IAM, Local Lodge No. 504

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 365 (N.L.R.B. 1970)

LAM, LOCAL LODGE NO. 504
International Association of Machinists and
Aerospace Workers, AFL-CIO Local Lodge No.
504 (Arrow Development Co.) and David O 'Reilly.
Case 20-CB-1947
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH , BROWN, AND
JENKINS
Upon a charge duly filed on November 14, 1968,
by David O'Reilly, an individual, the General Counsel
of the National Labor Relations Board, by the Region-
al Director of Region 20, issued a complaint and
notice of hearing on February 26, 1969, against Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO, Local Lodge No. 504. The com-
plaint alleged that the Respondent Union had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended, by imposing a
fine of $500 against David O'Reilly for crossing a
picket line established by Respondent at Arrow Devel-
opment Co., and by attempting to collect said fine.
On March 3, 1969, Respondent filed an answer deny-
ing the commission of any unfair labor practices.
On various dates between April 14, 1969, and
April 21, 1969, the parties executed a stipulation
of facts and a motion to transfer proceeding to the
Board by which they waived a hearing before a Trial
Examiner and the issuance of a Trial Examiner's
Decision and Recommended Order and agreed to
submit the case to the Board for findings of fact,
conclusions of law, and an order, based upon a record
consisting of the stipulation of facts and the exhibits
attached thereto.
On April 28, 1969, the Board approved the stipula-
tion of the parties and ordered the case transferred
to the Board, granting permission for the filing of
briefs. Thereafter, the General Counsel, Charging Par-
ty, and Respondent filed briefs, and the General
Counsel and Respondent filed answering briefs.
Upon the basis of the stipulation, the briefs, and
the entire record in this case, the Board makes the
following:
FINDINGS OF FACT
1. JURISDICTION
365
Arrow Development Co., hereinafter also referred
to as Arrow, is a California corporation with its
principal place of business in Mountain View, Califor-
nia, where it is engaged in the manufacture and
wholesale distribution of rides for use in amusement
parks. During the past year, in the course and conduct
of its business, Arrow shipped goods valued in excess
of $50,000 directly to customers located outside the
State of California.
We find that Arrow is, and at all times material
herein has been, an employer engaged in commerce
and in operations affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and
Aerospace Workers, AFL-CIO, Local Lodge No.
504, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent has represented Arrow employees for
a number of years. The most recent collective-bargain-
ing contract, which contained a union-security clause
requiring membership in the Union as a condition
of employment, was operative for the period April
1, 1967, to March 31, 1968. On March 31, Respondent
held a meeting, attended by David O'Reilly, at which
a strike was authorized by vote of the membership.
The strike began on April 1 and lasted until April
29, when a new agreement between Arrow and the
Union was reached. During the 4-week period of
the strike, O'Reilly crossed the picket line and contin-
ued to work, earning $610.62 (net earnings were
$511.33) for this period.
At all times material herein, O'Reilly has been
a member of the Union. On April 29, 1968, he
was notified by the Union that charges had been
filed against him for crossing the picket line and
working for Arrow during the strike. O'Reilly did
not attend the subsequent trial and, in his absence,
Respondent's trial committee found him guilty and
recommended that he be fined $250. Thereafter, at
a regular membership meeting, Respondent's members
concurred in the verdict of the committee and voted
to fine O'Reilly $500. O'Reilly was so notified.
185 NLRB No. 22
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 2, 1968, Respondent brought suit against
O'Reilly in the Municipal Court for the San Jose-
Milpitas-Alviso Judicial District, County of Santa
Clara, State of California, to collect the fine. On
November 15, the Union was awarded a judgment
for $528.' Since that date, Respondent has attempted
to collect on the judgment by garnisheeing O'Reilly's
wages.
B. Contentions of the Parties
In Allis-Chalmers,' the Supreme Court held that
a union does not violate Section 8(b)(1)(A) by impos-
ing fines against its members for failure to honor
an authorized picket line , and by attempting to enforce
the fines through court action , for the reason that
Section 8(b)(1)(A) was not intended by Congress to
prohibit a labor organization from imposing such
fines. ' The fines in that case ranged from $20 to
$100. In Scofield v. N. L. R. B.,' the union had imposed
fines of $50 to $100 on members who violated its
rule (imposing a ceiling on production for which
members could accept immediate piecework pay).
