C.A.10,2010.
Laborers’ Intern. Union of North America, Local 578 v. N.L.R.B.
594 F.3d 732, 187 L.R.R.M. (BNA) 3153, 159 Lab.Cas. P 10,177
Feb. 2, 2010.
Background: Union petitioned for review a National Labor Relations Board (NLRB) decision which held that un-
ion engaged in unfair labor practices when it persuaded employer to fire employee for failing to pay his union dues.
NLRB cross-petitioned for enforcement of the order.
[1] Labor and Employment 231H 1264(1)
231H Labor and Employment
231HXII Labor Relations
158(b)(1)(A), (b)(2).
[2] Labor and Employment 231H 1264(1)
231H Labor and Employment
when enforcing its rights under agreement, it lawfully operates within NLRA’s carefully circumscribed exception to
NLRA prohibitions; when it fails to fulfill its fiduciary obligation, however, it operates outside of the exception.
National Labor Relations Act, § 8(a)(3), (b)(1)(A), (b)(2), 29 U.S.C.A. § 158(a)(3), (b)(1)(A), (b)(2).
[3] Labor and Employment 231H 1264(1)
231Hk1877 Questions of Law or Fact; Findings
231Hk1880 k. Substantial evidence. Most Cited Cases
In reviewing factual challenges to a National Labor Relations Board (NLRB) determination under substantial evi-
dence standard, job of Court of Appeals is something like the role of the instant-replay booth in football; the call on
the field presumptively stands and it may overturn it only if it can fairly say that no reasonable mind could, looking
231HXII(I) Labor Relations Boards and Proceedings
231HXII(I)6 Weight and Sufficiency of Evidence
231Hk1774 Unfair Practices of Employees or Labor Organizations
231Hk1778 k. Restraint or coercion of employees. Most Cited Cases
Substantial evidence supported decision of National Labor Relations Board (NLRB) that union, by sending initial
line for payment, but yet threatened employee with immediate discharge. National Labor Relations Act, § 1 et seq.,
29 U.S.C.A. § 151 et seq.
[9] Labor and Employment 231H 1778
Substantial evidence supported National Labor Relations Board (NLRB) decision that union’s conduct in arranging
to have employee fired by employer for outstanding union dues under union-security agreement, without first having
discharged its fiduciary duties, violated NLRA’s prohibition on coercing employees as well as prohibition against
causing an employer to fire an employee; record indicated that union had not explained to employee how it calculat-
ed his dues, or provided him a reasonable time period in which to make payment, and in fact, there was evidence
tually, the union and company agreed to reinstate Mr. Lopez and the NLRB decided to press unfair labor practice
charges against the union. The case was assigned to an Administrative Law Judge (ALJ), who accepted Mr. Lopez‘s
rights guaranteed in [Section 7 of the Act],” 29 U.S.C. § 158(a)(1); Section 7, in turn, affords employees the right to
“refrain from any or all [union] activities,” 29 U.S.C. § 157. The ALJ reasoned that the union violated Section
8(b)(1)(A) by threatening Mr. Lopez with immediate discharge without first explaining to him how it calculated his
delinquency or offering him a reasonable period of time to cure that delinquency.
cause an employer to discriminate against an employee,” 29 U.S.C. § 158(b)(2), in a manner aimed at “encour–
ag[ing] or discourag[ing] membership in any labor organization,” 29 U.S.C. § 158(a)(3). The ALJ reasoned that the
union violated this provision by asking and persuading the company to fire Mr. Lopez without explaining to him
how it calculated the overdue amounts or affording him the chance to complete the agreed payment plan.FN1
FN1. The ALJ declined to find that the union violated Section 8(b)(2) on November 1. Though the union’s
was not challenged before the NLRB and is not before us. Accordingly, we have no reason to pass on its
propriety.
The NLRB adopted the ALJ’s decision and ordered the union to undertake certain remedial measures. Among other
things, the NLRB ordered the union to make Mr. Lopez whole for any loss of pay or benefits, to remove from its
from our sister circuits. Compare Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 659 (4th Cir.2009) (holding
that two-member NLRB can issue decisions), Snell Island SNF LLC v. NLRB, 568 F.3d 410, 423-24 (2d
Cir.2009) (same), New Process Steel, L.P. v. NLRB, 564 F.3d 840, 845-46 (7th Cir.2009) (same), and Ne.
Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir.2009) (same), with Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469, 472-73 (D.C.Cir.2009) (holding that two-member NLRB cannot issue
decisions). During the pendency of this appeal, two things have happened on this front: our court has joined
those courts holding that two-member decisions are permissible, see Teamsters Local Union No. 523 v.
NLRB, 590 F.3d 849 (10th Cir.2009), and the Supreme Court has indicated its intent to address the ques-
231Hk1877 Questions of Law or Fact; Findings
231Hk1880 k. Substantial evidence. Most Cited Cases
In reviewing factual challenges to a National Labor Relations Board (NLRB) determination under substantial evi-
dence standard, job of Court of Appeals is something like the role of the instant-replay booth in football; the call on
the field presumptively stands and it may overturn it only if it can fairly say that no reasonable mind could, looking
231HXII(I) Labor Relations Boards and Proceedings
231HXII(I)6 Weight and Sufficiency of Evidence
231Hk1774 Unfair Practices of Employees or Labor Organizations
231Hk1778 k. Restraint or coercion of employees. Most Cited Cases
Substantial evidence supported decision of National Labor Relations Board (NLRB) that union, by sending initial
line for payment, but yet threatened employee with immediate discharge. National Labor Relations Act, § 1 et seq.,
29 U.S.C.A. § 151 et seq.
[9] Labor and Employment 231H 1778
Substantial evidence supported National Labor Relations Board (NLRB) decision that union’s conduct in arranging
to have employee fired by employer for outstanding union dues under union-security agreement, without first having
discharged its fiduciary duties, violated NLRA’s prohibition on coercing employees as well as prohibition against
causing an employer to fire an employee; record indicated that union had not explained to employee how it calculat-
ed his dues, or provided him a reasonable time period in which to make payment, and in fact, there was evidence
tually, the union and company agreed to reinstate Mr. Lopez and the NLRB decided to press unfair labor practice
charges against the union. The case was assigned to an Administrative Law Judge (ALJ), who accepted Mr. Lopez‘s
rights guaranteed in [Section 7 of the Act],” 29 U.S.C. § 158(a)(1); Section 7, in turn, affords employees the right to
“refrain from any or all [union] activities,” 29 U.S.C. § 157. The ALJ reasoned that the union violated Section
8(b)(1)(A) by threatening Mr. Lopez with immediate discharge without first explaining to him how it calculated his
delinquency or offering him a reasonable period of time to cure that delinquency.
cause an employer to discriminate against an employee,” 29 U.S.C. § 158(b)(2), in a manner aimed at “encour–
ag[ing] or discourag[ing] membership in any labor organization,” 29 U.S.C. § 158(a)(3). The ALJ reasoned that the
union violated this provision by asking and persuading the company to fire Mr. Lopez without explaining to him
how it calculated the overdue amounts or affording him the chance to complete the agreed payment plan.FN1
FN1. The ALJ declined to find that the union violated Section 8(b)(2) on November 1. Though the union’s
was not challenged before the NLRB and is not before us. Accordingly, we have no reason to pass on its
propriety.
The NLRB adopted the ALJ’s decision and ordered the union to undertake certain remedial measures. Among other
things, the NLRB ordered the union to make Mr. Lopez whole for any loss of pay or benefits, to remove from its
from our sister circuits. Compare Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 659 (4th Cir.2009) (holding
that two-member NLRB can issue decisions), Snell Island SNF LLC v. NLRB, 568 F.3d 410, 423-24 (2d
Cir.2009) (same), New Process Steel, L.P. v. NLRB, 564 F.3d 840, 845-46 (7th Cir.2009) (same), and Ne.
Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir.2009) (same), with Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469, 472-73 (D.C.Cir.2009) (holding that two-member NLRB cannot issue
decisions). During the pendency of this appeal, two things have happened on this front: our court has joined
those courts holding that two-member decisions are permissible, see Teamsters Local Union No. 523 v.
NLRB, 590 F.3d 849 (10th Cir.2009), and the Supreme Court has indicated its intent to address the ques-