CWA, Local 6135

National Labor Relations Board - Board Decisions

Mar 17, 1971

188 N.L.R.B. 971 (N.L.R.B. 1971)

CWA, LOCAL 6135
Communications Workers of America , Local 6135
(Southwestern Bell Telephone Company) and Judith
Gullion, Edith Wicke, and Mildred Rigney. Cases
23-CB-898, 23-CB-898-2, and 23-CB-898-3
March 17, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On May 12, 1969, Trial Examiner James T. Barker
issued his Decision in the above,entitled proceeding,
finding that the Respondent Union had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and the General Counsel
filed cross-exceptions to the Decision and supporting
briefs.
Pursuant to the provisions 'of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case. The Board adopts the
Trial Examiner's findings, conclusions, and rec-
ommendations only to the extent consistent with its
Decision herein.
The facts, in brief, are as follows. Three employees
of the Company (Gullion, Rigney, and Wicke) ap-
plied for membership in the Respondent Union by
signing dues checkoff authorizations and transmitting
them to the Union. Thereafter the Union accepted
these applications and transmitted them to the Inter-
national for review. The International then trans-
mitted the authorizations to the Company along with
its request that the individuals' membership dues be
checked off and paid to the Respondent, but only
Rigney and Wicke paid the Union initiation fee and
were issued union membership cards. However, the
Respondent accepted dues payments from all three
employees pursuant to said authorizations. Thereaf-
ter, the individuals attempted to resign from the Re-
spondent prior to crossing a legally imposed picket
line, but were fined by the Respondent for their
coming in to work. The issues presented by the com-
plaint were whether the imposition of the fines violat-
ed Section 8(b)(1)(A) because they were unreasonable
in amount or because the individuals were nonmem-
bers at the time of their alleged misconduct.
971
1. Unreasonably large fines: We do not adopt the
Trial Examiner's findings or conclusion pertaining to
the alleged unreasonableness of the fines for reasons
stated in International Association of Machinists and
Aerospace Workers, AFL-CIO, Local Lodge No. 504
(Arrow Development Co.).'
2. Fines imposed on activities as nonmembers: We
agree with the Trial Examiner that Rigney and Wicke
were members of the Union, but by revoking their
dues checkoff authorizations and by returning their
membership cards to the Union they provided clear
notice of their intent to resign, although there was no
provision in the Respondent's bylaws or the
International's constitution for resignation from the
Union. However, we do not rely solely on the check-
off revocations which were addressed not to the Un-
ion, but to the Company. We find that the time of the
Union's receipt of the membership cards of Rigney
and Wicke constituted the effective time of their res-
ignations.
Rigney's and Wicke's membership cards were
mailed to the Union on April 28 and April 27, 1968,
respectively, and they crossed the picket line from
April 29 to May 5, 1968. However, there is no direct
evidence as to when their cards were received by the
Union. In the absence of any showing in the course
of our compliance proceedings that the cards were
actually received on some other date, it will be pre-
sumed that they were received by the Union on the
dates immediately following the dates of mailing. We,
therefore, find that to the extent the fines were im-
posed upon Rigney and Wicke for their acts occurring
after the date of the receipt by the Union of their
membership cards, they are violative of Section
8(b)(1)(A). Local 1012, United Electrical, Radio &
Machine Workers of America (General Electric Compa-
ny).2
We disagree, however, with the Trial Examiner's
finding that the Respondent violated Section
8(b)(1)(A) by finding employees Gullion for activities
engaged in at a time when she was not a union mem-
ber. We find that Gullion became a member of the
Union prior to her crossing the picket line. We also
find that her attempted resignation from the Union by
mailing a revocation of her dues checkoff to the Com-
pany was not made known to the Respondent until
after she crossed the picket line. We regard it as imma-
terial that Gullion did not pay a union initiation fee
and did not receive a union membership card, as the
record shows that the Union's failure to exact the fee
from her was an oversight and she left the Company's
employ prior to the time she would have received her
membership card, according to union practice. We
185 NLRB No 22.
2 187 NLRB No. 46.
188 NLRB No. 144
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore find that Gullion had been accepted into
membership of the Union and was a member of the
Union at a time of the activities for which she was
fined. Accordingly, we conclude that the fine levied
against Gullion did not violate Section 8(b)(1)(A). See
Blackhawk Tanning Company.3
THE REMEDY
In view of the unfair labor practices committed, we
shall provide for a cease-and-desist remedy as set
forth in Booster Lodge No . 405, supra. We shall also
order the Union to reimburse or refund to employees
Rigney and Wicke the pro rata amount of any fines
imposed upon them because of their postresignation
conduct , together with interest thereon at the rate of
6 percent per annum . Seafarers International Union of
North America, Great Lakes District, AFL-CIO.4
AMENDED CONCLUSIONS OF LAW
1. Communications Workers of America, Local
6135, 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, and it will effectuate
the purposes of the Act to assert jurisdiction herein.
3. By fining employees of the Employer for crossing
a picket line, to the extent such crossing was after their
resignation from the Union became effective, the Un-
ion has coerced or restrained employees in the exer-
cise of their rights guaranteed in Section 7 of the Act.
4. The above conduct constitutes unfair labor prac-
tices under Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Com-
munications Workers of America, Local 6135, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees, who had
resigned from and who were no longer members of
the Union, in the exercise of their rights guaranteed
in Section 7 of the Act, by imposing fines against such
employees because of their postresignation conduct in
working at the McAllen, Texas, plant of Southwestern
Bell Telephone Company during the April-May 1968
strike.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Reimburse or refund to any employees de-
scribed in paragraph 1(a) of this Order, who have paid
fines under the circumstances described in that para-
graph, the amount of fines imposed upon them be-
cause of their postresignation conduct in working at
the plant, plus interest at the rate of 6 percent per
annum.
(b) Post at its office and meeting hall and at the
McAllen, Texas, plant of Southwestern Bell Tel-
ephone Company, if the Company is willing, copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23, after being duly signed by an au-
thorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violation has been found be,
and they hereby are, dismissed.