In holding that the union 's foregoing conduct had
not violated the Act, the Supreme Court observed,
inter alia, that there was no showing that the fines
were unreasonable in amount . The General Counsel
urges in the instant case that "The Supreme Court
has thus indicated that a union may violate Section
8(b)(1)(A) if it imposes an unreasonable fine on its
members." According to General Counsel , regardless
of the reason for the assessment once it is shown
that a fine is unreasonably large, "the excessiveness
of the . . . penalty makes . . [the] conduct an
unprotected restraint upon employees ," since such
a penalty necessarily coerces employees with respect
to the exercise of their Section 7 right to refrain
from assisting a labor organization . Thus, a fine,
1 Five hundred dollars on the debt, $26 50 in costs , and $1 50 in
fees for issuance of the writ of execution
On March 16, 1970, the Respondent filed a motion requesting that
an affidavit and two exhibits attached thereto be received into evidence
The affidavit of counsel for Respondent recites the history of the proceed-
ings before the state courts, and the attachments thereto consist of
a copy of the judgment of the Superior Court of the State of California
in and for the County of Santa Clara , on appeal, entered June 12,
1969, setting aside a judgment and against David O'Reilly and remanding
the matter for a hearing on the merits , and a copy of the judgment
of the Municipal Court for the San Jose -Milpitas Judicial District County
of Santa Clara , State of California , dated February 2, 1970, directing
payment of the fine in the sum of $ 500 with costs No opposition
having been filed by the General Counsel or the Charging Party, the
Respondent 's motion is hereby granted and the said documents are
hereby made a part of the record herein
NLR B v Allis-Chalmers Mfg Co, 388 U S 175
The Board (149 NLRB 67) had reached the same result by application
of the 8 (b)(1)(A) proviso, a holding which the Supreme Court found
unnecessary to pass upon
4 394 U S 423, 430
such as the one in the instant case, which equals
or exceeds wages earned during a strike is a total
restraint upon an employee's election to work, is
confiscatory, and, therefore, presumptively unlawful.'
Finally, General Counsel argues that the Board should
not permit the state courts to become the sole arbiters
of the question of whether or not a fine is reasonable
(an issue which those courts will face in entertaining
union suits to enforce fines ) because a uniform national
policy is required.
The Charging Party, in addition to the contentions
advanced by General Counsel, urges the following
considerations:
1. The strike vote was not by secret ballot.'
2. The union constitution denies a member the
right to select counsel of his choice to represent
him during union disciplinary proceedings.'
3. The Union attempted to enforce the fine by
engaging in conduct prohibited by Section 8(b)(2).8
4. After securing a judgment, the Union served
the Employer with garnishment papers requiring the
Employer to deduct 50 percent of the Charging Party's
wages until the fine was satisfied.'
5. The Charging Party was not a voluntary union
member, but joined the Union solely because of the
requirements of the then operative contract union-
security clause."
As analogical support for his position , General Counsel directs the
Board's attention to its decision in Charles S Skura, 148 NLRB 679
(approved by the Supreme Court in NL R B. v Marine & Shipbuilding
Workers, 391 U S 418 ), which assertedly establishes the proposition
that union imposition of fines on its members may, in some circumstances,
constitute restraint and coercion However , in that case , it was the
reason for the discipline (fining of members who had filed charges with
the Board) rather than its severity which made the discipline unlawful
We need not determine whether or not the vote was by secret
ballot, the balloting procedure utilized for the strike vote in this case
is an internal union matter not governed by any provisions of the National
Labor Relations Act
The Union constitution provides that a member must select his
attorney from among the members of the Union The Board will not
review the procedural regularity of this internal union disciplinary proceed-
ing
The alleged 8(b)(2) conduct has been the subject of a separate
settlement agreement, approved by the Regional Director, and thus is
not before us in the instant case
By serving the Employer with garnishment papers, after securing
a judgment , the Union was apparently following applicable procedures
under California law for collection on a judgment These procedures
are not subject to our review If the original imposition of the fine
was lawful under this Act, and the suit to enforce the fine was also
lawful, then it necessarily follows that the Union may avail itself of
judgment collection procedures under state law
10 In Allis-Chalmers, a form of union -security clause was also in effect,
and it was urged that membership was as a result of this requirement
and not voluntary choice The Supreme Court held that the relevant
question was not what motivated full membership , so long as full member-
ship existed in fact The Court stated "Allis-Chalmers offered no evidence
in this proceeding that any of the fined employees enjoyed other than
full union membership We will not presume the contrary " We regard
this holding as dispositive of the issue raised by the Charging Party
herein
iAM, LOCAL LODGE NO 504
Respondent urges that Allis-Chalmers establishes
that a union's action in fining a member for crossing
a lawful picket line does not conflict with any policy
of the Act and, therefore, the amount of the fine
is necessarily an internal union matter, removed from
Board jurisdiction by the 8(b)(1)(A) proviso. Further,
Respondent contends, the fine in this case is reasonable
as the Union, in fining the Charging Party an amount
roughly equal to his net strike-breaking earnings,
has merely deprived him of the fruits of breaking
the union rule. Employees who obeyed the rule suf-
fered a comparable loss. Additionally, according to
Respondent, a fine may lawfully serve a penal function
and, in that case, may be greater "than the monetary
benefit that the wrongdoer derives from his offense.""
