United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 16, 2011               Decided April 5, 2011

                        No. 10-1121

 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
                   513, AFL-CIO,
                    PETITIONER

                             v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT


                 Consolidated with 10-1137


     On Petition for Review and Cross-Application for
                        Enforcement
     of an Order of the National Labor Relations Board



    James P. Faul argued the cause for petitioner.

    Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Jill A. Griffin,
Supervisory Attorney.
                               2

    Before: TATEL and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     SILBERMAN, Senior Circuit Judge: Local 513 of the
International Union of Operating Engineers challenges a
National Labor Relations Board policy that has been followed
for over thirty years, and which the Ninth Circuit has endorsed.
The Board has held since 1977 that it is a per se unfair labor
practice in violation of section 8(b)(1)(A) of the National Labor
Relations Act, 29 U.S.C. § 158(b)(1)(A), for a union to
discipline a union member who complied with an employer’s
safety rules. We agree with the union that the Board’s policy
does not accord with the National Labor Relations Act.

                                I

    Two construction companies – Fred Weber, Inc. and ASI
Constructors, Inc. – formed a joint venture, Ozark Constructors,
LLC, to rebuild a hydroelectric facility in southeast Missouri.
Local 513 represented Ozark’s operating engineers, who were
covered by two collective bargaining agreements – a National
Maintenance Agreement and a separate agreement with Fred
Weber, Inc. (the latter dealt with wages and benefits).

     Mark Overton, a member of another International Union of
Operating Engineers Local (in Albuquerque), was hired by
Ozark because of his experience working on some of the
specialized equipment needed on the project, experience which,
apparently, Local 513's members lacked. Overton sought to
transfer his membership to Local 513, which the union denied,
although it did grant him a traveler permit authorizing him to
work on the project.
                                3

    Overton, one morning, noticed that a piece of machinery
was not properly deployed (an outrigger was not fully extended),
which was a safety violation. Ozark’s safety rules – which are
incorporated into the National Maintenance Agreement – oblige
any employee to report to a supervisor safety violations. Indeed,
an employee who does not do so is subject to discipline.
Overton did report the safety violation and sought to determine
who was responsible. After an investigation, another employee
and Local 513 member was suspended for three days.

      That led the union’s business agent to file charges against
Overton for gross disloyalty and conduct unbecoming a union
member. (Apparently the union also objected to Overton’s
desire to bring in other experienced operating engineers rather
than train the union’s members.) The union fined Overton
$2,500, which prompted Ozark to file an unfair labor practice
charge against the union. The Board’s general counsel issued a
complaint alleging that the union violated section 8(b)(1)(A).
That section precludes a union from “restrain[ing] or coerc[ing]”
an employee in the exercise of his section 7 rights, with the
proviso that a union may continue to “prescribe its own rules
with respect to the acquisition or retention of membership
therein.” 29 U.S.C. § 158(b)(1)(A). And section 7 protects an
employee’s right to “to engage in . . . concerted activities” [or]
“. . . to refrain from . . . such.” Id. § 157.

     An administrative law judge recommended that the Board
find a violation. The judge relied on two theories: first, Overton
was deemed to have refused to join other employees who
apparently wished to ignore Ozark’s safety orders, and therefore
was refraining from concerted activity, even though no evidence
of other employees’ concerted refusal was adduced.
Alternatively, even in the absence of a finding of concerted
activity, the judge acknowledged that the Board had repeatedly
held that when a union’s disciplinary action affects an
                                 4

employee’s “employment relationship,” it, per se, commits a
section 8(b)(1)(a) violation.

     The Board pointedly rejected the administrative law judge’s
effort to describe Overton’s action as refraining from concerted
activity. The Board instead relied on its long-time precedent
finding a violation of section 8(b)(1)(A) where a union
disciplines an employee for complying 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.

                                 II

     The union’s argument is rather simple and direct: without
a finding of concerted activity (protected by section 7) on the
part of Ozark’s employees, it is analytically impossible for the
Board to conclude that Overton either engaged in or refrained
from engaging in such activities. Therefore, the union cannot be
held to have restrained or coerced Overton in the exercise of his
section 7 rights.

