Intl. Molders' and Allied Wkrs., Local 125

National Labor Relations Board - Board Decisions

Aug 25, 1969

178 N.L.R.B. 208 (N.L.R.B. 1969)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Molders' and Allied Workers Union,
Local No. 125 , AFL-CIO ( Blackhawk Tanning
Co., Inc.) and Dorothy Strzyzewski. Case
30-CB-171
August 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 21, 1968, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled case,
finding that Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case,' and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
We adopt the Trial Examiner's Decision, finding
that Respondent's fining of an employee for filing a
petition seeking to decertify Respondent as
bargaining representative of the Blackhawk
employees is a violation of Section 8(b)(1)(A) of the
Act. Some comment is, however, necessary to
clarify our position in view of Members Fanning
and Jenkins' dissent.
The problem involved in this and related cases is
one of reconciling the public policy of protecting
access to the Board with a union's right to prescribe
its own rules respecting "the acquisition or retention
of membership." In the Marine & Shipbuilding
case,' the Supreme Court approved the Board's rule
that the disciplining of employees because they have
filed unfair labor practice charges with the Board is
a violation of Section 8(b)(1)(A).' The unlawful
disciplining covers fining as well as expulsion." But
to say this does not resolve our case.
The Court in the Price case' commended the
discriminating manner in which the Board has been
applying the proviso to Section 8(b)(1)(A) in cases
in which unions have invoked disciplinary measures
against union members for filing unfair labor
'Respondent 's request for oral argument is hereby denied as the record,
including the exceptions and briefs , adequately sets forth the issues and
positions of the parties.
N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418.
'Local 138, Operating Engineers (Charles Skura). 148 NLRB 679.
'Idem
practice charges or decertification petitions with the
Board. Thus, although the Board has found
expulsion of a union member for filing unfair labor
practice charges unlawful, it has not similarly found
unlawful the expulsion of a member who has filed a
decertification petition with the Board.' The reason
for the different treatment of the two situations lies
in the policy considerations involved. In the case of
a decertification petition, the employee seeks to
attack the very existence of the union as an
institution. And unless the union can expel the
member who seeks its destruction, "during the
pre-election campaign, the member could campaign
against the union while remaining a member and
therefore privy to the union's strategy and tactics."'
In other words, the union needs this power of
expulsion in order to defend its status as bargaining
representative. Further, the Board noted in Tawas
Tube' that an employee who seeks to decertify a
union hardly values his union membership and his
expulsion from the Union would not be an effective
deterrent against resorting to the Board.'
In summary then, as noted, the Board and the
Courts have held that it is an unfair labor practice
for a union to expel or fine a member because he
has filed an unfair labor practice charge with the
Board.10 The Board has also held, with court
approval, that it is not an unfair labor practice for a
union to expel a member who has filed a
decertification petition with the Board." In a
somewhat different context where the member's
access to the Board was not involved, the Supreme
Court has upheld the right of a union to fine, in lieu
of expelling a member who crossed a picket line
during a strike.12
Does it follow from the above, that the Board
should uphold as lawful the fining as well as the
expulsion of a member who has filed or circulated a
decertification petition?
The answer to this question cannot be found in
the routine application of a formula: if expulsion is
lawful so is a fine, or if expulsion is unlawful so is a
fine. The solution calls for discrimination, the
weighing of the public policy in each situation
against the union's right to regulate its internal
affairs. The rule permitting a union to expel a
member seeking its decertification is an exception to
the rule prohibiting a union from penalizing a union
member because he has sought to invoke the
Board's processes. The exception is based on the
'Price v N.L.R.B., 373 F 2d 443 (C.A 9), cert denied 392 U.S. 904
`Tawas Tube Products . Inc., 151 NLRB 46.
'Price v. N.L R B., supra at 447.
'Tawas Tube Products , Inc., 151 NLRB 46, 49.
'That this observation is generally true is exemplified by the Charging
Party's remark when notified to appear before a union trial board for
having circulated the decertification petition - "Now if you feel you want to
suspend me from your union be my guest "
"N.L R.B v. Marine & Shipbuilding Workers, supra, Local 138,
Operating Engineers (Charles Skura), supra.
"Tawas Tube Products , Inc., supra, Price v. N L.R B, supra
"N L.R B. v. Allis-Chalmers Mfg Co, 388 U S. 175
178 NLRB No. 25
INTL. MOLDERS ' AND ALLIED WKRS ., LOCAL 125 209
necessities of the situation, the right of the union to
defend itself. It is buttressed by the fact that the
deterrent or punitive effect of expulsion in such
circumstances is at most minimal.
In short, where the union member is seeking to
decertify the union, the Board has said that the
public policy against permitting a union to penalize
a member because he seeks the aid of the Board
should give way to the union's right to self-defense.
