Local 1012, Electrical Workers

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 375 (N.L.R.B. 1970)

LOCAL 1012, ELECTRICAL WORKERS 375
Local 1012, United Electrical, Radio & Machine
Workers of America (UE) and General Electric
Company. Case 31-CB-511
December 21, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 4, 1970, Trial Examiner Maurice Alexan-
dre issued his Decision in the above -entitled proceed-
ing, finding that Respondent 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
attached Trial Examiner ' s Decision . Thereafter, the
General Counsel , Respondent , and the Charging
Party filed exceptions to the Trial Examiner ' s Deci-
sion together with supporting briefs , and the Charging
Party filed an answering brief in response to the
exceptions filed by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three -member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby confirmed . 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 of fact , but adopts his
conclusions and recommendations only to the extent
consistent with its Decision herein.
At issue is whether Respondent violated Section
8(b)(1)(A) of the Act by imposing $500 fines 1 against
37 of its members (employees of General Electric)
because they crossed a duly established picket line at
General Electric during an economic strike. In finding
a violation , the Trial Examiner concluded that the
fines were imposed unlawfully because they were not
assessed in accordance with certain criteria ennuciat-
ed by him which included, inter alia, imposition of
fines pursuant to a formula duly adopted and
announced by Respondent prior to the time the fined
employees first crossed the picket line.
i The fines of four individuals were subsequently reduced
2 The Charging Party contends that it should have been permitted to
adduce evidence which assertedly would ( 1) contravene the admitted
allegation in the complaint that all of the fined employees were members of
Respondent until their resignations therefrom , and (2) indicate that the
procedures followed by Respondent in imposing its fines deprived certain
of the fined employees of due process of law We reject these contentions.
The record shows that the complaint was not amended, and that at the
hearing , the General Counsel specifically disavowed any intent to litigate
this case on the basis of such contentions Instead, he tried his case on the
basis of the allegations in the complaint which, as dominus hits, he was
We find, solely for the reasons set forth in Booster
Lodge No. 405, IAM (The Boeing Company), 185
NLRB No. 23, that inasmuch as Respondent's
members were free to resign their memberships at
will, the fining of all 37 individuals for acts committed
after their effective resignations from Respondent was
violative of Section 8(b)(1)(A) of the Act. These 37
individuals, however, resigned at varying dates and,
as discussed hereinafter, fall into three general groups
for both purposes of finding the violation and for
effectuating a remedy. For purposes of our findings,
however, we find that their resignations were effective
upon receipt of notification by the Union.
Of the 37 employees, 14 had effectively resigned
from the Union prior to their crossing of the picket
line, and consequently the imposition of any fines
upon this group was violative of Section 8(b)(1)(A).
With respect to a second group of employees, eight in
number, who first crossed the picket line and returned
to work on the same day as the Union received their
letters of resignation, absent any affirmative evidence
establishing that their letters were received prior to the
time they crossed the picket line, we conclude that
their resignations were not effective until the close of
business the day of receipt. Their fines, therefore, are
unlawful only to the extent that they were predicated
on postresignation conduct. With respect to the
remaining 15 employees who resigned on varying
dates after they had crossed the picket line and
returned to work, the Respondent did not violate the
Act by fining them for such activity prior to the
effective dates of their resignations. However, such
discipline cannot be imposed against them for
conduct engaged in subsequent to their resignations,
and to that extent Respondent's conduct was violative
of Section 8(b)(1)(A). We shall order Respondent to
cease and desist from engaging in such conduct,
including attempts to recover all the illegally imposed
fines through court proceedings, and to reimburse
and remit to the first group of 14 employees all fines
collected, and to reimburse and remit to the remain-
ing 23 employees a prorata portion of fines collected
so that what remains reflects only preresignation
conduct.2
ORDER
Pursuant to Section 10(c) of the National Labor
entitled to do Local 282, International Brotherhood of Teamsters v.