C. Conclusion
As early as 1954, the Board held in Minneapolis
Star and Tribune Company's that a union had not
violated the Act by imposing a fine of $500 on
a member for his failure to perform picket duty
during the course of a 1-week strike. The Board
concluded that "the proviso to Section 8(b)(1)(A)
precludes any such interference with the internal
affairs of a labor organization." The Board adhered
to this rationale in its more recent decisions in Wiscon-
sin Motor Corporation" and Allis-Chalmers Manufac-
turing Company," both involving fines and judicial
proceedings to enforce the fines. In Allis-Chalmers
the Board held:
Here, too, the Respondents have properly
maintained the distinction between treatment of
the individual as a member of the Union and
treatment of him as an employee. They have
imposed the fine only on their own members.
It is not alleged that the Respondents ever
attempted to affect the jobs or working conditions
of any of the fined individuals. Nor is it alleged
that the rule prohibiting members from crossing
a picket line during a strike is not the legitimate
concern of a union or properly the subject matter
of internal discipline. It may be said then that
the Respondents were engaged only in prescribing
and enforcing their own rules with respect to
the acquisition or retention of membership. Since,
under the proviso, Section 8(b)(1)(A) does not
" Respondent also urges that the complaint is defective because it
does not specifically allege that the $500 fine is unlawful because the
amount is unreasonable Respondent further contends that the complaint
should be dismissed because of the Charging Party's failure to exhaust
internal union procedures in view of our disposition of the case, we
need not pass upon these contentions
" 109 NLRB 727
" 145 NLRB 1097
14 149 NLRB 67, 69
367
impair the right of a labor organization to do
this, it follows that the Respondents did not
violate that Section.
In affirming the Board's conclusions in Allis-Chal-
mers, the Supreme Court reviewed the legislative histo-
ry underlying the enactment of the Taft-Hartley Act
and held that Section 8(b)(1)(A) was not intended
to reach the conduct of a labor organization in fining
its members for crossing an authorized picket line,
and seeking court enforcement of those fines." The
Court held at 195:
Thus this history of congressional action does
not support a conclusion that the Taft-Hartley
prohibitions against restraint or coercion of an
employee to refrain from concerted activities
included a prohibition against the imposition of
fines on members who decline to honor an author-
ized strike and attempts to collect such fines.
Rather, the contrary inference is more justified
in light of the repeated refrain throughout the
debates on 8(b)(1)(A) and other sections 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 sta-
tus.
In Wisconsin Motor," the Court reaffirmed its hold-
ing in Allis-Chalmers. It further noted that the Board's
decision in Skura," and its own decision in Marine
Workers," establish that if a union rule "invades
or frustrates an overriding policy of the labor laws
the rule may not be enforced, even by fine or expulsion,
without violating 8(b)(1)." The net effect of the two
lines of cases, said the Court, is that:
Under this dual approach, § 8(b)(I) leaves a
union free to enforce a properly adopted rule
which reflects a legitimate union interest, impairs
no policy Congress had imbedded in the labor
laws, and is reasonably enforced against union
members who are free to leave the union and
escape the rule.
