David Williamson , Iii v. National Labor Relations Board

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0179p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID WILLIAMSON , III,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD ,
Respondent,
I NTERNATIONAL UNION OF OPERATING
ENGINEERS , AFL-CIO LOCAL 324,
Intervenor.
X---->
,--------
N
No. 10-2241
On Petition for Review of an Order of
the National Labor Relations Board.
No. 1: 7-CB-15343.
Argued: June 7, 2011
Decided and Filed: July 6, 2011
Before: COLE, CLAY, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Charles Davis, DAVIS LISTMAN BRENNAN, Mount Clemens,
Michigan, for Petitioner. Milakshmi V. Rajapakse, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent. Richard F. Griffin, Jr.,
INTERNATIONAL UNION OF OPERATING ENGINEERS, Washington, D.C., for
Intervenor. ON BRIEF: Robert Charles Davis, DAVIS LISTMAN BRENNAN, Mount
Clemens, Michigan, for Petitioner. Milakshmi V. Rajapakse, Julie B. Broido, Linda
Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent. Richard F. Griffin, Jr., INTERNATIONAL UNION OF OPERATING
ENGINEERS, Washington, D.C., for Intervenor.
1

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No. 10-2241 Williamson v. NLRB Page 2
_________________
OPINION
_________________
COLE, Circuit Judge. David Williamson, III petitions this Court for review of
a final order of the National Labor Relations Board dismissing his claim that Local 324
of the International Union of Operating Engineers violated the National Labor Relations
Act by fining Williamson and expelling him from membership. Because substantial
evidence supports the Board’s factual findings and because the Board’s interpretation
of the Act was permissible, Williamson’s petition for review is DENIED.
I. BACKGROUND
A. Factual History
In August 2005, Todd Chartier hired Williamson as a project developer and labor
consultant for Chartier’s new start-up company, Hydro Excavating LLC (“Hydro X”).
Hydro X planned to harness a new technology, hydro excavation, to remove soil from
the ground around fiber-optic and high-pressure gas lines using water pressure.
Williamson’s role at Hydro X was to investigate which labor unions could claim the
hydro-excavation work and, of those, which would offer the most cost-effective terms.
At first, Williamson was not authorized to negotiate with the unions, offer or accept any
contract proposals, or otherwise bind Hydro X in any way.
In executing his duties, Williamson met with representatives from the Carpenter
and Millwright unions. He also met with Bruce Ruedisueli from the Laborers union,
who told him that the Laborers were interested in a “wall-to-wall agreement” that would
cover all of Hydro X’s work. Ruedisueli offered Williamson an existing Laborers
collective-bargaining agreement to show the current wage rates and terms. When
Ruedisueli discussed the opportunity with his union supervisor, he was told to cease
discussions with Hydro X because the type of work Hydro X performed was within the
traditional jurisdiction of the International Union of Operating Engineers (“Operating
Engineers”). Although the Operating Engineers had represented employees in hydro-

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No. 10-2241 Williamson v. NLRB Page 3
excavation work in the past and was the collective-bargaining representative of several
other construction companies owned by the Chartier family, Williamson did not contact
any unit of the Operating Engineers about Hydro X’s work.
Williamson was a long-time member of Local 324 of the Operating Engineers
(“Local 324”). In November 2005, Local 324’s business manager filed internal charges
against Williamson for “urging other unions to execute labor agreements with Local 324
Contractors and claim work falling within the traditional jurisdiction of the Operating
Engineers,” in violation of Article XXIV(7)(e) of the Operating Engineers’ constitution.
(Joint App’x (“JA”) 309.) The next month, after a hearing at which Williamson did not
appear, Local 324’s membership voted to fine Williamson $500 and expel him from
membership. The disciplinary actions were stayed while Williamson appealed the
decision to the General Executive Board of the Operating Engineers.
While the expulsion was stayed, Williamson continued to work for Hydro X. In
early 2006, Hydro X began collective-bargaining negotiations with Local 324, and
Williamson served on the bargaining committee. Local 324 did not interfere with his
performance on that committee.
Williamson’s expulsion from Local 324 became effective on July 21, 2006, when
the General Executive Board denied his appeal.
B. Procedural History
Williamson filed unfair-labor-practices charges against Local 324. The National
Labor Relations Board (“Board”) issued a complaint on Williamson’s behalf, alleging
that Local 324 had violated sections 8(b)(1)(A) and (B) of the National Labor Relations
Act (“Act”), 29 U.S.C. § 158(b)(1)(A)-(B), by terminating Williamson’s membership
based on his activities on Hydro X’s behalf. After a hearing, an administrative law judge
dismissed the claim under section 8(b)(1)(A), but found that Local 324 had restrained
or coerced Hydro X in the selection of its representative for the purposes of collective
bargaining or the adjustment of grievances, in violation of section 8(b)(1)(B).

