Communications Workers, Local 6222

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 312 (N.L.R.B. 1970)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communication Workers of America, Local 6222 and
John H . Reinbold . Case 23-CB-888
October 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 12, 1969, Trial Examiner James T. Barker
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions
to the Trial . Examiner's Decision and a supporting
brief, and the General Counsel filed cross-exceptions
thereto together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent
that they are consistent with the decision herein.
Respondent Union and Southwestern Bell had been
parties to a series of collective-bargaining agreements
for several years. None of these contracts contained
union-security clauses, as the statutes of Texas
prohibit such clauses. John Reinbold, the Charging
Party, had been a member of the Communications
Workers for some 22 years and a member of the
Respondent Local for 5 1/2 years when he was
formally disciplined by the Respondent for failing to
honor a picket line.
In April 1968, Respondent was notified by its
International that one of its sister locals, Local 6290,
would commence an economic strike against South-
western Bell in Houston, Texas, later that month and
instructed Respondent to render assistance to the
striking union. Thereafter, Respondent ordered its
steward, committee members, and other coordinating
groups to inform the membership of the contemplated
strike and to order them to cease work and evacuate
their buildings when the picket lines were established.
The membership was notified that solidarity would be
maintained during the strike and that members who
disrupted the solidarity by disobeying orders would
have charges filed against them. The Trial Examiner
found and we agree that Reinbold "understood to a
point of certitude it was union policy that all members
should leave the job when the picket line went up" on
the contemplated date of the strike.
On April 18, 1968, the day the strike commenced,
some 1,200 to 1,500 members of Respondent, consti-
tuting approximately 25 percent of its membership,
were employed at Southwestern Bell's Jefferson Street
facility in Houston. When Reinbold reported for
work at the Jefferson Street facility that morning,
there were no pickets present. Thereafter, at 2 o'clock
that afternoon the picket line was formed, and,
according to schedule, the employees did in fact walk
out. However, Reinbold and certain other employee
members continued working and completed their
shift which ended at 4:30 p.m. After that day,
Reinbold honored the picket line and did not return
to work until the strike was terminated on May 5. On
April 23, at the request of the chief steward, Reinbold
performed picket duty for some 4 hours.
On May 31, the Union filed charges against
Reinbold and 10 other members for "failing to
comply with the lawful decision of the Union to leave
the job when pickets were established at the Jefferson
Toll Building at 2 p.m., on April 18, 1968." Although
Reinbold cancelled his dues deduction authorization
sometime in July, it is clear that he was a member of
the Union on the day that he worked behind the
picket line. Moreover, there is no indication in the
record that Reinbold formally resigned from the
Union either prior to the walkout on April 18, or
thereafter.
On August 19, Reinbold, apparently still a
member,' and acting as his own counsel, appeared
before the duly constituted union tribunal consisting
of a presiding officer, a prosecutor, and five jury
members. After a hearing, the jury found Reinbold
guilty of the charges as alleged and agreed upon a fine
of $200. Testimony in the present case disclosed that
during its deliberations the jury considered as
significant, among other things, the fact that Rein-
bold, a veteran member of the Union who was
familiar with its policies and needs, deliberately
worked behind the picket line contrary to Union
instructions and that such conduct could not but
affect new members and relatively short term employ-
ees who worked with Reinbold. Although the jury was
apparently aware that after April 18 Reinbold did
honor the picket line, nevertheless it was the consen-
sus of the panel that Reinbold, a union member for 22
years, merited a severe fine for his break with union
' Under Section 5 of the Union 's Constitution a member who is in dues, presumably he would be automatically expelled from the Union at
default in the payment of his dues for 90 days is automatically suspended the end of September . It would thus appear that at the time of his trial he
from membership. If Reinhold continued to withhold the payment of his was in fact a member of the Union.
186 NLRB No. 50
COMMUNICATIONS WORKERS , LOCAL 6222
solidarity and that $200 was an appropriate amount in
this regard.
The Union has not attempted to collect this fine
through any legal proceedings , nor has it in any
manner affected the employment status or rights
under the collective -bargaining agreement of John
Reinbold because of the nonpayment of the fine.
The complaint alleged and the Trial Examiner
found that by imposing a $200 fine on Reinbold
Respondent restrained and coerced Reinbold and
other employees in the exercise of rights guaranteed
by Section 7 in violation of Section 8(b)(1)(A). We
disagree.
Reinbold was a voluntary member of Respondent
who disobeyed his Union 's instruction to honor a
picket line established by a sister Local at his place of
work . The complaint does not question Respondent's
right to impose on its members the obligation to
honor that picket line. Reinbold had not resigned
from the Union prior to his act of working behind the
picket line . He was fined by a tribunal duly constitut-
ed under Respondent 's Constitution and By-Laws for
breaking Union solidarity as he had been warned
would be the case . No question is raised , nor can it be,
that the discipline meted out had any effect upon
Reinbold's employment status.
In these circumstances , it is apparent that the
Respondent 's actions against Reinbold were steps
taken to enforce a legitimate internal union rule which
in and of itself frustrated no aspect of national labor
policy. It is further apparent that the only basis for
finding the violation alleged is that the fine is
purportedly unreasonable in amount and therefore
coercive and restraining of Reinbold and other
members in their exercise of Section 7 rights.
However, the Board has recently considered and
rejected such a basis for finding that a union 's fine of
its member for failing to honor an authorized picket
line constitutes restraint and coercion cognizable
under Section 8(b)(1)(a).2 For the reasons stated in
Arrow Development, we find Respondent did not
violate Section 8(b)(1)(A) by fining Reinbold $200 for
failing to honor an authorized picket line . According-
ly we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
Y International Association of Machinists and Aerospace Workers, AFL-
CIO Local Lodge No 504 (Arrow Development Co) 185 NLRB No 22
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
313
JAMES T. BARKER, Trial Examiner : This matter was heard
at Houston, Texas, on January 31, 1969 , pursuant to
charges filed on August 26, 1968 , by John H. Reinbold. On
December 27, 1968, the Regional Director of the National
Labor Relations Board for Region 23 , consolidated this
case with Case No. 23-CB-898, 898-2, and 898-3 and
issued a consolidated complaint and notice of hearing. By
order of January 21, 1969 , Trial Examiner Paul E. Weil
granted a motion of the Communications Workers of
America, Local 6222, herein called Respondent or the
Union, for severance of the instant case and the instant case
was separately heard . The portions of the complaint
pertinent to this proceeding allege that the Respondent
violated Section 8(b)(1)(A) of the Act by levying a fine in
the amount of $200 against John H . Reinbold, a member of
the Union , because he worked for approximately 2-1/2
hours behind a picket line established by the Union at a
facility of Southwestern Bell Telephone Company in
Houston , Texas. The parties timely filed briefs with me.