But when a union only fines a member because he
has filed a decertification petition, the effect is not
defensive and can only be punitive - to discourage
members from seeking such access to the Board's
processes; the union is not one whit better able to
defend itself against decertification as a result of the
fine. The dissident member could still campaign
against the union while remaining a member and
therefore be privy to its strategy and tactics.
Because the two situations - expelling a member
for filing a decertification petition and fining him
for the same reason - are thus qualitatively different,
they call for different legal conclusions. Hence we
cannot accept the view expressed in the dissenting
opinion.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent , International
Molders ' and Allied Workers Union , Local No.
125, AFL-CIO, its officers , agents, and
representatives shall. take the action set forth in the
Trial Examiner 's Recommended Order.
MEMBER BROWN, concurring:
I agree with the majority that a labor
organization violates Section 8(b)(l)(A) by fining a
member for filing a decertification petition. The
Board, with court approval , has held that unions
may not use coercive means to restrict access to the
statutory unfair labor practice remedies. "Any
coercion used to discourage , retard , or defeat that
access is beyond the legitimate interests of a labor
organization ." N.L.R.B . v. Marine & Shipbuilding
Workers , 391 U.S. 418, 424. This policy applies
with equal force to representation procedures. In
Tawas Tube Products , Inc., 151 NLRB 46, we held
that it was not unlawful for a union to expel a
member for filing a decertification petition.
However, that decision should not be construed as
an abdication of our duty to protect the
representation procedures from interference through
coercive conduct on the part of unions . Rather,
Tawas involved a limited exception based upon the
fact that the deterrent punitive or coercive effect of
expulsion is nonexistent as applied to a member who
through a decertification petition attacks the very
existence of the Union as an institution. On the
other hand , a fine collectible through court action,
as is here involved, does impose a meaningful
restraint upon a member's willingness to invoke the
Board's representation procedures.
MEMBERS FANNING AND JENKINS, dissenting:
In two prior cases" a unanimous Board has held
that the suspension or expulsion of a union member
from membership for filing a decertification petition
was not violative of Section 8(b)(1)(A) of the Act.
Today, our colleagues affirm a Trial Examiner's
decision that the "fining" of a union member for
identical conduct is violative of the Act. We cannot
agree.
Our disagreement with the majority view stems
basically from the following: there is no meaningful
distinction between fining and expulsion and this
Board and the Supreme Court have so held; this
decision is not only inconsistent with our decisions
in the Tawas Tube and Pittsburgh Des-Moines Steel
cases but it is a direct repudiation of the carefully
drawn distinction between permissible and unlawful
disciplining of union members as set forth in our
decision in Van Camp Sea Food case;16 lastly, the
proviso to Section 8(b)(1)(A) explicitly protects such
conduct.
In finding the violation the Trial Examiner found
fines distinguishable from expulsion and relied
principally on views expressed by the Supreme
Court in N.L.R.B. v. Marine & Shipbuilding
Workers to the effect that "overriding public
interests make unimpeded access to the Board the
only healthy alternative, except and unless plainly
internal union affairs of the Union are involved.""
For reasons noted hereafter, there is no valid
distinction between fines and expulsion and her
reliance on the Shipbuilding Workers case is
misplaced.
Distinction Between Fining and Expulsion
Both the Supreme Court and this Board have
accepted the view that there is little or no distinction
between fining and expulsion and that generally
fining is a lesser penalty and usually precedes
expulsion. In the Allis-Chalmers case,16 the issue
presented was whether a court-enforced fine of a
union member for crossing the Union's picket line
during an authorized strike against their employer
violated Section 8(b)(l)(A) of the Act. The Supreme
Court rejected the view of the Circuit Court that the
proviso to that section must be read literally in that
it sanctioned no form of discipline other than
expulsion. In rejecting the distinction that the
proviso only made expulsion lawful, the Supreme
Court stated:
"Pittsburgh-Des Moines Steel Co., 154 NLRB 692, petn . for review
denied in Price v. N.L.R.B., 373 F.2d 443 (C.A. 9),.cert. denied 392 U.S.
904; Tawas Tube Products , Inc., supra.
"Van Camp Sea Food Co., Inc., 159 NLRB 843 at 849-850.
N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418 at 424.
