274 F.3d 536 (D.C. Cir. 2001)
Joseph G. Podewils and Gerald Nell Inc., Petitionersv.National Labor Relations Board, RespondentInternational Brotherhood of Electrical Workers, Local 494, Intervenor
No. 00-1505
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2001Decided December 28, 2001

Petition for Review of an Order of the  National Labor Relations Board
Kevin J. Kinney argued the cause for petitioners.  With  him on the briefs was Gene M. Linkmeyer.
Steven B. Goldstein, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong,  Deputy Associate General Counsel, and Julie B. Broido,  Supervisory Attorney.
Matthew R. Robbins argued the cause for intervenor. With him on the brief was Jonathan M. Conti.
Before:  Edwards and Tatel, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge  Silberman.
Silberman, Senior Circuit Judge:


1
Joseph G. Podewils and  Gerald Nell Inc. petitioned for review of the National Labor  Relations Board's determination that Local 494 of the International Brotherhood of Electrical Workers (the Local) did  not violate section 8(b)(1)(B) of the National Labor Relations  Act1 by fining its member Podewils $100,000 after he went to  work as a supervisor at Gerald Nell.  The Board's decision  turns on its finding of fact that the Local was not seeking a  collective bargaining relationship with the company when it  processed an internal charge against Podewils.  That finding  is not supported by substantial evidence and therefore we  grant the petition for review.

I.

2
This case involves the limits on a union's ability to discipline a member who is also performing labor relations supervisory functions.  Podewils was a rank-and-file member of the  Local from 1976 to 1997, when he went to work as a manager--running the electrical division--for Gerald Nell Inc. (a  nonunion shop).  Before beginning work at Gerald Nell,  Podewils went to the Local's office twice in October 1997 and  filled out an honorary withdrawal card, informing Leon Burzynski, a business representative for the Local, that he was  withdrawing for personal reasons.  From October to December 1997, Burzynski, acting on an anonymous tip that Podewils was working at Gerald Nell, sought him out.  On December 1, 1997, Burzynski went to the company's offices to find  Podewils;  he claimed his intention was to verify that Podewils  was working there.  But the ALJ refused to credit Burzynski, since he could easily have verified Podewils' employment  by a phone call.  Burzynski, instead of pursuing the issue  whether Podewils could legitimately withdraw from the Union, asked:  "Is there any possibility you being here means  that the electricians here might become union."  Podewils  responded "that wouldn't happen here ... that wouldn't be  an option."  Burzynski gave Podewils his business card with  his home phone number written on the back, which the ALJ  found was for the purpose of giving Podewils an opportunity  to change his mind.  The business representative then went  back to his car and immediately drew up an internal charge  against Podewils for violating several provisions of the  I.B.E.W. Constitution--one violation was for working for a  nonunion employer while still a member of the Union.  Podewils did not call Burzynski and the latter filed charges with  the Local two weeks later.


3
Two months after that, the Local informed Podewils by  letter that he had been charged with violating the I.B.E.W.  Constitution.  After a hearing, to which Podewils was invited  but did not attend, the Local informed him that he had been  found guilty and assessed a fine of $100,000.  Burzynski  testified that the penalty was proper because Podewils had  already been responsible for over $250,000 of work that  should have been "done union."  Podewils sought counsel  after receiving notice of the fine and appealed to the International, which reduced the fine to $10,000, based on Podewils'  salary and the period of time he had worked for Gerald Nell  as opposed to the amount of union work allegedly lost.


4
Petitioners then filed unfair labor practice charges against  the Local and the International alleging a violation of section  8(b)(1)(A), which makes it unlawful for a labor organization or  its agents "to restrain or coerce ... employees in the exercise  of the rights guaranteed in section 157 of this title[,]" for  disciplining Podewils after he resigned from the Union and  also a violation of 8(b)(1)(B), which makes it unlawful "to  restrain or coerce ... an employer in the selection of his representatives for the purpose of collective bargaining or the  adjustment of grievances...."  29 U.S.C. §§ 158(b)(1)(A),  (b)(1)(B).


