NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,471, TEAMSTERS LOCAL UNION NO. 741, LINE DRIVERS, PICKUP AND DELIVERY aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO et al. (A.B.F. Freight System) and LARRY HATHAWAY., (Sep. 13, 1994), National Labor Relations Board, (Sep 13, 1994)

TEAMSTERS LOCAL UNION NO. 741, LINE DRIVERS, PICKUP AND DELIVERY aw INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO et al. (A.B.F. Freight System) and LARRY HATHAWAY.

314 NLRB No. 179.Case Nos. 19-CB-7025 and -7170. September 13, 1994 Joan Wieder, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Michael Hurtado, for General Counsel. Ken Pedersen, Seattle, Washington, for Respondent.

Union Fines and Disciplinary Action--Internal Charges--Harmful Protected Activity.--Although a union member’s act of asking his employer when a job rebid would occur was a protected activity under the NLRA, this did not serve, under the facts of the case, to immunize the member from internal union discipline. After a new national agreement changed the job bidding procedure, a union steward had filed a grievance and a union local would not agree to a total rebid until the grievance was resolved. However, after the member’s inquiry, the employer scheduled the rebid without consulting the union. The union acted lawfully when it sought to enforce a rule that required members not to interfere with their elected officials in the performance of their duties and not to wrong their fellow members “from selfish motives.” Section 8(b)(1)(A).

Back references: ¶4350.54 and .592.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondents violated Section 8(b)(1)(A) of the Act by, inter alia, instituting charges against and fining Larry Hathaway, a member-employee, because Hathaway inquired of the Employer when a rebid would be scheduled, conduct that the judge found was concerted activity protected under Section 7 of the Act. [1] Although recognizing that the Board does not regulate a union’s conduct in imposing and enforcing fines in the administration of internal union rules when that conduct falls within the proviso to Section 8(b)(1)(A) of the Act, [2] the judge found that Section 9(a)’s guarantee of an employee’s Section 7 right to present grievances to his employer was an “overriding labor policy” that constituted an exception to that rule. [3] Accordingly, the judge concluded that “[t]he Respondents’ rights under the proviso to Section 8(b)(1)(A) [were] clearly circumscribed by Section 9(a)” and found the violation. For the reasons set out below, we reverse.

The facts were fully set out in the judge’s decision. In brief, A.B.F. Freight System (A.B.F.) is a trucking company engaged in the transportation of dry goods throughout North America. Rick Porter is the manager of its Kent, Washington facility, the only facility at issue here. A.B.F. and Local 741 are parties to a collective-bargaining agreement covering the drivers at the Kent facility. The contract incorporates by reference the Western States Supplemental Agreement and the National Master Freight Agreement. Under the contract, A.B.F. is required to post regular runs for bid on a seniority basis. The contract also requires A.B.F. to offer at least 80 percent of its employees on the seniority roster a guaranteed 40-hour workweek (the “80 percent rule”). The remaining 20 percent of the employees on the seniority list work as “floaters” on an as needed basis. The contract requires A.B.F. to have a complete rebid once a year. In addition, in order to ensure compliance with the 80-percent rule, A.B.F. makes general adjustments to the bid when additional employees are added to the list or laid off. Porter discusses such adjustments with the Union prior to their posting.

In January 1991, [4] Porter contacted Union Stewards Pennington and Dibble regarding a pending bid adjustment required by the contemplated layoff of several employees. They, in turn, notified the Union. Local 741 Business Agent Rockas then contacted Porter and negotiated a “work sharing agreement” whereby drivers with seniority could take a week off without risk of discipline while “floaters” filled in as needed. Under this arrangement “floaters” could work the 40 hours a month required for eligibility for health and welfare benefits under the contract. As a result of this oral agreement, A.B.F. did not lay off any employees in January.

In mid-March, Local 741 members received copies of the tentative new National Master Freight Agreement effective April 1, 1991. During his review of the Western States Supplement to the new agreement, Union Steward Pennington noted that there was a change in the bidding provisions. Under the new agreement, multiple bids, which were permitted under the old contract, were restricted. [5] A.B.F. regularly posted such multiple bids. Pennington informed Porter of the change and noted that it would preclude A.B.F. from using the multiple bid system in the future. Pennington testified without contradiction that Porter replied that there was no way that that was going to happen as it would put the Company out of business and that “the only way we’d get singular bids is if [Pennington] grieved it and won.” On April 1, Pennington filed a grievance in an attempt to get A.B.F. to use single bids. Local 741 would not agree to a total rebid until the grievance was resolved.