Upon consideration of the briefs and upon the record in
this case' and my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Southwestern Bell Telephone Company has been at all
times material herein a Missouri corporation with an office
and place of business at 1407 Jefferson Street, Houston,
Texas, where it is, and has been at all relevant times,
engaged in the business of transmitting and receiving local
and long distance telephone communications as a commu-
nications common carrier which operates under the Federal
Communications Act throughout the State of Arkansas,
Kansas, Missouri, Texas, and a portion of Illinois, with
interstate communications service by wire and radio.
During the 12-month period immediately preceding the
issuance of the complaint herein the Company has received
gross revenues in excess of $100,000 from the furnishing of
its telephone communication services and related business
above described.
Upon these admitted facts, I find that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE RESPONDENT AS A LABOR ORGANIZATION
Communications Workers of America, Local 6222, is
admitted to be a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
i The transcript of this proceeding contains many errors in the
recordation of record discussions between the Trial Examiner and counsel
concerning the issues and contentions of the respective parties with respect
thereto No motion to correct the transcript was filed. However, as the
briefs of the parties fully develop the issues and relevant precedent, I shall
order no correction
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issue present in this proceeding is whether the Union
violated Section 8(b)(1)(A) of the Act by levying a fine
against John Reinbold, a union member, because he
worked for a period of time behind a picket line established
by the Union at a Houston, Texas, facility of Southwestern
Bell Telephone Company. This raises the question whether
the Board has jurisdiction under the Act to scrutinize fines
imposed by a union on a member for violation of an
internal union rule so long as the member's job tenure is not
affected. Respondent asserts that by reason of the decision
in N.L.R.B. v. Allis-Chalmers Manufacturing Company 388
U.S. 175 and the Board's decision in Wisconsin Motors
Corporation, 145 NLRB 10972 internal union fines
are not subject to Board regulation. Assuming a resolution
of this threshold issue adverse to Respondent, there
remains the further issue of whether Allis-Chalmers may be
interpreted as permitting a union to levy only "reasonable"
fines against its members for failing to observe its picket
lines. If reached, this latter interpretation of Allis-Chalmers
requires a determination of whether the fine levied by the
Respondent against Reinbold was a reasonable one.
B. Pertinent Facts
1. Background facts
At relevant times the Respondent and Southwestern Bell
Telephone Company have been parties to a series of
collective-bargaining agreements governing the rates of pay
and terms and conditions of employment of certain of the
Company's employees. The statutes of the State of Texas
prohibit compulsory union membership and collective-
bargaining agreements pertinent in this proceeding contain
no union security clause requiring membership in the
Union as a term and condition of employment. However,
prior to July 1968,3 when his dues deductions were
canceled, John Reinbold had been a member of Local 6222
for approximately 5-1/2 years and of the parent Communi-
cations Workers of America, AFL-CIO-CLC, for approxi-
mately 22 years. His monthly union dues at pertinent times
were $6.
Article XIX of the constitution of the Communication
Workers of America, provides that locals may fine,
suspend, or expell members for certain acts, including:
(e) Working without proper Union authorization,
during the period of a properly approved strike in
or for an establishment which is being struck by
the Union or Local.
The constitution prescribes procedures for charging and
trying members for violations of the constitution and
provides for appeal of determinations of the trial panels
convened pursuant to the provisions of the constitution.
The bylaws of Local 6222 adopts by reference the aforesaid
2 Since the trial of the instant case , the U.S. Supreme Court has
rendered its decision in Wisconsin Motors affirming the ultimate conclusion
reached by the Board therein . Scofield v . National Labor Relations Board,
70 LRRM 3105 (1969).
provisions of the constitution and promulgates procedures
consistent therewith.
Neither the constitution nor bylaws contain procedures
for resigning from the Union but the constitution in Section
5 provides as follows with respect to the nonpayment of
dues:
A member in default, without good cause, in the
payment of any installment of dues for sixty (60) days
from the date such amount becomes due, shall be
automatically suspended from the rights of membership
and, if the default continues, without good cause for an
additional thirty (30) days, after notice in writing by the
Local Secretary, shall be automatically expelled from
the Union. "Good Cause" shall be that which the
governing body of the Local determines to be good
cause.
2. The unlawful conduct
a. The nature of the strike
On April 18, Local 6290, a sister local of Local 6222
commenced an economic strike against Southwestern Bell
Telephone Company and as an aspect of the strike
established a picket line at the Company's facilities in
Houston, Texas. The General Counsel makes no contention
that the strike or the picket line was in any manner illegal.
The picket line was maintained at the Houston facility until
May 5.
b. Strike preparations
On approximately April 1, and for a period immediately
thereafter, Joe Gunn, president of Local 6222, received
written communications and verbal instructions from the
International relative to establishing a picket line at the
Jefferson Street facility of the Company in Houston, Texas.
As a consequence of this, Gunn verbally instructed
members of the executive board, his chief and district
stewards, union committee members and coordinating
group members that he had received communications from
the International to the effect that a picket line would be
established on or about April 12 at the Jefferson Street
facility.4 Gunn instructed those individuals to whom he
spoke to inform the rank-and-file membership that the
picketing was to be orderly and in conformance with law,
and that the members were to evacuate the buildings at
such time as the picket line was established.
c. The membership meeting
On April 4, the Union held its monthly membership
meeting. At the meeting Joe Gunn reported to the
membership concerning the planned strike, advising the
membership that a strike was imminent. He emphasized to
the membership the necessity of maintaining solidarity in
following the instructions of the leadership, he underscored
the necessity for maintaining discipline in carrying out the
instructions of the leadership and he asserted that charges
3 Unless specifically noted otherwise, all dates refer to the calendar year
1968.
4 This date for the commencement of picketing was subsequently
changed to April 18.
COMMUNICATIONS WORKERS , LOCAL 6222 315
would be filed against those members who disregarded
these instructions and disrupted the solidarity of the strike.
He stated that the members, and particularly the chief
steward, had responsibility for reporting those members
who were not maintaining union discipline . He asserted
that those who were charged with faihng to abide by the
discipline would be subject to trial.
In the course of this report, Gunn also asserted that the
leadership had no knowledge of how long the strike would
last and warned the membership that the leadership would
make a $25 per capita assessment against each member to
support the strike fund.
No representative of International attended the April 4
meeting . John Rembold testified credibly that he did not
attend the April 4 meeting.
d. The events of April 18
On the morning of April 18, John Refnbold reported for
his normal tour of duty at the Jefferson Street facility of the
Company at 8 a.m. When he entered the building there was
no picket line. When Reinbold left the building at the
termination of his shift at 4:30 p.m., however, he observed
that a picket line had been established at the Jefferson
Street premises . At the Jefferson Street facility are
employed 1,200 to 1,500 members of the Union, comprising
approximately 25 percent of its membership.
In the meantime , at approximately 8:30 a.m., on April 18,
Reinhold participated in a conversation with two employ-
ees of Western Electric Company, one of whom he knew to
be a rank-and-file member of the Union. The Western
Electric employees inquired why the Southwestern Bell
Telephone Company employees had to "walk out" at 2 p.m.
