Petition for enforcement of an order of the National Labor Relations Board, 252 N.L.R.B. 936 (1980), directing the respondent Union to rescind its disciplinary action against 17 of its members for resisting its ban against their performing overtime work for their employer and to compensate them for losses suffered by reason of the ban. The Board found that the ban was an unfair labor practice in violation of § 8(b) (1) (A) of the National Labor Relations Act and was not adopted in response to alleged unfair labor practices on the part of the employer.
Feinberg, Chief Judge, Mansfield, Circuit Judge, Mishler, District Judge.*fn*
MANSFIELD, Circuit Judge:
The National Labor Relations Board (the "Board") petitions pursuant to § 10(e) of the National Labor Relations Act (the "Act"), as amended, 29 U.S.C. §§ 151, et seq., for enforcement of an order issued by it on September 20, 1980, against GAIU Local 13-B, Graphic Arts International Union (the "Union"), directing it to rescind its disciplinary action against 17 of its members because of their resistance to a Union ban against performing overtime work for the Western Publishing Co. (the "Employer"). The order also requires the Union to nullify its overtime ban, to compensate the disciplined members for losses suffered as a result of the ban, and to post appropriate notices. We enforce the Board's order.
The Union represents employees at the Employer's Poughkeepsie plant, which publishes books and similar materials, employing some 500 persons engaged in production and related activities, driving of in-plant equipment and janitorial services. Following the expiration on May 16, 1978, of the contract between the Employer and the Union the parties negotiated while the employees continued working without a contract. Under the terms of their employment the employees were obligated to perform paid overtime work when assigned by the Employer.
On July 14, 1978, the Employer advised 13 employees that they would be suspended for one day each because of their refusal to perform assigned mandatory overtime work but postponed putting the suspensions into effect. On August 28, 1978, the Union held a membership meeting at which 320 out of a total of 490 Union members were present. The members voted 220 for and 100 against adopting a work rule, effective at once, prohibiting members from performing mandatory overtime work. On August 30, 1978, the Employer responded by discontinuing overtime work. However, in October it reinstituted overtime to meet customers' needs, first advising employees that it did not intend to discipline employees who refused to work overtime but then returning to a mandatory overtime policy. Thereafter at least 17 employees who were Union members worked overtime in violation of the Union rule banning overtime.
On October 25, the Union began disciplining each of the 17 members through internal union charges, fines and lawsuits. A $50 fine was imposed on each of these employees for each day worked overtime. Also on October 25 the Union filed with the Board a complaint alleging that the Employer had committed unfair labor practices by failing to bargain with it in good faith and by improperly communicating directly with the employees.
On December 6, 1978, a unit employee who had been fined by the Union for violating its overtime ban filed a complaint with the Board against the Union charging that the ban was an unfair labor practice. On December 7, 1978, the Employer informed the Union that because of the bargaining impasse it would on December 11 put into effect the terms of its final contract offer but would not change the work hours to 37 1/2 hours per week, "due to [the Union's] continued threat of fines and discipline against employees who work in excess of 36 1/4 hours." On December 18, 1978, the Union filed a second unfair labor practice charge against the Employer, adding that it had unlawfully made unilateral changes in work conditions without a valid bargaining impasse. This was followed by a Union notice to its members on January 3, 1979, lifting the overtime ban but advising that if the Employer changed the existing 36 1/4-hour work week the ban would be reinstated immediately. The Employer then notified employees that it planned to put its proposed 37 1/2-hour work week into effect when the Union ended its threats of fines and discipline. After an unsuccessful bargaining session on January 16, 1979, the Employer advised that it intended to implement the 37 1/2-hour work week on January 22, 1979, whereupon the Union advised that the ban was "back on."
The unfair labor practice charges filed by the Union against the Employer were settled by an agreement, approved by the Regional Director, between the Board's General Counsel and the Employer, in which the Union did not participate. The charges against the Union were heard by an Administrative Law Judge ("ALJ"), who found the Union's ban against overtime to be a lawful self-help response to the Employer's unfair labor practices allegedly committed during collective bargaining. Since the charges against the Employer had been settled the ALJ declined to hear evidence as to its commission of unfair labor practices. He did, however, admit testimony of the Union's recording secretary as to what was said at the meeting at which the ban was adopted but excluded various exhibits offered by the Union to prove that the Employer had engaged in unfair labor practices. Aside from the evidence of what transpired at the meeting the Union did not offer proof to show its reasons for adopting the ban.
A three-member Board panel reversed the ALJ's decision, holding that the ban had not been adopted in response to any unfair labor practices but "solely as a bargaining tactic, designed to put economic pressure on Western [Employer] and to force Western to make bargaining concessions.. . .", 252 N.L.R.B. 936, 938. It based its finding on a record showing that the Union had filed
"no charges . . . against Western until almost 2 months after the overtime ban was implemented, that there is no evidence of any discussion at the August 28 union meeting characterizing Western's actions as unfair labor practices, that [the Union's] notice announcing the overtime ban makes no reference to Western's alleged unfair labor practices, and that the meager evidence as to the discussion at the August 28 union meeting indicates the employees were mainly concerned with Western's failure to reach an agreement with the Union quickly." Id.
The Board then concluded that the Union's disciplining of members who engaged in unprotected activity (i.e., refusal to perform mandatory overtime, for which they might lawfully be subjected to suspension or discharge by the Employer) violated "an overriding policy of the labor laws," Scofield v. NLRB, 394 U.S. 423, 429, 22 L. Ed. 2d 385, 89 S. Ct. 1154 (1969), and therefore constituted an unfair labor practice under § 8(b) (1) (A) of the Act. The Board order, which is the subject of the present petition, followed.
Section 8(b) (1) (A) of the Act, 29 U.S.C. § 158(b) (1) (A), makes it an unfair labor practice for a union to "restrain or coerce" employee-members in the exercise of their rights under § 7, 29 U.S.C. § 157, which includes the right to engage in or refrain from concerted activities, but § 8(b) (1) (A) preserves to the union the right "to prescribe its own rules with respect to the acquisition or retention of membership therein." However, the latter proviso does not permit a union to adopt rules which are not in furtherance of a legitimate union interest or which are counter to an overriding policy of the labor laws, Scofield v. NLRB, 394 U.S. 423, 429, 430, 22 L. Ed. 2d 385, 89 S. Ct. 1154 (1969); NLRB v. Industrial Union of Marine & Shipbuilding Workers of America, 391 U.S. 418, 424, 20 L. Ed. 2d 706, 88 S. Ct. 1717 (1968), such as fining a member for filing a charge with the Board, NLRB v. Industrial Union of Marine & Shipbuilding Workers of America, supra, 391 U.S. at 424, or for refusing to take part in conduct that violates the Act or the collective bargaining agreement, Local 1104, Communications Workers of America v. NLRB, 520 F.2d 411, 415 (2d Cir. 1975), cert. denied, 423 U.S. 1051, 46 L. Ed. 2d 639, 96 S. Ct. 778 (1976); NLRB v. Communications Workers ...