The Court concluded at 436:
The union rule here left the collective bargain-
ing process unimpaired, breached no collective
contract, required no pay for unperformed serv-
ices, induced no discrimination by the employer
against any class of employees, and represents
no dereliction by the union of its duty of fair
representation. In light of this, and the acceptable
" The Court's rationale made it unnecessary to test the Union's conduct
against the 8(b)(1)(A) proviso, as the Board had done
Scofield v N L R B In 4 supra
17 Fn 5 supra
e Id
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner in which the rule was enforced, vindicat-
ing a legitimate union interest, it is impossible
to say that it contravened any policy of the
Act.
Thus, the Court's synthesis of the Allis-Chalmers
and Skura lines of cases makes the initial distinction
that 8(b)(1)(A)'s prohibitions extend to union disci-
pline imposed for certain prohibited purposes, but
not the severity of otherwise lawful discipline.
Given this precedent, particularly the holding of
the Supreme Court that Congress did not, by enacting
Section 8(b)(1)(A), undertake to regulate union fines
(or court enforcement of same) imposed on members
for their failure to honor an authorized picket line,
we cannot conclude that Congress nonetheless intend-
ed to have the Board regulate the size of these fines
and establish standards with respect to their reason-
ableness. Indeed, as the legal enforceability of these
fines is grounded in contract theory, it is obvious
that the local courts are the more logical tribunals
for the establishment of standards of reasonableness.
While in Wisconsin Motor the Court noted that the
fines in that case were reasonable in amount, the
Court addressed itself more fully to this question
in Allis-Chalmers, stating:
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 justi-
fy reading the Act also to bar court enforcement
of reasonable fines.32 [Other fns. omitted and
emphasis supplied.]
" 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 "
Thus, the Court's findings that the fines in those
cases were reasonable seems directed to enforcing
courts, encouraging those courts to make an independ-
ent determination of the reasonableness of the fine
in each case presented," in the same fashion as courts
limit other union discipline which imposes a severe
hardship. Such considerations are of an equitable
nature rather than of the character of restraint and
coercion with which the National Labor Relations
Act treats.20
11 Where Congress desire, that the Board make this type of
determination it has said so Thus Sec 8(b)15) of the Act authorizes the
Board to decide whether or not initiation lees charged of employees required
to join a labor organvation under a union-sec urrh clause are excessne and
discriminatory
20 Our dissenting colleague suggests that because no contention was
made in the h(h)(I)(A) cases before it that the line, invoked were
unreasonable, the Supreme Court did not "squareh rule' on the question of
reasonableness To so interpret these decisions is to hold that the Supreme
Court will not accord weight to the cers considerations it clearly indicates It
expects lower courts to applx where collection of such lines is imohed It is
more logical to conclude that no specific ruling on this issue was made
Finally , it is urged that large fines are a deterrent
to the exercise of "job rights ," and therefore coercive.
Apparently our dissenting colleague would not go
this far-for he states that "regardless of the amount
of a fine" he would find it clearly privileged under
the proviso to 8(b)(1)(A) if enforced solely by internal
union methods such as expulsion or suspension , except
where the reason for the fine offends some overriding
statutory policy . Thus, it is not the unreasonableness
of the fine which the dissenting opinion finds to
be an invasion of the statutory prohibition of Section
8(b)(1)(A), but the attempted collection of the fine
through legitimate court proceedings . We find nothing
in the Act or in the opinions of the Supreme Court
which justifies so limiting a union 's method for
enforcement of its legitimate internal rules to its
own internal procedures.
If our colleague would further limit "coercive fines"
to those actually enforced through external collection
proceedings , our differing views would have no mean-
ingful impact ; for the courts , under the mandate
of the Supreme Court , will have enforced only reason-
able fines. However , in his view , the threat to collect
an excessive fine by external methods is also coercive.
To this suggestion we would pose the query, what
threat cognizable under Section 8(b)(1)(A) is there
in an uncollectible fine that is not present in a reason-
able collectible fine?"