The Southwestern Bell employees in the group participating
with Reinbold in this conversation, asserted that they did
not know the reason and they did not know under whose
authority the strike had been authorized. During the course
of the day Refnbold also heard discussion among union
members to the effect that they were to walk off thejob at 2
p.m., when the picketing commenced.
Later in the morning of April 18, between the hours of 10
a.m. and 12 noon, C. O. Peters, a member of the Union
Executive Board and an employee of the Company,
conversed with a group of employees on the Company's
premises. Present in the group was John Refnbold who
stood during the course of the conversation within 10 feet
of Peters, and across a small table from him. During the
conversation with the employees Peters was questioned by
one of the employees as to what he, Peters, was going to do
"about the walkout." Peters replied it was union policy that
when the picket signs went up at 2 o'clock the union
members would leave the building. An employee present
asserted that there had been no official union notification.
Peters answered that there were 5,000 members in the local
5 John Rembold testified at the hearing he could not recall, one way or
the other , this interlude with Peters . In this regard his testimony was not
convincing and I credit Peters both as to the occurrence of the event and
the substance of the remarks he made during it
6 Gunn had come to the Jefferson Street building to contact and
instruct the stewards and other key personnel charged with coordinating
strike activities
The General Counsel does not contend that the teal was other than
fair and regular and in conformance to established and promulgated
and that it would be impossible for everyone to be
individually contacted.5
At approximately 1:50 p.m., on April 18, John Reinbold
was in the employee cafeteria at the Jefferson Street facility
of the Company and observed Joe Gunn in the cafeteria 6
Rembold did not seek instructions from Gunn with respect
to the strike and Gunn gave none to him.
Gunn testified that he did not recall issuing any written
instructions to members informing them what to do when
picketing commenced.
e. Reinbold honors picket line
After leaving the premises of the Company at 4:30 p.m.,
on April 18, John Refnbold did not work at any subsequent
time during the strike which terminated on May 5. On April
23, at the request of a chief steward, he performed picket
duty with C. O. Peters at the Jefferson Street facility from 8
p.m. until 12 midnight.
f. Union charges and the fine
On May 31, written charges were filed with the secretary-
treasurer of the Union charging 11 individuals, including
John Refnbold, with "failing to comply with the lawful
decision of the Union to leave the job when pickets were
established at the Jefferson Toll Building at 2 p.m., on April
18, 1968." On July 1, Reinbold was advised in writing of a
trial to be held on August 19 on the issue raised by the May
31 charge. A trial was held on August 19 and a fine of $200
was levied against Rembold.7
g. The trial proceedings
Reinbold attended the August 19 trial and chose to serve
as his own counsel. The proceedings were before a trial
panel comprised of a presiding officer and five jury
members. An individual designated as prosecutor presented
evidence in support of the charge and examined and cross-
examined witnesses.
At the conclusion of the trial, the trial panel adjourned to
conduct its deliberations. Discussed at the deliberations
was, (1) the fact that Refnbold had continued to work
behind the picket line; (2) the effect of this action on new
members and relatively short term employees employed in
the group in which Reinbold worked; (3) the likelihood that
Refnbold was familiar with union policies, and the
provisions of pertinent official documents of the Umon,
including the constitution and bylaws; (4) the impressions
of panel members with respect to the truthfulness of
testimony introduced by Refnbold at the hearing relating to
a dialed telephone message ; 8 and (5) the threat of Reinhold
to take counteraction against panel members which threat
he uttered at the conclusion of the hearing.9
During the deliberations of the jury panel, some
procedures of the Union.
8 At the hearing representations were made and testimony introduced
by Rembold to the effect that a dialed telephone instruction from union
sources left to the individual employee the choice of honoring or working
behind the picket line. The consensus of the panel members was that
Refnbold had endeavored to mislead the panel during the hearing into
believing he had first -hand and not hearsay knowledge of the contents of
the message
9 As the hearing was nearing completion Reinbold stated in substance,
(Continued)
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration was given to the inferences drawn from the
specifications of the charges against Reinbold, that he had
honored the picket line on and after April 18. There was no
discussion during the deliberations among the members of
the jury panel of the amount of Reinbold's earnings for the
2 1/2 hours he worked behind the picket line. No formula
for arriving at the amount of a fine was discussed among
the panel members. However, as the discussion of the
evidence adduced before the jury panel evolved, amounts
were discussed and a consensus was reached on the $200
fine.
In this latter regard Dorothy Sparks, who served as
foreman of the trial panel, on cross-examination testified as
follows:
A. I really don't believe I understand exactly what
you mean about how we arrived at that figure. I know
what we said about it. attitude, belligerent. And also we
felt that in threatening
Q. Tell me what you said? Tell me what you said
about it?
A. That anybody who did this with that service and
took that us, you dare not do anything to me, is the way
we felt about it.
Q. Yes.
A. That person did deserve a heavy penalty.
s • s s s
Q. Were various amounts of fines imposed on other
trials than Mr. Reinbold's?
A. Yes.
Q. Was there any discussion during the considera-
tion of Mr. Reinbold's case of the amount of fines that
you may have already decided in other cases in arriving
at the $200 here?
A. No.
s s s s s
... please tell me is there anything that you can
think of that was said or discussed that decided as far as
the jury was concerned that $200 was what you wanted
to fine him as opposed to picking $200 out of the air?
That's what I'm trying to find out. Why did you get the
$200? What was said about it? That's what I'm trying to
find out.
A. You say that $200 out of the air-that would be
near it than to say-we are not comparing it to any
other case we had heard or anything.
Q. All right.
A. We strictly was on the case itself.
Q. O.K.
A. And they felt like if it should run in the
discussion that they should have a severe fine, and
-that's why we finally compromised on the $200-that
was the low figure, not below that.
h. Fine unenforced
The Union has undertaken no civil or other legal action
to collect the fine that was levied against Reinhold nor has
it in any manner affected the employment status or rights
under the collective-bargaining agreement of Reinbold
because of the nonpayment of the fine.
The record contains no evidence revealing that it had
been the practice of the Union to enforce through trial and
fines the bylaw and constitutional proscriptions against
strikebreaking.
i. Reinbold's wage rate
John Reinhold is paid biweekly and under the plant
agreement in effect at the time of the strike was
compensated at the rate of $158 for a 40-hour basic
workweek.
Under the 1968 plant agreement which became effective
on July 17 Reinbold was compensated at the rate of $170
for a similar workweek.
CONCLUSIONS
The initial issue in this case is whether under the decision
of the United States Supreme Court in Allis-Chalmers the
Board has jurisdiction to entertain a complaint alleging a
violation of Section 8(bXl)(A) arising from the imposition
of a fine against a member for working behind a picket line
established by the Union in support of a legal strike. The
Respondent contends that this jurisdiction does not reside
with the Board, and that, in any event, the fine actually
imposed was the reasonable one, viewed in context of all
surrounding circumstances.