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No. 10-2241 Williamson v. NLRB Page 4
The parties filed exceptions with the Board, which issued a decision adopting the
administrative law judge’s dismissal of the section 8(b)(1)(A) claim and reversing the
finding of a section 8(b)(1)(B) violation. The Board found that Williamson’s activities
on Hydro X’s behalf during the relevant period did not fall within the scope of section
8(b)(1)(B), and thus that Local 324’s expulsion of Williamson for those activities was
not an unfair labor practice. Local 324, Int’l Union of Operating Eng’rs, 353 N.L.R.B.
85 (2009).
Williamson petitioned this Court for review of the section 8(b)(1)(B) claim.
Because the Board’s decision had been made by a two-member panel, which the
Supreme Court subsequently held did not constitute a valid quorum, see New Process
Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), this Court remanded the case to the Board
for further proceedings. See Williamson v. NLRB, No. 09-2550, 2010 WL 4103021 (6th
Cir. Aug. 24, 2010) (unpublished disposition). The Board, this time with a quorum,
issued a new order incorporating the reasoning of its prior decision. Local 324, Int’l
Union of Operating Eng’rs, 355 N.L.R.B. 125 (2010). Williamson again petitions for
review.
II. ANALYSIS
Under section 8(b)(1)(B) of the Act, a labor union engages in unfair labor
practices when it restrains or coerces “an employer in the selection of his representatives
for the purposes of collective bargaining or the adjustment of grievances.” 29 U.S.C.
§ 158(b)(1)(B). Williamson argues that he was his employer’s representative within the
meaning of this section, such that Local 324 engaged in unfair labor practices by
disciplining him. The Board found that Williamson was not a representative within the
meaning of section 8(b)(1)(B).
A. Standard of Review
This Court’s review of the Board’s decision is limited. “The Board’s findings
of fact and its application of the law to those facts are conclusive ‘if supported by
substantial evidence on the record considered as a whole.’” United Paperworkers Int’l