"N.L.R.B. v. Allis- Chalmers Mfg. Co., 388 U.S. 175.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is no answer that the proviso to Section
8(b)(1)(A) preserves to the Union the power to
expel the offending member. 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. (388 U.S. 175, 183)
In the Van Camp Sea Food case in which a
Board panel concluded that expelling an individual
from a union because he filed unfair labor practice
charges was violative of Section 8(b)(1)(A), the
Board accorded no distinction between fines and
expulsions," stating:
We are unable to conclude that a reasonable
reading of the proviso to Section 8(b)(1)(A)
permits a valid distinction to be drawn between
fines and expulsions meted out by a union to
punish one of its members for filing charges with
the Board. (159 NLRB 843, at 846)
Thus, it is clear that for purposes of Section
8(b)(1)(A) and its proviso, neither the Supreme
Court1B nor this Board . . . prior to this decision .. .
saw any meaningful difference between fining and
expulsion.
The Shipbuilding Workers Case Is Not
Dispositive
Reliance on the Supreme Court decision in the
Shipbuilding Workers case is misplaced since that
case dealt solely with expulsion of a union member
for filing unfair labor practice charges with the
Board. There is no basis for extending views
expressed there to the facts of this case because like
the Board in the Skura case," the Supreme Court
carefully limited the issue, consistently referred to
unfair labor practice charges and went on to discuss
Section 10 of the Act which is entitled "Prevention
"See Wisconsin Motor Corp, 145 NLRB 1097, 1101, where this Boar,
in referring to the scope of the proviso to Sec . 8(b)(1)(A) stated.
We do not read the language of the proviso so narrowly. There is
nothing in the legislative history which suggests that Congress intended
to permit a union to expel a member for violation of a union bylaw, but
not to fine him for the same infraction without expelling him, or that it
could enforce the fine by expulsion from the union but not by suing for
its collection.
"See also the concurring opinion by Justice White in the Allis-Chalmers
case, supra , in which he interpreted the Court' s view as between fines and
expulsions as follows
The dissenting opinion in this case , although not questioning the
enforceability of coercive rules by expulsion from membership , questions
whether fines for violating such rules are enforceable at all, by expulsion or
otherwise . The dissent would at least hold court collection of fines to be an
unfair labor practice , apparently for the reason that fines collectible in
court may be more coercive than fines enforceable by expulsion 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 Sec. 7 rights,
nevertheless intended to bar enforcement by another method which may be
far less coercive (388 U S . at 198 ) (Emphasis supplied.)
"Local 138, Intl. Union of Operating Engineers (Charles S Skura). 148
NLRB 679
of Unfair Labor Practices." The Court cited with
approval the Board's decision in the Skura case in
which the Board noted that the "right of access" to
the Board derived from Section 10 of the Act.
The Board has not applied the Skura rule to cases
involving expulsion or suspensions from union
membership for filing decertification petitions and in
its decision in the Van Camp Sea Food case, the
Board stated:
In Tawas Tube, the Board held that a
decertification petition filed by union members
was a matter of "legitimate union concern" that
the filing of the petition constituted an attack
upon "the very existence of the union as an
institution" and that the union was acting in a
"defensive" manner in disciplining the members
for filing the petition. In those circumstances, the
Board held that the policy grounds underlying the
Skura decision were inapplicable and that a union
could lawfully expel a member for filing such
petition.' (159 NLRB 843, at 848, 849)
'See also Pittsburgh -Des Moines Steel Company ( United Steelworkers
of America. Local No 4028), 154 NLRB 692, wherein the Tawas Tube
doctrine was applied
It is clear that the Supreme Court was aware of
the Board's subsequent selective application of
Skura and the distinction in its treatment of union
disciplining for filing unfair labor practice charges
and filing decertification petitions because petitions
for certiorari were pending at the same time in the
Shipbuilding Workers case and the Price case.20
Secondly, in the Board's petition for certiorari and
in its brief" in the Shipbuilding Workers case it
pointed out the Board's position with respect to
union discipline for engaging in decertification
activities citing Tawas Tube and the Price case. The
petition for certiorari in Price squarely raised the
question of whether the Union could suspend a
member for filing a decertification petition. The
Ninth Circuit Court, in upholding the Board's
decision that Price's suspension was not a violation
of Section 8(b)(1)(A), stated:
"Originally cited as Pittsburgh-Des Moines Steel Co., 154 NLRB 692
"in its brief to the Supreme Court in the Shipbuilding Workers case,
Counsel for the Board noted the distinction the Board has made in union
discipline cases and at p. 27, fn 29 , stated in part
The question whether a union rule or policy is within or without the area
of legitimate union concern , although relatively easy to answer in the
situation presented in Allis-Chalmers , supra , and in the situation here,
becomes more difficult in other situations Thus, in United Steel
Workers of America (Richard C Price), 154 NLRB 692, and Tawas
Tube Products . Inc. 151 NLRB 46, the Board held that a union does
not violate Sec. 8 (b)(1)(A) by disciplining a member for filing with the