3 178 NLRB No 25, fn. 25 Member Jenkins, for reasons stated by the Trial
Examiner , would find that Gulhon never became a union member . He would
accordingly find that the imposition of the fine upon her as a nonmember
violated Section 8(b)(1)(A). See Booster Lodge No. 405, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company),
185 NLRB No 23
4 138 NLRB 1142
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Mildred Rigney
and Edith Wicke by imposing fines upon them
for working at the McAllen , Texas , plant during
CWA, LOCAL 6135
the April-May 1968 strike.
WE WILL reimburse the above-mentioned em-
ployees for any fines they may have paid to us for
working during the said strike.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
COMMUNICATIONS WORKERS
OF AMERICA, LOCAL 6135
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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 or compli-
ance with its provisions may be directed to the
Board's Office, 6617 Federal Office Building, 515
Rusk Avenue, Houston, Texas 77002, Telephone 713-
226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was heard
at Edinburg, Texas, on January 28 and 29, 1969, pursuant
to a charge filed in Case 23-CB-898 on September 30,
1968,1 and charges filed in Cases 23-CB-898-2 and 23-CB-
898-3 on October 4.On December 27 the Regional Director
of the National Labor Relations Board for Region 23 issued
a consolidated complaint and notice of hearing alleging,
inter alia, that Communications Workers of America, Local
6135, hereinafter called Respondent or the Union, violated
Section 8(b)(1)(A) of the National Labor Relations Act,
hereinafter called the Act, by levying certain fines against
Judith Gullion, Edith Wicke and Mildred Rigney for work-
ing behind a picket line established by the Respondent at
facilities of Southwestern Bell Telephone Company, herein-
after called the Company, in McAllen, Texas. The parties
timely filed briefs with me.
Upon consideration of the briefs and upon the record in
this case,3 and my observation of the witnesses I make the
following:
i Unless specifically noted otherwise, all dates herein refer to the calendar
year 1968.
2 By order of January 21, 1969, Trial Examiner Paul E Weil severed from
the instant cases Case 23-CB-888 with which it had been consolidated in the
aforesaid consolidated complaint.
J Efforts through record discussion to illuminate the constituent element
of the issues raised by the pleadings were substantially negated by faulty
transcription so extensive as to obscure the intended meaning of the colloquy
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
973
Southwestern Bell Telephone Company is a Missouri cor-
poration maintaining an office and place of business at 8th
and Beech Streets, McAllen , Texas , where it is engaged in
the business of transmitting and receiving local and long
distance telephone communications as a communications
common carrier which operates under the Federal Commu-
nications Act throughout the States 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 received
gross revenues in excess of $100,000, from the furnishing of
its telephone communication service in its business de-
scribed above.
Upon these admitted facts , I find that Southwestern Bell
Telephone Company is an emplo er 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 6135, is ad-
mitted to be a labor organization within the meaning of
Section 2(5) of the Act, and I so find.
III THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended at the hearing, alleges that
the Respondent violated Section 8(b)(1)(A) of the Act by
imposing on three individuals, who worked behind the pick-
et line during a union called strike, fines unreasonable in
amount within the meaning of the decision in N.L.R.B. v.
Allis-Chalmers Manufacturing Company388 U.S. 175; and
separately alleges that Section 8(6)(1A) of the Act was
violated by the Respondent in levying the instant fines be-
cause the three individuals against whom they were assessed
were not members of the Union when they were fined.
The Respondent contends that the decision in Allis-Chal-
mers precludes the Board from finding violative of Section
8(b)(I) of the Act the imposition of a fine imposed by a
union against members for working behind a picket lime
established pursuant to a legal strike. Moreover, the Re-
spondent contends that if this threshold contention is reject-
ed, the fines actually imposed were, in the circumstances,
reasonable within the meaning of the alternative interpreta-
tion of the court's Allis-Chalmers decision. Further, con-
tends Respondent, contrary to the contention of the Gener-
al Counsel, Edith Wicke, Mildred Rigney, and Judith Gul-
lion had not effectively resigned from the Union at the time
the fines were imposed on them.4
that transpired . As the briefs of the parties satisfactorily accomplished the
desired illumination of issues, and as no motion to correct the record has
been filed, I shall order no correction.
1 find no meet in the contention of Respondent that it was prejudiced
by an amendment to the complaint , granted at the outset of the hearing,
specifying as a separate and distinct violation of Section 8(b)(1)(A) the trial
of the Charging Parties and the imposition of a fine against them at a time
when they were not members of the Union The amendment came sufficient-
ly early in the hearing to apprise the Respondent of the theory of the General
Counsel and the Respondent requested no continuance to permit it to pre-
Continued
I
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Pertinent Facts
1. Background facts
a. The Union's status
At all pertinent times, the Union has been the collective-
bargaining representative of employees of Southwestern
Bell Telephone Company employed at the Company's 8th
and Beech Street facility in McAllen, Texas.
Under applicable Texas statutes union membership may
not be compelled and must be entirely voluntary. The col-
lective-bargaining agreements pertinent to this proceeding
contain no union security clause requiring membership in
the Union as a term and condition of employment.
b. Employment history of Charging Parties
Judith Gulhon worked in the employ of Southwestern
Bell Telephone Company as an operator for approximately
2 years. Edith Wicke had worked in the traffic department
at the McAllen location of the Company for 12 years, while
Mildred Rigney had worked 6 1/years at the McAllen
facility as a central office clerk.'
c. Payroll deduction authorization
On February 16, 1968, Judith Gulhon executed a payroll
deduction form authorizing the Company to deduct union
dues from her pay. Edith Wicke had executed a similar form
a year earlier, on February 12, 1967. The dues deduction
authorization of Mildred Rigney dated from October 7,
1966.