On the other hand, the General Counsel contends that
the Allis-Chalmers decision must be read as rendering
violative of Section 8(b)(1)(A) of the Act fines imposed in
the aforesaid circumstances which are not "reasonable" or
are "unreasonably large."
In Allis-Chalmers the court framed the issue before it for
decision as follows:
The question here is whether a union which threatened
and imposed fines, and brought suit for their collection,
against members who crossed the union's picket line
and went to work during an authorized strike against
their employer, committed the unfair labor practice
under Section 8(b)(1)(A) of the National Labor
Relations Act of engaging in conduct "to restrain or
coerce" employees in the exercise of their right
guaranteed by Section 7 to "refrain from" concerted
activities.
The fines under consideration by the court were
concededly reasonable. The court held, in substance, "the
body" of Section 8(b)(1)(A) may not be interpreted as
reaching the imposition of fine against recalcitrant
members who worked behind a union picket line, and
attempts at court enforcement. The court observed "(O)ur
conclusion that Section 8(b)(1)(A) does not prohibit the
local's action makes it unnecessary to pass on the Board
holding that the proviso protected such actions." 10
However, the court observed, by way of dicta, "(A)t the
very least it can be said that the proviso preserved the rights
of unions to impose fines, as a lesser penalty than
expulsion, and to impose fines which carry the explicit or
that if the Union continued to harass him, and if they took any "hide off "plenty of trouble."
him," they had better do a good job because he would give the Union 10 N.LR.B. v. Allis-Chalmers, supra, p. 192, at note 29.
COMMUNICATIONS WORKERS , LOCAL 6222
implicit threat of expulsion for nonpayment. Therefore,
under the proviso the rule in the UAW constitution
governing fines is valid and the fines themselves and
expulsion for nonpayment would not be an unfair labor
practice."
It is pertinent to observe that Justice Brennan, writing for
the majority of a closely divided court, was deciding a case
involving reasonable fines. In his concurring opinion,
Justice White ascribes to the court the "more persuasive
and sensible construction of the statute" observing: "(M)y
Brother Brennan, for the court, takes a different view,
reasoning that since expulsion would in many
cases-certainly in this one involving a strong Union-be a
far more coercive technique for enforcing a union rule and
for collecting a reasonable fine than the threat of court
enforcement, there is no basis for thinking that Congress,
having accepted expulsion as a permissible technique to
enforce a rule in derogation of Section 7 rights, nevertheless
intended to bar enforcement by another method which may
be far less coercive." '[Emphasis supplied.] Writing for the
four dissenting justices, Justice Black similarly interprets
the decision of the court as dealing with reasonable fines for
he observes, "(W)ith no reliance on the proviso to Section
8(b)(1)(A) or on the meaning of Section 7 the Court's
holding boils down to this: A court-enforced reasonable
fine for nonparticipation in a strike does not `restrain or
coerce' an employee in the exercise of his right not to
participate in the strike."
Additional language crucial to the formulation of the
"reasonable" fine theory is found in the following passage
from the court's decision: 11
There may be concern that court enforcement may
permit the collection of unreasonably large fines.
However, even were there evidence that Congress
shared this concern, this would not justify reading the
Act also to bar court enforcement of reasonable fines.
[Footnote citations deleted.]
In context with this observation, however, the court also
observed:
It has been noted that the State Courts, in reviewing the
imposition of union discipline, find ways to strike down
"discipline [which] involves a severe hardship." Sum-
mers, legal limitations on union discipline, 64 Harv. L.
Rev. 1049, 1078 (1951).
In answer to the observation of the court in this regard,
Justice Black, writing for the dissenting justices, asserted:
Thus, although the union herein posed minimal fines
for the purpose of its "test case," it is not too difficult to
imagine a case where the fines will be so large that the
threat of their imposition will absolutely restrain
employees from going to work during a strike. Although
an employee might be willing to work even if it meant
the loss of union membership, he would have to be well
paid indeed to work at the risk that he would have to
pay his Union $100 a day for each day worked. Of
course, as the court suggests, he might be able to defeat
the Union's attempt at judicial enforcement of the fine
by showing it was `unreasonable' or that he was not a
`full member' of the union, but few employees would
11 N L R B v Allis-Chalmers, pp 192-193
12 N L R B v Allis -Chalmers, p. 204
317
have the courage or the financial means to be willing to
take that nsk.12
If doubt lingered as to the existence of a distinction
between "reasonable" and "unreasonably large" fines
under the court's Allis-Chalmers decision, the court's recent
decision in the Wisconsin Motors case13 goes far to dispell
that doubt.
In finding no violation of Section 8(b)(1)(A) the court
observed as follows: Based on the legislative history of the
section, [Section 8(b)(1)(A)] including its proviso, the court
in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195,
distinguished between internal and external enforcement of
union rules and held that `Congress did not propose any
limitations with respect to the internal affairs of unions,
aside from barring enforcement of a union's internal
regulations to affect a member's employment status.' A
union rule, duly adopted and not the arbitrary fiat of a
union officer, forbidding the crossing of a picket line during
a strike was therefore enforceable against voluntary
members by expulsion or a reasonable fine. The Court thus
essentially accepted the position of the National Labor
Relations Board dating from Minneapolis Star and Tribune
Co., 109 NLRB 727, where the Board also distinguished
internal from external enforcement in holding that a union
could fine a member for violating a rule against working
during a strike but that the same rule could not be enforced
by causing the employer to exclude him from the work
force or by affecting seniority without triggering violations
of Section 8(b)(1), 8(b)(2), 8(a)(1), 8(a)(2), and 8(a)(3).
These Sections form a web, of which Section 8(b)(1)(A) is
only a strand, preventing the Union from inducing the
employer to use the emoluments of the job to enforce the
Union's rule. [Footnote citations deleted.]
In conjunction with the foregoing by a footnote
observation the court also noted:
The Board has long held that Section 8(b)(1)(a's)
legislative history requires a narrow construction which
nevertheless proscribes unacceptable methods of union
coercion, such as physical violence to induce employees
to join the Union or to join a strike. In re Maritime
Union, 78 NLRB 971, enfd. 175 F.2d 686 (C.A. 2nd Cir.
1949).
In its Scofield decision the court stated, as it had done in
Allis-Chalmers, that the Landrum-Griffin Act did not
purport to overturn or modify the Board's interpretation of
a Section 8(b)(1).
In further delineating the reach of its decision the court
continued as follows:
Although the Board's construction of the Section
[Section 8(b)(1)(A)] emphasizes the sanction imposed,
rather than the rule itself, and does not involve the
Board in judging the fairness or wisdom of particular
union rules, it has become clear that if the rule invades
or frustrates an overriding policy of the labor laws the
rule may not be enforced, even by fine or expulsion,
without violating the Section 8(b)(1). In both Skura
[Local 138 International Union of Operating Engineers
148 NLRB 679], and Marine Workers [Industrial Union
of Marine Shipbuilding Workers of America, 159 NLRB
13 Scofield v N L P,B, et al, 70 LRRM 3105
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1065 ], the Board was concerned with union rules
requiring a member to exhaust union remedies before
filing an unfair labor practice charge with the Board.
