Office & Professional Employees International Union v. National Labor Relations Board

981 F.2d 76
CourtCourt of Appeals for the Second Circuit
DecidedDecember 10, 1992
DocketNos. 392, 512, Dockets 92-4090, 92-4098
StatusPublished
Cited by1 cases

This text of 981 F.2d 76 (Office & Professional Employees International Union v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office & Professional Employees International Union v. National Labor Relations Board, 981 F.2d 76 (2d Cir. 1992).

Opinion

OAKES, Senior Circuit Judge:

John Connolly was discharged as an international representative by his employer, the Office and Professional Employees International Union (“OPEIU” or the “Union”) in November, 1988. The OPEIU seeks review of the finding by the National [78]*78Labor Relations Board (the “Board”) that Connolly's activities in seeking office in a local union, affiliated with the OPEIU, were “protected” and “concerted” activity under the National Labor Relations Act (the “Act”). Office and Professional Employees International Union (“OPEIU”), 1992 WL 90691, 1992 NLRB LEXIS 493 (NLRB April 27, 1992). The Board affirmed a decision by an Administrative Law Judge (“AU”) that Connolly had been discharged because of this bid for office. The Board found that the OPEIU had violated Sections 8(a)(1) and 8(a)(3) of the Act. The question on appeal is whether running for office in a union which has no actual or potential bargaining relationship with one’s employer is protected activity under the Act. We deny enforcement of the Board’s order, finding such activity to be completely unrelated to the employer-employee relationship.

I. BACKGROUND

Hired by the OPEIU as an international representative in 1976, Connolly also maintained a membership in Local 6, a local in Boston affiliated with the OPEIU. In his work for the OPEIU, Connolly reported to Mark Reader, the OPEIU’s director of organizing. Connolly’s responsibilities included participating in organizing campaigns around the country as well as servicing New England local unions without full-time representatives by negotiating contracts and processing grievances and arbitrations. In late 1984, Connolly became the assistant director of organizing and was assigned to organize the professional staffs employed at the University of Massachusetts. The OPEIU lost that bid in May 1986. After another unsuccessful campaign in October, 1986, Connolly resigned his position and returned to being an international representative. The AU credited Connolly’s testimony that he had resigned voluntarily from this position and had not been demoted. Nonetheless, the AU found, and the facts support him, that Connolly’s overall job performance for the OPEIU was quite inadequate.

In late May, 1988, Connolly announced to James Mahoney, Local 6’s business manager and an International vice-president, his intention to run for secretary-treasurer in Local 6. In light of Mahoney’s frequent conversations with President Kelly of the OPEIU, the AU concluded that Mahoney must have told the president about Connolly’s intentions sometime before the October election. According to the AU, Kelly’s knowledge of Connolly’s election efforts explains his decision to send Connolly to Tennessee in the early fall.

In late August, 1988, Connolly was assigned by Mark Reader, the director of organizing, to work on an organizing program for OPEIU locals in Tennessee which had agreements with the Tennessee Valley Authority (“TVA”). Connolly felt that this assignment was a direct attempt to undermine his candidacy in Local 6, especially because the timing interfered with nominations which were to be held in early October. Connolly was directed not to return home to Boston every weekend, a direction he felt was also aimed at his candidacy. Connolly testified, and was credited by the AU, that he had always come home on weekends when on out-of-town assignments. Although an OPEIU rule existed limiting weekend travel, according to Connolly, it had never been enforced.

When Connolly arrived in Tennessee, he talked with Faye Orr, the international representative assigned to the state, to get background on local conditions. During the conversation, Orr informed him that the TVA locals were in contract negotiations and that the employees would not be interested in the organizing program at that time. Because Connolly could not get started with that program, she asked him to take over negotiations between an OPEIU local and a manufacturing company in Chattanooga. Connolly agreed. The AU found that the poor timing of the organizing program provided further evidence that Connolly was sent to Tennessee only to divert his attention from the local election in Boston.

Despite Reader’s order to remain in Tennessee, Connolly went home that weekend, [79]*79Friday, September 9, and began to prepare papers for his campaign for secretary-treasurer. He did not return to Tennessee the following week allegedly due to an illness. During that week, Reader called him to say that Kelly had changed Connolly’s assignment from several months to two two-weekend programs. As a result, Connolly wrote Kelly a letter voicing his suspicions of the change in the assignment: “This confusion or indecision makes me suspicious that local and internal political considerations or even outright discrimination may have been a factor in my being reassigned to TVA et al.” On September 27, Reader explained to Connolly that he had been assigned to Tennessee because the complexity of the assignment required a senior staff person. Connolly continued to return to Boston each weekend in defiance of the direction he had received.

Connolly was nominated for secretary-treasurer of Local 6 on October 4, 1988. On October 6, 1988, Reader called Connolly to remind him of the policy against weekend travel. Reader told Connolly that if Connolly did not stay in Tennessee that weekend, Kelly might consider his return to Boston as insubordination.

Connolly wrote Kelly in protest, stating: “My instincts tell me that your reasons for insisting that I stay in Chattanooga, are motivated by demands from OPEIU Local 6 that I discontinue my campaign to become Secretary-Treasurer of that local in which I am a member.” Connolly returned to Boston that weekend as well as the following one. Connolly subsequently received a letter from Kelly, dated October 4, which warned him of the possible difficulties of holding office in Local 6 and serving his employer, the OPEIU, adequately. According to Kelly, “... your duties as International Representative require you to be available to service all our Locals in the United States. Should you be elected to office in a Local Union, the duties of that office and your present duties conceivably will not be compatible.”

All international representatives received a memorandum from Reader, also dated October 6, informing them that they were not to return home every weekend when on out-of-town assignments. Connolly discussed this memo with Orr and with William Kirby, another international representative. Both called Kelly about the memo whereupon he assured them that their circumstances were different and to ignore it. On October 12, Connolly sent a letter to Reader, complaining about the directive and noting that, according to his calculations, it would actually cost the international more money if he were to stay in Tennessee every weekend. Connolly concluded that “[s]ince there is no apparent savings, it can safely be assumed that your directive is null and void unless political retaliation was President Kellys’ [sic] only motive, as I am the only representative immediately effected [sic].”

In reply, Kelly wrote Connolly that the memorandum was in fact directed to him. Kelly noted in explanation that “I do not think that it is fair to the people who pay our salaries that you start work on Tuesday and end your work week on Thursday afternoon.... On this assignment, you have taken what should have been done in four days and parlayed it into a 44-day program.”

Local 6 elections were held on October 25.

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981 F.2d 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-professional-employees-international-union-v-national-labor-ca2-1992.