Under union practice, union dues are deducted for the
first pay eriod of each month. Dues were deducted from
the pay of Gullion, Wicke, and Rigney for the pay period
ending April 13. However, by reason of certain instructions,
hereinafter considered, no dues were deducted for the pay-
roll period May 11, which date marked the end of the first
ay period of May.
p The payroll deduction authorization forms which Gul-
lion, Wicke, and Rigney had signed contained the following
provisions:
This payroll deduction authorization may be canceled
by me upon written notice to the Telephone Company.
2. The unlawful conduct
a. The nature of the strike
On or about April 20, Communications Workers of
America, Local 6290, a sister local of the Respondent, repre-
senting employees of the Western Electric Company, estab-
lished a picket line pursuant to an economic strike against
the Western Electric Company. Respondent observed the
pare a defense or to introduce evidence concerning the allegation
Nor do I perceive the purported burden upon the prescience of Respon-
dent and its advisors arising from their failure to have been furnished with
a copy of the decision of Trial Examiner Ramey Donovan in Booster Lodge
No. 405, International Association ofMachinists and Aerospace Workers, AFL-
CIO, Case 15-CB-779, TXD 737-68, which issued on December 30, 1968,
and which was the subject of record colloquy at the hearing . These protesta-
tions, emanating from a learned practitioner whose speciality is at the labor
relations bar, warrant only passing reference and wonderment, relating as
they do to a decision which issued 3 days subsequent to the issuance of the
complaint herein and more than a month prior to the hearing.
S Her period of employment by the Company had spanned a substantially
longer time
picket line at the 8th and Beech Street facility of Southwest-
ern Bell Telephone Company at McAllen, Texas. The strike
ended on May 5.6
b. The membership instructed
Approximately 6 weeks prior to the strike, Elmer Locka-
by, president ofthe Respondent, was apprised by Albert
Bowles, south Texas president of Commumcations Workers
of America, of the pendency of the strike and Lockaby
received certain instructions from Bowles concerning it.
In early April, at the regularly scheduled monthly meet-
ing of the Local, there was a discussion of the obligation of
members of the Local with respect to observance of the
picket line of Local 6290 in the event of a strike. Robert
Hopkins, a former president of the Local, addressed the
members at the meeting and instructed them that if a picket
line were established at a work location where they were
employed they were not to cross the picket line but if, on
the other hand, no picket line was set up they should go to
work.
During the course of this meeting the leadership of the
Union instructed members that they would be subject to
charges and a trial in the event they crossed a picket line.
There is no evidence that Judith Gullion attended this
meeting. However, both Edith Wicke and Mildred Rigney
did attend. Pursuant to normal practice a notice of the
pendency of the meeting had been posted on union bulletin
boards maintained at the various company work locations.
c. The membership meeting of April 20
On the morning of April 20, immediately following the
commencement of the strike of Local 6290 against the West-
ern Electric Company, the Respondent held a membership
meeting which was attended by approximately 100 mem-
bers. At the meeting a vote was taken to observe the picket
line of Local 6290. Lockaby addressed the membership and
urged them to pursue proper and lawful conduct on the
picket line.
At the meeting there was no direct reference made to the
imposition of fines against or trial of members who should
cross picket lines established at company work sites'
d. Lockaby speaks with Gullion
On the evening of April 21, Lockaby spoke with Judith
Gullion by telephone. Lockaby had been informed that
Gulhon likely would not support the strike. Lockaby
commenced the conversation with Gullion by stating, "I'm
not going to let you do it." He then proceeded to explain the
purposes and union objectives of the strike and sought to
convince Gullion of the necessity of her support. Gullion
inquired as to the consequence of crossing the picket line
and Lockaby answered that in the past hard feelings had
resulted between employees who supported the strike and
those who worked during the strike. He added that the
feelings created were difficult to overcome. In this connec-
tion he recounted an incident from a strike in 1947 wherein
a nonstriking lineman who had crossed the picket line after
the commencement of a strike had been injured and had
been transferred from his line job to a switch room job
where members of the Union reused to work with him. As
6 The General Counsel makes no contention that the strike was illegal or
that the Respondent's observance of the picket line of Local 6290 was unlaw-
ful
r The testimony of Edith Wicke and Mildred Rigney is to this effect and
the testimony of Elmer Lockaby is not to the contrary
CWA, LOCAL 6135
a consequence of this the employee was laid off. During the
conversation no reference was made by Lockaby to fines
possibly to be imposed by the Union against nonstriking
members.8
e. The picket line ignored
Commencing on April 22 and on each workday thereafter
until the strike terminated on May 5, Judith Gullion worked
behind the picket line. Similarly, commencing on April 29
Edith Wicke and Mildred Rigney worked behind the picket
line. Each employee worked -a full 9- or 10-hour shift.
f. Efforts to terminate union affiliations
In the meantime , on April 21, Judith Gullion dispatched
a letter to the Company instructing it to discontinue the
deduction of union dues from her payroll check effective
April 21. In a similar manner , EdithWicke dispatched a
letter to the Company dated April 27 instructing the Com-
pany to discontinue deducting union dues from her pay-
check "effective immediately ." On April' 28, Mildred
Rigney wrote to the Company requesting that the Company
"cancel" her union dues deduction "immediate ly." In addi-
tion to the dispatch of their letters , Wicke and Rigney sent
their respective union cards to Lockaby.
g. Charges filed by Union
Pursuant to sworn charges filed on June 18 against Judith
Gulhon, Edith Wicke, and Mildred Rigney, a trial was con-
ducted by a duly constituted trial panel of Respondent on
September 5. Prior to the trial, Gullion, Wicke, and Rigney
were informed in writing of the charges against them and
of the date, time , and place of the trial. After the trial, the
Respondent mailed written notice to each of the parties
informing them of the results of the trial.9
It. The union trial
At the September 5 trial the charges against Gulhon,
Wicke, and Rigney were considered by a jury panel of three
members of Respondent. Robert Hopkins served as chair-
man of the panel and W. R. Rice, a union member, served
as prosecutor . It was the duty of Rice to develop the evi-
dence in support of the charges filed against Gullion, Wicke,
and Rigney. The principal items of evidence introduced at
the hearing were the notarized affidavits of members of the
Union who had seen Gullion, Wicke, and Rigney cross the
picket line.
