N.L.R.B. v. United Union of Roofers, Waterproofers and Allied Workers Union No. 81, AFL-CIO, AFL-CI

• Decision Date: 27 September 1990
• Docket Number: No. 89-70282,R,AFL-CI,89-70282
• Citation: 915 F.2d 508
• Parties: 135 L.R.R.M. (BNA) 2477, 116 Lab.Cas. P 10,333 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS LOCAL NO. 81,espondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 508

915 F.2d 508

135 L.R.R.M. (BNA) 2477, 116 Lab.Cas. P 10,333

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS

LOCAL NO. 81, AFL-CIO, Respondent.

No. 89-70282.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 19, 1990.

Decided Sept. 27, 1990.

John D. Burgoyne, Assistant General Counsel, N.L.R.B., Washington, D.C., for petitioner.

David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before WIGGINS and LEAVY, Circuit Judges, and STEPHENS ^*, District Judge.

LEAVY, Circuit Judge:

The National Labor Relations Board ("NLRB" or "Board") petitions for enforcement of its order that the United Union of Roofers, Waterproofers and Allied Workers, Local No. 81 ("Union") cease imposing fines and reinitiation fees on the employees who signed a petition rejecting the Union as their bargaining agent. The Board found that the Union's conduct in fining its members for signing the petition constituted an unfair labor practice under section 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(A) (1988). We grant enforcement of the order.

FACTS AND PROCEEDINGS

Beck Roofing Company ("Beck") is a California corporation engaged in the construction and reconstruction of roofs on a retail and non-retail basis. Beck employs between ten to eighteen workers depending on the season.

For thirty years, Beck and the United Union of Roofers have maintained a collective bargaining relationship. Beginning in early 1986, the employees began to discuss whether they would continue to work under a collective bargaining agreement after the current contract expired on August 1, 1986.

On the morning of May 16, 1986, Beck held a twenty minute meeting at the shop wherein Beck's office manager, Carol Merchant, announced to the employees that, in light of its financial condition, the company would either have to go nonunion or go out of business.

Joseph Martinez, a thirty-year Beck employee, decided during the meeting that he would leave the Union. After orally stating his position, Merchant advised Martinez that he would need to put his position in writing. In response, Martinez wrote out and signed the following document:

We agree to do what ever is necessary to keep this Company from going belly-up and to keep people working on a competitive bidding program which is in actuality ... going nonunion. I therefore don't want the Union anymore.

Seven other employees signed the petition after Martinez indicated that they should do so if they wanted to stay with Beck. The petition was left on the secretary's desk throughout the day and weekend. On Monday morning, May 19, 1986, Martinez instructed the secretary to mail the petition to the Union, which she did.

On August 1, 1986, Beck went "nonunion." On that same day, the Union charged Martinez and three other signatories, Adam Cervantes, Albert Hill, and Steve Bussell, with disloyalty and gross disloyalty or conduct unbecoming a member for initiating and/or signing the petition, in violation of Article IX, Sections 7. (2) and 7. (4) of the Union's Constitution. Following a hearing, the four were found guilty as charged and were each fined $1,500 plus a $400 reinitiation fee in the event they sought to rejoin the Union. All but Bussell, who did not testify at the hearing, were notified of the imposition of the fine and the reinitiation fee.

Thereafter, Beck filed a charge with the NLRB claiming that the Union's discipline constituted an unfair labor practice in violation of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C.

                Sec. 158(b)(1)(A). 1   On February 17, 1988, the Administrative Law Judge ("ALJ") concluded that the Union's conduct in fining its members for initiating or supporting a petition to repudiate the Union constituted a prima facie violation of section 158(b)(1)(A).  However, the ALJ also concluded that the petition was "tainted" by Beck's involvement and therefore the employees' action in initiating or signing the petition was not a protected activity under section 157:  "[the four employees] did not decide freely and without coercion that they no longer desired the Union.  Rather, they were manipulated by the Employer.  Accordingly, their Section 7 rights were not affected by the Union discipline."    The ALJ also found no violation of the Act with respect to Bussell for the "additional reason" that he was not "coerced" by the Union fine because he was not aware of it.  On that basis, the ALJ recommended to the NLRB that the complaint be dismissed
                

On May 26, 1989, the Board rejected the ALJ's recommendation. The Board found that the "employee-members were engaged in [section 157] protected concerted activity when they initiated and/or signed the petition, notwithstanding the Employer's involvement in it." The Board also found that the Union's violation of section 158(b)(1)(A) extended to Bussell even though he was unaware of the fine. Accordingly, the Board ordered the Union to cease and desist from the unfair labor practice and to rescind and refund the fines and fees imposed on the four employees.

