Reference no: EM132068355

Laborers' International Union of North America, Local 872, AFL-CIO, and Stephanie Shelby

Case 28-CB-065507 (May 3, 2013)

Respondent operated an exclusive hiring hall that referred employees to multiple employers in and around Las Vegas, Nevada. Shelby was a union member who used the hiring hall to obtain employment. Over the year preceding October 4, she was concerned about her proper place on the union's out-of-work list, which the union's dispatchers used to make job referrals. She also had concerns about her "skill sheet," which listed her certified skills and referral qualifications, and had made several unsuccessful attempts to resolve these concerns during visits to the hiring hall in August and September.

On September 16, she had a heated confrontation at the hiring hall with dispatcher Rocio Lucero over her alleged failure to attend a required roll call, which had led to her lower placement on the out-of-work list. On October 3, she attended another roll call and attempted to upgrade her skill set, but was told she needed to bring in the proper documentation. She returned the next day with "transcript sheets," instead of the required "certification." When Lucero told her that the transcript sheets were not equivalent to the necessary certification, she started yelling and swearing. Lucero told her to leave or the police would be called, but she still refused to leave. So Lucero called the hiring hall manager, Taylor, who was upstairs. He came down and told Shelby that she was "86'ed" and had to leave. She kept screaming, but backed away toward the door. The manager then called the police on his cell phone, and she backed out onto the parking lot about 40 feet from the door, still screaming and swearing.

The police arrived, handcuffed Shelby, and asked the manager whether he wanted to "trespass" Shelby. He said he did. Police then gave him a card to read, which told Shelby that she was to leave the premises or be charged with trespassing, a misdemeanor, and would be charged with trespassing if she returned. She left shortly thereafter.

The day after the incident, she called the dispatch office and left a message for Lucero and the manager, apologizing for her behavior. Between the incident and the Board hearing, she returned to the hall three times, with a police escort, and there was no trouble with any of her visits.

She filed an unfair labor practice charge with the Board, alleging that the Respondent had breached its duty of fair representation by having her removed from the hiring hall on October 4 and by placing her under a trespass order that required her to have a police escort anytime she returned to the hall. The administrative law judge found that her initial removal from the hiring hall was justified and therefore not an unfair labor practice. However, he found that the imposition of the continuing trespass order was a breach of the Respondent's duty of fair representation. This appeal followed.

Chairman Pearce and Members Griffin and Block

It is well established that a union's duty of fair representation extends to its operation of an exclusive hiring hall, and that where a union "causes, attempts to cause, or prevents an employee from being hired or otherwise impairs the job status of an employee," the Board draws an inference of unlawful coercion. The union may overcome that inference by demonstrating that its actions were justified.

Here, there is no dispute that on October 4, Shelby, at least initially, was seeking to enhance her prospects of being hired by augmenting her skill sheet at the hiring hall. The Respondent's ejection of Shelby from the hiring hall at least temporarily impaired her ability to achieve that objective. We nevertheless agree with the judge that the Respondent's action was justified by Shelby's conduct that day.

. . . As the judge found, her "loss of temper and her inability to control her actions [led] to her continued string of epithets directed at Respondent's agents"; when Taylor asked her to calm down, "she refused until the police finally arrived." The judge also found from the credited testimony that although expletives were common at the hiring hall, it was not common for a member to curse directly at a dispatcher in a personal confrontation. In a business office setting (as opposed to a dockside or construction site), the combination of Shelby's tirade of continuous screaming, her repeated use of expletives, and her persistent refusal either to "calm down" or to leave justified the Respondent's decision to remove her from the property at that time. Accordingly, we agree with the judge that the Respondent's conduct on October 4 did not violate the Act.

B. Maintenance of "Trespass" Status after October 4

. . . Although this is a close issue, we disagree with the judge's finding of a violation for the following reasons. The judge's finding is premised, mistakenly, on the notion that the Respondent imposed the police-escort requirement on Shelby. In fact, the police effectively placed Shelby in an ongoing "trespass" status on October 4 when, before acting on the Respondent's lawful request to have Shelby removed from the property that day, they instructed Taylor to read a card (which they provided him) to that effect to Shelby. Taylor did no more than was necessary to obtain Shelby's immediate removal; nor did he take any further action to keep the resulting access restriction in place. In short, the police-escort requirement was a direct consequence of the Respondent's lawful removal of Shelby . . .

Further . . . we are not persuaded that Shelby's apology triggered an affirmative duty on the part of the Respondent to seek dissolution of the escort requirement. Although Shelby called on October 5 to apologize in some manner for her misbehavior, she apparently made no attempt to speak directly to Taylor. Nor did she convey any clear commitment not to behave in a similar manner in the future. Equally, if not more important, Shelby never asked the Respondent for assistance in ending the escort requirement.

Finally, the record does not establish . . . that the escort requirement actually impaired Shelby's employment in any way. She was able to maintain her place on the out-of-work list during the period that the escort requirement was in place.

In addition, the escort requirement did not prevent her from being hired by the two employers who contacted the hiring hall to request her by name in November and December. There is no allegation that she suffered any resulting loss of pay or benefits.

In these circumstances, we find that the Respondent did not have an affirmative duty to seek to lift the trespass order or the escort requirement. Accordingly, we find that the Respondent's failure to do so did not violate Section 8(b)(1)(A); nor was the Respondent's behavior "so far outside a 'wide range of reasonableness' as to be irrational" under the duty of fair representation.*