Board a petition to decertify his union as bargaining representative,
under Section 9(c)(1)(A)(ii) of the Act In Cannery Workers Union (Van
Camp Sea Food Co ). 159 NLRB 843, 849-850, the Board has recently
given a full explanation of why it regards these cases as materially
different from Skura -type cases like the present one Currently pending
before the Court in No 399, Price v. N.L R B, 373 F.2d 443, is a
petition for a writ of certiorari to review the decision of the Ninth
Circuit, sustaining the Board 's analysis distinguishing the lawfulness of
union discipline in these two types of situations
INTL. MOLDERS' AND ALLIED WKRS ., LOCAL 125 211
The Board distinguishes them [cases involving
unfair labor practice charges] and we think
properly. Price did not accuse the union of
violating any provision of law. He sought to
attack the union' s position as bargaining agent,
which is, as the Board says, in a very real sense
an attack on the very existence of the union. We
think that, at the least, the proviso was intended
to permit the union to suspend or expel a member
who takes such a position . Otherwise, during the
pre-election campaign , the member could
campaign against the union while remaining a
member and therefore privy to the union's
strategy and tactics. We can see no policy reason
for requiring the union to retain a member who
takes such a position . See Tawas Tube Products,
Inc. and Harold Lohr and United Steelworkers,
151 NLRB 46 (1965). (373 F.2d 443 at 447)
A further indication that the Supreme Court was
aware of the Board 's distinction between unfair
labor practice charges and decertification activities
is that the Shipbuilding Workers decision issued on
May 27, 1968 and on June 10, 1968 the Supreme
Court denied certiorari in the Price case. While as a
normal rule the denial of certiorari does not indicate
any judgment on the merits of a case, it would seem
incomprehensible that the Supreme Court would
have denied review in the Price case if it thought the
Circuit Court decision in Price was in conflict with
its decision in the Shipbuilding Workers case. For
all these reasons, therefore, the holding in the
Shipbuilding Workers case should be limited, as the
Court carefully did, to the disciplining of a union
member for filing unfair labor practice charges.
The Proviso to Section 8(b)(1)(A)
Apart from the inconsistency in holding that a
union may expel or suspend a union member for
filing or engaging in decertification activities but
may not fine him, if the proviso does not permit a
union to levy a reasonable fine against a member
who is engaged in conduct disloyal to and in
derogation of the union's bargaining status, then the
proviso is effectively written out of the statute. As
the Supreme Court stated in Allis-Chalmers:
At the very least it can be said that the proviso
preserves the rights of unions to impose fines, as a
lesser penalty then expulsion, and to impose fines
which carry the explicit or implicit threat of
expulsion for nonpayment. Therefore, under the
proviso the rule in the UAW constitution
governing fines is valid and the fines themselves
and explusion for nonpayment would not be an
unfair labor practice. (388 U.S. at 191, 192)
Does a reasonable fine limit "Access" to the
Board?
The short answer to this is . . that it doesn't
limit access to the Board ' s decertification processes
any more than does suspension or expulsion from
the union and this is particularly so where fining is
usually a lesser penalty than and a prelude to
expulsion. There is nothing to prevent a union
member from resigning from the union (he may be
required to pay dues as a condition of continued
employment if the contract contains a union-security
agreement) if he prefers to do that instead of
waiting for expulsion or possible court enforcement
of the fine. However, since the majority apparently
concedes that the proviso does permit suspension or
expulsion in derogation of a member's Section 7
rights, we fail to see how a reasonable fine22 which
we would find less coercive, is nevertheless violative
of Section 8(b)(1)(A).
The majority's view that policy considerations
require "discriminatory" application and that
"qualitatively," there is a distinction between fining
and expulsion is unpersuasive and illusory logic at
best. It does not answer the oft-repeated theme
voiced by both this Board and the Supreme Court
that there is no meaningful distinction between
fining and expulsion . Nor is it likely that the
majority's qualitative standards can be effectively
applied if, for example, future cases present such
problems as: the coerciveness of a $5 union fine as
contrasted to a 5-year suspension from the union; or
a reasonable union fine against suspension or
expulsion from a union which may result in loss of
such union benefits as insurance and/or death
benefits, and medical and pension benefits.
In the recently decided Scofield case,23 the
Supreme Court concluded that union imposed fines
of $50 to $100 (including court action to collect such
fines) on certain members who exceeded union
imposed production quotas was not violative of
Section 8(b)(1)(A). In so doing, it reaffirmed the
views it expressed in Allis-Chalmers, in which it
distinguished between internal and external
enforcement of union rules and restated that
"Congress did not propose any limitation with
respect to the internal affairs of unions, aside from
barring enforcement of a union's internal regulations
to affect a man's employment."" Secondly, the
"Allis-Chalmers, supra , where the Supreme Court concluded that a $100
fine, identical to the amount of the fine here , was reasonable
"Scofield v N L R.B, 394 U S 423.