On July 3, 1989, the Board filed this petition pursuant to 29 U.S.C. Sec. 160(e) for enforcement of its order of May 1989.

STANDARD OF REVIEW

We will uphold or enforce a decision of the Board if its findings of fact are supported by substantial evidence and if it correctly applied the law. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989). "The Board's interpretation of the Act is entitled to deference and this court will uphold it if it is reasonably defensible." NLRB v. United Ass'n of Journeymen & Apprentices, 827 F.2d 579, 580 (9th Cir.1987).

DISCUSSION

This appeal raises essentially three issues: (1) whether the Union's conduct in fining members who signed a petition rejecting the Union constitutes an unfair labor practice; (2) the effect of Beck's participation in the creation and signing of the petition on the charges against the Union; and (3) whether an unfair labor practice which is not disclosed to the affected member constitutes a violation of section 158(b)(1)(A).

I. UNION DISCIPLINE

The Board found that the Union violated section 158(b)(1)(A) of the NLRA "when it imposed a fine and reinitiation fee on [the four] employees for their involvement in the petition." In reaching this conclusion, the Board relied on International Molders' & Allied Workers Union, Local No. 125 (Blackhawk Tanning Co.), 178 N.L.R.B. 208 (1969), enforced, 442 F.2d 92 (7th Cir.1971).

In Blackhawk Tanning, the NLRB held that while a Union may lawfully expel a member for filing a decertification petition with the Board, it is an unfair labor practice for a union to fine an employee for filing a petition with the Board to decertify the union as the bargaining agent. In justifying the differing treatment, the Board stated the "union needs [the] power of expulsion in order to defend its status as bargaining representative[,]" ² id. at 208, while a fine "is not defensive and can only be punitive--to discourage members from seeking ... access to the Board's processes." Id. at 209. It is an unfair labor practice for a union to penalize its members because they have sought to invoke the Board's processes. See NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968) (hereinafter Marine Workers ) (unlawful to expel or fine a member because he has filed an unfair labor charge with the Board).

The Union argues that the Board erred in applying Blackhawk Tanning, claiming that the Beck employees who signed the petition "had no intention and did contemplate invoking or utilizing the Labor Board procedures." As noted in Blackhawk Tanning, "[i]n a somewhat different context where the member's access to the Board was not involved, the Supreme Court has upheld the right of a union to fine, in lieu of expelling a member who crossed the picket line during [an authorized] strike." 178 N.L.R.B. at 208 (citing NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967)).

The Union argues that the three-part test developed in Allis-Chalmers and Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), for determining the lawfulness of internal union discipline should have been applied in this case. In Allis-Chalmers and Scofield, the Court held that, aside from barring enforcement of a union's internal regulations to affect a member's employment status, section 158(b)(1)(A) did not automatically prohibit internal union enforcement of union rules by fine and expulsion.

In Scofield, the Court developed a "dual approach" to determining the legality of a union's internal enforcement of its own rules. The Court held that "if the rule invades or frustrates an overriding policy of the labor laws[,]" i.e., "the plain policy of the Act to keep employees completely free from coercion against making complaints to the Board[,]" then the rule may not be enforced, even by fine or expulsion, without violating section 158(b)(1). 394 U.S. at 429-30, 89 S.Ct. at 1157-58. Otherwise, section 158(b)(1)

leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.

Id. at 430, 89 S.Ct. at 1158. Applying the three-part test, the Court held that the union rule, enforceable by fines and expulsion, imposing a ceiling on production did not contravene the policy of the NLRA and was therefore lawfully enforced.

We find that the Board applied the correct test in this case. The Board has reasonably determined that a union's action in fining a member who "seek[s] to decertify the union" violates "the...