The Board has long recognized that , as a practical
matter , "virtually all union rules affect a member's
employment relationship ." 22 However , given the legiti-
macy of the rule, the only question of relevance
to the agency enforcing this Act is "whether, in
enforcing the rule , the Union goes outside the area
of union -membership relationship and enters the area
of employee-employer relationship."23 The Union has
not done so here, nor has it sought to vindicate
a policy in conflict with the National Labor Relations
Act, and the Act does not authorize this Board
to evaluate the fairness of union discipline meted
out to protect a legitimate union interest.
Accordingly , we shall dismiss the complaint in
its entirety.
ORDER
It is hereby ordered that the complaint herein
be, and it hereby is, dismissed in its entirety.
because reasonableness was not releiant to the 8(b)ll)(4) issue belore tile
Court
" The court in \ I R B \ American Bakery & Confecnunerr Workers,
411 F 2d 1122 , (C A 7), did not treat with the argument that a fine,
uncollectible in a court of law, was noncoercive but instead "specifically"
found the argument "beside the point," because the purpose for which
the fines were imposed, namely , to discipline employees for filing charges
and cooperating in Board proceedings , would make any fine unlawful
" Allis-Chalmers Manufacturing Company, 149 NLRB 67,70
iS Allis-Chalmers Manufacturing Company, supra
IAM, LOCAL LODGE NO. 504
MEMBER MCCULLOCH, dissenting:
I am unable to agree with the conclusion of my
colleagues that the reasonableness of the amount of
a court-collectible fine imposed on a union member
for failure to honor his union's picket line during
a strike is not relevant to a determination of whether
Section 8(b)(1)(A) of the Act has been violated."
In my view, the Supreme Court decisions cited by
the majority do not command the result they reach,
but rather support an opposite conclusion.
In neither of the cited cases, as the Court was
careful to note, was any contention made that the
fines were unreasonable in amount.25 As the question
of reasonableness was therefore not directly before
the Court, it was not squarely ruled on. There are
however, clear indications in these decision, when
read together, that a majority of the Court likely
would have come to a different result had it appeared
in those cases that the fines imposed were unreasonable
in amount.
In Allis-Chalmers, the opinion for the Court was
joined in fully by four justices; Mr. Justice White
wrote a separate concurring opinion in which, while
agreeing generally with the opinion of the Court,
he expressed doubts "about the implications of some
of its generalized statements."26 Four other justices
joined in the dissenting opinion written by Mr. Justice
Black. In holding that the imposition of court-enforced
fines for crossing a union picket line was outside
the intended reach of Section 8(b)(1)(A), the Court,
in the course of its principal opinion, at several points
used the term "reasonable fine " Thus, at page 183, it
stated:
where the union is strong and membership
therefore valuable, to require expulsion of the
member visits a far more severe penalty upon the
member than a reasonable fine [Emphasis
supplied.]
At page 192, the Court rejected, in effect, the argument
that its holding might result in the enforcement of
unreasonably large fines , stating that such a contention
"would not justify reading the Act also to bar court
enforcement of reasonable fines." (Emphasis supplied.)
And Mr. Justice White, explaining why he found
the majority more persuasive than the dissent, focused
" I would reach a different conclusion where the only sanction invoked
or threatened for nonpayment of the fine, is expulsion or suspension
from union membership For, regardless of the amount of a fine, its
enforcement solely by such internal methods appears clearly to be pnvi-
leged by the proviso to Sec 8 (b)(1)(A), except of course in a situation-
not the one before us-where the reason for the fine offends some
overriding statutory policy In Minneapolis Star and Tribune Company,
109 NLRB 727, relied on by the majority as Board precedent for its
position in this case , it does not appear that there was any actual
or threatened court enforcement of the fine there involved
" NLRB v Allis-Chalmers M f g Co, 388 U S 175, 193, fn 30,
Scofield v NLRB , 394 U S 423 430
" NL.R B. v Allis-Chalmers, supra, at 199
369
on the reasoning of the Court's opinion
that since expulsion would in many cases-cer-
tainly 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 § 7 rights,
nevertheless intended to bar .nf:)rcement by
another method which may be (u_ ess coercive.
[Emphasis supplied. J17
It is noted, too, that the dissenting opinion in Allis-
Chalmers interprets the Court's holding as limited
in its scope to "a court-enforced reasonable fine."28
(Emphasis supplied.)