"in Scofield , supra , fn 6, the Court also noted
As part of the bill of rights of union members , the Landrum-Griffin Act
guaranteed freedom of speech and assembly "Provided, that nothing
herein shall be construed to impair the right of a labor organization to
adopt and enforce reasonable rules as to the responsibility of every
member toward the organization as an institution and to his refraining
from conduct that would interfere with its performance of its legal or
contractual obligations." [Emphasis supplied.]
Under the majority view, therefore , Congress' action in preserving such
union right was a useless act because fining of a union member for
engaging in decertification activities (certainly conduct which would
interfere with a union' s performance of its legal or contractual obligations)
is already a violation of Sec 8(b)(1)(A) of the Act.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court again equated 'fines with expulsion when it
stated . . . "It has become clear that if the [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 Section
8(b)(1)(A)." Thus the majority's distinction between
fines and expulsion and its relation to policy
considerations has been implicitly rejected by the
Supreme Court. Lastly, the Court noted that s
union member who did not wish to be subject to
union discipline could resign. In the present case,
the record establishes that the individual fined here
was a full union member as distinguished from a
financial core member. Since imposition of a fine is
based on a member's contract of membership, the
individual here involved could have limited her
liability by resigning her membership before
beginning her activities or at least resigned
thereafter to inhibit the collectability of, future fines.2s
In the final analysis, this case represents an
apparent conflict between two sections of the Act,
Section 7 and the proviso to Section 8(b)(1)(A). In
such circumstances the Supreme Court has
admonished that the Act should be interpreted as a
whole, seeking to accomodate those sections and to
avoid a literal reading that might create a direct
conflict. In our view the Board's past decisions
which carefully accomodate the provisions of
Section 7 and the proviso to Section 8(b)(1)(A)
should not now be discarded but should be
reaffirmed. By holding that disciplining of union
members for resorting to filing unfair labor
practices with the Board is violative of Section
8(b)(1)(A), the Board has given proper weight to the
necessity of providing "unimpeded access" to the
Board where a violation of statutory rights is
alleged. On the other hand, by permitting a union to
suspend, expel or assess a reasonable fine on union
members for decertification activities antithetical to
the very existence of the Union, we would be giving
proper weight and recognition to the Union's right
to discipline its members where its very existence is
threatened, a right clearly granted to it by Congress
when it added the proviso to Section 8(b)(1)(A).
For all the reasons previously ennunciated, we
would dismiss the complaint.
"Member Fanning deems it unnecessary to decide whether the facts
relating to Strzyzewski ' s entry into membership in the Union gave rise to a
contract between her and the Union on which the latter could successfully
sue in court for the collection of the fine imposed on her. He is satisfied,
however , that the Union accorded her full membership status upon her
execution of the voluntary authorization of the dues checkoff card in
accordance with its internal policies and procedures adopted to give full
effect to the provision of the union -security clause which required
employees to become and remain members in good standing , and, by
necessary implication , required the Union to afford employees such
membership . In these circumstances and in the absence of affirmative
action by Strzyzewski limiting her membership after execution of the dues
checkoff authorization, Member Fanning finds that the Union's imposition
of the fine served the legitimate interest of protecting its very existence
from the attack made on it by Strzyzewski ' s decertification activities
undertaken while she was privy to the Union 's strategy and tactics in
opposition thereto.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case was tried
before me at Milwaukee, Wisconsin, on April 22, 1968,
upon a complaint and amended complaint issued
respectively on March 7 and 8, 1968, and based upon a
charge filed by Dorothy Strzyzewski, herein called the
Charging Party, on October 11, 1967. The complaint as
amended alleged that Respondent, International Molders'
and Allied Workers Union, Local 125, AFL-CIO, herein
called the Union, had violated Section 8(b)(1)(A) of the
National Labor Relations Act, as amended, by levying a
fine against the Charging Party for circulating a petition
among employees of her employer, Blackhawk Tanning
Co., Inc., to decertify the Union as the employees'
bargaining representative. The Union filed an answer
admitting the levying of the fine against the Charging
Party but denying that such action constituted an unfair
labor practice. Subsequent to the trial the General
Counsel and counsel for the Union filed excellent briefs,
which have been carefully considered.
