NLRB v. LOCAL UNION NO. 25, IBEW - 586 F.2d 959 (2d Cir. 1978)

Rule:

Section 554 of the Administrative Procedure Act requires, in relevant part, that persons entitled to notice of an agency hearing shall be timely informed of the matters of fact and law asserted the agency shall give all interested parties opportunity for the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit.

Facts:

The collective-bargaining agreement between Local 25 and the other respondents first received the attention of the NLRB on June 6, 1973 when one Ernesto Flores, an American citizen of Puerto Rican ancestry, filed a complaint with the NLRB alleging that the union had engaged in unfair labor practices by failing to provide him with job referrals because he was not a member of the union. Later, in an amended consolidated complaint, the NLRB alleged that the union had also failed to provide job referrals to one George Colletti because he too was not a member of the union. In a decision announced June 28, 1974, Administrative Law Judge Samuel Ross found that the union had referred union members to jobs to which Flores and Colletti had equal or superior claims, and that the union had done so not for lawful reasons, but solely in order to favor union members over non-members and to encourage union membership, thereby engaging in unfair labor practices. Although this ruling disposed of the issues raised by the NLRB complaint, Judge Ross went beyond the complaint to consider the legality of Article XI of the collective-bargaining agreement. The question of Article XI's legality was not raised in the amended complaint, in the briefs, or in oral argument, and no evidence was presented concerning this issue. Judge Ross nevertheless concluded, Sua sponte, that Article XI is illegal on its face under sections 8(b)(1)(A) and (2) of the NLRA because it unlawfully encourages unionism. The NLRB adopted the findings and conclusions of Judge Ross invalidating clause XI.

Issue:

May NLRB’s order enforcing the Article XI ruling of Judge Ross be upheld?

Answer:

No

Conclusion:

Since the question of Article XI's legality was not raised in the amended complaint, in the briefs, or in oral argument, and no evidence was presented concerning that issue, respondents did not receive the notice required by the APA. Thus, the decision of the Administrative Law Judge, as well as the order of the NLRB adopting that decision, cannot stand.