5
The ALJ rejected petitioners' contention that Podewils had  effectively resigned from the Union, so he concluded the  Local did not violate section 8(b)(1)(A) of the Act.  He found  that there was no credible evidence to support Podewils'  contention that he mailed the Local a resignation letter it did  not receive.  Turning to the section 8(b)(1)(B) allegation, and  applying the three-part test set out in NLRB v. Electric  Workers IBEW Local 340 (Royal Electric), 481 U.S. 573, 58589 (1987), the ALJ made the following three findings:  Podewils was a section 8(b)(1)(B) "grievance adjuster";  the Local  was seeking to unionize Gerald Nell's employees;  and the  $100,000 fine was intended to adversely affect Podewils in the  performance of his section 8(b)(1)(B) duties.  The ALJ recommended dismissal of all allegations against the International.


6
The general counsel, petitioners and the Local all filed  exceptions.  The Board adopted the ALJ's recommended  dismissal of the 8(b)(1)(A) allegation as well as the dismissal  of the charges against the International.  But the Board  reversed the ALJ's finding that the Local was seeking a  contractual relationship with Gerald Nell.  The Board purportedly found no basis for disputing the ALJ's credibility  findings but thought the only evidence supporting the general  counsel's contention that the Local was seeking a collective  bargaining relationship with Gerald Nell was Burzynski's  inquiry.  And that remark "standing alone, falls short of the  kind of concrete evidence necessary to show a union is  currently and actually seeking ... a collective bargainingrelationship."  Member Hurtgen dissented.  Petitioners contest only the Board's determination that the Local did not  violate 8(b)(1)(B).

II.

7
The law governing this case is undisputed.  A union violates 8(b)(1)(B) by disciplining a supervisor who has either  collective bargaining or grievance adjusting duties and thereby coercing an employer only if it has, or is seeking, a  collective bargaining relationship with the employer.  See  Royal Electric, 481 U.S. at 590.2  The Board has not adopted  the interpretation of section 8(b)(1)(B) Justice Scalia advanced in his Royal Electric concurrence:  that the section  only applies "to circumstances in which there is an actual  contract between the union and affected employer, without  regard to whether the union has an intent to establish such a  contract."  Id. at 597 (Scalia, J., concurring).  The Board has  said that in the absence of an existing collective bargaining  relationship "the evidence must show that the union engaged  in specific overt acts such as picketing or hand-billing for  recognition, soliciting authorization cards, or making statements to an employer indicating a concrete interest in representing the employer's employees, as opposed to a long-term  objective of organizing employees generally."  Plumbers Local 597, 308 N.L.R.B. 733, 733-34 (1992) (emphasis added). The Board did not purport to alter this articulation of the  applicable legal standard.  Instead, the Board, reversing the  ALJ, found that the Local was not in fact actually seeking a  collective bargaining relationship with Gerald Nell--Burzynski's statement was not sufficiently "concrete"--and petitioners claim its finding lacks substantial evidence on the whole  record.


8
So much would appear straightforward.  But counsel for  the Board and for the intervening Local have sought to divert  our attention.  The Board argues extensively in its brief that  its finding that Podewils did not resign from the Union is  entitled to deference, despite the fact that petitioners explicitly do not challenge that finding and the resulting determination that the Local did not violate 8(b)(1)(A).  At oral argument the Board's counsel also suggested that the discipline  meted out to Podewils was not really designed to impact the  employer's selection of a grievance adjuster (although just  how Podewils could manage the electrical division without the  ability to adjust grievances seems obscure).  Yet the Board  did not even suggest that ground in its decision.


9
The intervenor, for its part, argued that Podewils should  not really be considered a grievance adjuster presumably  because that term should be limited to grievances that arise  out of a collective bargaining relationship.  See Royal Electric, 481 U.S. at 588 n.12.  Intervenor's difficulty is that the  Board did not rest its decision on this reasoning;  the Board  assumed that Podewils qualified as a grievance adjuster.


10
We agree with petitioners.  The inferences the Board  draws from the evidence are quite unreasonable and therefore under Allentown Mack Sales & Servs. v. NLRB, 522  U.S. 359, 378 (1998), the Board's finding must be rejected. See also Warshawsky & Co. v. NLRB, 182 F.3d 948, 953 (D.C.  Cir. 1999).  First there is an internal contradiction in the  Board's decision.  It purported not to disturb the ALJ's  credibility findings.  Yet it rejected the ALJ's conclusion,  based on his refusal to credit Burzynski, that the business  agent personally went to Gerald Nell to confront Podewils  (rather than simply call to verify his employment) for the  very purpose of seeking union recognition.  The Board merely stated that it refused to draw an "inference" that the Local  had an "improper retaliatory purpose" because of the personal visit.  The question, however, is whether that personal visit  was itself evidence of the Local's attempt to gain recognition  and the Board advanced no reasons to reject the ALJ's  finding, buttressed by his credibility determination, that it  was.


