The U.S. Court of Appeals for the Dist. of Columbia Circuit ruled Dec. 28 that the National Labor Relations Board erred in exculpating Int’l Bhd. of Elec. Workers Local 494 in Milwaukee for fining a member $100,000 after he took a supervisor’s job at a nonunion shop. The appeals court said NLRB was “flatly unreasonable” for finding that the union did not commit an unfair labor practice by fining the member. NLRB’s conclusion, that no violation of the act occurred because the local union was not seeking a collective bargaining relationship with the nonunion employer, was not supported by substantial evidence, the court held. Comments from the union business agent, as well as the “staggering” size of the fine, which was later reduced to $10,000 by the int’l union, “conclusively establish[ed] that the local sought a collective bargaining relationship with [the nonunion company] and retaliated against [Joseph] Podewils for not providing it,” wrote U.S. Circuit Judge Laurence H. Silberman (D.C. Cir., Reagan).
Podewils had been a rank-and-file member of Local 494 for 21 years when he went to work as a manager at Gerald Nell Inc., a nonunion shop. However, before starting work there in Oct. 1997, he went to the local’s office and filled out an honorary withdrawal card, informing a business agent that he was withdrawing from the union for personal reasons. Three months later, the business agent confronted Podewils at the shop and asked, “Is there any possibility you being here means that the electricians here might become union?” Podewils replied that “that wouldn’t happen here.”
The business agent then filed charges against Podewils for violating the IBEW constitution by working for a nonunion employer while still a member. After a hearing, to which Podewils was invited but did not attend, the local found him guilty and fined him $100,000. The agent testified that the fine was proper because Podewils already was responsible for more than $250,000 of work that should have been “done union.” After the fine was assessed, Podewils retained an attorney and appealed to the int’l. IBEW reduced the fine to $10,000, based on Podewils’ salary, as opposed to the amount of union work allegedly lost.
Podewils and his employer then filed unfair labor practice charges against IBEW with NLRB. NLRB found no evidence that the union was seeking a contractual relationship with Gerald Nell. The board, over the dissent of Member Peter Hurtgen, found that the business agent’s inquiry regarding whether the shop would go union, “standing alone falls short of the kind of concrete evidence necessary to show a union is currently and actually seeking … a collective bargaining relationship.”
Podewils and his employer appealed to the D.C. Circuit, renewing their allegation that the local and international violated the Nat’l Labor Relations Act act 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.” Silberman found that a union violates that provision “by disciplining a supervisor who has either collective bargaining or grievance adjusting duties and thereby coercing an employer only if it has, or is seeking a collective bargaining relationship with the employer.” Here, he concluded, NLRB ignored evidence that IBEW was seeking such a relationship with Podewils’ new employer.
U.S. Circuit Judges Harry T. Edwards (D.C. Cir., Carter) and David S. Tatel (D.C. Cir., Clinton) joined in the opinion. Kevin J. Kinney of Krukowski & Costello, S.C. in Milwaukee, represented Podewils and Gerald Nell, Steven Goldstein represented NLRB, and Matthew Robbins represented the union. [BNA 1/4/01]