N.L.R.B. v. Local 139, Intern. Union of Operating Engineers

• Decision Date: 22 July 1986
• Docket Number: No. 85-1895,85-1895
• Citation: 796 F.2d 985
• Parties: 123 L.R.R.M. (BNA) 2021, 55 USLW 2088, 104 Lab.Cas. P 11,898 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 139, INTERNATIONAL UNION of OPERATING ENGINEERS, Respondent,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 985

796 F.2d 985

123 L.R.R.M. (BNA) 2021, 55 USLW 2088,

104 Lab.Cas. P 11,898

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 139, INTERNATIONAL UNION of OPERATING ENGINEERS, Respondent,

No. 85-1895.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 25, 1986.

Decided July 22, 1986.

Robert Bell, N.L.R.B., Washington, D.C., for petitioner.

Matthew R. Robbins, Goldberg Previant & Uelmen, Milwaukee, Wis., for respondent.

Before BAUER and POSNER, Circuit Judges, and MOODY, District Judge. ^*

MOODY, District Judge.

In this petition for enforcement of an Order of the National Labor Relations Board ("NLRB") we must decide whether a union violates Sec. 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1) ("NLRA") by initiating internal union charges against a union member and reporting him to unemployment compensation authorities in retaliation for activity This court has jurisdiction pursuant to 29 U.S.C. Sec. 160(e). We set out the facts in some detail as they provide insight into the motive for Local 139's conduct toward union member William Evans and, with regard to the referral list information, demonstrate an intent that is inconsistent with the union's duty to fairly represent all employees within the bargaining unit.

protected by Sec. 7 of the NLRA and whether a union breaches its duty of fair representation by refusing a union member's request for referral list information from the union hiring hall.

William Evans, a member of Local 139 of the International Union of Operating Engineers, has been an open and vocal critic of the current administration of Local 139. Donald W. Shaw, the president and business manager of the union, has responsibility for administration of the union hiring hall. Evans previously held the position of union business agent but resigned because of a disagreement with Shaw over union referral practices shortly after Shaw took office in 1977.

Since his resignation, Evans has protested, reported, and filed internal union charges alleging Shaw engaged in unfair election practices and hiring hall referral abuses. Evans publishes a newspaper, the Ethical Engineer, to expose what he believes to be corruption in the Shaw administration and to encourage fellow Local 139 members to oppose Shaw's policies and practices.

I. Internal Union Charges and Report to WDILHR

Shortly after Evans' resignation in 1977, the Shaw administration embarked on an effort to quiet Evans by thwarting his efforts to express publicly his disapproval of the Shaw administration. In August of 1982, Shaw initiated internal union charges against Evans alleging that Evans had violated union bylaws and the international union constitution by slandering union officers, creating dissension among the members, and disclosing the business transactions of Local 139 to persons outside the local. Shaw admits that he filed the charges because of information Evans had published in the Ethical Engineer. The union membership found Evans guilty as charged. Although the International Union had told Shaw that Local 139 could not fine Evans for the conduct with which Evans was charged, Shaw convinced the union members that Evans' dissension had required Local 139 to spend thousands of dollars defending itself against Evans' charges and that an appropriate penalty would be to require Evans to pay a token "reimbursement" of $5,000, with $3,000 to be returned to Evans on the condition that he attend the next twelve meetings. Evans was then required to travel to Washington, D.C. at his own expense, to appeal the conviction. The International Union reversed both the conviction and the penalty.

In another effort to harass Evans, Local 139 referred a job to him knowing that it would conflict with the date of the NLRB hearing in this matter and then reported him to the Wisconsin Department of Industry, Labor and Human Relations (WDILHR) for refusing to accept the job referral. Consequently, the WDILHR terminated Evans' unemployment compensation benefits. Prior to this incident, Evans had not received a job referral from the union in three years. Shaw testified that prior to reporting Evans to the WDILHR the union had consistently adhered to a policy of refusing to release referral information to any union member or governmental agency without a court order. The NLRB found that by charging, trying, and fining Evans on internal union charges and by reporting him to the WDILHR, Local 139 violated Sec. 8(b)(1)(A) of the NLRA by restraining him in the exercise of protected activity within Sec. 7 of the NLRA. Operating Engineers, Local 139, 273 N.L.R.B. No. 126 (1984).