N. L R B, 339 F 2d 795 (C.A 2); Tulsa General Drivers, Warehousemen and
Helpers Local Union 523 (Rocket Freight Lines Co), 176 NLRB No. 94.
Moreover , the body of Section 8(bxl)(A) is not intended to reach the
conduct of a labor organization in imposing and enforcing a fine upon its
members for crossing a lawful picket line. N LR.B v. Allis-Chalmers Mfg.
Co., 388 U S. 175 Nor does the Act authorize the Board to evaluate the
fairness of union discipline meted out to protect a legitimate union interest.
IAM, Local 504 (Arrow Development Co), 185 NLRB No. 22. Consequently
neither procedural due process nor the reasonableness of a fine need
concern us here
187 NLRB No. 46
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Local 1012, United Electrical, Radio & Machine
Workers of America (UE), its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees who had
resigned from, and were no longer members of,
Respondent in the exercise of the rights guaranteed
them in Section 7 of the Act, by imposing fines against
such employees because of their postresignation
conduct by working at the Ontario, California, plant
during the period of the strike which began on
February 27, 1969, and ended on April 13, 1969, or by
threatening to seek or seeking court enforcement of
such fines.
(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 which the
Board finds necessary to effectuate the policies of the
Act.
(a) Reimburse and refund to any employees
described in paragraph 1(a) of this Order, who have
paid fines under the circumstances described in that
paragraph, the amount of said fines imposed because
of postresignation conduct, plus interest at the rate of
6 percent per annum,3 in accordance with our
Decision herein.
(b) Post at its office and meeting hall and at the
Ontario, California, plant of the General Electric
Company, if the Company is willing, copies of the
attached notice, marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director
for Region 31, shall, after being signed by an
authorized representative, be posted at the aforemen-
tioned locations, in customary places, including all
places where notices to Respondent's members and to
employees are customarily posted, and reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
MEMBER BROWN, dissenting in part:
I would find, for the reasons set forth in my dissent
in The Boeing Company, supra, that Respondent did
not violate the Act by imposing fines on any of the
employees in this proceeding. I would, therefore,
dismiss the complaint in its entirety.
3 See Seafarers International Union of North America, Great Lakes
District, AFL-CIO, 138 NLRB 1142
4 In the event that the Board 's 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 MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees who
had resigned from the Union and who, in the
exercise of their rights guaranteed in Section 7 of
the Act, worked at the Ontario plant during the
February-April 1969 strike, by imposing fines, or
by threatening to seek or by seeking court
enforcement of said fines, against such employees.
WE WILL reimburse nonmembers above men-
tioned for any fines they may have paid to us for
working during the said strike.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
LOCAL 1012, UNITED
ELECTRICAL, RADIO
& MACHINE WORKERS
OF AMERICA (UE)
(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 compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 12100, 11000 Wil-
shire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in San Bernardino , California, on March 24 and 25,
1970, upon a complaint issued on January 16, 1970,1
alleging that Respondent Union had violated Section
8(b)(IXA) of the National Labor Relations Act, as
amended . In its answer , Respondent denied the commis-
i Based on an initial and an amended charge filed on August 28, 1969,
and January 12, 1970, respectively, by General Electric Company, hereafter
LOCAL 1012, ELECTRICAL WORKERS
sion of the unfair labor practices alleged. The basic issue
presented is whether or not Respondent violated Section
8(b)(1)(A) by imposing certain fines upon employees
because they crossed a picket line during a strike called by
Respondent.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the parties, I make the following:
FINDINGS AND CONCLUSIONS 2
THE UNFAIR LABOR PRACTICES
A. The Evidence
The Company operates a plant in Ontario, California,
where it is engaged in the manufacture of electrical
appliances. During 1969, the Company and Respondent
were bound by a collective-bargaining agreement covering
the Company's employees. Approximately 850 of the
employees are members, and about 220 are not.3
On February 27, 1969,4 following a strike vote by its
members, Respondent began an economic strike and
established a picket line at the plant. At various times from
and after that date, the 37 employees named in the
complaint 5 crossed the picket line and went to work. All of
these employees sent letters to Respondent resigning their
membership. Some sent letters before they first crossed the
picket line, but others worked behind the picket line for
varying periods before sending their letters of resignation.