Any doubt that the Court did not intend its holding
in Allis-Chalmers to extend beyond "reasonable fines"
was laid to rest by the Court's subsequent decision
in Scofield.29 The Court there summarized its decision
in Allis-Chalmers as holding that
[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 enforceable
[without violating 8(b)(1)(A)] against voluntary
union members by expulsion or a reasonable
fine. [Emphasis supplied.]"
The Court in Scofield further stated that
§ 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. [Emphasis
supplied.]"
It was "this view of the statute," the Court added,
that "must be applied"32 in determining whether Sec-
tion 8(b)(1)(A) was violated by the enforcement of
the fine in the case before it. (Emphasis supplied.)
Then, after noting the absence of any "showing in
the record that the fines were unreasonable,"" and
after finding that the other aforementioned conditions
had been satisfied, the Court concluded:
We affirm, holding that the union rule is valid
and that its enforcement by reasonable fines does
Id.at198
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 " [Emphasis supplied ] Id at 200
Scofieldv NLRB,394US 423
Scofield v N L R B 394 U S at 428
"Id.at430
32 Id.
3 Supra, fn. 25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not constitute the restraint or coercion proscribed
by 8(b)(1)(A). [Emphasis supplied.]"
The Court's repeated use of the adjective "reason-
able" in both Allis-Chalmers and Scofield to describe
the fines there in issue cannot be passed over casually
as without significance. By its carefully drawn distinc-
tion between "reasonable" and "unreasonable" fines,
the Court, it seems to me, meant not only to define
the limits of its holdings in these cases, but also
to indicate affirmatively that it regarded court-collecti-
ble fines which were unreasonable, either in their
nature or size, as not serving a legitimate union
interest, and therefore not privileged from the pros-
cription of Section 8(b)(1)(A).
Support for the view that the Supreme Court did
not read the Act and its legislative history as removing
"unreasonable" fines from the reach of Section
8(b)(1)(A) is to be found in the language from Scofield,
quoted above, wherein the Court outlined the test
that "must be applied."
Additional support is to be found in the Court's
analysis in Allis-Chalmers of national labor policy
considerations which led it in substantial part to
conclude that Congress , in amending the Act in 1947,
did not intend Section 8(b)(1)(A) to condemn a union's
continued use of reasonable disciplinary measures.
The Court stated in part:
Integral to this federal labor policy has been
the power in the chosen union to protect against
erosion its status under that policy through rea-
sonable discipline of members who violate rules
and regulations governing membership. That
power is particularly vital when members engage
in strikes. The economic strike against the
employer is the ultimate weapon in labor' s arsenal
for achieving agreement upon its terms, and "[t]he
power to fine or expel strike-breakers is essential
if the union is to be an effective bargaining
agent...." [Emphasis supplied.]"
Implicit in the Court's analysis of this aspect of
national labor policy is the concept that a union
has a legitimate interest in imposing reasonable disci-
pline upon a voluntary member if needed to protect
its status as an institution for effective bargaining,
even though such discipline also serves to restrain
and coerce the member's exercise of his Section 7
right to refrain from engaging in concerted activities.
The corollary is that where otherwise lawful discipline
oversteps reasonable bounds of needed protection and
becomes essentially punitive in nature, it impairs feder-
al labor policy. And since no legitimate union interest
i' Scofield v NLRB 394 U S at 436
11 NLR.B v Allis-Chalmers, 388 U S at 181
is then served, it remains within the compass of
Section 8(b)(1)(A). Thus, expulsion, or enforcement
of a fine solely by expulsion, constitutes a legitimate
exercise of internal union discipline, as it serves only
to rid the union of a member not in sympathy with
its objectives." So, too, a court-enforced fine for viola-
tion of a legitimate rule must be viewed as presump-
tively protective, and therefore privileged, when the
amount of the fine, taking into account the character
and importance of the ends served by the rule being
enforced, is reasonably related to the need for protec-
tion. However, if the amount of a fine is such as
to be inordinately disproportionate to the needed
protection, an inference is warranted that the fine
was imposed on the member, not in vindication of
a legitimate union interest, but as a reprisal for having
exercised a statutorily protected right."
