Labor & Employment Law Daily NLRB: Union unlawfully refused to refer employee in retaliation for brother’s criticism
Thursday, August 15, 2019

NLRB: Union unlawfully refused to refer employee in retaliation for brother’s criticism

By Ronald Miller, J.D.

Although the union continued to update its referral list on a daily basis for its own internal records, members no longer had access to the up-to-date list, so that the posted list that members could view might be out of date by as much as a week.

A union violated Section 8(b)(1)(A) of the NLRA by refusing to refer a member from its out-of-work list because his brother engaged in protected criticism of union leadership, ruled a three-member panel of the NLRB. The record showed that the brother’s criticism of union leadership was the only factor that changed for the employee between the decades during which he received regular referrals and the two-year period during which he received none. Similarly, the union violated Section 8(b)(1)(A) by changing its practice of making an up-to-date out-of-work list available to members on demand, after the employee visited a jobsite to determine whether the union’s explanation for referring two lower-ranking members ahead of him was truthful (Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co., Inc.), August 12, 2019).

Hiring hall. The union operates a non-exclusive hiring hall. Under the hiring hall’s rules, the union generally refers members to jobs in order of their registrations on the hall’s out-of-work list. However, there are several exceptions, including provisions that allow the union to refer a member out of order if an employer requested him or her by name, if he or she possessed required qualifications that members higher on the out-of-work list lacked, if he or she was being referred to serve as a steward or foreman, or if he or she needed additional hours to attain eligibility for unemployment or other benefits.

The union’s job-referral rules required it to keep written records of all referrals and to permit members to inspect them on request.

Referral history. Prior to November 2015, the employee was referred by the union on a regular basis. In 2015, he received 11 referrals between January 1 and November 1, the second highest total among union members.

In October 2015, the union unlawfully retaliated against the employee’s brother by removing his name from the out-of-work list after he posted comments on Facebook that were critical of union’s business manager and the union. The employee’s last referral was on November 4. From December through May 31, 2016, the employee worked only one seven-hour job, which he obtained on his own. From January 1 to September 25, 2017, the employee worked just one six-hour job. Again the result of his own efforts.

Meanwhile, other union members did receive referrals. In 2016, the union made 37 referrals to 13 individual members, but the employee did not receive any. From January 1 to October 1, 2017, the union made 36 referrals to 14 members, including the same 11 who received referrals in 2015 and 2016. Despite ranking seventh on the out-of-work list in June 2017, the employee received no referrals.

In November 2016, the employee spoke with the business manager about his lack of work. He pointed out to the business manager that even though he then was number two on the referral list, he had not been referred all year. In response, the business manager ridiculed the employee’s brother. He further stated that no contractors had asked for him by name and that he could find his own work, and it was not the business manager’s job to find work for the employee. The business manager also stated that he knew that the employee planned to call the NLRB and threatened to file internal union charges against him if he did so.

Access to out-of-work list. On June 26, 2017, the employee asked the hiring hall staff to show him the out-of-work list. At the time, the union’s policy was to allow members to view the current list on request. In response, the dispatcher told the employee that the list was being updated. The dispatcher did show the employee the most current list, which showed that two members had recently been referred to jobs. Those members were numbers 10 and 18 on the list, while the employee was then number seven.

Thereafter, the employee went to the jobsite where the employees had been referred. He discovered that the two were not stewards as the dispatcher had asserted. The next day, when the employee again asked to see the out-of-work list, the dispatcher refused. Shortly thereafter, the union began posting the out-of-work list on a weekly basis instead of making it available whenever a member requested.

Retaliation. Applying Wright Line, the Board determined that the General Counsel satisfied his initial burden of proving that the brother’s protected Facebook criticism of union leadership was a motivating factor in the union’s cessation of referrals to the employee. There was no dispute that the brother’s criticism of union leadership constituted protected activity, and that the union learned of that activity shortly before it stopped referring the employee to jobs. Further, the brother’s case firmly established that the union harbored unlawful animus against his protected activity. In addition, the union’s business manager ridiculed the brother when the employee approached him to discuss his non-referrals. Importantly, the employee was regularly referred to jobs before his brother criticized the union and filed a charge with the NLRB.

The union failed to prove that the employee’s referrals would have completely stopped even absent his brother’s protected activity. According to the union, it was becoming more common for employers to request members for one- or two-day jobs and to require qualifications that the employee lacked. However, it offered no specifics in support of these assertions, and no explanation of how they could have accounted for the lack of any referrals over a two-year period. Moreover, the employee had the same qualifications before and after November 2015. Rather, the record showed that the brother’s criticism of union leadership was the only factor that changed for the employee between the decades during which he received regular referrals and the two-year period during which he received none. Accordingly, the Board found that the union refused to refer the employee because of his brother’s protected criticism of union leadership.

Change in availability of out-of-work list. Similarly, the Board found that the union violated Section 8(b)(1)(A) by discontinuing its practice of allowing members to request the current out-of-work list, and instituting the practice of posting the list once a week instead, in retaliation for the employee’s jobsite visit to determine whether the union’s explanation for referring two lower ranking members ahead of him was truthful.

An administrative law judge found that the union would have changed the list-viewing procedure even absent the employee’s protected investigation. However, the Board disagreed and reversed that finding. It pointed out that there were no exceptions to the ALJ’s findings that the employee’s jobsite investigation was “classic protected activity,” and that the union knew about that activity when it changed its practice. Moreover, the General Counsel proved that the union harbored animus toward that activity. Further, the change in policy came right on the heels of the employee’s investigation. Accordingly, the Board found that the union acted unlawfully by changing its list-viewing procedure.

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