National Labor Relations Board v. International Brotherhood of Electrical Workers, Local 1547, Afl-Cio ( 1992 )

PER CURIAM.

The Board petitions for enforcement of its order finding Local 1547 in violation of section 8(b)(1)(B) of the NLRA, 29 U.S.C. § 158(b)(1)(B).

Section 8(b)(1)(B) makes it an unfair labor practice for a union or its agents “to restrain or coerce ... an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.” To establish a section 8(b)(1)(B) violation, all of the following must be shown: (A) that the union was seeking to unionize the employer’s employees; (B) that the supervisor was engaged in section 8(b)(1)(B) activities; and (C) that the union discipline adversely affected the supervisor in the performance of his section 8(b)(1)(B) duties. See NLRB v. IBEW, Local 340, 481 U.S. 573, 585-89, 107 S.Ct. 2002, 2010-12, 95 L.Ed.2d 557 (1987); NLRB v. IBEW, Local 77, 895 F.2d 1570, 1573 (9th Cir.1990).

A. Substantial evidence supports the NLRB’s finding that Local 1547 was seeking to unionize Veco’s workers. First, two union representatives visited Elliott at the Veco job site. Union business agent Jim Morgan asked Elliott for a list of the employees at the job site and for permission to speak to those employees. When Elliott refused the request for the list and refused to allow the union to meet with the employees on company time, the other union representative threatened that if Elliott continued working for Veco, he would be denied work on other IBEW projects in the state. Second, at about this time the union authorized one of its members to attempt to obtain employment with Veco. The reason, as stated in an official union letter, couldn’t be clearer: “IBEW is presently trying to organize said company” (emphasis added).

The union letter is evidence of the union’s subjective intent to organize; thé visit to Elliott at the job site is a “specific overt act[ ],” Local 340, 481 U.S. at 579 n. 3, 107 S.Ct. at 2007 n. 3, to further that intent.¹ A, reasonable trier of fact could draw the inference from these two data that IBEW was “seekpng] to establish” a collective bargaining relationship with Veco. See id. at 590, 107 S.Ct. at 2012-13. Substantial evidence means only “ ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence.’ ” Local 77, 895 F.2d at 1573 (quoting Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)). While we might have come to a different conclusion, it is not our place to second-guess the agency charged with enforcing the labor laws. Evidence of union pressure, coupled with internal union correspondence indicating its intent to unionize Veco, could convince a reasonable person that exactly that was going on.

B. The union concedes that Elliott was charged with section 8(b)(1)(B) duties. See Stipulation of Facts at 2 (“Elliott was employed as a job superintendent and as such he had authority, which he exercised, to hire, discharge and discipline employees. In addition he acted as a representative of the Employer in adjusting employee grievances.”). Although the statute speaks of “collective bargaining” and “adjustment of grievances,” there need not be a union contract: A supervisor who performs analogous duties for a non-union employer may also be deemed a supervisor charged with section 8(b)(1)(B) duties. See, e.g., Local Union 60 v. NLRB, 941 F.2d 1326, 1333 (5th Cir.1991); cf. 29 U.S.C. § 152(11) (supervisor is “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees”).

C. The question, therefore, is whether substantial evidence supports the Board’s determination that the union action coerced the employer in its choice of supervisor. The focus of section 8(b)(1)(B) is the employer: It protects employers from union tactics that may affect its choice of supervisors, and the Supreme Court has recognized that pressure on supervisors indirectly coerces employers. See American Broadcasting Co. v. Writers Guild of America, West, Inc., 437 U.S. 411, 429, 98 S.Ct. 2423, 2433-34, 57 L.Ed.2d 313 (1978). The question always remains whether the union’s action influences the employer in its choice of supervisor. “[WJhenever such discipline may adversely affect the supervisor’s conduct in his capacity as a grievance adjustor or collective bargainer ... the employer would be deprived of the full services of his representatives and hence would be restrained and coerced in his selection of those representatives.” Id.

In this case, it’s conceded that Elliott performs “8(b)(1)(B) activities” — grievance adjustment and the like. A finding of liability is appropriate, therefore, if the challenged union action had “an adverse effect on [Elliott’s] future performance of that same section 8(b)(1)(B) duty.” Local 340, 481 U.S. at 585,107 S.Ct. at 2010. The Board found that it did:

The [union’s] initial threats aimed at conscripting Elliott into assisting in the campaign to organize the employees whose grievances he would be adjusting if the campaign succeeded, coupled with the notice to him of union charges (albeit not expressly tied to his refusal to aid the campaign), triggered his departure as the Employer’s 8(b)(1)(B) representative on that project. The fines imposed in June were simply the final effectuation of a course of conduct calculated, inter alia, to exert an adverse effect on Elliott as an adjuster of grievances from employees whom the [union] was seeking to represent.

IBEW Local 1547 (Veco, Inc.), 300 NLRB No. 144, at 3 (Dec. 31, 1990).

Substantial evidence supports the Board’s determination. Put simply, the union threats and disciplinary action caused Elliott to leave his job with Yeco, which undoubtedly affected his ability to act as Veco’s representative; the employer was thereby coerced. See Local Union 60, 941 F.2d at 1332-33 & n. 1 (union’s fining supervisor-members for working for a nonunion employer violated section 8(b)(1)(B)); see also Maritime Overseas Corp. v. NLRB, 955 F.2d 212, 221-22 (4th Cir.1992) (discussing coercive effects of union fines); American Broadcasting Co., 437 U.S. at 429, 98 S.Ct. at 2434 (“employer [can] be coerced or restrained within the meaning of § 8(b)(1)(B) not only by ... direct actions aimed at him but also by debilitating discipline imposed on his collective-bargaining or grievance-adjustment representative”). It is irrelevant that Veco did not have a collective bargaining agreement with Local 1547, as the Local 340 Court recognized when it held that the union must have or seek a bargaining relationship. See also Local Union 60, 941 F.2d at 1333 (“an employer can be illegally coerced or restrained under § 8(b)(1)(B) when no collective bargaining agreement is in place”).

The Board’s order is ENFORCED.

1 . 'While the Local 340 footnote mentions certain common tactics, there is no indication that the list was meant to be exhaustive or that more than one "overt act” need be shown.