                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


                                                 No.   16-72174
NATIONAL LABOR RELATIONS
BOARD,
                                                 Board No. 28-CB-131044
              Petitioner,
                                                 MEMORANDUM*
GARY ELIAS,

              Intervenor,
 v.

INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES,
MOVING PICTURE TECHNICIANS,
ARTISTS AND ALLIED CRAFTS OF
THE UNITED STATES, ITS
TERRITORIES AND CANADA, LOCAL
720, AFL-CIO, CLC,

              Respondent.


                     On Petition for Review of an Order of the
                         National Labor Relations Board

                     Argued and Submitted November 17, 2017
                             San Francisco, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,** District
Judge.

      The National Labor Relations Board (the “Board”) petitioned this court for

enforcement of an order, requiring Local 720 (the “Union”) to provide referral

information to Union member Gary Elias. Pursuant to 29 U.S.C. § 160(e), this

court has jurisdiction to review a final order of the Board. “We will uphold

decisions of the Board if its findings of fact are supported by substantial evidence

and if it correctly applied the law.” N.L.R.B. v. Unbelievable, Inc., 71 F.3d 1434,

1438 (9th Cir. 1995). The Board’s chosen remedy will “only [be] set aside by this

court for ‘clear abuse of discretion.’” Int’l Bhd. of Elec. Workers, Local 21 AFL-

CIO v. N.L.R.B., 563 F.3d 418, 423 (9th Cir. 2009) (quoting Cal. Pac. Med. Ctr. v.

N.L.R.B., 87 F.3d 304, 311 (9th Cir. 1996)).

      The Union first asserts that the Board did not have jurisdiction to hear this

dispute because it was required to have, but did not establish, jurisdiction over each

employer to which the Union refers workers. However, the Board was not required

to have jurisdiction over each individual employer because the sole remedy sought

by Mr. Elias was an order requiring the Union to provide its own referral




      **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
                                          2
information.1 It is undisputed that the National Labor Relations Act (the “Act”)

applies to the Union. Accordingly, the Board had jurisdiction.

      The Union next objects to the Board’s finding that it operates an exclusive

hiring hall. The record includes agreements that the Union had with various

employers that require the employers to first use the Union’s referral service.

Therefore, substantial evidence supports the Board’s finding that the Union

operated an exclusive hiring hall.

      The Union next maintains that Mr. Elias’s claim is barred by the applicable

statute of limitations. Under Section 10(b) of the Act, complaints cannot be filed

more than six months after the “unfair labor practice.” 29 U.S.C. § 160(b). In this

case, the unfair labor practice occurred when the Union did not provide all of the

requested referral information to Mr. Elias in early 2014. It is undisputed that Mr.

Elias filed his complaint within six months of those events. Therefore, the statute

of limitations does not bar Mr. Elias’s complaint.

      The Union next asserts that it should not be required to turn over addresses

and phone numbers because Union members have a First Amendment right to


      1
        The Union relies on Fisher Theatre to support its claim. However, in
Fisher Theatre the remedy sought and obtained by the union member required both
the employer theater as well as the union to stop discriminating in referring union
members for employment. 240 NLRB 678, 696 (1979). Here, the remedy is
directed solely at the Union.
                                          3
privacy and the Union has a duty to fairly protect the privacy rights of its

members.2 The Union is mistaken. In N.L.R.B. v. Local Union 497, International

Brotherhood of Electrical Workers, AFL-CIO, 795 F.2d 836, 839 (9th Cir. 1986),

this court held that “disclosure of the names and addresses of all members using

the hiring hall does not threaten the union or the associational rights of union

members.”3 Moreover, substantial evidence in the record supports the Board’s

finding that the Union did not have a confidentiality policy that was meant to

protect the privacy of its members. Therefore, the Union is not precluded from

providing the requested information to Mr. Elias.

      Tina Elias was not a party to the complaint; nonetheless, the Board did not

err in requiring the Union to provide the referral information as relevant to her. In

International Brotherhood of Electrical Workers, Local 24 (Mona Electric), 356

NLRB 581, 581–82 (2011), the Board found that a non-party to a complaint who

was a witness in support of the allegations in the complaint and who was cross-

examined at the Board hearing was active enough in the case to allow him to

review the hiring hall records. In this case, Ms. Elias was similarly active in Mr.


      2
         The Union does not assert that there are First Amendment or other privacy
interests at stake with Union members’ priority rating for referrals.
      3
      This reasoning logically extends to phone numbers; as the Union
acknowledges, “telephone numbers . . . are analogous to addresses.”
                                           4
Elias’s case. She was named in the second letter sent by Mr. Elias; she testified as a

witness at the administrative hearing; and she was cross-examined by the Union.

Therefore, the Board acted within its authority to accord the relief requested as to

Ms. Elias.

      Finally, the Union asserts that it is unclear from the Board’s decision what

referral information must be provided.4 The Board ordered the Union to provide

the referral information requested in Mr. Elias’s two letters. Even if the April 24th

letter was not entirely clear as to what Mr. Elias was requesting, the Board adopted

the findings of the administrative law judge, which provided detailed clarification

of what needed to be disclosed. Accordingly, the Board’s order is sufficiently clear

and will be enforced.

      ENFORCEMENT GRANTED.




      4
         The Union also asserts that Mr. Elias was not registered and eligible for
referrals during the periods in question. But the Union ignores Mr. Elias’s credited
testimony. Credibility findings are entitled to special deference and may only be
rejected when a clear preponderance of the evidence shows that they are incorrect.
See Healthcare Emps. Union, Local 399, Affiliated With Serv. Emps. Int’l Union,
AFL-CIO v. N.L.R.B., 463 F.3d 909, 914 n.8 (9th Cir. 2006). The Union points to
nothing that rebuts Mr. Elias’s testimony. Thus, substantial evidence supports the
Board’s decision.
                                          5
