The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2001 Decided December 28, 2001
No. 00-1505
Joseph G. Podewils and Gerald Nell Inc.,
Petitioners
v.
National Labor Relations Board,
Respondent
International Brotherhood of Electrical Workers,
Local 494,
Intervenor
Petition for Review of an Order of the
National Labor Relations Board
Kevin J. Kinney argued the cause for petitioners. With
him on the briefs was Gene M. Linkmeyer.
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney.
Matthew R. Robbins argued the cause for intervenor.
With him on the brief was Jonathan M. Conti.
Before: Edwards and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Silberman.
Silberman, Senior Circuit Judge: Joseph G. Podewils and
Gerald Nell Inc. petitioned for review of the National Labor
Relations Board's determination that Local 494 of the Inter-
national Brotherhood of Electrical Workers (the Local) did
not violate section 8(b)(1)(B) of the National Labor Relations
Act1 by fining its member Podewils $100,000 after he went to
work as a supervisor at Gerald Nell. The Board's decision
turns on its finding of fact that the Local was not seeking a
collective bargaining relationship with the company when it
processed an internal charge against Podewils. That finding
is not supported by substantial evidence and therefore we
grant the petition for review.
I.
This case involves the limits on a union's ability to disci-
pline a member who is also performing labor relations super-
visory functions. Podewils was a rank-and-file member of the
Local from 1976 to 1997, when he went to work as a manag-
er--running the electrical division--for Gerald Nell Inc. (a
nonunion shop). Before beginning work at Gerald Nell,
Podewils went to the Local's office twice in October 1997 and
filled out an honorary withdrawal card, informing Leon Bur-
zynski, a business representative for the Local, that he was
withdrawing for personal reasons. From October to Decem-
ber 1997, Burzynski, acting on an anonymous tip that Podew-
ils was working at Gerald Nell, sought him out. On Decem-
__________
1 29 U.S.C. s 153 et seq. (2001).
ber 1, 1997, Burzynski went to the company's offices to find
Podewils; he claimed his intention was to verify that Podewils
was working there. But the ALJ refused to credit Burzyn-
ski, since he could easily have verified Podewils' employment
by a phone call. Burzynski, instead of pursuing the issue
whether Podewils could legitimately withdraw from the Un-
ion, asked: "Is there any possibility you being here means
that the electricians here might become union." Podewils
responded "that wouldn't happen here ... that wouldn't be
an option." Burzynski gave Podewils his business card with
his home phone number written on the back, which the ALJ
found was for the purpose of giving Podewils an opportunity
to change his mind. The business representative then went
back to his car and immediately drew up an internal charge
against Podewils for violating several provisions of the
I.B.E.W. Constitution--one violation was for working for a
nonunion employer while still a member of the Union. Po-
dewils did not call Burzynski and the latter filed charges with
the Local two weeks later.
Two months after that, the Local informed Podewils by
letter that he had been charged with violating the I.B.E.W.
Constitution. After a hearing, to which Podewils was invited
but did not attend, the Local informed him that he had been
found guilty and assessed a fine of $100,000. Burzynski
testified that the penalty was proper because Podewils had
already been responsible for over $250,000 of work that
should have been "done union." Podewils sought counsel
after receiving notice of the fine and appealed to the Interna-
tional, which reduced the fine to $10,000, based on Podewils'
salary and the period of time he had worked for Gerald Nell
as opposed to the amount of union work allegedly lost.
Petitioners then filed unfair labor practice charges against
the Local and the International alleging a violation of section
8(b)(1)(A), which makes it unlawful for a labor organization or
its agents "to restrain or coerce ... employees in the exercise
of the rights guaranteed in section 157 of this title[,]" for
disciplining Podewils after he resigned from the Union and
also a violation of 8(b)(1)(B), which makes it unlawful "to
restrain or coerce ... an employer in the selection of his
representatives for the purpose of collective bargaining or the
adjustment of grievances...." 29 U.S.C. ss 158(b)(1)(A),
(b)(1)(B).