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No. 10-2241 Williamson v. NLRB Page 5
1Royal Electric addresses the coercion of an employer in the selection of supervisor
representatives. 581 U.S. at 575. Although Williamson is not a supervisor, the administrative law judge
and the Board analyzed Williamson’s claim as if he were. Because the Board assumes, for the purposes
of this appeal, that Royal Electric applies to Williamson’s situation (see Resp’t Br. 16 n.5), we do the
same. Accordingly, we treat section 8(b)(1)(B) and the case law interpreting it as equally applicable to
supervisors, supervisor-members, and employee-representatives.
Union v. NLRB, 981 F.2d 861, 865 (6th Cir. 1992) (per curiam) (quoting 29 U.S.C.
§ 160(e)). “Where the Board has found no violation and dismissed the unfair labor
practices complaint, that finding ‘must be upheld unless it has no rational basis’ or is
‘irrational or unsupported by substantial evidence.’” Id. (quoting United Mine Workers
of Am., Dist. 31 v. NLRB, 879 F.2d 939, 942 (D.C. Cir. 1989)). Substantial evidence
consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion, even if there is also substantial evidence for an inconsistent
conclusion.” Mount Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 844 (6th Cir. 2003)
(internal quotation marks omitted). When “Congress has not spoken directly to the
precise question at issue,” this Court will uphold the Board’s interpretation of the Act
as long as it is “a permissible construction of the statute.” Id. (internal quotation marks
omitted).
B. Section 8(b)(1)(B) Activities
Labor unions engage in unfair labor practices when they discipline an employer
representative “for acts or omissions that occur while [the] employer representative is
engaged in § 8(b)(1)(B) activities.” NLRB v. Int’l Bhd. of Elec. Workers, Local 340
(Royal Electric), 481 U.S. 573, 585 (1987).1 The text of section 8(b)(1)(B) only protects
representatives who are engaged in collective bargaining and grievance adjustment.
29 U.S.C. § 158(b)(1)(B). The Supreme Court has extended the reach of the section to
“other closely related activity,” Royal Electric, 481 U.S. at 586, but the only activity that
has been found to be closely related is interpretation of the terms of the collective-
bargaining agreement, see id. at 581, 586.
The Board considered Williamson’s activities in 2005, found that these activities
were limited to gathering information and reporting it back to his employer, and
concluded that gathering information was not an activity that section 8(b)(1)(B) protects.

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No. 10-2241 Williamson v. NLRB Page 6
As a result, the Board found that Local 324 did not engage in unfair labor practices by
disciplining Williamson for his 2005 activities. Williamson contends that the Board’s
decision was in error because (1) the Board should have also considered his activities
in 2006; (2) substantial evidence does not support the Board’s factual finding that his
2005 activities were limited to gathering information; and (3) even if his 2005 activities
were limited to gathering information, those activities are “closely related” to collective
bargaining and grievance adjustment. We consider each of these contentions in turn.
1. Relevant Time Period
We first determine the relevant time period. Williamson argues that the Board
should have considered all of his activities up to July 21, 2006, the date on which his
expulsion became effective, because that was the date Local 324 actually disciplined
him. The Board counters that Williamson’s conduct only through November 2005 is
relevant, because that was the only conduct for which Local 324 disciplined him. The
Board is correct.
The appropriate inquiry is whether a union member is disciplined “for behavior
that occurs while he or she is engaged in § 8(b)(1)(B) duties.” Royal Electric, 481 U.S.
at 582 (emphasis omitted); cf. also id. at 585 n.8 (“[A member] who has been disciplined
for behavior unrelated to § 8(b)(1)(B) functions is unlikely to react by altering his or her
performance of § 8(b)(1)(B) tasks. Insofar as dictum . . . suggests that a union may not
discipline [members] for acts or omissions that occur while the [member] is engaged in
supervisory activities other than § 8(b)(1)(B) activities, the dictum is inconsistent with
[precedent], and we disavow it.”). It is uncontested that the subject of the union’s
discipline was Williamson’s behavior prior to November 2005, the date on which Local
324 instituted proceedings against him. The date on which the expulsion took effect is
therefore irrelevant, and we limit our analysis to Williamson’s behavior from August to
November 2005.