That rule, in the Board's view, frustrated the enforce-
ment scheme as established by the statute and the
Union would commit an unfair labor practice by fine or
expelling members who violated the rule.
Pursuant to this analysis the court then formulated the
following rule:
Under this dual approach Section 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. This view of the statute
must be applied here. [Emphasis supplied.]
Applying its formulated rule to the facts of the case
before it, the court in Scofield observed further:
In the case at hand, there is no showing in the record that
the fines were unreasonable or the mere fiat of a union
leader, or that the membership of petitioners in the
Union were voluntary. Moreover, the enforcement of
the rule was not carried out through means unaccepta-
ble in themselves, such as violence or employer
discrimination. It was enforced solely through the
internal technique of union fines, collected by threats of
expulsion of judicial action. The inquiry must therefore
focus on the legitimacy of the union interest vindicated
by the rule and the extent to which any policy of the Act
may be violated by the Union impose production
ceiling. [Emphasis supplied.]
Thus, the decision in Scofield reinforces the view gleaned
from Allis-Chalmers, that to escape the prohibition of
Section 8(b)(1)(A) a disciplinary fine levied against a
member must be reasonable in amount.14 Those that are
not "impinge on the policies enunciated in Section 7 of the
Act" and lose the shelter of the "federally unentered
14 If this were not so, and if it had viewed Congress by the passage of
Section 8(b)(1)(A) as having intended no Board authority in the area of
disciplinary fines, it is apparent that the court would have refrained from
the carefully drawn distinction between "reasonable " and "unreasonable"
fines.
15 Cf. Scofield, supra, at p. 3106 In . 3. The observation of the court in
Machinists v. Gonzales, 356 U.S. 617 to the effect that, "[T]he protection of
union members and their rights as members from arbitrary conduct by
unions and union officers has not been undertaken by Federal law, and
indeed the assertion of any such power has been expressly denied" must be
read in light of the amplification afforded in Scofield.
16 The Respondent contends that , as the Board has not "announced any
approved standards or guidelines by which it intend(s) to judge union
discipline as to . . . reasonableness [ in the imposition of disciplinary
fines ]" the General Counsel is proceeding improperly by attempting to use
this case as a vehicle to establish Board jurisdiction in the area and to
promulgate new standards . Moreover, the Respondent criticizes the failure
of the General Counsel to spell out "either in the complaint or at the
hearing" the standards he intended to urge . "(I)n exercising its quasi-
judicial function an agency must frequently decide controversies on the
basis of new doctrines , not theretofore applied to a specific problem,
though drawn to be sure from broader principles reflecting the purposes of
the statutes involved and from the rules invoked in dealing with related
problems . If the agency decision reached under the adjudicatory power
becomes a precedent , it guides future conduct in much the same way as
though it were a new rule promulgated under the rule making power, and
both an adjudicatory order and a formal "rule" are alike subject to review.
Congress gave the Labor Board both these separate but almost inseparably
related powers . No language in the National Labor Relations Act requires
that the grant or exercise of either power was intended to exclude the
enclave" open to state, regulation of the contractual
relationship between union and employee.15
The criteria or standard for determining what is a
reasonable fine has been established in no Board or court
decision. However, a definitive standard and formula for
determining that a fine is reasonable has been found by
Trial Examiner Ramey Donovan in Booster Lodge No. 405,
International Association of Machinists and Aerospace
Workers, AFL-CIO (The Boeing Company), Case No.
15-CB-779, TXD-737-68, issued December 30, 1968.16
In his Boeing decision Trial Examiner Donovan stated:
For several reasons, it is our opinion that the Court
contemplated that a reasonable fine was one that would
be less than a total deterrent to working during a strike.
As we have seen, the expulsion of a member from a
strong union is, in effect, total deterrence to strikebreak-
ing or any other internal rule violation. But the Court,
recognizing the aforementioned power of the strong
union, said that the strong union could impose a lesser
penalty than expulsion, to wit, fines and court
enforcement thereof. By the same token, it was
concluded that the weak union could seek court
enforcement of fines because it was a lesser penalty
than expulsion. Since expulsion by a strong union is
equivalent to total deterrence and since the Court
referred to court enforcement of fines as a lesser penalty
than expulsion, then a reasonable fine, enforceable in
court, should not be so large in amount that it is equal
to total deterrence. If this is not so, court enforced fines
are not lesser penalties than expulsion by a strong
union.
Another reason for believing that a reasonable fine is
one that is less than a total deterrent to any union
member working during a strike is the fact that, under
the Act, the right to strike and to shut down the
employer's operation is not unlimited. The Supreme
Court has held that during an economic strike an
Board 's use of the other." [Footnote citation deleted .] N.L.R.B. v. Wyman-
Gordon Co., 70 LRRM 3345 ( 1969), concurring opinion of Justice Black,
supra, page 3349. "The short of it would seem to be that when an
administrative agency makes law as a legislature would , it must follow the
rule-making procedure prescribed in Section 4 [of the Administrative
Procedure Act], when it makes law as a court would , it must follow the
adjudicative procedure prescribed in Sections 5, 7, and 8 [of the
Administrative Procedures Act]; whether to use one method of law making
or the other is a question of judgment , not of power . N.LR.B. v. A. P. W.
Products Co., 316 F.2d 899, 905 (C.A. 2); see also N.L.R.B. v. Wyman-
Gordon Co., supra, pp. 3346-3347. In Allis-Chalmers the Supreme Court
delineated an area of union conduct arguably proscribed by Section
8(b)(I)(A). As was clearly within his authority under Section 3 (d) of the
Act, the General Counsel proceeded by way of notice , complaint, and
adversary hearing under Section 10 of the statute to determine
adjudicatively the reach of Section 8(bxl)(A), construed in light of the
Allis-Chalmers decision . This is consistent not only with the Administrative
Procedure Act but with the time-honored approach of the Board, affirmed
by the courts, in seeking to give administrative application to the various
provisions of the statute "expressive of such large public policy" Phelps
Dodge Corp. v. N.L.R.B. 313 U.S. 177 (1941), Local 761, International Union
of Electrical, Radio & Machine Workers, AFL-CIO v. N.L.R.B., 366 U.S.
667 (1961). The procedural validity of this proceeding is not marred by the
failure of the General Counsel to define, in detail , a set rule for
determining "reasonableness." It is enough that upon a legally sufficient
complaint and notice he challenged the Respondent 's conduct,
adjudicatively, invoking the Board's remedial powers only over the conduct
proclaimed to have violated the proscriptions of the Act . He sought no
formulation and retroactive enforcement of a rule of general application.