Gullion, Wicke, and Rigney were not present at the hear-
ing and they made no appearance through counsel. Prior to
the commencement of the hearing a letter from Scott Toot-
haker, an attorney retained by Judith Gullion, inter alia,
s The foregoing is based upon a composite of the testimony of Judith
Gullion and Elmer Lockaby . I credit Gulhon to the effect that this conversa-i
tion transpired on April 21, after the strike had commenced , and not 2 or 3
days prior to the commencement of the strike However , I credit Lockaby's
denial of Gullion 's testimony that during the conversation he, in specific
terms, informed Gullion that the Union would block any promotion or
transfer that she wished to secure within . the Company. I am convinced that
Gullion misinterpreted the inferences reasonably to be drawn from
Lockaby's recount of the 1947 incident as a specific , overt threat of similar
action with regards to her own employment.
9 The foregoing is predicated upon a stipulation of the parties at the hear-
mg. The General Counsel concedes that the September 5 trial conformed to
procedures promulgated in the bylaws and constitution of the Respondent,
and charges no irregularity in the conduct of the proceeding.
975
advising the Respondent of his retention as attorney for
Gullion, was considered by the trial panel. Requests con-
tained in the letter, which, in effect, sought leave of counsel
to appear on Gullion's behalf and postponement of the
scheduled September 5 hearing, were rejected. The hearing
proceeded.
In his capacity as prosecutor, E. E. Rice made a rec-
ommendation concerning the amount of fine to be imposed.
This recommendation was based on consideration of the
19.58 percent salary and fringe benefit package to be real-
ized by unit employees over a period of 3 years, deriving
from the execution of the collective-bargaining contract
which would become effective for unit employees as a result
of the strike. In arriving at his specific recommendation by
use of the 19.58 percent raise factor, Rice calculated the
wages to be realized over a 3-year period by each of the
employees being tried; divided the gross amount by two in
order approximate the sum that would be taxable; and mul-
tiplied the resulting sum by a 20 percent income tax incre-
ment . From application of this formula, Rice recommended
a fine in the amount of $1,800 for Gullion and Rigney.
Because Wicke was a union steward at the time of the
alleged offense , a fine in the amount of $2,000 was recom-
mended with respect to her violation.10
i. The fines levied
At the conclusion of the presentation of each case the
three jurors, together with Hopkins, discussed the rec-
ommendation of the prosecutor and arrived at a fine to be
imposed. In each event, the jury adopted the recommenda-
tion of the prosecutor and his rationale for recommending
the fine. The jurors made no declaration of a date certain
for the payment of the fine assessed and it was the under-
standing of the participating jurors that the fines could be
paid in installments. However, this proviso was never com-
municated to any of the defendents.
In due course following the trial, separate summaries of
the proceedings and findings were sent to Gullion, Wicke,
and Rigney. To Gullion and Rigney was sent a summary
containing the following paragraph:
The Prosecutor recommended that the accused be
fined one thousand eight hundred dollars ($1,800) and
that she be barred from Union membership until the
fine is paid. Further, that if the accused should seek
membership in the future, that dues be paid up to one
year.
The summary sent to Wicke read as follows:
The Prosecutor recommended that a fine of $2,000 be
i posed and that she be barred from Union member-
ship until the fine is paid. If the accused should meet
these conditions and seek Union membership in the
future, that back dues be paid up to one year and that
she be barred from holding any office in the Union at
any future time.
j. Pertinent union rules
Article XVII of the Union's bylaws provide that members
of the local may be fined, suspended, or expelled for any of
the acts enumerated in Article XIX of the union consti-
tution.11 In pertinent part Article XIX of the Union 's consti-
10 The record establishes that Wicke had been a steward for the traffic
department for over I year and had received instructions concerning her
responsibilities at a 5-day seminar or conference . These instructions did not
include her duties with respect to a strike.
11 Robert Hopkins, president of the Local, testified that in 1954 the Local
Continued
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tution provides as follows:
(e) Working without proper Union authorization, dur-
ing the period of a properly approved strike in or for
an establishment which is being struck by the Union or
local;
The bylaws further provide that an accused person shall
be tried under Article XXI of the constitution. Both the
constitution and bylaws provide for certain appellate proce-
dures. Neither Gullion, Wicke, nor Rigney undertook to
appeal the determination of the trial panel.
Neither the bylaws nor constitution define a procedure
for voluntary resignation from membership.
Section 5 of Article VI of the Union's constitution, how-
ever, provides as follows:
A member in default, without good cause, in the pay-
ment of any installment of dues for sixty (60) days from
the date such amount becomes due, shall be automati-
cally suspended from the rights of membership and, if
the default continues without good cause for an addi-
tional 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 gov-
erning body of the Local determines to be good cause.
Article V of the Union's constitution provides that each
Local shall pass upon applications for membership through
a membership committee which shall accept or reject any
application, subject to concurrence of the membership of
the Local. The bylaws of the Local contain a concomitant
provision.
In actual practice, a new membership is obtained as a
result of a union steward contacting a new or nonmember
employee and obtaining from him a payroll deduction card.
The card is then delivered by the steward to an appropriate
functionary of the Union. The question of acceptance or
re ection of a proposed member is thereafter put to a vote
of the membership of the Local at a membership meeting.
If membership is approved the card is then sent by the Local
to the International which, in turn, informs the Company to
deduct dues from the pay of the new members. In fulfill-
ment of this procedural process a printout is sent by the
Company to the International containing the names of the
employees for whom dues are being deducted. A copy of the
printout is furnished to the Local by the International.