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No. 10-2241 Williamson v. NLRB Page 7
2. Scope of Williamson’s Activities
Before we may analyze whether Williamson’s 2005 activities were protected by
section 8(b)(1)(B), we must determine the nature of those activities. The Board found
that Williamson’s activities during the relevant period consisted of gathering information
and reporting it back to his employer; this is a finding of fact that is reviewed for
substantial evidence, 29 U.S.C. § 160(e).
Chartier testified that he hired Williamson to determine which unions could claim
Hydro X’s work and which would be the most cost-effective before Chartier “got in
negotiations” with a union. (JA 156-57.) Chartier stated that Williamson “brought back
information and reported to me about who was interested, who wasn’t, what direction
we could possibly go and what would be the best interest.” (JA 160.) Chartier would
decide which union Hydro X would bargain with. Williamson himself testified that,
while he could gather information for Chartier, he did not have the authority to negotiate
or offer a collective-bargaining agreement at the time Local 324 instituted disciplinary
proceedings against him. Furthermore, Williamson argued in his appeal to the General
Executive Board of the Operating Engineers in January 2006: “My personal total
involvement in this contractual process has been to gather information and report my
findings to the owner. I was merely doing what I was instructed to do.” (JA 318.)
In his brief, Williamson makes three arguments that his activities consisted of
more than gathering information. First, Williamson claims that he obtained a letter of
intent from the Millwrights indicating that the Millwrights were exploring a collective-
bargaining relationship with Hydro X. However, the Board found that “the only purpose
of that letter was to help the Employer obtain work.” (JA 7.) This finding is supported
by Williamson’s own testimony that it was the Millwrights’ representative who offered
and drafted the letter, and that the significance of the letter was “[n]othing other than it
gave us the ability to bid work” in a plant that worked with the Millwrights. (JA 215-
16.)
Williamson also argues that he began drafting a collective-bargaining agreement
with Ruedisueli, the Laborers’ representative, in Fall 2005. However, as described

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No. 10-2241 Williamson v. NLRB Page 8
above, Williamson testified that he did not have the authority to negotiate on behalf of
Hydro X at that time, and the only evidence supporting his assertion to the contrary is
a vague reference by Ruedisueli to “put[ting] something together” to take back to
Ruedisueli’s boss and “start[ing] a rough draft of an agreement.” (JA 200-01.)
Ruedisueli admitted that he did not know whether Williamson could execute any
agreement, Williamson did not testify about any agreement, and there is no evidence
concerning what, if anything, Williamson did to prepare any such agreement.
Finally, Williamson claims that he assisted Hydro X in resolving a prevailing-
wage issue. The only evidence supporting this contention is that Williamson “looked
at some of [Chartier’s] old agreements with the teamsters that were there previous[, a]nd
at the time, [Chartier] had a prevailing wage issue at the bridge in Port Huron.” (JA
262.) This is evidence that a prevailing wage issue existed, but not that Williamson did
anything to resolve the issue or bring it to Chartier’s attention.
Based on the above evidence, a reasonable mind could accept the Board’s finding
that Williamson’s duties “extended only to investigation, not negotiation,” during the
relevant period. Cf. Mount Clemens Gen. Hosp., 328 F.3d at 844. The Board’s finding
is thus supported by substantial evidence.
3. Interpretation of the Act
Having accepted the Board’s finding that Williamson’s activities were limited
to investigation, we turn to its legal conclusion that information-gathering is not an
activity protected by section 8(b)(1)(B). Williamson contends that gathering information
falls within the section’s protection because it is “closely related to” collective
bargaining and grievance adjustment. Although this is a matter of first impression in this
Court, our analysis is guided by the language and purpose of section 8(b)(1)(B), and the
intricate history of its interpretation.
The purpose of section 8(b)(1)(B) is to ensure that a union cannot, through
restraining an employer’s choice of representatives, control the manner in which the
employer conducts collective bargaining and grievance adjustments. Royal Electric, 481