Meanwhile, at the end of March or the beginning of April, Charging Party Hathaway stopped by Porter’s office and asked Porter when there would be a rebid. Hathaway added that some employees wondered if A.B.F. was going to rebid. [6] At the time, Hathaway held no office in the Union. Porter told Hathaway that he would check into it and get back to him. Porter then informed Pennington and Dibble of Hathaway’s inquiry. The next day Pennington and Dibble told Porter not to rebid and that the employees did not want a rebid. Porter did not rebid.

On Thursday, April 18, Porter scheduled three employees for layoff. Because the 80-percent rule would require an adjustment to the bids, Porter decided to have a general rebid of the board at the same time. The bid was posted on April 19. Porter laid off the employees and rebid the board without consulting the Union. As a result of the rebid, Pennington was one of two employees who lost his bid. Porter rescinded the layoffs and removed the rebid after protests from the Union.

On April 25, Pennington wrote Local 741 to request that formal charges be brought against Hathaway because “Hathaway took it upon himself to attempt to personally force A.B.F. to layoff other brother teamsters to benefit himself.” Pennington also charged that Hathaway, “without union representation or sanction,” went to Porter “to cause harm to other union members and undermining [sic] an agreement that Steward[s] Dibble and [Pennington] had made with Dick Porter to keep our Teamster Brothers from being laid off.” Pennington concluded by asserting that Hathaway’s actions had “caused considerable financial hardship to our brothers on the bottom of the board,” and that Hathaway “need[ed] to call for a stewards election or stay out of [Porter’s] office.”

After a hearing at which Hathaway chose not to appear, Local 741 found that Hathaway had violated article II, section 16 of its bylaws, [7] article XIX, section 6(b), paragraphs (2) and (5) of the International’s constitution, [8] and Local 741’s oath, which provides “I ... will never from self motives wrong a brother, or see him wronged if in my power to prevent it.” Local 741 fined Hathaway $300. Hathaway paid the fine under protest and appealed the decision. In November 1991, Joint Council 28 affirmed Local 741’s imposition of the fine and in May 1992 the International’s general executive board upheld Joint Council 28’s denial of Hathaway’s appeal.

As an initial matter, we agree with the judge that Hathaway was engaged in concerted activity protected under Section 7 of the Act when he inquired of Porter when a rebid would occur. Thus, the issue here is whether the Respondents violated Section 8(b)(1)(A) by filing charges against and disciplining Hathaway for engaging in activity protected under Section 7. As the judge found, the outcome depends on whether the Union’s action was protected under the proviso to Section 8(b)(1)(A). In analyzing the interplay between Section 8(b)(1)(A) and its proviso, we observe that the Supreme Court in Scofield v. NLRB, 394 U.S. 423, 428 (1969), noted in its analysis of the same section of the Act that:

the Court in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967), distinguished between internal and external enforcement of union rules and held that “Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union’s internal regulations to affect a member’s employment status.”

The Scofield Court went on to observe, however, that “it has become clear that if the [union’s] rule invades or frustrates an overriding policy of the labor laws, the rule may not be enforced, even by fine or expulsion, without violating Section 8(b)(1).” Id. at 429. In concluding its analysis of this section of the Act, the Court stated:

Under this dual approach, §8(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.]

Applying this analysis here, we turn first to whether the Respondents “enforce[d] a properly adopted rule which reflects a legitimate union interest” as Scofield requires. In finding that they did, we emphasize initially that “the mere fact that the discipline is in reprisal for a Section 7 right is not sufficient to condemn the discipline.” Boilermakers (Kaiser Cement), [1993-94 CCH NLRB ¶15,051] 312 NLRB 218, 220 (1993). Thus, in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), the Supreme Court held that a union could fine employee-members for exercising the Section 7 right to cross a picket line during a strike. As the Board explained in Meat Cutters Local 593 (S & M Grocers), [1978 CCH NLRB ¶19,565] 237 NLRB 1159, 1160 (1978):

The Supreme Court in Allis-Chalmers recognized that the right of collective bargaining is a paramount policy of national labor law, and that in order for a union to fulfill this obligation it must be able to promulgate its own rules and have the right to impose reasonable discipline on members who do not obey such rules. The Court further found that integral to this policy is the union’s right to protect itself against the erosion of its status of collective-bargaining representative by reasonably disciplining members for violating internal regulations.