Article XX, Section 2 of Respondent's constitution states
that each member shall pledge himself to support
Respondent and its constitution, and shall declare his
solidarity with his fellow members. Article XXI provides
that any member found guilty of improper conduct, of
wronging a fellow member, or of committing an offense
against the constitution or best interests of Respondent
"shall be fined, suspended or expelled" following a trial.
Saldana, Respondent's president at the time material
herein, testified that he could not recall that anything was
said at the strike-vote meeting of February 27 regarding
penalties against a member who worked behind the picket
line. He further testified that prior to the strike, he never
warned any member regarding such a penalty. McDaniel, a
former officer of Respondent, was asked whether subse-
quent to the strike-vote meeting, anything was said about
the possibility of fining employees who crossed the picket
line. In response, she testified that at "a meeting,"
International Representative Gray referred to a Supreme
Court decision permitting unions to fine members who
crossed a picket line, and stated that "in the event that we
called the Company Initially, the Regional Director ordered consolidation
of the instant case with two other cases (31-CB-513 and 31-CB-535)
However, on March 9, 1970, the Regional Director issued an order severing
and withdrawing the complaint to the extent that it related to the said two
cases, at the hearing herein, the General Counsel was permitted to perfect
the severance and withdrawal by amending the consolidated complaint so
as to eliminate the allegations relating to those cases
2 No issue of commerce is involved The complaint alleged and the
answer admitted facts which, I find, establish that the Company is an
employer engaged in commerce within the meaning of the Act I further
find that Respondent is a labor organization within the meaning of the Act
3 The agreement does not contain a union-security provision
4 All dates referred to hereafter relate to 1969 unless otherwise stated
377
go on strike," fines could be imposed upon members who
crossed the picket line.
On February 28, Respondent sent identically worded
letters to seven of the 37 employees here involved, charging
them with violating article XX, section 2 of Respondent's
constitution by crossing the picket line. On March 3, the
Company sent its employees identically worded letters
reading as follows:
We understand that many employees have been
threatened with heavy fines by the Union if they cross
the picket lines to work or to collect paychecks. The
Union takes the position that it can fine its members for
crossing the picket line-something it has never done
before in its long history.
You don't have to submit to this kind of threat-you
have the right to join, refrain from joining, or to resign
from the union at any time . We don't see how the
Union can fine anyone who was not a member of the
union for anything he does after he has resigned. As
always, employees are free to belong to the union or not
to belong-the choice is yours. The plant will remain
open for first shift operations and those employees who
wish to return to work will be welcome.
By letters dated March 5, the above seven employees were
notified by Respondent of the date on which they would be
tried. By letters dated the same day, the Company informed
its employees that some had "been threatened with heavy
fines" by Respondent, and that-
In the event the Union attempts to collect fines for
crossing the picket line, the Company will provide the
individuals fined with every assistance possible, includ-
ing reasonable legal aid if necessary.
On March 12, Respondent sent letters to some of the
remaining 30 employees charging them with violating
Article XX, Section 2 of the constitution by crossing the
picket line, and notifying them of the dates of their
respective trials. Although there is testimony that such
letters were sent to all of the 30, the record shows that some
of them first crossed the picket line after March 12. It is
thus likely that such letters were sent to the balance of the
30 at a later date.
None of the 37 appeared at their trials. On March 13 or
14, Respondent notified those who had been tried that they
had been fined $500. All of the 37 continued to work
behind the picket line beyond March 14. The strike ended
on April 13. On June 13 or 14, Respondent notified the
balance of those tried that they had been fined $500.6 The
parties stipulated that on or about September 26, Respon-
5 See Appendix A attached hereto [omitted from publication 1
6 Respondent's recording secretary, Warner, testified that one employee,
Standon, was informed that his fine was $30 However, no letter to that
effect was produced Moreover, Southern , president of the district which
includes Respondent, testified that although she is a member of
Respondent, spent 2 hours a day at Respondent 's office, was kept informed
of Respondent' s affairs , and participated in determining the fines imposed
on all 37, she was not aware that Standon had been fined only $30 In
addition, the parties stipulated that all of the 37 had been fined $500.