COMMUNICATIONS WORKERS , LOCAL 6222 319
employer has the right to protect and carry on his
business by hiring permanent replacements for the
strikers. [Footnote citation deleted.]
s s s
It is one thing for a union and its members, through
loyalty, dedication, conviction, and solidarity, to strike
and to voluntarily remain on strike and thereby exert
maximum economic pressure by closing down a plant
completely, but it is another thing to obliterate all
aspects of individual freedom by court enforced fines of
a private organization when the fines are so large in
amount that no member could work. Section 7 and
Section 8(b)(1)(A) of the Act underwent some attenua-
tion in Allis-Chalmers but it is doubtful that they
disappeared completely. If there is one thing reasonably
clear regarding the enactment of Section 8(b) of the Act
in 1947, it is that the Section was intended to prevent a
union from affecting the employment of employees
except in the narrow area of nonpayment of dues under
a union shop contract. A fine that is so great that it is an
absolute deterrent to working prevents an employee
from working and deprives him of employment. Again,
if the fine is per se a total deterrent then we have total
deterrence and this result is inconsistent with the court's
definition of a reasonable fine as a lesser penalty than
expulsion by a strong union, the expulsion being, as
previously described, equivalent to total deterrence.
A further consideration in reaching a conclusion that a
reasonable fine is less than a total deterrent is the nature
of a union and its relationship to employee members.
The union's strength, except in a nonfree society,
ultimately and in the long run, depends on the
voluntary support and loyalty of its members. The
objective fines and other discipline would properly be
the rehibilitation of recalcitrant members into loyal
members rather than further or complete alienation of
the recalcitrants. The good and bad members of the
Union will continue to be employees in the plant
represented by the Union. A reasonable fine, imposed
on strikebreakers, that deterred such activity, would
appear more consonant with the term reasonable fine as
used by the Supreme Court than would a fine so large in
amount , accompanied by court enforcement and costs,
that it is a total deterrent which quite possibly could
completely alienate the member from any voluntary
cooperation with, or support of, the Union thereafter.
As previously stated, it is our opinion, that a reasonable
fine , in the context in which we are considering the
term, should be based on a relationship of the fine to the
strikebreakers' earnings during the strike. We have
rejected, for reasons stated, total deterrence as compati-
ble with a reasonable fine. This would eliminate a fine
that is equivalent to 100 percent of earnings during a
strike and it would eliminate any fine in a greater
amount than such total earnings. The reasonable fine is,
we believe, equitable and conveniently defined as a
percentage of the strikebreakers' earnings, where the
17 Booster Lodge No 405, etc, supra, p 20
18 The fine was also comprised of an element of reprisal against
Reinhold personally (deriving from his threat at the trial to gain retribution
percentage of earnings encompassed by the fine is large
enough to deter the normal employee from violating his
obligation as a union member to refrain from working
during a duly authorized strike , but not so large that it
completely eliminates , as a practical matter, all freedom
of choice on the part of the employee to exercise some
major of individual freedom as guaranteed under
Section 7 and 8 (b)(1)(A) of the Act.
s s * * s
It is the Examiner's opinion that a fine of 35 percent or
less of a strikebreaker's earnings at his regular straight
time rate is, presumptively, a reasonable fine. We also
believe that a fine of 80 percent or less of overtime or
premium pay, earned by a strikebreaker, which he
would not normally have earned but for the fact that his
fellow union members were engaged in an authorized
strike, presumptively, is a reasonable fine. We believe
that a total fine embracing some earnings at the 35
percent or less rate and some earnings at the 80 percent
or less rate is, presumptively, a reasonable fine.
In agreement with Trial Examiner Donovan, and for the
reasons stated by him, I find that a fine , to be reasonable,
may be of sufficient magnitude "to deter the normal
employee from violating his obligation as a union member
to refrain from working during a duly authorized strike, but
[may not be] so large that it completely eliminates, as a
practical matter, all freedom of choice on the part of the
employee to exercise some measure of individual freedom
as guaranteed under Section 7 . . . of the Act." 17 As
observed by Trial Examiner Donovan, all fines have an
element of punishment. When the size of the fine is such as
to leave to the member a genuine choice of alternatives the
fine does not derogate the guarantees of Section 7 of the
Act and serves to protect the legitimate interests and ends
sought to be achieved by the collective-bargaining agent
invested with the responsibility under the Act of represent-
ing unit employees. However, when the magnitude of the
fine is such that, in terms of economic reality, the member
has no choice at all, his Section 7 rights are subordinated
thereby to the ends sought to be achieved by the collective-
bargaining agent, and the fine assumes a punitive and
retributive character.
The record evidence is convincing that in deliberating the
fine to be assessed against Reinbold, the jury panel
undertook no balancing of rights, and that union interests
totally dominated the judgment of the panel. The fine that
emerged, by the testimony of its foreman, was a "heavy
penalty" which, while it reflected legitimate union concern
over the erosion of membership discipline suffered at
Rembold's hand, was in no discernable manner moderated
by a consideration of Rembold's statutory rights to abstain
from supporting the strike or of his strike or normal
workweek income. is
It is apparent that, in the case at bar, the fine of $200
imposed against Reinbold for working 2 1/2 hours behind
the picket line, whereby he earned $9.11, was of such a
magnitude as to deprive Reinhold of any practical choice of
against the Union) which bore no relationship to any interest of the Union
in maintaining the efficacy of its rule and which was unrelated to any
reasonable deterrent objective
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alternatives. The fine exceeded by more than 20 times the
amount of his strike earnings and was 126 percent of his
then currently weekly earnings . This fine assessed against
Reinbold by the Union also had a precedential effect of
foreseeably depriving members of any realistic choice in the
event of a future strike called or supported by the Union.
It is sufficient for the purpose of this case to decide, as I
do, that a fine of the amount here assessed against John
Reinbold reflects the failure of the Union through its trial
panel to properly balance Reinbold's Section 7 rights
against the legitimate interests of the Union; 19 and to find
further that, as a consequence of the unreasonably large
fine imposed through this process, the Union coerced John
Reinbold in the exercise of his Section 7 rights and thereby
violated Section 8(b)(1)(A).
The fine was not purged of its coercive elements by
reason of the freedom Reinbold had, which he did not
exercise, to resign from the Union prior to undertaking to
remain at work behind the picket line.20 Unlike the
employees in Scofield where the fines to be imposed for
breach of the union's rule had been promulgated and long
established, Reinbold had no basis for assuming, in the
absence of any known past practice of the Union, that he
would be fined, or that the fine for his initial offense would
be as repressive as it turned out to be. Moreover, the
coercion, which I find occurred, arose at the moment of the
fine's imposition and at that moment the Union's right to
satisfaction21 and Reinbold's obligation to perform became
fixed, as they arose from the contractual relationship
between union and member which existed at the time of
Reinbold's picket line offense. The right and concomitant
obligation thus survived the Respondent's subsequent
termination of his dues deduction.22
Nor was the fine rendered noncoercive, and therefore
nonviolative of the Act, by reason of the fact, undisputed,
that Respondent has not resorted to court enforcement for
its collection. To the wage earner against whom it was
assessed, the fine, as I have found, remained an obligation,
and not a nullity. So long as it retained this status it
constituted a detriment of significance to be weighed by
Reinhold in reaching any future decision regarding the
19 It is essential , as noted by the court in N.L.R.B. v. Allis-Chalmers
Mfg. Co., 388 U.S. 175 (1968), that a union, as an attribute of its strike
power, have the right to fine and expell strikebreakers. This right in support
of the strike, declared to be "the ultimate weapon in labor's arsenal for
achieving agreement on its terms ," however, in my view, is not unlimited
and must be balanced against the rule of "reasonableness" specified in
Scofield and Allis-Chalmers.
