On Petition for Review of an Order of the National Labor Relations Board, United States Department of Labor (NLRB No. 5-CA-23956)
Before: SCIRICA and ROTH, Circuit Judges and RESTANI *fn1, Judge, U.S. Court of International Trade
Pursuant to the National Labor Relations Act ("NLRA"), an employer has an obligation to provide a labor union with information that the union needs in order to perform its collective bargaining obligations. In this case, Teamsters Local 922 sought information about job applicants from the Hertz Corporation in connection with the Union's investigation into possible discriminatory hiring practices at Hertz. Hertz refused to provide Local 922 with the information. A National Labor Relations Board ("NLRB") panel ruled that Local 922 was entitled to job applicant data and ordered Hertz to provide the Union with all of the information that the Union requested. Hertz appeals the order.
Hertz argues that the NLRB's order is over broad and that the Union is not entitled to the information that it seeks because it failed to communicate to Hertz a reasonable basis for its request. Our precedent establishes that before an employer is required to provide a union with information about individuals who are not members of the bargaining unit, the union must communicate a reasonable basis for its suspicion that the employer is discriminating. Because we conclude that the Union failed to communicate such information to Hertz, we will reverse the NLRB's order and remand the case to the NLRB to dismiss the Union's complaint.
The National Labor Relations Board had jurisdiction of this case pursuant to 29 U.S.C. Section(s) 160(a). Because Hertz transacts business within the jurisdiction of this court, we have subject matter jurisdiction over the final order of the Board pursuant to 29 U.S.C. 160(f).
Hertz appeals a National Labor Relations Board order requiring Hertz to provide Teamsters Local 922 with information about job applicants in the Washington, D.C. metropolitan area. See Hertz v. Teamsters Local Union 922, 319 N.L.R.B. 597 (1995). The order, which reversed an earlier ruling by an administrative law judge ("ALJ"), see Hertz v. Teamsters Local Union 922, No. 5-CA-23956 (Oct. 13, 1994), reprinted in 319 N.L.R.B. 601 (appendix to NLRB decision) (hereinafter ALJ decision), requires Hertz to provide Local 922 with the name, race, national origin, and gender of any job applicant who would have been covered by the labor agreement between Hertz and Local 922 if the applicant had been hired by Hertz. The order covers individuals who applied as early as March 1990 for any of the following positions: rental representative, reservationist, office clerical worker, courtesy bus driver, shuttler, combination worker, and vehicle service attendant ("VSA").
Hertz and the Union have a collective bargaining agreement. The agreement requires Hertz periodically to send the Union a list of bargaining unit employees broken down by job title. The list includes the name, seniority, and date of hire of each employee. When Local 922's president and business manager, Edward Kornegay, received one of these lists in the autumn of 1992, he became concerned about the individuals hired for the VSA position. From his inspection of the list, Kornegay noted that a number of the VSAs hired in 1992 appeared to be "foreign nationals." Kornegay's impression was based upon his observation that many of the surnames on the list were not "typically American."
Kornegay knew that there was "a large pool of unemployed unskilled or semiskilled young Afro-American men living in Washington, D.C." who might be interested in the VSA positions. Hertz, 319 N.L.R.B. at 597. Based upon his observations concerning the VSA list, Kornegay became concerned that Hertz might be intentionally discriminating against African-American job applicants by hiring foreign nationals instead of African-Americans. At about the time he reviewed the list, Kornegay also received telephone calls from members of the bargaining unit who worked at Hertz. These individuals said that Hertz appeared to be hiring only foreign nationals. In subsequent visits to various Hertz facilities, Kornegay observed that the company appeared to be employing greater numbers of individuals who appeared to him to be foreign nationals. Despite his concerns, Kornegay did not conduct any further investigation of Hertz's hiring practices during his visits.
In late 1992 or early 1993, Kornegay met with Michael Kovalcik, Hertz Manager of the Baltimore-Washington "pool." Kornegay says that he raised his concerns about the VSA list in this meeting and requested the applications of everyone who had applied for a position with the bargaining unit during the period in question. Kovalcik agrees that Kornegay asked for information about persons who had applied for bargaining unit positions, but, according to Kovalcik, Kornegay did not mention foreign-sounding names or possible discrimination by Hertz. Kovalcik testified that Kornegay asked instead for a list of the names and addresses of job applicants so that he could forward the list to a Teamster's committee involved in union enrollment. *fn2 Kovalcik said that he would get back to Kornegay but did not do so.
In March 1993, Kornegay met with Kovalcik and Hertz's Vice President for the Mid-Atlantic Region, Joseph Happe. Kornegay testified that he again requested information about applicants and reiterated his concerns about discrimination. Kovalcik and Happe stated that Kornegay requested the names and addresses of job applicants and reiterated that he wanted the list for the Teamsters' committee on union enrollment. According to Kovalcik and Happe, Kornegay mentioned neither discrimination in hiring nor his suspicions concerning the names on the hiring list. Happe testified that Kornegay made a subsequent request for the list by telephone and that ...