Finally , Respondent does not claim in its brief that the fine imposed on
Standon was lawful because it amounted to only $30 The brief merely
recites that the $500 fines of 4 employees were reduced and that the fines
of some 33 employees were $500, and that all the fines were lawful
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent reduced the fines of 4 employees to the following
amounts:
Behm $300
Gooding 195
D. Riebli 195
Beavor 2507
Miller, a former officer of Respondent and a member of
one of the trial committees, testified that the $500 fines
were recommended by the trial committees; that although
they discussed the matter of earnings of employees after the
strike began, there was no method of determining how
much they would earn because it was not known how long
the strike would last; and that employee earnings
accordingly played no part in arriving at the amount of the
fines . He further testified that some of the trial committee
members wanted to fine the employees more than $500
because they felt that crossing the picket line was a serious
offense which took "our bread and butter away from us";
and that they agreed upon a $500 fine as a compromise.
Their recommendation was then ratified by Respondent's
membership.
B. Contentions
The General Counsel attacks the fines imposed on all 37
employees upon two principal grounds. First, he contends
that under the doctrine of the Allis-Chalmers case,8 a fine
which is arbitrary or unreasonably large is unlawful.
According to the General Counsel, the fines in this case,
including the four which were reduced, were both arbitrary
and excessive for several reasons: (1) Respondent failed to
warn the fined employees about the possibility of fines for
crossing the picket line and thus violated the requirement of
fair dealing demanded of unions; (2) the fines were arrived
at without regard to how often the employees crossed the
picket line, were imposed indiscriminately upon all 37
employees here involved, including 22 who had resigned
their membership in Respondent prior to crossing the
picket line, without considering their willingness to forego
the benefits of membership in return for greater freedom of
action (3) the amount of the fines exceeded the individual
gross earnings of 36 of the fined employees during the
7 The General Counsel states in his brief that the transcript incorrectly
states the amount of Beavor's fine as $250 instead of $260
s N L R B v Allis-Chalmers Manufacturing Co, 388 U.S 175
9 The General Counsel asserts that in the case of employee Beavor, the
fine was over 70 percent of his gross strike earnings
is In addition to agreeing with the foregoing contentions , the Company
argues : ( 1) that the record fails to establish that the fined employees were
members of Respondent , and (2) that if its offer of proof at the hearing had
not been rejected , it could have established that the fines were unlawful
because Respondent failed to accord due process to the fined employees I
find no merit to these arguments The record shows that because the
General Counsel and Respondent had not reached agreement on exact
language , they agreed to defer a stipulation which would have included,
inter aha, agreement that the fined employees were members of
Respondent at the commencement of the strike . Thereafter, the General
Counsel expressly stated that that was his position , and Respondent has
period up to the time Respondent received their resignation
letters; 9 and (4) there are no circumstances that would
justify the uniform imposition of so large a fine.
The second basis for attacking the fines is that insofar as
imposed against the 22 who resigned from Respondent
before crossing the picket line, such fines were not
protected by the proviso to Section 8(b)(1)(A), and operate
to restrain or coerce employees in their protected right to
refrain from engaging in concerted activities.10
Respondent contends that the resignations were not
effective, that the fined employees continued to be
members of Respondent at the time each crossed the picket
line, and hence that they were subject to union discipline.
Although arguing that the Allis-Chalmers decision did not
state that a fine must be reasonable in order to be lawful,
Respondent concedes that a "confiscatory" fine might
require adjustment. Respondent then contends that even if
Allis-Chalmers were regarded as containing a requirement
that a union fine be reasonable, its fines were entirely
reasonable. In support of his contention, Respondent
asserts the following:
1. The employees were warned at the outset of the strike
that they might be fined for crossing the picket line.