Upon the entire record in this case, I make the
following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
The Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act. It has contractual
relations with Blackhawk Tanning Co., Inc. (herein called
Blackhawk), the employer at whose plant the alleged
unfair labor practice occurred. Blackhawk is a Wisconsin
corporation, engaged at Milwaukee in the tanning and
processing of leather and leather products. During the
year preceding the issuance of the complaint, which is a
representative period, it purchased and received from
outside the State of Wisconsin goods valued in excess of
$50,000 and, during the same period, it sold and shipped
to points outside the State goods and services valued in
excess of $50,000. Respondent's answer admits and I find
that Blackhawk is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE UNFAIR LABOR PRACTICE
A. Issue Presented
The General Counsel states the issue to be whether a
union which has a valid union shop agreement with an
employer may lawfully fine a financial core member for
circulating among fellow employees a petition to decertify
the Union. The term financial core member, as used
herein and referred to by the Supreme Court in N.L.R.B.
v. Allis-Chalmers Mfg., Co., 388 U.S. 175, is defined as
an employee who pays the union dues and initiation fees
required under the union security contract but refuses to
formally join or assume the obligations of full
membership.
At the commencement of the hearing the Trial
Examiner questioned whether any valid distinction may be
drawn between financial core and full members of a union
in determining whether the fine imposed is permissible
under the proviso to Section 8(b)(1)(A) of the Act. For
the reasons hereinafter stated, it is the view of the Trial
INTL. MOLDERS' AND ALLIED WKRS., LOCAL 125 213
Examiner that no such valid distinction exists and that it
therefore becomes unnecessary to resolve the only
disputed factual issue presented, namely, whether the
Charging Party is a financial core member or a full
member of the Union.
B. Findings and Conclusions
It is undisputed that following a certification of the
Union on July 18, 1966, as the bargaining representative
of Blackhawk employees in an appropriate bargaining
unit, the Union and Employer on January 9, 1967, entered
into an agreement containing a valid union-security
provision. The Charging Party thereafter, on January 31,
1967, executed a checkoff authorization and Blackhawk
has since that date been checking off and transmitting to
the Union her monthly union dues (plus a small
assessment upon one occasion).
During the months of August, September and October
1967, the Charging Party, together with several other
employees in the bargaining unit, circulated a petition
among the employees seeking to have the National Labor
Relations Board decertify the Union as their bargaining
representative. As a result of this activity by the Charging
Party, a trial board of the Union on October 3, 1967,
fined her $100 for attempting "to undermine or injure the
interests" of the Union, as proscribed in Section 225 of
the Union's constitution The union membership
subsequently ratified the trial board's action. Although
afforded an opportunity to appear before the trial board
and at the membership meeting, the Charging Party did
not appear. Instead, she wrote the Union two letters,
explaining that the petition was being circulated in
accordance with information obtained from the National
Labor Relations Board as to the proper procedure to be
followed in seeking decertification of the Union and
telling the Union, inter alia, "Now if you feel you want to
suspend me from your union -be my guest." By the date
of the hearing in this case the Union had taken no steps
to attempt to collect the fine.
It appears clear, as the Board has in the past
recognized, that a union "fine is by nature coercive."' The
Union's fine of the Charging Party for circulating the
decertification petition clearly restrained and coerced her
in her right to engage in concerted activities for the
mutual benefit of herself and other employees and in her
right to refrain from supporting the Union. It was
therefore manifestly proscribed by Section 8(b)(1)(A) of
the Act unless such restraint and coercion falls within the
exception contemplated by the proviso which permits the
Union "to prescribe its own rules with respect to the
acquisition or retention of membership."
The proviso, of course, has not been so literally
construed as to confine permissible coercive action of a
union against its members to those acts strictly relating to
the employees' acquisition or retention of membership.
Such a construction would limit a union's disciplinary
action to suspension or expulsion of members in
attempting to regulate its legitimate internal affairs, a
result often more onerous to both the Union and the
disciplined member than would be a fine or other
economic sanction. As the Supreme Court pointed out in
N.L.R.B. v. Allis-Chalmers Mfg., Co, 388 U.S. 175,
191-192, after reviewing the legislative history of Section
'Local 138 , Operating Engineers (Skura), 148 NLRB 679, 682, H. B
Roberts, Business Manager of Local 925, Operating Engineers , 148 NLRB
674, enfd. 350 F 2d 427 (C.A.D.C.)
8(b)(1)(A) and its proviso, "At the very least it can be
said that the proviso preserves 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 nonpayment." Accordingly, it was held in
that case that a union might lawfully fine a member for
going to work through a picket line during an economic
strike against his employer. It has also been held that a
union may fine its members for exceeding production
quotas set by the bargaining contract (Local 283, UAW
(Wisconsin Motor Corporation), 145 NLRB 1097, enfd.
sub nom Scofield v. N L R.B, 394 U.S. 423 (C.A. 7),
and may threaten to deprive members of insurance
coverage because of their refusal to pay disciplinary fines
and assessments (N.L R B. v. Amalgamated Local 286
(H K Porter Co.), 222 F.2d 95 (C.A. 7)).