20 I find, as a fact, both by reason of union practice and the
conversations which he heard on April 18, Reinhold understood to a point
of certitude it was union policy that all members should leave the job when
the picket line went up at 2 p.m.
21 It was of course, subject to reduction or remittitur by a court, in an
enforcement suit.
22 In Scofield the employees could reach an informed judgment as to the
consequence of any breach of the union's rule because they knew the rule
and had been apprised of the formula for assessing fines. Thus the rule
enunciated in Scof:el4 considered together with Reinbold's failure to resign
from the Union, may not be viewed as excusing the union action herein.
Moreover, in Scofield, the fines assessed were found by the court to have
been "reasonable" and thus noncoercive. As the court found, "(U)nless the
rule or its enforcement impinge on some policy of the federal labor law, the
regulation of the relationship between union and employees is a
contractual matter governed by local law." Scofield supra, p. 3106, fn. 3.
23 1 find no merit in Respondent's contention that the Board should
participation in or abstention from union activities for
which a fine could be assessed as the price of
nonparticipation.23
While the foregoing findings are sufficient , in my view, to
determine the issues raised in this case, in further agreement
with Trial Examiner Donovan, I am of the opinion that in
the interest of orderly and efficient administration of the
Act it is desirable to establish a formula by which
individuals and organizations subject to the Act may
reasonably predetermine fines which are "reasonable" and
those which are not. After careful consideration of the
variant alternatives, I am in agreement with Trial Examiner
Donovan that a fine of 35 percent or less of a strikebreak-
er's earnings at regular straight time pay rate and of 80
percent or less of his premium time earnings accrued during
the strike is a presumptively reasonable fine within the
meaning of the Allis-Chalmers concept.24 However, I would
augment this formula by permitting a union to impose
against a member a minimum fine equivalent to 1 day's
straight time pay for any work unauthorized by the Union
performed by the member behind the picket line during the
course of a legal strike approved by the Union.25 A fine of
the size suggested would have the effect of encouraging
membership support of the strike both at the outset and
during its duration, while, in keeping with the spirit and
mandate of Section 7 of the Act, not foreclosing employees
of the choice whether to commit, withhold, or, during the
strike, withdraw his support of the strike in accordance with
his wishes, evaluations, and judgments as to the merits of
the strike or its continuation, as the case may be. In this
manner the Union's internal rules are given meaning and
the guarantees of Section 7 of the Act are given realistic
dimension.26 Thus, in emphasizing as I have the disparate
nature between the amount of the fine levied against
Reinbold and Reinbold's strike earnings during his 2-1/2
hour stint behind the picket line, I intend no inference that
the Union's interest in maintaining the credibility and
integrity of its internal rules against strikebreaking were so
relatively subordinate to the superior guarantees of Section
7 of the Act as to relegate the Union to token action.27
Obviously, to protect against such transitory departures
abstain herein by reason of Reinbold 's failure to resort to internal union
appellate procedures to test the validity of the fine. Because the fine herein
was unreasonably large and therefore violative of the Act , the conduct of
the Union "touches the public domain covered by the Act" and the Board
has jurisdiction to entertain the complaint . N.LR.B. v. Marine &
Shipbuilding Workers, 68 LRRM 2257 ( 1968).
24 Generally , fines which would discourage strikebreaking by extracting
all earnings accrued by the member from work performed behind the
picket line are deemed incompatible with the Supreme Court's concept of
"reasonable," as these fines would constitute a total deterrent to the
member's exercise of a realistic choice . A case to case approach creates so
variable and imprecise a climate for the exercise of judgment by the
employer-member unskilled in the nuances and niceties of the law as to
decisively militate against this approach.
26 At the time of the strike John Reinbold's earnings for 8 hours' work
were $31 .60, as contrasted to the $200 which he was fined.
26 A token or wrist-slap type of fine falls far short of achieving this
latter objective . It is for this reason , and not because transitory
nonobservance is more , or less, serious than prolonged nonobservance that
a minimum must inhere.
27 Under the 35/80 percent formula proposed by Trial Examiner
Donovan in his Boeing decision, the maximum fine the Union could have
imposed against Reinhold would have been $3.46 extracted from the $9.875
straight time pay which Reinbold earned.
COMMUNICATIONS WORKERS , LOCAL 6222 321
and flaunting of the rule, which if widespread, would have
substantial, cumulative adverse effect upon any legitimate
strike effort, a union must have the right to impose a
significant minimum fine for any breach of its rule. The fine
here suggested would reach this accommodation.28
The application of the 35/80 percent formula articulated
in Boeing would thus become operative against a member's
earnings behind a picket line accrued after the completion
of one normal shift and, in calculating the total fine
assessable , would be in addition to the minimum fine
permitted under the aforesaid standard.
I am of the further opinion, in substantial agreement with
Trial Examiner Donovan, that in order to strike the proper
balance between rights guaranteed under Section 7 of the
Act and the responsibilities residing with the statutory
collective-bargaining agent, a union, prior to the com-
mencement of an authorized strike, must apprise each of its
members in a manner calculated to achieve actual
notification to them29 that, (1) members who work behind
the picket line during the strike may be subject to fines
enforceable in court, (2) the amount of the minimum fine
assessable against a member for his initial breach of the
union rule, (3) the formula or standard to be applied in
determining the ultimate total fine assessable against a
recalcitrant member and (4) to escape the ultimate
imposition of a fine, the member, prior to crossing a picket
line, must notify the union, in writing, of his intention to
immediately withdraw from full membership in the
union.30 In this latter connection, the Union's notification
to members covered by a maintenance of membership or
other union security arrangement must accurately apprise
the member of his membership obligations and options
under prevailing collective-bargaining terms, including the
dates and method by which the member may terminate his
maintenance of membership as well as the member's
obligation under a union security contract to continue to
pay the equivalent of dues in the event he accomplishes
withdrawal from full union membership. Moreover, under
this notification requirement, the Union must apprise its
members that under applicable rules the required written
notification to it is accomplished by deposit in the United
States mails of the appropriate written instrument or by
dispatch of a telegram of like content.
