## Facts

- Local Union No. 25, International Brotherhood of Electrical Workers operated a referral (hiring-hall) system under a collective-bargaining agreement with an electrical contractors’ association chapter and an employer.
- Two nonmembers alleged the union bypassed them for referrals while favoring union members.
- An administrative law judge (ALJ) found the union referred union members to jobs over the nonmembers for the purpose of favoring members and encouraging union membership, constituting unfair labor practices.
- Although the complaint and litigation focused on discriminatory referral conduct, the ALJ also addressed a separate contract provision, Article XI, without it being pleaded or litigated.
- Article XI made an applicant ineligible for referrals for one year if, after registering for referral, the applicant worked in the local area for a non-signatory employer that did not pay the agreement’s wage rates and fringe benefits.
- No evidence was introduced regarding Article XI’s operation or effects, and the parties did not brief or argue its legality.
- The NLRB adopted the ALJ’s ruling and issued a supplemental order invalidating Article XI; the NLRB then sought court enforcement of that portion of the order.

## Issues

1. Whether the NLRB may invalidate a collective-bargaining provision when its legality was not alleged in the complaint, noticed to the parties, or supported by an evidentiary record.
2. Whether Article XI was facially unlawful under NLRA §§ 8(b)(1)(A) and 8(b)(2) as encouraging union membership or causing discriminatory treatment.

## Decision

- The court denied enforcement of the Board’s supplemental order insofar as it invalidated Article XI.
- The court held the ALJ and Board improperly reached Article XI’s legality sua sponte where the matter was not pleaded, litigated, briefed, or supported by evidence.
- On the record presented, the court declined to treat Article XI as facially unlawful under §§ 8(b)(1)(A) and 8(b)(2).

## Legal Principles

- NLRB adjudication and remedies must be tied to matters fairly encompassed by the complaint and developed through notice and an opportunity to litigate.
- A Board determination that a contract provision violates §§ 8(b)(1)(A) or 8(b)(2) generally requires an evidentiary basis; a bare, undeveloped record is insufficient to sustain facial condemnation.
- Unfair labor practices based on discriminatory implementation of a referral system are analytically distinct from a declaration that contract language is unlawful; each requires its own pleaded theory and supporting proof.

## Conclusion

The Second Circuit refused to enforce the Board’s invalidation of a hiring-hall ineligibility clause because the clause’s legality was not placed in issue by the pleadings or litigation and the record did not support finding the clause facially unlawful under the NLRA.


NLRB v. Local Union No. 25, Int’l Bhd. of Elec. Workers, 586 F.2d 959 (2d Cir. 1978)