As is indicated in the Supreme Court cases cited
above, and as is more concretely reflected in NL.R.B.
v. Marine & Shipbuilding Workers, 391 U.S. 418,
the determination of whether union disciplinary action
violates Section 8(b)(1)(A) involves a balancing proc-
ess in which the union's interest in maintaining disci-
pline is measured against public policies imbedded
in the labor laws. In considering whether a fine,
court-enforced, may, at least in certain circumstances,
be so excessive in amount as to overcome a union's
otherwise legitimate interest in enforcing its internal
rules, the policy of the Act protecting employees
from interference with their job rights is a consider-
ation which, I believe, should not entirely be ignored.
Thus, where, as in this case, a court-enforceable
fine imposed on employee-members for working dur-
ing a strike is greater than the wages earned during
the strike, it constitutes a total restraint on their
right to refrain from engaging in the concerted activity,
different in form but in economic reality the same
as if they had been blocked at the plant gate by
unlawful violence or a mass picket line. Few employees
indeed will feel they have any choice in the matter
knowing that if they do violate the union rule and
go to work, they will be deprived of all the fruits
" An exception would be a case such as Skura, 148 NLRB 679,
where the rule enforced by expulsion invades and frustrates an overriding
statutory policy See also NLR B v Marine and Shipbuilding Workers,
391 U S 418
" The imposition of such a disproportionately large fine may also
be condemned as arbitrary union action Although the Supreme Court
in 4lhr-Chalmers erpressh retrained Irvin deeding since it ii as unnece„ar\
to the disposition of that case, "whether 8(b)(1)(A) proscribes arbitrary
imposition of fines ," the Court elsewhere in its decision at least intimated
its view that federal labor policy, as shaped by the Courts, encompasses
a policy against unfair or arbitrary conduct by a bargaining representative
Cf Vaca v Sipes, 386 US 171 Though the policy embodied in a
rule may not itself be objectionable, a fine for violation of the rule
may nevertheless be considered "an arbitrary imposition" if it is so
excessive in amount as to bear no fair relationship to the legitimate
purposes of the policy served
iAM, LOCAL LODGE NO 504
of their labor. It may perhaps be arguable-a matter
on which I now express no judgment-that a fine
is justifiable in the protective interests of a union,
if it does no more than strip an offending member
of the profits of his rule violation. But such an
argument is more difficult to sustain where, as here,
the fine levied exceeds such gains.18 In economic
effect, to the extent of the excess, the employee is
being assessed a sum representing wages he earned
after the strike is over when the Union no longer
needs protection. If the Union had caused the Employ-
er to suspend the fined members without pay for
even a brief period after the strike because they
had worked during it, there could be no doubt of
the Union's violation of Section 8(b)(1)(A). Yet in
practical effect what the Union did here, and its
coercive impact on employees, is no different. The
last consideration, at the very least, it seems to me,
would warrant an inference that the fines involved
in this case were so excessive in amount in relation
to the Union's legitimate disciplinary interests as to
place them outside the scope of privileged internal
union action.39
My colleagues take the position that the reasonable-
ness of fines is an issue that must, and should, in
all situations, be left for determination solely by local
enforcing courts. I am unable to agree. To begin
with, I do not share my colleagues' view that the
Court's findings in Allis-Chalmers and Scofield point-
ing to the reasonableness of the adjudicated fines
were simply "directed to enforcing courts" to encour-
age their examination of reasonableness in fine cases
presented to them. That view overlooks the context
in which the findings of reasonableness were made
and the emphasis given them. Both cases were con-
cerned with unfair labor practice issues only. And,
in both, the Court was faced with an argument that
though the fines then before the Court might be
reasonable in amount, in other cases they might not
be; that if all fines were ruled exempt from 8(b)(1)(A),
it would allow the imposition of court-enforceable
fines so large as to be the coercive equivalent of
job loss. Considered in this context, I think the only
logical conclusion is that the Court stressed the reason-
ableness of the fines which were before it only because
it wanted to ensure that its decisions would not
be overinterpreted to mean that unreasonable fines
" Cf D Bok and J Dunlop, Labor and the American Community,
106-107(1970)
" It is true , of course , that any fine, however small and reasonable
in amount , may indirectly result in some degree of coercion of employees
affecting their job rights But it does not follow, as the majority appears
to reason , that since small fines do not violate the Act, ipso facto,
the Act is not violated by the imposition of any fine , however large
and unreasonable The situation here presented is one, I believe, in
which a difference in degree constitutes a difference in kind
371
were also exempt from the coverage of Section
8(b)(1)(A). If, as the Court's carefully circumscribed
holdings appear to imply, and my own study confirms,
unreasonable fines, court collectible, remain subject
to the statutory prohibition, it follows that where
a fine is attacked as unreasonable in an unfair labor
practice proceeding before the Board, the issue of
reasonableness is relevant and must be decided.
