International Union of Operating Engineers, Local 513 v. NLRB
If an employee reported a workplace safety hazard to you as his employer, as required by company safety policies, it would be wrong for his union to fine him, correct? In fact, since 1977 union fines for union members reporting safety infractions to their employers have been considered a per se union unfair labor practice under section 8(b)(1)(A) of the Act.
However, in International Union of Operating Engineers, Local 513 v. NLRB, 635 F.3d 1233 (DC Cir. 2011), the U.S. Court of Appeals for the District of Columbia Circuit recently disagreed with the NLRB and, in denying enforcement of the Board's Order, ruled that a $2,500 union fine against a union member for reporting to his employer a safety infraction caused by another union member was not a union unfair labor practice under section 8(b)(1)(A). In an opinion authored by Senior Circuit Court Judge Lawrence Silberman, a 3-judge panel of the court ruled that the Board neither asserted nor proved that the individual was engaged in concerted activity under section 7 of the Act by informing his employer of a workplace safety hazard. Therefore, the union fine was not barred by section 8(b)(1)(A) which prohibits labor organizations from actions which “restrain or coerce … employees from the exercise of rights guaranteed under section 7.” That is, since the NLRB in this case never made a finding that the union member either engaged in or refrained from concerted activity as protected by section 7 when reporting the safety hazard, the DC Circuit held that the Board improperly found that the union fine constituted an 8(b)(1)(A) violation.
Facts: Mark Overton, a member of a different Operating Engineers local union located in Albuquerque, was working for Ozark Contractors in Missouri under a special union “traveling permit” to perform work that members of Local 513 were not qualified to perform. He detected and reported to Ozark a safety infraction which, after an investigation, was determined to have been caused by another union member employed by Ozark. The company’s safety rules required the reporting of safety hazards; failure to report was subject to company discipline, including suspension. However, when Overton reported the safety hazard which subsequently was determined to be caused by a fellow union member, that member was suspended for three days. Overton was fined $2,500 by Local 513 for “gross disloyalty” and “conduct unbecoming a union member” and for actions which harassed a fellow union member. In effect, Overton faced the Hobson's choice of being disciplined by the employer with a suspension for failing to report a safety hazard, or union discipline in the form of a substantial union fine for doing so.
Analysis: For over 30 years, union discipline imposed on union members for reporting safety violations caused by fellow union members had been considered by the NLRB to be a per se union unfair labor practice under section 8(b)(1)(A) of the Act where failure to report would be a violation of company safety rules. See, e.g., Chemical Workers Union Local 604 (Essex International), 233 NLRB 1229 (1977), enfd mem. 588 F.2d 838 (7th Cir. 1977). This precedent was upheld by the Ninth Circuit in NLRB v. Local 439, Int’l Bhd. of Teamsters, 175 F.3d 1173 (9th Cir. 1999). In this case, that precedent was followed by decisions of an administrative law judge and by the NLRB. International Union of Operating Engineers, Local 513 (Ozark Constructors, LLC), 355 NLRB No. 25 (2010). The DC Circuit overturned the long-standing Board precedent in ruling that it is not a per se violation of section 8(b)(1)(A) for a union to discipline a union member for reporting a safety hazard to the employer absent the finding of concerted activity.
The court reasoned that the Board's reliance on two Supreme Court decisions for authority was misplaced. See NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967) and Scofeld v. NLRB, 394 U.S. 423 (1969). In both cases concerted activity was present. Yet here, the Board insisted on finding a per se violation of section 8(b)(1)(A) even without alleging concerted activity.
The DC Circuit stated that while it traditionally granted broad deference to the NLRB on matters involving application of the Act, here the Board made no attempt to base its decision on the Act's requirement for concerted activity as a predicate for finding a section 8(b)(1)(A) violation for a union’s actions restraining or coercing employees engaging in or refraining from protected concerted activity. The Board refused to base its decision on a finding that Overton either was joined by fellow employees in his actions or that he refused to join other employees in protesting the company policy or actions in suspending the offending employee (as was the case). Instead, the Board insisted that the imposition of a union fine was a per se violation.
The DC Circuit found no support for the Board’s position in the statute and therefore rejected the Board's 30-year precedent by refusing to enforce the Board's Order finding a per se violation of section 8(b)(1)(A).
Significance: While this circuit court decision complicates the Board’s finding of a union violation for fining a union member who reports a safety violation to the employer, and even may possibly discourage reports of safety hazards, in practice it only requires that in the future the Board will have to allege and prove actual “concerted activity” as part of a complaint alleging a section 8(b)(1)(A) violation. Simply asserting a per se violation will not be sufficient in the influential DC Circuit.