National Labor Relations Board v. Babcock and Wilcox Company

CELEBREZZE, Senior Circuit Judge,

concurring.

I agree with the majority’s conclusion that Stanford filed his unfair labor practice charge within the period provided by the statute of limitations and that the National Labor Relations Board properly refused to defer to the arbitrator’s decision. I cannot agree, however, with the majority’s conclusion that the principal union representative owes no affirmative duty to discourage an unlawful strike absent clear language to the contrary in the collective bargaining agreement. The majority reasons that a general no-strike provision in the collective bargaining agreement does not contain sufficiently clear language from which an affirmative duty may be implied. In my opinion, a general no-strike clause obligates the principal union representative to inform the rank-and-file that the union opposes the strike and that the strike violates the collective bargaining agreement. Further, I believe that such a duty is not impermissibly destructive of the right to hold union office.

A collective bargaining agreement represents a contractual arrangement between union and management which obligates both to act according to its terms. See, e.g., Steelworkers v. American Mfg. Co., 363 U.S. 564, 567 , 80 S.Ct. 1343, 1346 , 4 L.Ed.2d 1043 (1960); Textile Workers v. Lincoln Mills, 353 U.S. 448, 455 , 77 S.Ct. 912, 917 , 1 L.Ed.2d 972 (1957); Complete Auto Transit v. Reis, 451 U.S. 401, 418 , 101 S.Ct. 1836, 1846 , 68 L.Ed.2d 248 (1981) (Powell, J., concurring). Consequently, a union is obligated by the terms of a no-strike in a collective bargaining agreement to refrain from striking or supporting a strike during the life of that agreement. See, e.g., Buffalo Forge Co., v. Steelworkers, 428 U.S. 397, 407 , 96 S.Ct. 3141, 3147 , 49 L.Ed.2d 1022 (1976); Atkinson v. Sinclair Refining, 370 U.S. 238 , 82 S.Ct. 1318 , 8 L.Ed.2d 1581 (1962). A union’s ability to discharge this obligation, however, often depends upon the conduct of union officials. Complete Auto Transit v. Reis, supra, 451 U.S. at 418, n. 1 , 101 S.Ct. at 1846, n. 1 (Powell, J., concurring). See, Schimman v. Frank, 625 F.2d 80, 94 (6th Cir.1980) (“Unions, like corporations and other artificial entities, can act only through their agents”). If the no-strike clause is to be accorded any practical effect, an agent of the union must assume the union’s responsibilities. Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 228, 230 (7th Cir.1979); Cf. NLRB v. Armour-Dial, Inc., 638 F.2d 51, 56 (8th Cir.1981) (union officials tacit approval of unlawful strike viewed as leadership). Failure to impose such an obligation would effectively permit the union to disregard its obligations under the collective bargaining agreement and would leave the employer without an effective means of assuring the enforce *734 ment of no-strike provisions. 1 Complete Auto Transit v. Reis, 451 U.S. at 420-423 , 101 S.Ct. at 1847-48 (Powell, J., concurring). Therefore, the principal union representative assumes, as incident to his office, the duty to discharge the union’s obligation pursuant to the no-strike clause, the principal union representative must, on behalf of the union, inform the rank-and-file that the strike is unlawful and opposed by the union.

Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158 (a)(1), (3) protect the employee’s right to hold union office and limit the employer’s right to lawfully discharge union officials. 2 Although the right to hold union office is central to employee organizational rights, 3 an employer may legitimately burden that right so long as he acts without anti-union animus. Several rules have been developed by the Supreme Court regarding proof of anti-union animus. If the employer’s action is “inherently destructive” of the employee’s right to hold union office, then anti-union animus is conclusively presumed. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 , 87 S.Ct. 1792, 1797 , 18 L.Ed.2d 1027 (1967). If, however, the employer’s action has only a “comparatively slight” burden upon the employee’s Sec. 7 rights, then the employer may escape the presumption’s effect by producing “evidence of legitimate and substantial business justification for his conduct.” Id.

