). We have noted that "Congress gave and intended to give the Board the fullest possible jurisdiction under the commerce clause of the Constitution." N.L.R.B. v. Erlich's 814, Inc., 577 F.2d 68, 70 (8th Cir. 1978) (citations omitted). The Board has also imposed discretionary jurisdictional standards upon itself. See id. The Board will exercise discretionary jurisdiction over a non-retail enterprise if the enterprise has a gross outflow or inflow of $50, 000 across state lines. N.L.R.B. v. Jerry Durham Drywall, 974 F.2d 1000, 1002 (8th Cir. 1992); see also N.L.R.B. v. Somerville Constr. Co., 206 F.3d 752, 754 n.3, 754-55 (7th Cir. 2000).

         In assessing whether the $50, 000 threshold has been met by a multi-state employer, the Board considers all the employer's locations, not just the particular location at issue. This has long been the established standard. Siemons Mailing Serv., 122 N.L.R.B. 81, 84 (1958) ("[T]he Board will continue to apply the concept that it is the impact on commerce of the totality of an employer's operations that should determine whether or not the Board will assert jurisdiction over a particular employer. Accordingly, the Board will continue its past practice of totaling the commerce of all of an employer's plants or locations to determine whether the appropriate jurisdictional standard is met." (footnote omitted)).

         IATSE says it is improper for the Board to consider SMG as a whole in the jurisdictional analysis because the alleged violations are only relevant to SMG's Pershing location. The general manager for SMG's two Lincoln, Nebraska locations testified as to SMG's business operations. He stated that SMG "manages over 200 different facilities across the country and across the world." J.A. vol. I, 50. And he was asked, "[i]n your position as general manager for SMG, are you familiar with whether or not the company has purchased greater than $50, 000 worth of services from entities outside the State of Nebraska within the last 12 months?" Id. The manager answered in the affirmative. Id.

         On this record, we hold that the Board has jurisdiction over SMG Pershing. We acknowledge the seeming discrepancy in the Board's consideration of all of SMG's locations for jurisdictional purposes, but only SMG Pershing for the purposes of the charge. But IATSE has provided no legal authority that the Board's use of SMG's activities outside of Pershing was error. And the Board followed its own discretionary jurisdictional guidelines. The ALJ, in her decision, referenced the local SMG general manager's testimony that SMG has purchased services in excess of $50, 000 from outside of Nebraska within the previous year. The Board adopted the ALJ's use of this testimony. The Board's opinion stated, "[i]t is irrelevant whether [the $50, 000] amount applies to SMG globally or only SMG/Pershing, " and it cited the established law dictating that the Board consider the impact on commerce of all the employer's plants or locations. Int'l All. of Theatrical Stage Emps., Moving Picture Techns., Artists & Allied Crafts of the United States, Its Territories & Canada Local No. 151 (Smg & the Freeman Cos. d/b/a Freeman Decorating Servs., Inc.) & Katie M. Martens (IATSE Local No. 151), 2016 WL 4548855, at *9, 364 N.L.R.B. No. 89 (Aug. 26, 2016) (citing Siemons Mailing Serv., 122 N.L.R.B. at 84). We hold that the Board's conclusion that it had jurisdiction over SMG Pershing is supported by substantial evidence.[2]

         C. Exclusivity of Hiring Halls

         We first address whether IATSE operated an exclusive hiring hall with respect to Freeman and SMG Pershing. As the Board has previously explained:

A union's duty of fair representation derives from its status as the exclusive bargaining representative of employees in a specified unit. Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 326 F.2d 172 (2d Cir. 1963). Where a union has a nonexclusive referral arrangement with an employer, the union has no exclusive status relating to potential employees. Individuals can obtain employment either through the union's hiring hall or through direct application to the employer. Without the exclusive bargaining representative status, the statutory justification for the imposition of a duty of fair representation does not exist. Accordingly, no duty of fair representation attaches to a union's operation of a nonexclusive hiring hall. See Laborers Local 889 (Anthony Ferrante & Sons), 251 NLRB 1579 (1980).

Teamsters Local 460 (Superior Asphalt), 300 N.L.R.B. 441, 441 (1990). Determining whether a hiring hall is "exclusive" is crucial. The Supreme Court has defined "exclusive" as it pertains to hiring halls as follows:

The word "exclusive" when used with respect to job referral systems is a term of art denoting the degree to which hiring is reserved to the union hiring hall. Hiring is deemed to be "exclusive, " for example, if the union retains sole authority to supply workers to the employer up to a designated percentage of the work force or for some specified period of ...

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