11
Moreover, the Board also refused to draw any inference  from the fact that Burzynski left his business card and  telephone number with Podewils, rejecting the ALJ's finding  that Burzynski's purpose was to give Podewils a chance to  change his mind concerning establishing a collective bargaining relationship with the Local.  This also seems to be a  rather off-hand rejection of the ALJ's credibility determination, but, in any event, the Board's explanation is ridiculous: that leaving his card with Podewils was consistent with  "Burzynski's responsibility as a business representative to  communicate with constituent members such as Podewils." One does not have the impression that Burzynski wished to  communicate with Podewils as his business representative.


12
Burzynski admitted, moreover, that if Podewils had called  with a change of mind Burzynski would not have filed  charges.  The ALJ took that as further evidence linking the  Local's purpose to gain a collective bargaining relationship  with the retaliatory fine against Podewils.  The Board reasoned, however, that if Gerald Nell had recognized the Local  the charges would have been mooted since Podewils would no  longer be working for a non-union company.  As petitioners  suggest, that reasoning includes a logical flaw;  Podewils  would still have violated the I.B.E.W. Constitution, according  to the Local, by his past behavior, so Burzynski's posture can  only support a recognition motive.


13
Finally, the Board ignores a damaging piece of evidence-the elephant in the room so to speak--that along with Burzynski's visit and comments to Podewils conclusively establishes that the Local sought a collective bargaining relationship with Gerald Nell and retaliated against Podewils for not  providing it.  That evidence is the size and basis for the fine. Counsel for the Board argues that the reasonableness of an  internal union fine is not a matter which we can consider. That is so, but we certainly can look at the size and purpose  of the initial fine, as did the ALJ, for the purpose of determining the Local's motivation.  And the subsequent modification of the fine by the International, both as to the amount  and basis, is not really relevant to the Local's intent.  If  anything, it is damning since it reflects the International's  realization that the Local was in an untenable legal position.


14
Not only did the Local levy on Podewils the staggering fine  of $100,000, it made clear that the fine was based not on  Podewils' salary, but on the supposed amount of money the Local had lost because Gerald Nell was unorganized.  We  think it is quite astonishing that the Board ignores this  evidence.


15
To be sure, as the Board noted, the Local never engaged in  solicitation of authorization cards, picketing or hand-billing,  nor did it demand recognition.  But unions often gain recognition--particularly in certain crafts--from the top down, by  simply requesting recognition from a sympathetic manager or  asking a sympathetic manager to help with organizing, which  is exactly what the ALJ determined was the Local's purpose. That Burzynski did not make a demand for recognition or  engage in public organizational efforts probably reflected a  lack of employee support.  It is flatly unreasonable, however,  to conclude, as the Board does, that his solicitation was  somehow not "concrete evidence" that the Local was seeking  a collective bargaining relationship with Gerald Nell--particularly when combined with the balance of the evidence.  The  statement itself was not coercive but that hardly detracts  from its probative value as an indication of the Local's  objective.


16
In light of the whole record, the Board's treatment of  Burzynski's inquiry as not "concrete" enough to establish that  the Local was "actually" seeking a collective bargaining relationship at Gerald Nell is equivalent to an attempted robbery  case where it is argued that a panhandler's "request" for a  contribution is not concrete enough to establish his objective  despite the fact that when he is refused he hits the victim in  the head with a club.


17
* * * *


18
Accordingly, the petition for review is granted.


19
Accordingly, the petition for review is granted,  and the case is hereby remanded to the Board for further proceedings not inconsistent with this opinion. So ordered.



Notes:


1
 29 U.S.C. § 153 et seq. (2001).


2
 The Supreme Court's opinion carefully limiting 8(b)(1)(B) to the  case of a union that has or is seeking a collective bargaining  relationship with an employer is in part based on the premise that a  union member--particularly a supervisor--has "a right to resign  from a union at any time and avoid imposition of union discipline." Royal Electric, 481 U.S. at 595 (emphasis added).  This case  suggests it may not always be that easy.  The ALJ found that each  Local office worker testified that he or she was under no obligation  to explain to Podewils he should resign, not withdraw.