Here the Respondents sought to enforce rules that required members not to interfere with their elected officers in the performance of their duties and not to wrong their fellow members “from self[ish] motives.” We find that such rules were reasonably designed to prevent “the erosion of [the Respondents’] status of collective bargaining representative.” When the Employer posted the April 19 bid and laid off several employees, Local 741 officials believed that Hathaway’s rebid inquiry occasioned the bid and caused the Employer to break the work-sharing agreement with the consequent layoff of several employees. In addition, Hathaway’s inquiry--which suggested by its reference to other employees that he represented unit employee sentiment--undermined Pennington’s tactical decision to withhold agreement for any rebid until the grievance over the Employer’s use of multiple bids was resolved. Thus, Local 741 reasonably believed that Hathaway’s conduct undermined its efforts on behalf of the bargaining unit employees and was “inimical to the union as an entity and collective-bargaining mechanism.” [9] In sum, we find that Hathaway engaged in conduct for which Local 741 could lawfully discipline its own members provided that that conduct was not protected by some “overriding policy of the labor laws.”

Under the second prong of the Scofield analysis, a union rule “impairs ... a policy Congress has imbedded in the labor laws” where the rule conflicts with an overriding public policy and seeks to coerce or discourage conduct that is beyond the legitimate interest of the union. Thus, in NLRB v. Marine Workers, [57 LC ¶12,712] 391 U.S. 418, 424 (1968), the Court found that the respondent union violated Section 8(b)(1)(A) by expelling a member for filing charges with the Board before he had exhausted internal union appeal procedures. In reaching this conclusion, the Court found that unimpeded access to the Board was “an overriding public interest” and that “[a]ny coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization.” [10] Similarly, in Pattern Makers League v. NLRB, [102 LC ¶11,463] 473 U.S. 95, 104-107 (1985), the Court upheld the Board’s finding of an 8(b)(1)(A) violation where a union rule prohibiting resignation during a strike resulted in fines being levied against strike-breaking members who resigned from the union prior to returning to work. The Court agreed with the Board that restrictions on the right of a member to resign from the union at any time violated “the policy of voluntary unionism” embodied in Section 8(a)(3). Thus, employee-members must have the right to resign from the union and thus escape the application of its rules.

Although we agree with the judge that Hathaway’s conduct in inquiring of Porter when a rebid would occur was protected by Section 7 of the Act, as explained above under Scofield, the fact that an employee-member engages in conduct protected by Section 7 does not necessarily immunize the employee-member from internal union discipline. [11] Contrary to the judge, we find that Hathaway’s right to inquire when a rebid would occur was not grounded in such an “overriding policy of the labor laws” that no countervailing rights or policies may be balanced against it to limit its application. Indeed, because protection of an employee’s right to cross a picket line is not an “overriding policy” (Allis-Chalmers), it is difficult to understand how protection of an employee’s mere inquiry into rebidding would somehow be elevated into an “overriding policy.” Rather, in both situations, the Union is free to defend itself against employee-members who act to undermine its authority. In these circumstances, there exists “a legitimate union interest in preventing the erosion of its status as collective-bargaining representative.” Boilermakers, supra at 219. Accordingly, we distinguish the Section 7 right at issue here from the other rights discussed above and conclude that the Respondents’ disciplining of Hathaway did not unlawfully contravene any public policy “imbedded in the labor laws.”

Finally, we note that, as Scofield requires, Hathaway was free to resign from Local 741 at any time and then request a rebid or take other action after he had given up the benefits and obligations of union membership. [12] Moreover, the Union’s action of fining Hathaway did not affect the latter’s employment status. For all these reasons, we find that the Respondents did not violate Section 8(b)(1)(A) as alleged and shall order that the complaint be dismissed.