# International Association of Bridge, Structural and Ornamental Iron Workers, Afl-Cio, Local No. 111 v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · June 10, 1986 · 792 F.2d 241 URL: https://www.frixlaw.com/law-library/cases/9474922 ## Case - **Full name:** INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, LOCAL NO. 111, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** June 10, 1986 - **Citations:** 792 F.2d 241; 253 U.S. App. D.C. 173; 122 L.R.R.M. (BNA) 2611; 1986 U.S. App. LEXIS 25506 - **Precedential status:** Published - **Opinion:** Concurring in part by Silberman - **Judges:** Scalia, Silberman, Wright - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474922 ## Opinion text SILBERMAN, Circuit Judge, concurring in part and dissenting in part: I concur in all parts of the majority opinion except Part IV, which rejects the Board’s remedial order. I would also concur in that portion of the opinion — since I share the majority’s concern about the Board’s puzzling treatment over the years of the issue whether backpay can or should be awarded for Section 8(b)(1)(A) violations 1 — if I did not feel bound by Warehouse Union, Local 860 v. NLRB, 652 F.2d 1022 (D.C.Cir.1981). Like the case before us now, Warehouse Union involved a Section 8(b)(1)(A) violation, there predicated on a breach of the duty of fair representation. I believe this case presents even stronger grounds than did Warehouse Union for a backpay remedy against the union. In Warehouse Union, the Board found that a union violated Section 8(b)(1)(A) by failing to advise clerical employees whom it represented of the employer’s threat to eliminate all jobs in a particular clerical unit if the union insisted on a wage increase for the clericals equal to that demanded for the warehousemen. The employer agreed to the wage increase for the clericals, and after a postponement of several months (secured by the union) eliminated the clerical jobs. Although twelve of the thirteen clericals were women, the Board refused to find that the union acted with a discriminatory motive. The Board nevertheless found a *249 Section 8(b)(1)(A) violation. This court affirmed, reasoning that the union’s failure to inform the clericals of the employer’s threat breached its duty to those it represented even in the absence of a hostile motive. Regarding the remedy, the Administrative Law Judge, whose opinion the Board adopted, said: It is recognized that an 8(b)(2) violation is not alleged. It is further recognized that the record does not show a direct causal relationship between Respondent’s 8(b)(1)(A) violation and the loss of jobs suffered by clerical employees. Finally, there is no way to know whether, had they been given by Respondent the information they were entitled to, the clerical employees would have adopted an all-or-nothing bargaining position, although such is most unlikely and unnatural. Nonetheless, those employees were entitled to make their own decision, and they were deprived of that right by Respondent’s knowledgeable silence. Under such circumstances, the employees’ plight was Respondent’s intentional creation, and equity demands that Respondent remedy that dereliction. Consequently, it will be recommended that Respondent make whole all SB-4 clerical employees who lost their jobs on October 15, 1977, as a result of Respondent’s unfair labor practices. Warehouse Union, Local 860 (The Emporium), 236 N.L.R.B. 844 , 851 (1978) (footnote omitted; emphasis added). On appeal, this court summarily rejected the union’s contention that the Board exceeded its remedial powers by awarding backpay against the union: “The Board is vested with broad remedial powers and our review is limited. A remedy may be overturned ‘only if the relief ordered “is a patent attempt to achieve ends other than those which can fairly be said to effectuate the purpose of the act.’”” 652 F.2d at 1025-26 (citations omitted). Here, by contrast, we uphold the NLRB’s finding of a Section 8(b)(2) violation as well as a Section 8(b)(1)(A) violation, in which there was shown a hostile motive and a direct causal link between the union’s Section 8(b)(1)(A) violation and the loss of employment. The result in this case follows a fortiori from Warehouse Union. Having enforced a backpay remedy predicated solely on a fair representation violation in Warehouse Union, we no longer write on a clean slate. Since I believe a prior opinion of this court controls the disposition of this case, I am obliged to dissent as to the majority’s rejection of the Board’s remedy. 2 . The Board found both Section 8(b)(1)(A) and Section 8(b)(2) violations. It predicated its backpay order on both, but the employees’ loss of wages stems only from the Section 8(b)(1)(A) violation because the employer refused to cooperate with the union. . That being said, I should add that I have strong misgivings about the soundness of Warehouse Union. Indeed, I share the view expressed by counsel for petitioner at oral argument, i.e., that Warehouse Union seriously jeopardizes a union’s ability to negotiate on behalf of those it represents. But until reversed en banc, that case remains the law of the Circuit. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474922. Public record. Not legal advice.