N.L.R.B. v. International Broth. of Elec. Workers, Union No. 323

• Decision Date: 18 April 1983
• Docket Number: No. 81-6108,81-6108
• Citation: 703 F.2d 501
• Parties: 113 L.R.R.M. (BNA) 2226, 97 Lab.Cas. P 10,042 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 323, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 501

703 F.2d 501

113 L.R.R.M. (BNA) 2226, 97 Lab.Cas. P 10,042

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 323, Respondent.

No. 81-6108.

United States Court of Appeals Eleventh Circuit.

April 18, 1983.

Elliott Moore, Deputy Associate Gen. Counsel, Elaine Patrick, N.L.R.B., Washington, D.C., for petitioner.

Joseph H. Kaplan, Kaplan, Sicking, Hessen, Sugarman, Rosenthal & Zientz, P.A., Joseph C. Segor, Miami, Fla., for respondent.

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

Before HENDERSON and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

The National Labor Relations Board (Board) petitions this court to enforce an The facts are essentially undisputed. In 1970, John Willey, a longtime member of the International Brotherhood of Electrical Workers (IBEW), moved to Palm Beach County, Florida. He obtained a work permit from the local IBEW chapter, Local 323, and secured an electrician's job through the Union's hiring hall. He retained his official membership with his former local chapter of the IBEW in Terre Haute, Indiana.

order directed against the respondent, Local Union 323 of the International Brotherhood of Electrical Workers (Union), for an alleged unfair labor practice in violation of Sec. 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(B). We enforce the order.

In 1974, Willey passed the county's master electrician examination and received a certificate of competency. This authorization enabled him either to operate as a contractor or to apply for the required electrical permits on behalf of other contractors. Soon after acquiring master electrician status, Willey and a partner formed their own electrical contracting business. At that time, he allowed his working permit with the local Union to expire, although he continued to pay membership dues.

The following year, Willey sold his business and accepted a position as the electrical superintendent for Drexel Properties, Inc. (Drexel). Drexel is engaged in land development and residential and warehouse construction. The company is a nonunion employer and has no contract with Local 323. In his capacity as superintendent, Willey supervises all of the electrical contracts performed in the company's construction projects. His responsibilities include the hiring and firing of electricians, handling employee complaints concerning working conditions and equipment safety, imposing disciplinary sanctions, making work assignments, and approving vacation requests. Additionally, he utilizes his master's certificate to obtain county permits on behalf of Drexel. By law, he is required to accept supervisory responsibility for all electrical work performed pursuant to those permits. As compensation, Willey receives a salary; he does not share in Drexel's profits nor does he hold any ownership interest in the company.

In 1977, the business manager of Local 323 preferred written charges against Willey, accusing him of "running a nonunion electrical contracting business." He charged that Willey had violated the IBEW Constitution. ¹ During the ensuing trial, Willey and the Union officials discussed the fact that he secured electrical work permits for Drexel through the use of his master's certificate. The trial board informed him that this practice violated the working agreement between Local 323 and area union employers. ² One member advised Willey to quit his job and leave the area. ³ Willey then appealed to an International Vice President of the Union. That official affirmed the trial board's decision and noted that Willey had not contested the fact that he was "employed by a firm who does not have an agreement with Local 323." He also pledged to reduce the fines, contingent upon Willey's "immediate cessation of the violation." Subsequently, Willey continued to pursue his appeal in correspondence to various IBEW officers.

Soon afterward, Willey was found guilty of violating the two constitutional provisions and was fined $1,000.00 for each infraction. In a letter to Willey, the tribunal agreed to suspend part of the fine if he would "get right with the Local Union within 30 days and commit no further violations for a period of one year."

Before the Union ever informed Willey that he had exhausted his appeals, another member of Local 323 filed new accusations against him citing the same two constitutional provisions as the earlier charge, and also claiming a violation of the area working agreement. Willey was adjudged guilty of all three violations and fined an additional $5,150.00. The union offered to suspend the second set of fines if Willey would pay the fine outstanding on the first charge. Insisting that he was still appealing the original decision and that he intended to appeal the second set of charges, he refused. Consequently, the trial board expelled Willey from membership in the IBEW.