The obligation that I would impose is not “inherently destructive” of the employee’s right to hold union office. No court which has considered this question in a similar context has found that the imposition of such a duty upon a union official is inherently destructive of the right to hold union office. E.g., Hammermill Paper Co. v. NLRB, 658 F.2d 155, 162-63 (3rd Cir.1979); Gould, Inc. v. NLRB, 612 F.2d 728 (3rd Cir.1979); Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir.1979). The duty posited here requires only that the principal union representative state the unlawful nature of the strike and disavow union sponsorship; the duty would not require, absent express contractual language, *735 union officials to cross picket lines. 4 Metropolitan Edison Co. v. NLRB, 633 F.2d 478 , 582, n. 3 (3rd Cir.1981), cert. granted, - U.S. -, 102 S.Ct. 2926 , 73 L.Ed.2d 1327 (1982); C.H. Heist Corp. v. NLRB, 657 F.2d 178, 183 (7th Cir.1981). Consistent with these authorities, a duty which requires a union official to inform the rank-and-file that a strike is unlawful and opposed by the union gives meaning to no-strike provisions without having an inherently destructive effect upon an employee’s right to hold union office. Furthermore, even if the duty posited has a comparatively slight effect upon employees’ right to hold union office, such a minimal burden is justified. 5 Generally, if an employer’s action could result in some burden on protected activity, the employer must justify his conduct in light of a substantial and legitimate business interest. E.g., NLRB v. Jemco, Inc., 465 F.2d 1148 (6th Cir.1972). Clearly, the employer’s interest in uninterrupted production is substantial and legitimate; the union implicitly recognizes this when it waives its right to engage in concerted activity by agreeing to a no-strike clause. 6 See Complete Auto Transit v. Reis, supra, 451 U.S. at 418-19 , 101 S.Ct. at 1846 (Powell, J., concurring); Fournelle v. NLRB, 670 F.2d 331, 341 (D.C.Cir.1982) (the effective administration of bargaining agreements is a substantial and legitimate business purpose).

Substantial evidence on the record as a whole supports the Board’s conclusion that union president Stanford was improperly discharged. Although I disagree with the Board’s conclusion that president Stanford owed no affirmative duties during the unlawful strike, the Board’s findings indicate that Stanford discharged the union’s obligations owing under the collective bargaining agreement by declaring the strike illegal and informing the rank-and-file of its unlawful nature. 7 For this reason, I join in enforcing the Board’s order requiring reinstatement and awarding backpay.

. In Complete Auto Transit, Inc. v. Reis, 451 U.S. at 420 , 101 S.Ct. at 1847 , Justice Powell noted that alternative employer remedies for an unlawful strike such as injunctive relief, discharge of strikers, a request that the union impose disciplinary action, and a suit against the union, are often illusory. By imposing upon a union official an affirmative obligation to discharge the union’s obligations pursuant to no-strike clauses, the employer is provided a more effective means of deterring unlawful activity. Moreover, employees often look to the union for leadership and guidance; thus, requiring a union official to state the union’s official opposition to an unlawful strike may encourage employees to forgo unlawful activity. See, Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir.1979); Gould, Inc. v. NLRB, 612 F.2d 728, 733 (3rd Cir.1979). Finally, a rule that clearly defines the union’s obligations during a wildcat strike protects union officials from a charge that their tacit approval of union members’ unlawful conduct amounts to leadership justifying more severe punishment. See, NLRB v. Armour-Dial, Inc., 638 F.2d 51, 56 (8th Cir.1981).

. Sections 8(a)(1) and (3), 29 U.S.C. Secs. 158 (a)(1) and (3) provide, in pertinent part:

(a) Unfair labor practices by employer It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Sec. 157 of this title;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

A Sec. 8(a)(3) violation represents a derivative violation of Sec. 8(a)(1) when the employer’s conduct adversely affects employee rights. Consequently, the same mode of proof is required in establishing a violation of either section. NLRB v. Jemco, Inc., 465 F.2d 1148, 1152, n. 7 (6th Cir.1972).

. A strike which violates a no-strike provision in the collective bargaining agreement is not protected activity within the meaning of Sec. 7 of the National Labor Relations Act. E.g., Plasti-Line, Inc. v. NLRB, 278 F.2d 482 (6th Cir.1960). Consequently, a union official’s allegation that an employer’s action infringes upon Sec. 7 rights, must be founded upon the right to hold union office. E.g., Metropolitan Edison Co. v. NLRB, 663 F.2d 478, 482 (3rd Cir.1981), cert. granted, - U.S. -, 102 S.Ct. 2926 , 73 L.Ed.2d 1327 (1982); Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir.1979).

. Such a requirement would substantially affect both a union officer’s effectiveness as a union representative and employee willingness to seek union office. See Fournelle v. NLRB, 670 F.2d 331 (D.C.Cir.1982) (specific contractual language imposing additional obligations, however, may result in a valid waiver of employees’ Sec. 7 rights).

. Once the union’s obligations are discharged by the principal union representative, employers must treat all employees in a fair and consistent manner. Although an employer may subsequently choose to discharge some or all of the employees involved in an unlawful strike, the employer’s decision may not be based upon improper considerations. See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 , 59 S.Ct. 490 , 83 L.Ed. 627 (1939).

. If the employer produces evidence that a substantial and legitimate interest supports his action, then the presumption of anti-union animus is rebutted and the employee must produce specific evidence of anti-union animus to sustain an unfair labor practice charge. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 , 87 S.Ct. 1792, 1797 , 18 L.Ed.2d 1027 (1967).

. Normally, the principle union representative, whether his title is president or chief steward, must discharge the union’s obligations under the no-strike clause. When special circumstances, such as incapacity, prevent the principle union representative from discharging the union’s obligations, the responsibility may be delegated to another union official.