While Wicke and Rigney had received a union member-
ship card and had paid union dues for a considerable period
of time, Gullion had paid only 1-month's dues when she
cancelled her dues deduction authorization. She testified
credibly that she had received no membership card and had
ppaid no union initiation fee. There is no evidence that
Gullion's name was ever presented to the membership for
a vote.12
k. Pertinent wage rates
Under wage rates prevailing pursuant to contracts in ef-
fect at the time of the strike, Gullion was compensated at
undertook the task, through trial procedures, of collecting a general assess-
ment of the International against all members . His testimony, I find, contrary
to Respondent , does not establish a prior practice of or precedent for resort
to union trial procedures for assessment of fines to punish strikebreaking.
12 Mane Pritchard, secretary of the Local, could recall no meeting wherein
Gullion was voted upon. Moreover, she did not have knowledge of a mem-
bership card having been issued to Gulhon, although she testified that mem-
bership cards were issued by her. However, she testified credibly that union
membership cards are issued only at the beginning of each new year and
unless a new member inducted during mid -year specifically requests a mem-
bership card , none is issued to him until the general distribution is made at
the beginning of the next year
$68 per week for a basic 40-hour workweek, or at $1.70 per
hour. On the other hand, Wicke and Rigney were compen-
sated at the rate of $85.50 for a 40-hour workweek, or at
approximately $2.14 per hour.
Under the wage agreement which became effective on
July 14, 1968, Gulhon was compensated at $72 for a 40-hour
week and Wicke and Rigney at $94.50 for a 40-hour week.
Additionally, the new wage agreement provided for addi-
tional increases to become effective in the succeeding 2
years.
Conclusions
The threshold issue here to be decided is whether the
holding of the U. S. Supreme Court in Allis-Chalmers was
such as to place beyond the regulatory jurisdiction of the
Board all fines imposed by a labor organization on members
who performed work behind a legal picket line established
pursuant to an authorized economic strike. The Respondent
contends that the Supreme Court in Allis-Chalmers held
that, "the imposition and court enforcement of union fines
upon members for strikebreaking" did not violate Section
8(b)(1), and the court drew no ultimate decisional distinc-
tion between fines that were "reasonable" in amount and
those that were "unreasonable."
On the other hand, the General Counsel would restrict
the reach of the court's decision to those fines which are
"reasonable," or not "unreasonably large." In this connec-
tion the General Counsel contends that the fines levied
herein were unreasonable in amount and thus violative of
Section 8(bXl)(A).
In the decision issued today in Communications Workers
of America, Local 6222, Case 23-CB-888, TXD-259-69, I
concluded, in agreement with the General Counsel, that the
Allis-Chalmers case , viewed in light of amplifying language
contained in Scofield v. N.L.R. et al, 70 M 303
renders lawful only those intraunion disciplinary fines
which are reasonable in amount. I further found, in sub-
stance, that fines not reasonable in amount touch "the pub-
lic domain covered by the Act" 13 and violate Section
8(b)(1)(A). The rationale pertinent to these conclusions
reached in Local 6222 is applicable here.
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 Rela-
tions 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 conced-
edly 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 enforce-
ment thereof. The court observed "(O)ur conclusion that
Section 8(b)(1XA) does not prohibit the local's action makes
it unnecessary to pass on the Board holding that the proviso
protected such actions."14 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 implicit threat of expulsion for nonpay-
13 N L R B. v. Marine & Shipbuilding Workers, 68 LRRM 2257 (1968).
14 N L R B v Allis-Chalmers, supra, p. 192, at note 29.
CWA, LOCAL 6135 977
ment . Therefore, under the proviso the rule in the UAW
-constitution governin g fines is valid and the fines them-
selves and expulsion for nonpayment would not be an un-
fair 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 sensi-
ble construction of the statute" observing : "(My) 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." [Em-
phasis supplied .] Writing for the four dissenting ustices,
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 exer-
cise 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:15
There may be concern that court enforcement may
permit the collection of unreasonably large fines. How-
ever, 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 re ggard,
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. Al-
though 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 have the courage or the financial means to be
willing to take that risk.16
If doubt lingered as to the existence of a distinction be-
tween "reasonable" and "unreasonably large " fines undei
the court's Allis -Chalmers decision the court 's recent deci-
sion in the Wisconsin Motors case l7 goes far to dispell that
doubt.
15 N.L.R B v . Allis -Chalmers, pp. 192-193
16 N.L.R B. v. Allis-Chalmers, p. 204.
17 Scofield v. N.L.R. B, et a!., 70 LRRM 3105.
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 , distin-
guished 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 arbi-
trary 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 reasona-
ble fine . The Court thus essentially accepted the posi-
tion of the National Labor Relations Board dating
from Minneapolis Star and Tribune Co., 109 NLRB 727,
where the Board also distinguished internal from exter-
nal 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 affectin g seniority without triggering viola-
tions of Section 8(l))(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 emouments of the job
to enforce the Union 's rule. [Footnote citations delet-
ed.]
In conjunction with the foregoing by a footnote observa-
tion the court also noted:
The Board has long held that Section 8(b)(1)(a's ) legis-
lative history requires a narrow construction which
nevertheless proscribes unacceptable methods of union
coercion , such as physical violence to induce employ-
ees 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 pur-
ort 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 [Sec-
tion 8(b (1)(A)] emphasizes the sanction imposed, rath-
er 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 ofAmerica, 159 NLRB
1065], the Board was concerned with union rules re-
quiring 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 Un-
ion 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 un-
ion free to enforce a properly adopted rule which re-
flects a legitimate union interest , impairs no policy
Congress has imbedded in the labor laws, and is reason-
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably 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 be-
fore 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 dis-
crimination . It was enforced solely through the internal
technique of union fines , collected by threats of expul-
sion of judicial action . The inquiry must therefore fo-
cus 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 sup h
Thus , the decision in Scofield reinforces the view gleaned
from Allis -Chalmers, that to escape the prohibition of Sec-
tion 8 (b)(1)(A) a disciplinary fine leviedpa ggainst a member
must be reasonable in amount .'8 Those that are not "im-
pinge on the policies enunciated in Section 7 of the Act" and
lose the shelter of the "federally unentered enclave" open to
state regulation of the contractual relationship between un-
ion and employee."