2. The reasonableness of a fine should be measured, not
by the number of times a member crosses the picket line,
but by the quality of his act. Even a single act of crossing a
picket line constitutes the "capital crime" of "strike-
breaking."
3. Absent a satisfactory explanation from a strike-
breaker for his conduct and his assurance that he would sin
no more, Respondent had a right to assume that he would
continue to cast his lot with the Company. Here, the fined
employees rejected the opportunity given them to explain
their conduct, and continued to cross the picket line.
4. A valid purpose of a fine is deterrence. To be
effective, the fine must be levied promptly after the act of
strike-breaking. A fine imposed during the strike cannot be
related to strike earnings because there is no way for a
union to determine how much such earnings will amount
to. Even if the fine were fixed at a percentage of the strike
earnings, Respondent would be unable to enforce its
collection, since it could not sue to collect a percentage of
an unspecified amount. Accordingly, the reasonableness of
continued to insist that they remained members Although the stipulation
was not later perfected, apparently through oversight, I regard these
positions as tantamount to a stipulation between the General Counsel and
Respondent that the fined employees were members at the commencement
of the strike And since there is nothing to show that they were not
members at that time, I find that they were.
As for the claim of lack of due process, the General Counsel stated that
he was not attacking the legality of fines on that basis . Since the General
Counsel is dominus litus by virtue of Section 3(d) of the Act, he "has the
power to decide whether to issue a complaint and to determine what
its legal theory should be " Local 282, International Brotherhood of
Teamsters v N L R B, 339 F 2d 795, 799 (C A 2) Accord: Waitresses &
Cafeteria Women's Local No 305 (Haleston Drug Store, Inc), 86 NLRB
1166, 1170, affd 187 F 2d 418, 421 (CA 9), cert denied 342 U S 815,
Tulsa General Drivers, Warehousemen & Helpers, Local Union 523 (Rocket
Freight Lines Co), 176 NLRB No 94
LOCAL 1012, ELECTRICAL WORKERS
a fine should not be governed by the amount of the strike
earnings.ii
C. Concluding Findings
1. Section 8(b)(1)(A) prohibits a labor organization
from restraining or coercing employees in the exercise of
rights guaranteed by Section 7. Such rights include not only
the right to engage in concerted activity, but also the right
to refrain from engaging in such activity. However, a
proviso to Section 8(b)(1)(A) provides that that section shall
not impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of
membership therein. In Allis-Chalmers and again in Scofield
v. N.L.R.B., 394 U.S. 423, the Supreme Court made it
abundantly clear that under these provisions, a union may
lawfully enforce a duly adopted rule forbidding the
crossing of a picket line by imposing a "reasonable" fine
upon transgressing members. The effect of these decisions
is to draw a distinction between fines which, because they
are reasonable, do not involve unlawful restraint or
coercion within the meaning of Section 8(b)(1)(A), and
fines which are unlawful because unreasonable.
A number of Trial Examiners have issued decisions,
presently pending before the Board, which contain varying
criteria for resolving the question whether a fine is
reasonable. No useful purpose would be served in
attempting to summarize their differing views regarding
that troublesome question. After reflection, I have reached
the following conclusions for purposes of this case. A fine
by its very nature exerts pressure and thereby regulates
conduct. Speaking broadly, all fines thus restrain or coerce.
The effect of a fine will, of course, depend upon
circumstances, and the degree of regulation may vary from
minimal to total. In view of the above-stated distinction
made by the Supreme Court between reasonable and
unreasonable fines, _I am of the opinion that a fine involves
unlawful restraint or coercion where it tends to act as a
complete deterrent to crossing a picket line, and that it is
lawful where it merely tends to discourage such conduct.