It is true, as my colleagues suggest, that local
courts may, and perhaps must, pass on the reasonable-
ness of fines when suits are brought by unions to
collect them. But this does not, of course, foreclose
the Board from also doing so in an unfair labor
practice proceeding. Nor do I think it appropriate
for the Board to defer to another forum, thereby
applying in effect a doctrine of "reverse preemption,"
on an issue so closely intertwined with considerations
of statutory and federal labor policies.
Other policy considerations also favor the result
I would reach. Thus, to leave an employee to his
remedy from a state court might well leave him
without any effective relief at all, for the cost of
attorney fees alone in many cases will discourage
attempts to defeat fines that are excessive. Moreover,
I believe this is an area in which uniformity is desir-
able Courts are likely to differ widely in their appraisal
of what is or is not excessive, and the Board is
in the best position to develop fair and uniform
standards that are likely to gain general acceptance.
Although the line between what is a reasonable
fine and what is not may not always be easy to
draw, this is not reason enough for deferral to another
forum. -Nor is the Board disabled from acting because
Congress has laid down no standards. The Board
is neither powerless to, nor inexperienced in, making
judgments of this kind when relevant to a determina-
tion of whether the statute has been violated.40 Indeed,
in a situation such as here presented, I believe that
in the discharge of our statutory responsibilities we
must do so, unless we are to ignore completely the
almost certain coercive impact that clearly excessive
fines, backed by actual or threatened court enforce-
ment, will have on statutorily protected rights.41
40 As noted in the majority decision, Sec 8(b)(5) requires the Board
in certain situations to determine whether a union initiation fee is "in
an amount excessive and discriminatory under all the circumstances "
Although Congress set out certain relevant factors for the Board to
consider , among others , in making the appraisal required by that section,
it does not follow, as the majority seems to imply , that because of
the absence of statutory guidelines with respect to the reasonableness
of fines , the Board must be deemed without authority to consider that
question by developing its own in NL R B v Radio & TV Engineers,
Local 1212, 364 U S 573, the Court , in rejecting the Board's contention
that it should not make an affirmative award of work under Sec 10(k),
since Congress failed to set forth standards to guide it in determining
jurisdictional disputes on their merits , said that given this agency's expen-
ence in handling similar labor problems , " it need not disclaim the power
given it for lack of standards " 364 U S at 583
' i See page 372 for In
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because I believe my colleagues are in error in
not considering on its merits, and deciding , the issue
relating to the reasonableness of the fines involved
in this case , I note my dissent from the majority
decision.
" It is clear that a threat to collect an unreasonable fine may be
found unlawfully coercive even if the fine itself is not collectible An
employee confronted with the threat of court collection is not only
uncertain of how the court will rule , but is also acutely aware that
the costs of litigation come high The possibility , or even the likelihood,
that a court will ultimately refuse to enforce the fine to the extent
that it is unreasonable does not withdraw from the threat its coercive
impact The argument that a fine may not be found violative of Sec
8(b)(1)(A) if it is not collectible in a court of law has already been
specifically considered and rejected in NLR B v American Bakery &
Confectioner v Workerc 411 F 2d 1122 (C A 7), enfg 167 NLRB 596
It is true , of course , that a threat to collect a reasonable fine may
also be coercive in fact , yet is not to be viewed as unlawful for that
reason alone But in the area of union fines a distinction must be drawn
between coercion in fact and coercion in law Under the Supreme Court
holdings , as I interpret them, court -enforced reasonable fines, regardless
of their impact on employees, are outside the intended reach of Sec
8(b)(1)(A)'s ban on coercive conduct , unreasonable fines, however, are
not similarly exempt Since court enforcement of a reasonable fine is
lawful, the threat of such enforcement is also so The opposite is true
in the case of an unreasonable fine.