The ALJ rejected petitioners' contention that Podewils had
effectively resigned from the Union, so he concluded the
Local did not violate section 8(b)(1)(A) of the Act. He found
that there was no credible evidence to support Podewils'
contention that he mailed the Local a resignation letter it did
not receive. Turning to the section 8(b)(1)(B) allegation, and
applying the three-part test set out in NLRB v. Electric
Workers IBEW Local 340 (Royal Electric), 481 U.S. 573, 585-
89 (1987), the ALJ made the following three findings: Podew-
ils was a section 8(b)(1)(B) "grievance adjuster"; the Local
was seeking to unionize Gerald Nell's employees; and the
$100,000 fine was intended to adversely affect Podewils in the
performance of his section 8(b)(1)(B) duties. The ALJ recom-
mended dismissal of all allegations against the International.
The general counsel, petitioners and the Local all filed
exceptions. The Board adopted the ALJ's recommended
dismissal of the 8(b)(1)(A) allegation as well as the dismissal
of the charges against the International. But the Board
reversed the ALJ's finding that the Local was seeking a
contractual relationship with Gerald Nell. The Board pur-
portedly found no basis for disputing the ALJ's credibility
findings but thought the only evidence supporting the general
counsel's contention that the Local was seeking a collective
bargaining relationship with Gerald Nell was Burzynski's
inquiry. And that remark "standing alone, falls short of the
kind of concrete evidence necessary to show a union is
currently and actually seeking ... a collective bargaining-
relationship." Member Hurtgen dissented. Petitioners con-
test only the Board's determination that the Local did not
violate 8(b)(1)(B).
II.
The law governing this case is undisputed. A union vio-
lates 8(b)(1)(B) by disciplining a supervisor who has either
collective bargaining or grievance adjusting duties and there-
by coercing an employer only if it has, or is seeking, a
collective bargaining relationship with the employer. See
Royal Electric, 481 U.S. at 590.2 The Board has not adopted
the interpretation of section 8(b)(1)(B) Justice Scalia ad-
vanced in his Royal Electric concurrence: that the section
only applies "to circumstances in which there is an actual
contract between the union and affected employer, without
regard to whether the union has an intent to establish such a
contract." Id. at 597 (Scalia, J., concurring). The Board has
said that in the absence of an existing collective bargaining
relationship "the evidence must show that the union engaged
in specific overt acts such as picketing or hand-billing for
recognition, soliciting authorization cards, or making state-
ments to an employer indicating a concrete interest in repre-
senting the employer's employees, as opposed to a long-term
objective of organizing employees generally." Plumbers Lo-
cal 597, 308 N.L.R.B. 733, 733-34 (1992) (emphasis added).
The Board did not purport to alter this articulation of the
applicable legal standard. Instead, the Board, reversing the
ALJ, found that the Local was not in fact actually seeking a
collective bargaining relationship with Gerald Nell--Burzyn-
ski's statement was not sufficiently "concrete"--and petition-
ers claim its finding lacks substantial evidence on the whole
record.
So much would appear straightforward. But counsel for
the Board and for the intervening Local have sought to divert
our attention. The Board argues extensively in its brief that
its finding that Podewils did not resign from the Union is
entitled to deference, despite the fact that petitioners explicit-
ly do not challenge that finding and the resulting determina-
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2 The Supreme Court's opinion carefully limiting 8(b)(1)(B) to the
case of a union that has or is seeking a collective bargaining
relationship with an employer is in part based on the premise that a
union member--particularly a supervisor--has "a right to resign
from a union at any time and avoid imposition of union discipline."
Royal Electric, 481 U.S. at 595 (emphasis added). This case
suggests it may not always be that easy. The ALJ found that each
Local office worker testified that he or she was under no obligation
to explain to Podewils he should resign, not withdraw.
tion that the Local did not violate 8(b)(1)(A). At oral argu-
ment the Board's counsel also suggested that the discipline
meted out to Podewils was not really designed to impact the
employer's selection of a grievance adjuster (although just
how Podewils could manage the electrical division without the
ability to adjust grievances seems obscure). Yet the Board
did not even suggest that ground in its decision.
The intervenor, for its part, argued that Podewils should
not really be considered a grievance adjuster presumably
because that term should be limited to grievances that arise
out of a collective bargaining relationship. See Royal Elec-
tric, 481 U.S. at 588 n.12. Intervenor's difficulty is that the
Board did not rest its decision on this reasoning; the Board
assumed that Podewils qualified as a grievance adjuster.
We agree with petitioners. The inferences the Board
draws from the evidence are quite unreasonable and there-
fore under Allentown Mack Sales & Servs. v. NLRB, 522
U.S. 359, 378 (1998), the Board's finding must be rejected.