     The Board nevertheless insists that it is entitled to interpret
8(b)(1)(A) to hold that a union violates that provision if a union
disciplines an employee member for reporting a safety violation,
which he has a duty to report, without regard to the presence of
concerted activity. Although we give wide deference to the
Board’s interpretation of the general language of the National
Labor Relations Act, see Brockton Hosp. v. NLRB, 294 F.3d
100, 103 (D.C. Cir. 2002), the Board here does not even purport
to rely on an interpretation of the Act’s language. Its brief –
although not its opinion – relies for support of the Board’s
policy on two Supreme Court cases: NLRB v. Allis-Chalmers
Mfg. Co., 388 U.S. 175 (1967), and Scofield v. NLRB, 394 U.S.
423 (1969).
                                 5


     The Board asserts that Allis-Chalmers and Scofield prevent
a union from enforcing its internal rules in such a fashion “to
affect a member’s employment status.” Allis-Chalmers, 388
U.S. at 195; see also Scofield, 394 U.S. at 428-30. Relying on
these cases is quite a reach. In Allis-Chalmers, a sharply divided
Court held that a union could fine union members who cross a
picket line (and seek court enforcement); that section 8(b)(1)(A)
– in light of the proviso – could not be read to preclude an
internal rule that restrained an employee from refraining from
concerted activity unless the union rule affected his or her
employment relationship. Allis-Chalmers, 388 U.S. at 195. And
that meant, as Scofield1 indicated, action that would lead an
employer to discipline or discharge an employee. Scofield, 394
U.S. at 428-29, 436 & n.5 (a claim that could be true in our
case). But – and this is the crucial distinction – in both cases,
before even considering whether the proviso governed, the
Court recognized that concerted activity was present. See
Scofield, 394 U.S. at 426-27, 435; Allis-Chalmers, 388 U.S. at
178-79. Therefore, the Board quite obviously overreads those
opinions by suggesting that they permit it to dispense with a
finding of engaging in concerted activity, or refraining from
concerted activity.

     To be sure, the Board’s reading of section 8(b)(1)(A) and its
interpretation of Allis-Chalmers and Scofield have been accepted
(rather summarily) by the Ninth Circuit in Teamsters Local No.
439, Int’l Bhd. of Teamsters, AFL-CIO, 175 F.3d 1173 (9th Cir.
1999). The Ninth Circuit, however, ignored the context of Allis-
Chalmers and Scofield that we find dispositive. Accordingly, our


    1
       In Scofield, the Court observed that the union’s rule was not
inconsistent with the collective bargaining agreement; indeed the
company had been unsuccessful in gaining union acquiescence with
its policy. 394 U.S. at 424-25.
                                 6

view, reached reluctantly, is that the Ninth Circuit’s opinion is
not persuasive.

     The union’s brief – in anticipation of a potential argument
the Board might have made – sought to distinguish another
Supreme Court case, NLRB v. City Disposal Systems, Inc., 465
U.S. 822 (1984). In that case, the Court held that an employee
fired by an employer for refusing to drive what he thought was
an unsafe truck had been exercising his section 7 rights because
the collective bargaining agreement gave him the right to
decline to operate unsafe equipment. Even though no other
employee joined with his protest, the Board and Supreme Court
concluded that an employee who relies on a collective
bargaining agreement right – explicitly or implicitly – is
engaging in concerted activity because the agreement itself is a
product of concerted activity, i.e., collective bargaining. City
Disposal, 465 U.S. at 832-33. The administration of the
agreement is a continuation of the collective bargaining process.

     Local 513 argued that City Disposal’s treatment of an
employee’s right under a collective bargaining agreement as
concerted activity did not extend to a duty – such as Ozark’s
safety regulations – even if imposed by the contract. We note,
however, that the failure to comply with that duty, incorporated
into the collective bargaining agreement, could lead to an
employee’s discipline or discharge, which it might be argued
interferes with the employee’s employment relationship within
the meaning of Allis-Chalmers. We need not consider the effect
of City Disposal here because the Board, by pointedly rejecting
the administrative law judge’s effort to tease a finding of
concerted activity out of the facts of this case, has relied only on
its broad per se policy. To make its position crystal clear, the
Board’s brief explicitly declines to rely on City Disposal. Under
those circumstances, it would be improper for us to remand to
the Board to consider an alternative ground that it has explicitly
                                  7

declined to do. See SEC v. Chenery Corp., 318 U.S. 80, 88
(1943).

                                  III

     We recognize that the Board has followed for more than
thirty years the interpretation of section 8(b)(1)(A) that it
advances here. But consistency alone cannot save the Board.
We can find no support in sections 7 and 8(b)(1)(A) for the
Board’s decision, and we find it rather telling that the Board has
never attempted a detailed explanation of how its interpretation
of section 8(b)(1)(A) is consistent with the National Labor
Relations Act. Accordingly, the petition for review is

    granted.2




    2
        The cross-application for enforcement is denied.