On petition for enforcement of an NLRB order, this court upholds findings of fact if they are supported by substantial evidence in the record as a whole. NLRB v. Denver Building and Construction Trades Council, 341 U.S. 675, 691-692, 71 S.Ct. 943 The NLRB found that Evans' publication of the Ethical Engineer qualified as concerted activity within the protection of Sec. 7 and that the union's motive in bringing internal union charges against Evans and in reporting him to the WDILHR was to retaliate against Evans for publishing the Ethical Engineer. Local 139 argues that Evans' complaints about union leadership were not "concerted activities."

952-53, 95 L.Ed. 1284 (1951); NLRB v. Chauffeurs, Teamsters, Warehousemen & Helpers, 773 F.2d 921, 923 (7th Cir.1985). Moreover, we substantially defer to the NLRB's interpretation and application of the NLRA because of its "special competence" in the field of labor relations. Pattern Makers' League of North America, AFL-CIO v. NLRB, --- U.S. ----, 105 S.Ct. 3064, 3068, 87 L.Ed.2d 68 (1985).

Section 7 of the NLRA, 29 U.S.C. Sec. 157, guarantees employees the right to self-organization, "to form, join, or assist labor organizations, to bargain, collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection", and the right to refrain from such activities. Section 8(b)(1)(A) makes it an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed by Sec. 7. 29 U.S.C. Sec. 158; Local 1384, United Automobile, Aerospace and Agricultural Implement Workers of America, v. N.L.R.B., 756 F.2d 482, 487 (7th Cir.1985).

The NLRB found two alternative grounds for deciding that Evans' publication of the Ethical Engineer was protected by Sec. 7 activity. First, it adopted the Administrative Law Judge's finding that the activity was concerted activity because Russell Retzack, a fellow union member of Evans, assisted Evans in publishing the Ethical Engineer and in exposing what they believed to be corrupt practices of the union administration. Second, the NLRB adopted the Administrative Law Judge's conclusion that even if Retzack had not assisted Evans, Sec. 7 rights include the right to participate fully and freely in internal union affairs by questioning the wisdom of union representatives or taking action to align the union membership with one's own position.

To fall within the scope of concerted activity, an employee's action must be taken "for the purpose of inducing or preparing for group action to correct a grievance or complaint." United States Steel Corp. v. NLRB, 711 F.2d 772, 775 (7th Cir.1983); NLRB v. Town & Country L.P. Gas Service Co., 687 F.2d 187, 191 (7th Cir.1982). In United States Steel Corp. v. N.L.R.B., we found that an employee had engaged in concerted activity protected by Sec. 7 in honoring another union's picket line and distributing, to his fellow employees, leaflets in support of the picket line. Although he had written, typed, printed, and distributed his leaflets alone, his distribution of the leaflets was "concerted" activity because it was an attempt to induce group action on the part of his fellow employees. 711 F.2d at 775.

In N.L.R.B. v. Town & Country L.P. Gas Service Co., an employee's individual act of filing a grievance concerning his own discharge was "concerted" because resolution of the grievance sufficiently related to collective union objectives as the grievance was essentially a challenge to the company's disparate treatment of employees. 687 F.2d at 191.

In the present case, we agree with the NLRB that Evans' conduct in publishing the Ethical Engineer falls within the definition of concerted activity. The NLRB found that Evans acted with another union member to publish the Ethical Engineer and that their purpose was to incite action against Shaw and his union practices. This is a clear example of concerted activity by employees for mutual aid and protection. We also would sustain the NLRB's alternative finding that an individual employee engages in concerted activity by taking action to align the union membership with his own position against the union representatives.

Next we must consider whether disciplining Evans and reporting him to the WDILHR in retaliation for Sec. 7 concerted activity is an unfair labor practice proscribed by Sec. 8(b)(1)(A). Section 8(b)(1) makes it an unfair labor practice to "restrain or coerce (A) employees in the exercise of the rights guaranteed in [Sec. 7]: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition and retention of membership therein ..." 29 U.S.C. Sec. 158(b)(1).

As explained above, when employee members of a union undertake to inform fellow members of what they believe to be corruption of union officials, they are engaging in "concerted activity." Therefore, imposing fines on these employees for their dissident activities "restrains" the exercise of their Sec. 7 rights. However, the terms "restrain or coerce" in Sec. 8(b)(1)(A) are not interpreted so literally as to make it an unfair labor practice for a union to enforce compliance with union...