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No. 10-2241 Williamson v. NLRB Page 9
U.S. at 580, 591; cf. also id. at 595 (“Section 8(b)(1)(B) was enacted to protect the
integrity of the processes of grievance adjustment and collective bargaining—two
private dispute-resolution systems on which the national labor laws place a high
premium.”). Specifically, this section was meant to “prevent a union from exerting
direct pressure on an employer to force it into a multiemployer bargaining unit.” Id. at
580.
Originally, the Board interpreted section 8(b)(1)(B) to apply only to union
actions taken directly against employers, such as telling the employer that the union
would not deal with a certain grievance adjustor or bargainer. See id.; Fla. Power &
Light Co. v. Int’l Bhd. of Elec. Workers, Local 641, 417 U.S. 790, 799 (1974). In 1968,
the Board greatly expanded its interpretation of section 8(b)(1)(B), holding that the
section prohibited a union from disciplining supervisor-members who interpreted a
provision of the collective-bargaining agreement in a way that disadvantaged the union,
because “[indirect] pressure was exerted . . . for the purpose of interfering with the
[employer]’s control over its representatives.” S.F.-Oakland Mailers’ Union No. 18, 172
N.L.R.B. 2173, 2173 (1968). The Board then issued a string of decisions that:
extended § 8(b)(1)(B) to proscribe union discipline of management
representatives both for the manner in which they performed their
collective-bargaining and grievance-adjusting functions, and for the
manner in which they performed other supervisory functions if those
representatives also in fact possessed authority to bargain collectively or
to adjust grievances.
Fla. Power & Light Co., 417 U.S. at 800. These decisions were based on the Board’s
theory that any union discipline of supervisor-members for actions taken in their
employers’ interests would have a coercive effect. Id. at 802.
In 1974, the Supreme Court rejected the Board’s expansive view of section
8(b)(1)(B), holding that the section did not prohibit a union from disciplining its
supervisor-members for their “performance of rank-and-file work,” even though that
work was done in the employer’s interest. Id. at 802-03. The Court explained:

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No. 10-2241 Williamson v. NLRB Page 10
[Section] 8(b)(1)(B) cannot be so broadly read. Both the language and
the legislative history of § 8(b)(1)(B) reflect a clearly focused
congressional concern with the protection of employers in the selection
of representatives to engage in two particular and explicitly stated
activities, namely collective bargaining and the adjustment of grievances.
By its terms, the statute proscribes only union restraint or coercion of an
employer ‘in the selection of his representatives for the purposes of
collective bargaining or the adjustment of grievances,’ and the legislative
history makes clear that in enacting the provision Congress was
exclusively concerned with union attempts to dictate to employers who
would represent them in collective bargaining and grievance adjustment.
Id. at 803. Therefore, the Court found “[t]he conclusion . . . inescapable that a union’s
discipline of one of its members . . . can constitute a violation of § 8(b)(1)(B) only when
that discipline may adversely affect the supervisor’s conduct in performing the duties of,
and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the
employer.” Id. at 804-05. The Court went on to state that it “assume[d] without
deciding that the Board’s Oakland Mailers decision,” which held that contract
interpretation is so closely related to collective bargaining that it is included within
section 8(b)(1)(B)’s protections, “fell within the outer limits of this test.” Id. at 805.
In Royal Electric, the Supreme Court reaffirmed its narrow view of the activities
shielded by section 8(b)(1)(B). In that case, the Court again rejected the Board’s broad
view of section 8(b)(1)(B) protection, striking down the “reservoir doctrine,” which
shielded from union discipline any employees who were likely to engage in collective
bargaining or grievance adjustment in the future. See Royal Electric, 481 U.S. at 586-89.
The Court also found that “the absence of a collective-bargaining relationship between
the union and the employer” made the possibility that union discipline would coerce the
employer “too attenuated to form the basis of an unfair labor practice charge.” Id. at
589; accord Dille v. Williamson, No. 87-3766, 1988 WL 79978, at *4 (6th Cir. Aug. 2,
1988) (unpublished disposition).
The Supreme Court’s decisions in Florida Power and Royal Electric have made
explicit that section 8(b)(1)(B) is to be interpreted narrowly and “indicated that the
Board’s expansion of § 8(b)(1)(B) in Oakland Mailers was at best ‘within the outer

