Steven Lucas v. National Labor Relations Board

Opinion by Judge PAEZ; Concurrence by Judge WALLACE.

Steven Lucas petitions for review of a decision of the National Labor Relations *929 Board (“Board”)- Lucas claims that the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 720, AFL-CIO (“Union”) violated sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act 1 (the “NLRA” or the “Act”) by refusing to readmit him to its exclusive hiring hall in March 1995. After an administrative hearing, the Administrative Law Judge (“ALJ”) found that the Union’s refusal to reinstate Lucas was arbitrary and unfair, and therefore constituted an unfair labor practice under sections 8(b)(1)(A) and 8(b)(2) of the NLRA.

The Board reversed and dismissed the complaint. Applying the ‘‘wide range of reasonableness” standard articulated in Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 81 , 111 S.Ct. 1127 , 113 L.Ed.2d 51 (1991) (internal quotation marks omitted), it determined that the Union’s refusal to permit Lucas to re-register was not arbitrary in light of its finding that he had been permanently expelled from the hiring hall in 1994 for fifteen years of.…

concurring:

While I join the majority’s conclusion that the Board’s decision was not supported by substantial evidence, I cannot join in its remand for entry of an order in favor of Lucas. Because I would remand for further findings, I write separately.

In support of its remand for entry of an order in favor of Lucas, the majority cites International Union, United Automobile Aerospace & Agriculture Implement Workers, Local 283 v. Scofield, 382 U.S. 205, 212 , 86 S.Ct. 373 , 15 L.Ed.2d 272 (1965), which held, “[a] decision of the reviewing court to set aside a Board order dismissing a complaint has the effect of returning the case to the Board for further proceedings. This normally results in the Board’s entering an order against the charged party.” 382 U.S. 205, 212 , 86 S.Ct. 373 , 15 L.Ed.2d 272 (1965). The majority ignores footnote 5 on the same page, where the Supreme Court emphasized, “[t]here are, of course, cases in which the Court of Appeals will remand to the Board to take additional evidence.” Id. n. 5.

Despite this clear language, the majority inexplicably interprets the Supreme Court’s recognition that the Board “normally” enters an order against the charged party…

333 F.3d 927 Steven LUCAS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 00-71452. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2002. Filed April 16, 2003. Dylan B. Carp, San Francisco, CA, argued the case for the petitioner. Glenn M. Taubman, Springfield, VA, assisted on the briefs. Jeffrey L. Horowitz, NLRB, Washington, DC, argued the case for the respondent. Frederick C. Havard, NLRB, Washington, DC, assisted on the briefs. On Petition for Review of an Order of the National Labor Relations Board. NLRB No. 28-CB-4351. Before: WALLACE, KOZINSKI and PAEZ, Circuit Judges. Opinion by Judge PAEZ; Concurrence by Judge WALLACE. PAEZ, Circuit Judge: 1 Steven Lucas petitions for review of a decision of the National Labor Relations Board ("Board"). Lucas claims that the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 720, AFL-CIO ("Union") violated sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act 1 (the "NLRA" or the "Act") by refusing to readmit him to its exclusive hiring hall in March 1995. After an administrative hearing, the…