FRONT PAGE CONTRIBUTOR
Appeals Court Approves of Union Fining Member for Reporting Safety Violation
It should come as no shock that unions have rules. They are usually a codified set of rules and union members are expected to abide by those rules. Almost always, a union’s rules are spelled out in the union’s constitution. If a member violates a union rule, a union has the legal right to place that member on trial (a union trial). If the member is found guilty at the union trial, the union has the right to impose fines, suspend or even expel the member.
Some of the more well-known rules are don’t cross a picket line or don’t be disloyal to the union. However, there are some lesser known union rules that could cause members to be tried by their union. For example, showing up at a union meeting intoxicated, or trying to kick a union out of the workplace (that’s disloyal), or even wronging a fellow member are all examples of rules that are in many union constitutions. And, let there be no mistake, unions do enforce their rules and fine their members.
Which brings us to this latest example. Last week, overturning a National Labor Relations Board decision that found a union fine was unlawful, the U.S. Court of Appeals for the District of Columbia found that a union did not violate the law in fining a member for reporting a safety violation.
By reporting a safety violation, a member of the International Union of Operating Engineers (IUOE) violated his union’s constitution when the company he worked for investigated the report and found another union member had indeed violated safety rules. In so doing the IUOE member who reported the violation engaged in gross disloyalty and conduct unbecoming a member when the company subsequently suspended the rule violator for three days.
Mark Overton, a member of a different Operating Engineers local union located in Albuquerque, was working for Ozark Contractors in Missouri under a special union “traveling permit” to perform work that members of Local 513 were not qualified to perform. He detected and reported to Ozark a safety infraction which, after an investigation, was determined to have been caused by another union member employed by Ozark. The company’s safety rules required the reporting of safety hazards; failure to report was subject to company discipline, including suspension. However, when Overton reported the safety hazard which subsequently was determined to be caused by a fellow union member, that member was suspended for three days. Overton was fined $2,500 by Local 513 for “gross disloyalty” and “conduct unbecoming a union member” and by actions which harassed a fellow union member. In effect, Overton faced the Hobson’s choice of being disciplined by the employer with a suspension for failing to report a safety hazard, or union discipline in the form of a substantial union fine for doing so. [Emphasis added.]
Overton challenged his fine by filing a charge with the NLRB. The agency ruled that the union did, in fact, comit an unfair labor practice by fining Overton. However, the union appealed the NLRB’s decision.
Upon appeal, the Court of Appeals reversed the NLRB’s decision, which is explained here:
The Board adopted an ALJ’s finding that the fine violated the employee’s Sec. 7 rights. Employees who comply with safety rules, found the ALJ, are deemed to engage in concerted behavior, because Sec. 7 gives employees the right to refrain from joining employees who ignore safety rules. The Board dismissed the union’s argument that the reporting was not concerted activity, citing Board precedent that the Act is violated when a union disciplines an employee for reporting another employee’s safety violations if, as was the case, the employee would face discipline for failing to report the violation. The union sought appellate court review of the Board’s finding.
Thirty-year rule rejected. Since 1977, the NLRB has found it to be a per se unfair labor practice for a union to discipline a member who has complied with an employer’s safety rules, regardless of whether the employee acted in concert with other employees or in opposition to other employees acting in concert. Despite the longstanding application of this rule, and its endorsement by the Ninth Circuit, the DC Circuit agreed with the union that this policy cannot be reconciled with the NLRA. [Read more here.]
While it seems unfathomable that a union’s right to enforce its rules would trump an individual’s right to report an unsafe condition (even if it involved a fellow union member), it is just another example of the length that some unions will go in controlling members’ work lives.
For many union members, it doesn’t pay to cross their union. In fact, it can prove costly if they do.
“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776