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No. 10-2241 Williamson v. NLRB Page 11
limits’ of the section.” Royal Electric, 481 U.S. at 581 (emphasis added); accord NLRB
v. Sheet Metal Workers Int’l Ass’n, Local 104, 64 F.3d 465, 468 (9th Cir. 1995). The
language of section 8(b)(1)(B) protects only the activities of collective bargaining and
grievance adjustment, 29 U.S.C. § 158(b)(1)(B), and the Supreme Court added “some
other closely related activity” in the course of narrowing interpretation of the section,
see Local 104, 64 F.3d at 468. To date, contract interpretation is the sole activity that
has been acknowledged as so closely related to collective bargaining and grievance
adjustment that it is protected by section 8(b)(1)(B). In perhaps the only case since
Royal Electric to interpret “some other closely related activity,” the Ninth Circuit held
that an employee-member’s nondiscretionary actions in applying a collective-bargaining
agreement were neither contract interpretation nor any other activity so closely related
to collective bargaining and grievance adjustment as to be protected under section
8(b)(1)(B). See Local 104, 64 F.3d at 468-69. Accordingly, there is simply no support
for Williamson’s contention that the only permissible interpretation of section 8(b)(1)(B)
is that it protects employer representatives whose duties are limited to gathering
information. No court has applied the Supreme Court’s test in such an expansive
manner, and we do not believe that the Board’s refusal to do so here was irrational or
impermissible.
Our conclusion is further bolstered because the distinction between information-
gathering on the one hand and collective bargaining, grievance adjustment, and contract
interpretation on the other, is not without a difference. The activities that the Supreme
Court has found section 8(b)(1)(B) to protect involve negotiations or conflicts between
an employer and a particular union—negotiating or renegotiating an agreement,
interpreting the agreement’s terms, and following the agreement’s procedures for
grievances. These protected activities are qualitatively different from gathering
information from multiple unions and reporting it back to the employer—in the latter,
no ongoing relationship exists, no negotiations are taking place, and the employee has
very little discretion. A union’s interference in the information-collecting process may
have some effect on which union is ultimately selected, but it does not affect how that
union is bargained with and on what terms. Cf. id. at 468 n.3 (implying that activities

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No. 10-2241 Williamson v. NLRB Page 12
satisfy the “closely related” test only when they “affect[] the employer’s collective
bargaining position”).
Although Williamson argues that any new company will naturally have a period
of time during which it does not have an agreement with a particular union, this
contention is inapposite. The Board concedes that Williamson’s activities on the
bargaining committee in 2006 constituted protected activities under section 8(b)(1)(B)
even though no agreement was yet in place. (Resp’t Br. 27.) The problem with the
information-gathering activities here was not the absence of an agreement, but that no
particular union had been identified, no bargaining had begun, and Williamson lacked
discretion to affect any bargaining at the time. Choosing which union to bargain with
is a necessary precursor to collective bargaining. But not every dealing with a union is
protected under section 8(b)(1)(B). Cf. Royal Electric, 481 U.S. at 588. The
information-gathering that Williamson performed here was not a discretionary task
equivalent to interpreting contract terms, bargaining with union representatives, and
adjusting grievances. As a result, the Board was not irrational in concluding that union
interference with Williamson’s information-gathering activities was unable to affect the
performance of collective-bargaining and grievance-adjustment duties and thus not
prohibited under section 8(b)(1)(B).
As a final note, it is important to recognize that section 8(b)(1)(B) protects the
interests of the employer, not the employee-member, Royal Electric, 481 U.S. at 594.
Moreover, the section protects the employer from specific interference; it does not
generally entitle the employer to the undivided loyalty of its employees. See id. at 583;
Fla. Power & Light Co., 417 U.S. at 812-13. Because the Board had a rational basis to
conclude that information-gathering is qualitatively different from the activities section
8(b)(1)(B) protects, and because Williamson has pointed to no authority suggesting that
the Board’s interpretation is impermissible, the Board’s interpretation will stand. Cf.
Mount Clemens Gen. Hosp., 328 F.3d at 844.

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No. 10-2241 Williamson v. NLRB Page 13
III. CONCLUSION
Because the Board’s finding is supported by substantial evidence and its
interpretation of section 8(b)(1)(B) is rational and permissible, Williamson’s petition for
review is DENIED.

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