Thus, under the foregoing rules, an employee is
capacitated to make a reasoned judgment whether to
exercise the guarantees of Section 7 of the Act so as to
engage or refrain from engaging in union activities. A fine
imposed against an employee who serves the described
written notice upon the union and in a timely fashion,
28 Although it is recognized that in a brief strike of a duration of a day
or less , this minimum might equal or exceed strike earnings , the rule for the
reasons stated is believed "reasonable" and justified in striking a proper
balance of rights
29 A form notice posted at union meeting halls and offices and on
bulletin boards at employee work locations would be an acceptable method
of notification
30 Cf Scofield, supra, p. 3108
31 When the bylaws and constitution of a union contain no procedures
for resigning all that is required is that the employee make clear and
unequivocal his intent See Aeronautical Industrial District Lodge 751,
affiliated with The International Association of Machinists & Aerospace
Workers, AFL-CIO (The Boeing Company), 173 NLRB No 71 When
provisions are spelled out in bylaws and/or constitutions the employee
consonant with the aforesaid rules , effectuates his with-
drawal from the union would be coercive and violative of
Section 8(bxlXA).31 Similarly, a fine which substantively
departs from any of the elements of the aforesaid rule
would be, presumptively, not a reasonable fine and would
be violative of Section 8(b)(1)(A) of the Act when imposed
against an employee who breaks the union's rule but retains
his membership in the union. On the other hand, a fine
levied by a union against such an employee after
compliance with all the notice elements of the aforesaid
rule, and which complies with the 35/80 percent formula
element of the above rule, would be, presumptively, a
reasonable fine and would not be subject to attack under
the Act.32
In sum and for the reasons stated above, I find that the
Union violated Section 8(b)(1)(A) by assessing against John
Reinbold, a member, a fine so large in relation to his strike
or normal weekly earnings as to constitute for practical,
economic purposes, a total deterrent to his exercise of the
right guaranteed by Section 7 of the Act to refrain from
participation in concerted activities. This disparity between
fine and income is such as to deprive the fine of the
requisite reasonableness demanded under the Allis-Chal-
mers and Scofield decisions. Because of this disparity, this
decision does not and need not rest upon a retroactive
application of the formula or notice provisions articulated
herein.33
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Southwestern Bell Telephone Company described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(b)(1)(A) of the Act, I
shall recommend that it cease and desist therefrom and that
it take certain affirmative action which is necessary to
effectuate the policies of the Act.
Having found that labor organizations under the statute
may impose reasonable fines upon members for working
behind a picket line during a legal, authorized strike, and
having further found that the instant strike was of that
after giving notice of intention may reasonably be required to take the
subsequent steps required to complete his resignation in conformity to
prevailing bylaw and constitutional provisions In those instances where
the appropriate notice of intent is not alone sufficient to accomplish a
resignation, it is reasonable to require a union to abstain from passing
judgment upon the acts of a recalcitrant employee until the time and
opportunity requisite for accomplishing resignation under applicable
procedures has passed
32 The presumption of the aforesaid rules, like all presumptions, may be
in a specific factual situation , overcome by sufficient evidence to establish
their inapplicability
33 However, the underlying rationale and the minimum fine provision is
deemed relevant to the fashioning of an appropriate remedy
322 DECISIONS OF NATIONAL
variety, in order to balance the right of the Union to impose
reasonable fines against the superior guarantees to John
Reinbold of Section 7 of the Act to refrain from engaging in
concerted activities, I shall recommend that the Union
expunge and rescind so much of the fine levied against
John Reinbold as exceeds the amount of John Reinbold's
entire earnings in the employ of Southwestern Bell
Telephone Company on the day of April 18, 1968. I shall
further recommend that the records of the Respondent
Union with respect to the fine against John Reinbold be
corrected to reflect the imposition of the lesser fine in the
amount here indicated, and that the Union notify John
Reinbold in writing of this action.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. Communications Workers of America, Local 6222 is
a labor organization within the meaning of Section 2(5) of
the Act.
2. Southwestern Bell Telephone Company is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By imposing a fine of $200 against John Reinbold, a
member, for working 2-1/2 hours behind a picket line at a
facility of Southwestern Bell Telephone Company during a
strike authorized by the Union, the Union restrained and
coerced John Reinbold in the exercise of rights guaranteed
in Section 7 of the Act and thereby violated Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, its officers, agents and
representatives, shall:
1. Cease and desist from:
(a) Fining members in amounts of money that constitute
unreasonably large fines because they worked behind a
picket line during a lawful strike authorized by the Union.
(b) In any like or related manner restraining or coercing
its members in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and rescind so much of the fine levied
against John Reinhold as exceeds the amount of the wages
earned by John Reinbold in the employ of Southwestern
Bell Telephone Company during the entire workday of
April 18,1968.
(b) Correct all pertinent records relating to the trial and
the fine of John Reinbold to reflect this modification and
inform John Reinbold, in writing, of the action taken.
(c) Post at its office and meeting halls and at the Jefferson
Street facility of Southwestern Bell Telephone Company, in
Houston, Texas, the Company willing, copies of the notice
attached hereto and marked "Appendix." 34 Copies of said
LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director of the
National Labor Relations Board for Region 23, after being
signed by an authorized representative of the Respondent,
shall be posted at the aforesaid locations in conspicuous
places, including all places where notices to members and
employees are customarily posted, and reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by other material.
(d) Notify the Regional Director, in writing, within 20
days of the receipt of this Decision, what steps it has taken
to comply herewith.35
34 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "The
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "A Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
35 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 23 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
that:
After a trial in which the Union and the General Counsel of
the National Labor Relations Board were represented by
attorneys, a Trial Examiner of the Board, who heard the
evidence, has found that we have violated the National
Labor Relations Act in certain respects, and has recom-
mended that we post this Notice and comply with its terms.
WE WILL NOT restrain or coerce our members in the
exercise of their right guaranteed in Section 7 of the
National Labor Relations Act which guarantees to
employees the right to engage in or to refrain from
engaging in union activity, such as a strike.
WE WILL NOT restrain or coerce employees in the
exercise of their rights guaranteed in Section 7 of the
Act to refrain from engaging in union activities, such as
a strike, by imposing unreasonable fines against our
members.
WE WILL withdraw so much of the $200 fine imposed
against John H. Reinbold on August 19, 1968, because
he had worked 2-1/2 hours behind our picket line at
Southwestern Bell Telephone Company in Houston,
Texas, on April 18, 1968, as exceeds the amount of his
wages from Southwestern Bell Telephone Company for
April 18, 1968.
WE WILL correct the records of the August 19, 1968,
union trial of John Reinhold, and the other records of
the fine assessed against him, to show the change in the
amount of the fine.
WE WILL notify John Reinbold, in writing, that these
changes have been made and that we are entitled to
collect a fine in the amount of his wages for April 18,
1968.
COMMUNICATIONS WORKERS , LOCAL 6222 323
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed to them in Section 7 of the National Labor
Relations Act.
Dated By
(Representative) (Title)
COMMUNICATIONS WORKERS
OF AMERICA, LOCAL 6222
(Labor Organization)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 6617 Federal Office Building,
515 Rusk Avenue , Houston, Texas 77002, Telephone
713-226-4722.