But neither the right of a union to fine, to suspend, or
to expel a member in disciplining him is necessarily
protected by the proviso, even where no job discrimination
is involved. Public policy considerations other than those
of noninterference with regulating the internal affairs of
unions may come into play. Thus, the Board held in Local
138, International Union of Operating Engineers (Skura),
148 NLRB 679, that a union violates Section 8(b)(l)(A)
of the Act when it fines a member for filing charges
against the Union with the Board without exhausting
internal union remedies. In Marine and Shipbuilding
Workers, Local 22 (United States Lines Co.), 159 NLRB
1065, it similarly found a violation when the Union
suspended the member for filing charges without first
exhausting internal union remedies and this ruling was
upheld by the Supreme Court in N L R.B. v. Marine and
Shipbuilding Workers, 391 U.S 418, in a decision issued
on May 27, 1968. In that case, the Supreme Court
recognized that Section 8(b)(1)(A) "assures a union
freedom of self-regulation where its legitimate internal
affairs are concerned" but it pointed out that "a
proceeding by the Board is not to adjudicate private rights
but to effectuate a public policy." It noted that the Board
cannot initiate its own proceedings. The Board is
dependent "upon the initiative of the individual persons",
who must be free from coercion in invoking the Board's
processes. The court stated:
A healthy interplay of the forces governed and
protected by the Act means that there should be as
great a freedom to ask the Board for relief as there is
to petition any other department of Government for a
redress of grievances. Any coercion used to discourage,
retard, or defeat that access is beyond the legitimate
interests of a labor organization . . . . We agree that the
overriding public interests make unimpeded access to
the Board the only healthy alternative, except and
unless plainly internal union affairs of the Union are
involved
The court concluded that the proviso of Section 8(b)(1)(A)
"is not so broad as to give the Union power to penalize a
member who invokes the protection of the Act for a
matter that is in the public domain and beyond the
internal affairs of the Union."
Much of what has been said by the Supreme Court in
the Marine and Shipbuilding Workers case appears to this
Trial Examiner as applicable to the situation presented in
this case. Section 9 of the Act and the Board's rules and
regulations prescribe the means by which employees may
seek to have their bargaining representative decertified
The Board may not on its own initiate such proceedings.
Just as in the case of unfair labor practice charges, it must
await the initiative of individual persons to invoke its
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
processes. Proceedings under Section 9 of the Act, as the
Board has recognized, "are no less within the public
domain" than are unfair labor practice proceedings under
Section 8. (Cannery Workers Union (Van Camp Seafood
Co.), 159 NLRB 843, 849).
To be sure, the Board has held that there are significant
differences. The initiation or filing of a decertification
petition may be considered by a union as an attack upon
its very existence, and the Board, with court approval, has
held that the Union may properly defend this attack by
suspending or expelling the member for initiating such a
petition. As the Court of Appeals for the Ninth Circuit
stated in Price v. N.L.R.B.. 373 F.2d 443, 447, cert.
denied 392 U.S. 904. "We think that, at the least, the
proviso was intended to permit the Union to suspend or
expel a member who takes such a position. Otherwise,
during the pre-election campaign, a member could
campaign against the Union while remaining a member
and therefore privy to the Union's strategy and tactics.
We can see no policy reason for requiring the Union to
retain a member who takes such a position."
Furthermore, as the Board said in Tawas Tube Products,
Inc., 151 NLRB 46, 49, "The employees' attempt to
repudiate the Union by a decertification proceeding
demonstrates that loss of membership was of no
significance to them; consequently their expulsion from
the Union could hardly be an effective deterrent against
resorting to the Board."2 So, too, in the instant case, the
Charging Party was apparently not restrained or coerced
by the prospect of being suspended from union
membership. When notified by the Union to appear before
a trial board for having circulated the petition, she wrote
the Union, "Now_if you feel you want to suspend me
from your union be my guest."
The imposition of a fine against her for seeking to
invoke the processes of the Board in a decertification
proceeding, however, stands upon a different footing.
Where, as in this case, the Union is operating under the
protection of a union shop provision and the employees
are not free to resign from or cease supporting the Union,
it seems fair to assume that Congress did not intend that
the proviso be applied so broadly as to permit financial
sanctions against unwilling members for attempting,
through procedures set up by the statute itself, to reject
representation by the Union. To hold otherwise would
mean that the employees, once they are covered by a
union-shop contract, might find themselves forever
ensconced with the Union as their bargaining agent. Few
employees, if any, would dare risk a heavy union fine
($100 in this case) by signing a decertification petition in
an attempt to rid themselves of representation by a union
they never wanted or which they ceased to want. Even if
some were willing to pay such a penalty for seeking a
chance to exercise their right of franchise provided in
Section 9 of the Act, it is extremely doubtful that 30
percent of the employees in the unit would do so. This is
the percentage required under the Board's Statements of
Procedure for processing a decertification petition.