See also Warshawsky & Co. v. NLRB, 182 F.3d 948, 953 (D.C.
Cir. 1999). First there is an internal contradiction in the
Board's decision. It purported not to disturb the ALJ's
credibility findings. Yet it rejected the ALJ's conclusion,
based on his refusal to credit Burzynski, that the business
agent personally went to Gerald Nell to confront Podewils
(rather than simply call to verify his employment) for the
very purpose of seeking union recognition. The Board mere-
ly stated that it refused to draw an "inference" that the Local
had an "improper retaliatory purpose" because of the person-
al visit. The question, however, is whether that personal visit
was itself evidence of the Local's attempt to gain recognition
and the Board advanced no reasons to reject the ALJ's
finding, buttressed by his credibility determination, that it
was.
Moreover, the Board also refused to draw any inference
from the fact that Burzynski left his business card and
telephone number with Podewils, rejecting the ALJ's finding
that Burzynski's purpose was to give Podewils a chance to
change his mind concerning establishing a collective bargain-
ing relationship with the Local. This also seems to be a
rather off-hand rejection of the ALJ's credibility determina-
tion, but, in any event, the Board's explanation is ridiculous:
that leaving his card with Podewils was consistent with
"Burzynski's responsibility as a business representative to
communicate with constituent members such as Podewils."
One does not have the impression that Burzynski wished to
communicate with Podewils as his business representative.
Burzynski admitted, moreover, that if Podewils had called
with a change of mind Burzynski would not have filed
charges. The ALJ took that as further evidence linking the
Local's purpose to gain a collective bargaining relationship
with the retaliatory fine against Podewils. The Board rea-
soned, however, that if Gerald Nell had recognized the Local
the charges would have been mooted since Podewils would no
longer be working for a non-union company. As petitioners
suggest, that reasoning includes a logical flaw; Podewils
would still have violated the I.B.E.W. Constitution, according
to the Local, by his past behavior, so Burzynski's posture can
only support a recognition motive.
Finally, the Board ignores a damaging piece of evidence--
the elephant in the room so to speak--that along with Bur-
zynski's visit and comments to Podewils conclusively estab-
lishes that the Local sought a collective bargaining relation-
ship with Gerald Nell and retaliated against Podewils for not
providing it. That evidence is the size and basis for the fine.
Counsel for the Board argues that the reasonableness of an
internal union fine is not a matter which we can consider.
That is so, but we certainly can look at the size and purpose
of the initial fine, as did the ALJ, for the purpose of deter-
mining the Local's motivation. And the subsequent modifica-
tion of the fine by the International, both as to the amount
and basis, is not really relevant to the Local's intent. If
anything, it is damning since it reflects the International's
realization that the Local was in an untenable legal position.
Not only did the Local levy on Podewils the staggering fine
of $100,000, it made clear that the fine was based not on
Podewils' salary, but on the supposed amount of money the
Local had lost because Gerald Nell was unorganized. We
think it is quite astonishing that the Board ignores this
evidence.
To be sure, as the Board noted, the Local never engaged in
solicitation of authorization cards, picketing or hand-billing,
nor did it demand recognition. But unions often gain recog-
nition--particularly in certain crafts--from the top down, by
simply requesting recognition from a sympathetic manager or
asking a sympathetic manager to help with organizing, which
is exactly what the ALJ determined was the Local's purpose.
That Burzynski did not make a demand for recognition or
engage in public organizational efforts probably reflected a
lack of employee support. It is flatly unreasonable, however,
to conclude, as the Board does, that his solicitation was
somehow not "concrete evidence" that the Local was seeking
a collective bargaining relationship with Gerald Nell--particu-
larly when combined with the balance of the evidence. The
statement itself was not coercive but that hardly detracts
from its probative value as an indication of the Local's
objective.
In light of the whole record, the Board's treatment of
Burzynski's inquiry as not "concrete" enough to establish that
the Local was "actually" seeking a collective bargaining rela-
tionship at Gerald Nell is equivalent to an attempted robbery
case where it is argued that a panhandler's "request" for a
contribution is not concrete enough to establish his objective
despite the fact that when he is refused he hits the victim in
the head with a club.
* * * *
Accordingly, the petition for review is granted.
So ordered.