The criteria or standard for determining what is aaeason-
able 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 15-CB-779 , TXD-7378, is-
sued December 30, 1968.
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
strikebreaking or any other internal rule violation. But
the Court , recognizing the aforementioned power of
the strong union , said that the strong union could im-
pose 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 en-
forcement of fines because it was a lesser penalty than
expulsion . Since expulsion by a strong union is equiva-
lent 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
is If this were not so, and if it had viewed Congress by the passage of
Section 8(bXI)(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.
19 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 , "[Tlhe 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.
the Act, the right to strike and to shut down the
employer's operation is not limited. The Supreme
Court has held that during an economic strike an em-
ployer has the right to protect and carry on his business
by hiring permanent replacements for the strikers.
[Footnote citation deleted.]
It is one thing for a union and its members, throw
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 as-
pects of individual freedom by court enforced fines of
a private organization when the fines are so large in
amount that no membercould work. Section T and
Section 8(b)(1)(A) of the Act underwent some attenua-
tion in Allis-Chalmers but it is doubtful that they disap-
peared 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 penal-
ty than expulsion by a strong union , the expulsion
being, as previously described, equivalent to total de-
terrence.
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 depends on the voluntary support
and loyalty of its members . The objective of fines and
other discipline would properly be the rehabilitation 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 de-
terred 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 totalpdeterrent
which quite possibly could completely alienate the
member from any voluntary cooperation with or sup-
port 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
re
jected , for reasons stated , total deterrence as compat-
ible with a reasonable fine . This would eliminate a tine
that is equivalent to 100 percent of earnings during a
strike and it would eliminate an y fine in a greater
amount than such total earnings . The reasonable fine
is, we believe , equitable and conveniently defined as a
percentage of the strikebreaker's earnings where the
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 free-
CWA, LOCAL 6135 979
dom of choice on the part of the employee to exercise
some measure of individual freedom as guaranteed un-
der Sections 7 and 8 (b)(1)(A) of the Act.
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 ea lifted 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 em-
ployee 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."20 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 by
the collective-bargaining agent invested with the respon-
sibility under the Act of representing unit employees. How-
ever, 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
by the collective -bargaining agent , and the fine assumes a
punitive and retributive character.
I am unable to find that under the foregoing considera-
tions , without regard to the separate question of whether the
fined employees were members of the Union , fines in the
amount of $ 1,800 and $2 ,000 for engaging in several days
of work behind the picket line were reasonable . The fines
were premised essentially on the theory that recalcitrant
members who did not support the strike should receive none
of the increased remuneration to be realized during the
ensuing 3 -year contract enuring , assertedly, solely from the
strike effort . While the record does not reflect the extent to
which the employer was forced, if at all , by the strike to
improve its bargaining offer on wages and fringe benefits,
the realities of collective bargaining are such as to suggest
that the strike may not receive full attribution . It is the
nature of collective bargaining that collective -bargaining
benefits redound from a combination of economic circum-
stances , competitive considerations , and collective-bargain-
ing realities which are unrelated to the catalystic effects of
a strike . It follows , therefore , a fine which undertakes a total
deprivation of new contract benefits by reason of a
member's failure to participate in the final , albeit important
and culminating, phase of the bargaining process is one
which requires the closest scrutiny when a test of reasona-
bleness is to be applied.
The deterrent qualities of a fine which deprives a member
completely for a 3 -year period of the income and benefit
improvements wrought through the collective -bargaining
20 Booster Lodge No. 405, etc, supra, p. 20.
process are apparent. That the fines closely approximate
total deterrence, in an economic sense, is open to little dis-
pute. The evidence pertaining to the calculation of the in-
stant fines reveals a total preoccupation on the part of the
Union with its own interests in enforcing conformance to its
strike rules. The right of members to abstain was accorded
no significance, for the penalty was intentionally formulat-
ed so as to constitute a full deprivation of monetary gains
to the recalcitrants. Because the strike is the "ultimate weap-
on in labor's arsenal for achieving agreement on its terms"
a union must have the right to impose a reasonable fine on
members who breach the union's rule against working dur-
ing a strike?' But this right of a union must be balanced
against the superior right guaranteed by Section 7 of a mem-
ber to abstain from such participation. The task is one of
balancing conflicting rights. When the fine, as here, is so
substantial as to approximate total deterrence, the scale is
tipped too heavily in the direction of conformity and real-
istic economic choice is foreclosed. This, I find, was the
result of the Union's actions here.
An insight into the extent of deterrence achieved by the
instant fines is gained from a comparison of the fines as-
sessed with strike and normal workweek earnings of the
fined employees. For her 13 days of work during the strike
Gullion earned approximately $235 compensation.22 Wicke
and Rigney earned approximately $187 for 7 days of work
during the strike.23 Thus the fine levied against Gullion
exceeded her strike earnings by nearly eight times and ap-
proximated 26 1 /2 weeks' wages at straight time rates. The
fine assessed against Rigney was approximately 10 times
greater than her strike earnings and approximated 19 1 /2
weeks' income at her straight time rate. The fine assessed
against Wicke in these respects is not materially differ-
ent.24
A further gauge of the impact of fines in the amount here
assessed, is found in the evidence revealing that the fine
assessed against Wicke was one-third of the total earnings
she realized during calendar year 1968. The fine assessed
against Rigney was on a slightly higher ratio to her 1968
earnings and a higher ratio would have pertained with re-
spect to Gullion' s earnings.25
Thus, the foregoing evidence warrants the finding, which
I make, that the lines assessed against Gullion, Wicke, and
Rigney were of such a magnitude as to have deprived them
of any practical choice of alternatives as between joining a
union-called strike or abstaining therefrom. The fines as-
sessed against them also had the foreseeable effect of de-
priving other members of any realistic choice in the event
of a future strike called or supported by the Union.
Accordingly, I find that by imposing fines of the magni-
tude assessed against Gullion, Wicke, and Rigney the Un-
ion coerced them in the exercise of their Section 7 rights and
2i N.L.R.B. v. Allis-Chalmers Mfg Co., supra.