The incumbent union, moreover, thus shielded from
ouster, and perpetually entrenched, would tend to become
less and less responsive to the wishes of its members and
cease to be their true representative as contemplated by
'Indeed, if relieved of an obligation to pay dues while under expulsion or
suspension , the employee might welcome this type of "disciplinary" action.
In the Price case, supra, the court notes, in fn. 5, that "At oral argument,
the Union and the Board seemed to be in agreement that Price was not
paying, and was not expected to pay dues while suspended."
the statute. It is inconceivable that Congress should have
meant to permit unions, in the guise of making rules
regarding acquisition or retention of membership, to
restrain and coerce employees in this manner in the
exercise of their rights guaranteed under Section 7 of the
Act. In this connection, it is immaterial whether the
coerced member is merely a financial core member or a
full member. To afford the Act's protection against union
fines for seeking to invoke the Board's processes only to
financial core members would discourage full union
membership by employees and participation by them in
the affairs of their union. This result would not effectuate
the policies of the Act; nor would it, I am confident, be
consonant with the wishes of most unions.
In its brief to the Trial Examiner, the Union suggests
that since no legal steps have yet been taken to collect the
fine, its assessment against the Charging Party should not
be found coercive. I do not agree. As the Supreme Court
stated in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S.
175, 192, "A lawsuit is and has been the ordinary way by
which performance of private money obligations is
compelled." The Charging Party and those similarly
situated, whether financial core or full members of the
Union, remain under a feeling of constraint so long as the
fine remains unpaid. The outstanding fine presents a
constant threat that the disciplined member will have to
pay legal fees to protect himself in court, with a
possibility, in addition, of having to pay the fine itself if
the judgment of the court is against him.
Accordingly, whatever may be said about the right of a
union operating under the benefit of a union shop contract
to suspend or expel a member who attempts to resort to
the Board's processes to rid himself and fellow employees
of representation by the union, I have no doubt that
overriding public policies do not extend this immunity to
restraint and coercion by fining members for engaging in
this activity. I find that the Union, by assessing a fine
against the Charging Party for circulating among her
fellow employees a petition to decertify the Union as their
bargaining representative, has restrained and coerced her
and other employees in the exercise of their rights
guaranteed under Section 7 of the Act, in violation of
Section 8(b)(1)(A).
III. THE REMEDY
It having been found that Respondent Union has
engaged in an unfair labor practice, my Recommended
Order will require that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
To remedy the coercive effect of the fine assessed
against the Charging Party, the Union will be required to
rescind the fine and notify the Charging Party and other
employees of the rescission and of their right to seek the
use of the processes of the National Labor Relations
Board in determining any question regarding the
continuing representative status of the Union, without
being fined for doing so. Since there is evidence in the
record that few employees regularly attend union
meetings, the Union will be required -if the employer is
willing'- to post notices to this effect on the employer's
premises.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case, and pursuant
INTL. MOLDERS ' AND ALLIED WKRS .,LOCAL 125 215
to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent,
International Molders and Allied Workers Union, Local
No. 125, AFL-CIO, its officers, representatives, and
agents, shall:
1. Cease and desist from:
(a) Assessing fines against its members for attempting
to use the processes of the National Labor Relations
Board in having Respondent Union decertified as their
bargaining representative.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Rescind the fine assessed against Dorothy
Strzyzewski for circulating a petition among employees at
Blackhawk Tanning Co., Inc., to decertify Respondent
Union as bargaining representative of said employees.
(b) Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix."' Copies of said notice on
forms to be provided by the Regional Director for Region
30, shall, after being duly signed by Respondent's
authorized representatives be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken
by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 30 for posting by
Blackhawk Tanning Co., Inc., such employer being
willing, at all places where notices to its employees are
customarily posted.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.'
,in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director in
writing , within 10 days from the, date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF
BLACKHAWK TANNING CO., INC.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL rescind the fine assessed against Dorothy
Strzyzewski for circulating a petition among our
members at Blackhawk Tanning Co., Inc., to decertify
us as your bargaining representative.
WE WILL NOT assess a fine against any member of
our union for attempting to circulate or file with the
National Labor Relations Board a petition to decertify
us as your bargaining representative.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of your rights guaranteed
under Section 7 of the Act.
INTERNATIONAL MOLDERS
AND' ALLIED WORKERS
UNION, LOCAL No. 125,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Second Floor,
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 272-3879.