Electrical Workers Local 2321 (Verizon New England)

ELECTRICAL WORKERS LOCAL 2321 (VERIZON) 348 NLRB No. 50 869 International Brotherhood of Electrical Workers, AFL–CIO, Local 2321 (Verizon New England) and Gregory S. Burns. Case 1–CB–10559 September 29, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW The General Counsel seeks summary judgment in this case on the ground that the Respondent’s amended an- swer to the complaint admits all of the factual allegations and legal conclusions of the complaint, with the minor exception of the dates of the concerted refusal to work overtime referred to in paragraph 10 of the complaint. Pursuant to a charge filed on January 6, 2006, the General Counsel issued the complaint on April 7, 2006, against the International Brotherhood of Electrical Workers, AFL–CIO, Local 2321, alleging as follows: 10. From about November 21, 2005, until at least about November 26, 2005, Respondent en- gaged in a concerted refusal to perform voluntary overtime work requested by the Employer. 11. On November 24, 2005, November 25, 2005, and November 26, 2005, employee Burns volun- teered and worked overtime for the Employer. 12. About November 27, 2005, Respondent charged Burns for the overtime hours he worked, as described above in paragraph 11, and failed to charge employees who engaged in the concerted re- fusal to perform voluntary overtime described above in paragraph 10, and who refused to work the over- time hours. 13. (a) Respondent engaged in the conduct de- scribed above in paragraph 12 because Burns re- fused to participate in the concerted refusal to work overtime hours described above in paragraph 10. (b) In the alternative, Respondent engaged in the conduct described above in paragraph 12 because Burns refused to engage in a work stoppage in viola- tion of the 2003–2008 contract. The complaint further alleged, in paragraph 14, that by the conduct described above in paragraphs 12 and 13, the Re- spondent violated Section 8(b)(1)(A) of the Act. The Respondent filed an answer to the complaint on April 20, 2006, admitting to only certain of the factual allegations of the complaint. The Respondent subse- quently filed an amended answer on June 14, 2006, in which it admitted all of the factual allegations and legal conclusions in the complaint, with the exception, as stated above, of the factual allegations in paragraph 10 concerning the dates on which the concerted refusal to work overtime occurred.1 On June 22, 2006, the General Counsel filed a Motion for Summary Judgment.2 On June 27, 2006, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On the entire record, the Board makes the following Ruling on Motion for Summary Judgment The motion for summary judgment is denied. Al- though the Respondent has admitted all of the factual allegations and legal conclusions in the complaint, we find that the complaint does not sufficiently set forth grounds for finding a violation. The complaint essentially alleges, inter alia, that the Respondent “charged” Burns in retaliation for his failure to participate in a concerted refusal to perform voluntary overtime work. Assuming that the charges referred to in the complaint were internal union fines, we note that such fines, within certain limitations, are permissible. See Scofield v. NLRB, 394 U.S. 423, 430 (1969) (“Sec- tion 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.”). Unions are not permitted to discipline members “who refuse to engage in unprotected activity which would subject them to lawful discipline by their employer.” Graphic Arts Local 13-B (Western Publishing), 252 NLRB 936, 938 (1980), enfd. 682 F.2d 304 (2d Cir. 1982), cert. denied 459 U.S. 1200 (1983). However, a concerted refusal to work voluntary overtime is protected activity. Jasta Mfg. Co., 246 NLRB 48 (1979), enfd. mem. 634 F.2d 623 (4th Cir. 1980); The Dow Chemical Co., 152 NLRB 1150, 1152 (1965). Thus, for a union to fine one of its members for refusing to participate in such protected concerted activity would not “impair[] [any] policy Congress has imbedded in the labor laws.” Scofield, supra. Absent some other limiting circum- stance under Scofield, a labor organization does not vio- late Section 8(b)(1)(A) by imposing a reasonable fine on its members for declining to participate in a concerted 1 The General Counsel agrees with the Respondent that the dates of the refusal to work overtime should be as stated in the Respondent’s amended answer, i.e., the dates should be “from about November 16, 2005 until at least about November 28, 2005.” 2 Fn. 2 of the General Counsel’s motion states that summary judg- ment is being sought only on the theory alleged in subpar. 13(a) of the complaint. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870 refusal of voluntary overtime. See Electrical Workers Local 15 (Commonwealth Edison), 341 NLRB 336, 343– 344 (2004) (finding no 8(b)(1)(A) violation where union disciplined members for participating in voluntary time off program). Because the complaint does not sufficiently allege conduct in violation of Section 8(b)(1)(A), we are unable to grant summary judgment in this case, notwithstanding the Respondent’s admissions. Our decision is, of course, without prejudice to the Region amending the complaint. Accordingly, we will remand this case to the Regional Director for further action consistent with this decision. ORDER IT IS ORDERED that the General Counsel’s Motion for Summary Judgment is denied and the proceeding is re- manded to the Regional Director for Region 1 for further action consistent with this decision.