Application for Enforcement of an Order of the National Labor Relations Board, Board Docket Nos. 22-CB-3301, 22-CB-3514, 22-CB-3302.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
In this case, Petitioner the National Labor Relations Board ("the Board"), seeks enforcement of its July 31, 1987, Supplemental Order directing Respondent Local 11 of the International Association of Bridge, Structural, and Ornamental Ironworkers ("Local 11" or "the Union") to cease discriminating, in the operation of its exclusive hiring hall, against six ironworkers*fn1 who are not members of Local 11, in violation of§ 8(b)(1)(A) and (b)(2) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 18(b)(1)(A), (b)(2)(1982).*fn2 The Board's order also mandates that the Union make the named discriminatees whole for their lost earnings. Local 11 maintains that the Board's findings of discrimination are not supported by substantial evidence. This court has jurisdiction pursuant to 29 U.S.C. § 160(e)(1982).
Because we believe that the Board lacked substantial evidence for finding that Local 11 discriminated against the named non-members on the basis of the out-of-turn referrals of minority union members, we will grant the enforcement order in part, and deny it in part.
This action has a rather long and procedurally complex history, much of which has already been discussed in our previous opinion, NLRB v. Local 483 and Local 11, Int'l Ass'n of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO, 672 F.2d 1159 (3d Cir. 1982) ("Ironworkers I"). To the extent that it is necessary to a complete understanding of our disposition of the present appeal, we review that history.
Local 11 operates an exclusive hiring hall pursuant to a collective bargaining agreement ("the Agreement") between member locals of District Council of Northern New Jersey, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO ("the District Council") and the Building Contractors Association of New Jersey. The Agreement, which was in force at all relevant times, provided in pertinent part that
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. . . .
The said Hiring Halls shall be operated in accordance with the provisions of said Decree mentioned in the preceding Article.
Agreement, art. XV, reprinted in Joint Appendix ("Jt. App.") at 204-205. The consent decree referred to in the Agreement 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. (1982) ("Title VII"). Under the terms of the consent decree, a worker referral system was implemented in order to prevent future discrimination.
The operation of the worker referral system was well summarized in Ironworkers I:
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 . . . 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. . . . [T]he contractor . . . and the ...