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Union lawfully fined member who reported safety rule violation, prompting coworker’s suspension; 30-year NLRB rule overturned

The NLRB’s longstanding policy that it is a per se unfair labor practice for a union to discipline a member who complies with an employer’s safety rules is not in accord with the NLRA, the DC Circuit concluded (Int’l Assoc of Operating Eng’rs, Local 513 v NLRB, April 5, 2011, Silberman, L). The appeals court therefore granted review of a Board finding that the operating engineers’ union violated Sec. 8(b)(1)(A) of the Act when it fined a union member $2,500 for reporting another member’s safety infraction, as required by the employer’s safety procedures.

Background. A three-member panel of the NLRB ruled that Local 513 of the International Union of Operating Engineers violated the NLRA when it fined an employee for reporting, in compliance with the employer’s safety rules, a safety violation committed by another union worker. The safety rules required employees to report any safety violation or risk facing discipline. The employee (a member of a different local, working on-site under a union “traveler permit”) saw that a piece of equipment was not fully extended, reported the issue to a supervisor, and sought to determine who was responsible. An investigation revealed that another union member was responsible, prompting the member’s three-day suspension. The union filed internal union charges against the employee for gross disloyalty and conduct unbecoming a union member. Alleging the employee’s decision to report the violation constituted harassment of his fellow union worker, and that he had evinced a pattern of abusive behavior toward his fellow members, the union imposed the fine.

The Board adopted an ALJ’s finding that the fine violated the employee’s Sec. 7 rights. Employees who comply with safety rules, found the ALJ, are deemed to engage in concerted behavior, because Sec. 7 gives employees the right to refrain from joining employees who ignore safety rules. The Board dismissed the union’s argument that the reporting was not concerted activity, citing Board precedent that the Act is violated when a union disciplines an employee for reporting another employee’s safety violations if, as was the case, the employee would face discipline for failing to report the violation. The union sought appellate court review of the Board’s finding.

Thirty-year rule rejected. Since 1977, the NLRB has found it to be a per se unfair labor practice for a union to discipline a member who has complied with an employer’s safety rules, regardless of whether the employee acted in concert with other employees or in opposition to other employees acting in concert. Despite the longstanding application of this rule, and its endorsement by the Ninth Circuit, the DC Circuit agreed with the union that this policy cannot be reconciled with the NLRA.

The Board’s position is that a union violates Sec. 8(b)(1)(A) if it disciplines a member for reporting a safety violation, which he has a duty to report, irrespective of whether there is a finding of concerted activity. “Although we give wide deference to the Board’s interpretation of the general language of the National Labor Relations Act,” the court wrote, “the Board here does not even purport to rely on an interpretation of the Act’s language.” Instead, the Board relied on two Supreme Court rulings in support of its interpretation of the Act. In both cases cited, however, the Court first had found that concerted activity was present.

“We recognize that the Board has followed for more than thirty years the interpretation of section 8(b)(1)(A) that it advances here,” the court noted. “But consistency alone cannot save the Board.” Finding no support for the NLRB’s position in the text of the statute, the appeals court granted the union’s petition for review of the Board’s order finding that the union violated the Act.