22 Thirteen days of work at 8 hours straight time and 2 hours overtime
compensation would have given Gullion earnings of $176.84 at her straight
time rate of $1.70 per hour and $58 50 in overtime earnings.
23 Their hourly prestrike rate was $2.14. They worked approximately 9 or
10 hours per day, thus their maximum compensation at straight time would
be $119 84 with overtime earnings of $67.41.
24 Because I find that the $1,800 element of the $2 ,000 fine against Wicke
clearly was not reasonable, and therefore violative of the Act, I need not pass
on the question of whether a union may assess a larger fine for a breach of
its rules against a steward than against other members Moreover, for the
same reason , I find it unnecessary to determine whether the $200 increment
added to the fine of Wicke because she was a steward was unlawful under
the Act.
25 Gullion left the employ of Southwestern Bell Telephone Company dur-
ing 1968 and the full amount of her 1968 earnings is not in evidence.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby violated Section 8(b)(1)(A) of the Act-"'
The efforts taken by the fined employees to terminate
their union fealty pnor to crossing the picket line renders
less defensible the large fines imposed against them, and
graphically discloses the self-onentation of the Union in
imposing the fines . No mitigating consideration at all ap-
pears to have been given this effort on the part of the em-
ployees to forego the benefits of membership as a quid pro
quo for greater freedom of action.27
Moreover , in further agreement with the General Coun-
sel, I find that Respondent separately violated Section
8(b)(1)(A) by imposing fines against Judith Gullion, Edith
Wicke , and Mildred Rigney for conduct in which they en-
gaged at a time when they were not members of the Union.
The relationship between a labor organization and its
members is essentially a contractual one. In the circum-
stances prevailing in the instant case , there being no pro-
visions either in the bylaws or constitution of the Union
governing resignations from the Union, and as there was no
maintenance of membership requirements in effect, mem-
bers of the Respondent Union were free to resi gn at will by
giving notice sufficient to inform the Union of this inten-
tion .- Notice of a quality and type sufficient to qualify
under these standards was accomplished , I find , by Wicke
and Rigney by the dispatch of their respective union cards
to Union President Lockaby and by the cancellation of their
dues deduction authorizations . Thus , before either of the
employees crossed the union picket line they had taken the
steps necessary to terminate union membership . Further,
these actions came to the attention of responsible represent-
atives of the Union and there can be no convincing conten-
tion that union officials did not know the desires and
in of Wicke and Rigney in this respect prior to the
time charges were filed against them . The termination by
Gullion of her dues deduction authorization was sufficient
a prisal to the Union of her intention to recant and with-
aw her earlier efforts to join the Union , which efforts Idpr
find had not been fruitful This latter finding , based on
uncontradicted evidence of record , flows from the failure of
Gullion ever to have paid a union initiation fee or to have
been accepted formally into membership . Accordingly,
Gullion 's cancellation of her dues deduction authorization
was sufficient to terminate the inductive process and, more-
over, to have placed the Union on notice of her intentions.
I accordingly find that when they crossed the picket line,
when on June 18 charges were filed against them , and when
on September 5, the Union subjected Gullion , Wicke, and
Rigney to an intraunion trial procedure and levied fines
against them for their alleged offenses against union disci-
pline the three employees were no longer members of the
u Militating against the existence of an atmosphere of full disclosure which
would have permitted the employees to have made a reasoned judgment as
to their participation or nonparticipation in the strike is the failure of the
Union at the September 20 meeting to repeat or to render more specific the
instructions given the membership at the early April meeting concerning the
imposition of fines against strikebreakers . Moveover , during his conversation
with Gullion , Lockaby failed to advise her of the fine possibility . However,
the decision here reached with respect to the violation may , in my judgment,
stand without regard to this failure on the part of the Union
27 In Local 6222 I concluded that the failure of the fined employee therein
to have undertaken to resign from the union prior to ignoring the picket line
did not excuse the union's action for there existed no practice nor contractual
caveat, as in Scofel4 to have served as a warning Here , the employees
undertook to accomplish what the court in Scofield inferred employees
should do to avoid union discipline.
28 Aeronautical Industrial District Lodge 751, affiliated with the International
Association of Machinists & Aerospace Workers, AFL-CIO (The Boeing Com-
pa i), 173 NLRB No. 71.
In the period between June 18 , when charges were filed against them,
Union or subject to the Union's internal disciplinary au-
thority 29
By subjecting Gullion, Wicke, and Rigney to charges and
intraunion disciplinary procedures resulting in a fine for
conduct engaged in after they had terminated their union
membership , the Union coerced them in the exercise of their
Section 7 rights and thereby violated Section 8(b)(1)(A).
The Board has long recognized that a fine by nature is
coercive 30 "Section 8(b)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate union in-
terest [and] impairs no policy Congress has imbedded in the
labor laws.... '31 However , the Union acquires no exonera-
tion under Section 8(b)(1) or its proviso when it seeks to
subject nonmembers to its internal disciplinary authority
through assessment of a fine recognized to be by nature
coercive. To find that the Act invested the Union with such
a power would be the equivalent of holding that a union
may enforce its internal disciplinary rules against an em-
ployee, not as a member, as the decided cases clearly require
to be the case , but as a mere unit employee. 2 Finding as I
do that the proviso to Section 8(b)(1)(A) does not immunize
the Union in its assessment of fines against nonmembers, I
am unable to agree with the contention of the Respondent
that fines levied against nonmembers are noncoercive be-
cause they are null and unenforceable. This rejection of
Respondent 's contention is required not only in recognition
of the inherently coercive nature of a fine , as recognized by
the Board'31 but out of further recognition that the Union
has an affirmative statutory duty to fairly represent all unit
employees. To invoke its internal disciplinary procedure's
against unit employees for their conduct at a time when they
were no longer members is to impress on the subjected
employees and all other unit employees that they may be
vulnerable to the caprices of their bargaining representative.