As a result of these actions, the Union was charged with an unfair labor practice, i.e., a violation of Sec. 8(b)(1)(B), which proscribes the restraint or coercion of an employer in the selection of his representative for the purposes of collective bargaining or the adjustment of grievances. After a hearing, the Administrative Law Judge (ALJ) found that the 1977 fines were imposed for "working for a nonunion contractor." The ALJ also concluded that the second set of violations concerned his association with a nonunion employer and his use of his master's certificate for the benefit of Drexel. In his view, these sanctions constituted unlawful coercion under Sec. 8(b)(1)(B). The ALJ rejected the Union's contention that the statute did not apply to its conduct because Willey was an employer. Based on these findings, the ALJ recommended a cease and desist order enjoining further violations, as well as various types of affirmative relief.

The Union filed exceptions to the ALJ's findings. On review, the National Labor Relations Board adopted all of the ALJ's pertinent findings and conclusions of law. The Board members unanimously agreed that the union acted in violation of Sec. 8(b)(1)(B) by disciplining Willey for his employment with a nonunion firm. A majority of the Board also characterized the fine imposed for using the master's certificate as "part and parcel of the same violation." One member, however, expressed a contrary view. The Board now seeks to enforce its order.

Section 8(b) provides in pertinent part that "[i]t shall be an unfair labor practice for a labor organization or its agents--(1) to restrain or coerce ... (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." Since the 1968 decision in San Francisco-Oakland Mailers' Union No. 18, 172 NLRB 2173, the Board--with judicial acquiescence--has construed the statute to prohibit not only direct pressure on an employer, but also coercion aimed at the supervisor, which indirectly affects the employer's selection. See American Broadcasting Cos. v. Writer's Guild of America, West, Inc., 437 U.S. 411, 429, 98 S.Ct. 2423, 2433-34, 57 L.Ed.2d 313, 328 (1978); see generally Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 800-01, 94 S.Ct. 2737, 2742-43, 41 L.Ed.2d 477, 485-86 (1974). In spite of this expansive interpretation, the reach of Sec. 8(b)(1)(B) is not without The Court in Florida Power & Light faced the issue whether punitive measures taken by a union against supervisory personnel for crossing picket lines to perform duties customarily undertaken by rank-and-file employees contravened Sec. 8(b)(1)(B). Without repudiating the San Francisco-Oakland Mailers' doctrine, the Court refused to extend the statute to immunize a supervisor's performance of rank-and-file work. Id. at 805, 94 S.Ct. at 2745, 41 L.Ed.2d at 488. According to the Court, it was the purpose of Congress to protect an employer's "selection of its representatives for the purposes of collective bargaining and grievance adjustment." Id. at 804, 94 S.Ct. at 2744, 41 L.Ed.2d at 488 (emphasis in original). For that reason, the Court said,

                restriction.  In two cases decided during this past decade, the Supreme Court examined the "outer limits" of the statute's application.   See, e.g., Florida Power & Light, 417 U.S. at 805, 94 S.Ct. at 2745, 41 L.Ed.2d at 488.  A closer look at the provision's "outer limits" will demonstrate that the Union's actions in this case fall within those parameters, thereby constituting prohibited conduct
                

[t]he conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of Sec. 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer.

Id. at 804-05, 94 S.Ct. at 2744-45, 41 L.Ed.2d at 488. Finding that the union discipline did not affect the supervisors' performance of the pertinent duties, the Court held that the Union's conduct did not violate the statute. Id. at 805, 94 S.Ct. at 2745, 41 L.Ed.2d at 488.

In American Broadcasting Cos., the Court had occasion to consider the implications of its holding in Florida Power & Light. The union involved in that case ordered its supervisory members not to cross picket lines, even to perform their supervisory duties. Some of the members obeyed the directive, and the ones who did not were subsequently penalized by the union. In its evaluation of the legality of the union's actions, the Court reiterated the inquiry originally formulated in Florida Power & Light. Union discipline of a supervisor contravenes Sec. 8(b)(1)(B) if that coercion "may adversely affect" his performance of grievance adjustment or collective bargaining responsibilities....