Few employees who look to a union for representation
would have the sophistication or discernment to determine
or comprehend which fines of the union are enforceable
against them and which are not. To the average employee,
a fine outstanding against him connotes a detriment of sig-
nificance . Thus, I reject the Respondent 's contention that
merely because a fine against a nonmember may not be
legally enforceable in court, it can have no coercive effect
under the Act."' When, as here, to effect discipline for non-
and September 5, when the mtraunion hearings were conducted against
Gulhon , Rigney, and Wicke each had moved into a position of default in the
payment of their dues for 90 consecutive days so as to arguably render
operative the provisions of Article VI, Section 5 of the union constitution.
Because I find the employees had terminated their membership , or, with
respect to Gullion the inductive process, prior to crossing the picket line, I
need not rule on this.
Moreover , for the same reason I do not pass on the implicit argument,
arising from the contractual relationship between member and union, that
the Union had the right through resort to its internal disciplinary processes
to judge employees for conduct in which they engaged prior to the passage
of a reasonable time between dispatch of their correspondence in the mail
and receipt of notice by the Union. Because the Union was in possession of
actual notice of the resignation efforts of the employees within hours of their
alleged offenses against the Union's rules, and as, manifestly , the Union was
on notice before charges were filed against the employees concerning the
disciplinary process, a type of equitable estoppel would appear in order,
precluding hospitable reception to so legalistic an argument.
30 See Local 138, International Union of Operating Engineers, AFL-CIO
(Charles S Skura), 148 NLRB 679, 682 , and cases cited at pp. II therein.
31 Scofield v N.L.R.B., supra
32 Cf Local 283, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO (Wisconsin Motor Corporation), 145
NLRB 1097, 1103-1104.
33 Supra, at In 30.
34 Cf. Local 205, Lithographers and Photoengravers International Union,
AFL-CIO (The General Gravure Service), TXD-416-68, p. 8.
CWA, LOCAL 6135
conformance to its rules a union undertakes to assess fines
against unit employees who are no longer its members, it
engages in invidious conduct inconsistent with the obliga-
tion of fair representation which resides with all collective-
bargaining representatives.35
In my decision in Local 6222 which I have issued this
date, I have set forth a formula and standards by which
union fines assessed for breach of union discipline may be
judged as conforming to the requirement of reasonableness
under Allis-Chalmers. These standards are not intended for
retroactive application and would have no such retroactive
application herein. While it is essential to an orderly admin-
istration of the statute that those who come within its pur-
view have guidelines for determining the reasonableness of
union fines, it is deemed unnecessary to reiterate here that
formula and those standards already advanced in Local
6222.36
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities that 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.
31 Miranda Fuel Company, Inc, 140 NLRB 181; Ford Motor Company v
Hufman, 345 U.S. 330.
I find no ment in Respondent 's contention that the "spirit and probably
the letter of the Administrative Procedure Act" would be violated by an-
nouncing and retroactively applying a standard for gauging the reasonable-
ness of union fines. In the first instance , no retroactive application of
standards is here undertaken, and the.General Counsel urges none Rather,
the General Counsel is here proceeding adjudicatively pursuant to complaint
and notice under his powers granted by Section 3(d) of the Act to test the
reach of a provision of the Act. "(I)n exercising its quasi -judicial functions
an agency must frequently decide controversies on the basis of new doctrine,
not heretofore applied to a specific problem , though drawn to be sure from
broader principles reflecting the purposes of the statute involved and from
the rules invoked in dealing with related problems ." N L R B v Wyman-
Gordon Co, 70 LRRM 3345 ( 1969), concurring opinion of Justice Black, page
3349. The decision of the Supreme Court in Allis-Chalmers delineated an area
of union conduct arguably violative of Section 8(b)(l)(A), and it is toward
a definition of the reach of Section 8(b)(1)(A) that the General Counsel
invokes the quasi -judicial powers of the Board . The power of the Board by
adversary hearing to decide the controversy before it and then to fashion an
appropriate remedy for the violation found is beyond dispute N L R B. v A
P W Products Co, 316 F 2d 899, 905 (C.A. 2); 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, 674 (1961),
see also N LR B v. Wyman-Gordon, supra, pp. 3346-3347 Neither the reme-
dy urged by General Counsel nor the one adopted is novel
V THE REMEDY
981
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 effec-
tuate the policies of the Act.
Having found that Respondent violated Section
8(b)(1)(A) of the Act by imposing fines of a magnitude
which deprived members of their right under Section 7 of
the Act to refrain from engaging in union activity; and
having further found that the Respondent independently
violated the Act by assessing fines against Judith Gullion,
Edith Wicke , and Mildred Rigney to discipline them for
conduct engaged in at a time when they were not members
of the Union, I shall recommend that the Union ex punge
and rescind the fines levied against Judith Gullion, Edith
Wicke, and Mildred Rigney . I shall further recommend that
the records of Respondent Union with respect to those fines
be corrected by expunging all entries reflecting the imposi-
tion of said fine and that each of the aforesaid individuals
be notified in writing by the Union of the action taken.
Upon the foregoing findings of fact and conclusions 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 employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By imposing fines of $1,800 against Judith Gullion and
Edith Wicke and by imposing a fine of $2,000 against Mil-
dred Rigney because they worked behind a picket line at a
facility at Southwestern Bell Telephone Company during a
strike authorized by the Union the Union restrained and
coerced said individuals in the exercise of rights guaranteed
in Section 7 of the Act, and thereby violated Section
8(b)(1)(A) of the Act.
4. By imposing the aforesaid fines against Edith Wicke
and Mildred Rigney at a time when they had effectively
resigned from the Union by giving due notice to the Union,
and by imposing the aforesaid fine against Judith Gullion
at a time when she had withdrawn her application for mem-
bership in the Union by notifying the Union of her intention
to rescind her efforts to become a union member, the Union
coerced employees in the exercise of rights guaranteed in
Section 7 o the Act and thereby violate Section 8(b)(1)(A)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
n U 8 GOVERNMENT PRINTING OFFICE 1973 0-,469-943