Whatever other tests a fine should satisfy before it may
properly be concluded that the fines does not completely
deter but merely discourages, I believe that the following
criteria should be met: (1) prior to the time the fined
employee crossed the picket line, the union had duly
adopted and announced a formula which enabled him to
predict with reasonable accuracy the amount of the fine
11 Respondent also asserts that the fines of four members were reduced
from $500 to an amount equal to 35 percent of the regular straight time
earnings during the strike , that such reductions were made at the
suggestion of a Board agent who, according to Respondent, could hardly
have made the suggestion without authorization , that although Respondent
has always believed that the original amount of the fine was reasonable,
such reductions were reluctantly made in order to avoid litigation , and that
the allegation in the complaint that the reduced fines were unlawful places
Respondent in an "anomalous " position
Since Respondent does not request any relief based on its assertions
described above, I find it unnecessary to express any views regarding them
In passing, I note the decision in Crescent Art Linen Co, 158 NLRB 447,
wherein it is stated (at p 452, In 19)• "The advice of a Board agent is not
tantamount to a commitment and does not operate to estop the Board or
the General Counsel "
12 It need not be established that the absence of predictability in fact
restrained or coerced all or even any employees Just as discouragement of
379
which would be imposed if he crossed the picket line; and
(2) the fine imposed conformed to such formula. I am
persuaded that where the amount of a fine imposed upon
strikebreakers could not have been predicted with reasona-
ble accuracy, other employees who wish to exercise their
statutorily protected right to refrain from concerted activity
by crossing the picket line may be unwilling to run the risk
of a fine which might be intolerable to them, and will
accordingly forego the exercise of such statutory right.12
Even though they may ultimately be able to defeat the
union 's attempt at judicial enforcement if the fine should be
excessive in amount , they 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." 13 As Mr. Justice Black pointed out in his
dissenting opinion in Allis-Chalmers, "few employees would
have the courage or the financial means to be willing to take
that risk." 14
A mere warning that a transgressor may be fined is
insufficient . Even without a warning, union members are
not unaware that crossing a picket line is regarded as a
serious offense against their union and that it may result in
punishment. A general warning of a fine does not remedy
the dilemma of a union member since it does not enable
him to predict with reasonable accuracy how much the fine
may be. Equally insufficient is a formula which involves
such a large gap between the outer limits of the possible fine
that its actual amount cannot be predicted with reasonable
accuracy.is
No extended discussion is necessary respecting the
second criterion mentioned above-that the fine imposed
should conform to the announced formula. A fine which
deviates from the formula is no different from one imposed
without a formula , and exercises no less restraint and
coercion.
Even though a fine is imposed pursuant to an announced
formula, it may nevertheless be unlawful because its
amount is such as to act as a complete deterrent to crossing
a picket line. However, I do not reach that problem in this
case . For applying the tests discussed above to the fines
here involved, I find that they were unlawful, since the
record establishes that they were not arrived at pursuant to
a formula duly adopted and announced by Respondent
prior to the time the fined employees first crossed the picket
line. Although some employees first crossed the picket line
after $500 fines were imposed on others on March 13 or 14,
some employees from union membership may properly be inferred where
an employer discriminates against an employee who joins a union ( Radio
Officers' Union v. N LR B, 347 U S. 17), so restraint or coercion of some
employees may be inferred where the amount of a possible fine cannot be
predicted.
13 International Molders' and Allied Workers ' Union, Local No 125,
AFL-CIO (Blackhawk Tanning Co, Inc), 178 NLRB No. 25
14 388 U S. at p. 204
15 In Scofield, the union bylaws provided for a maximum fine of $100.
in Allis-Chalmers, the union constitution and bylaws provided for a fine of
up to $ 100 for each day that the picket line was crossed . Although such
formula does not meet the above test, the fines actually imposed ranged
from $20 to $100 Perhaps no formula is necessary where the actual fine
does not exceed $ 100, possibly on the theory that such a fine can
reasonably be anticipated by a strikebreaker even without the benefit of an
announced formula.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those fines cannot be regarded as having satisfied the tests
here applied, since the employees were not told and could
not know that substantially similar fines would be
uniformly imposed upon others who similarly chose to
exercise their statutory right to refrain from striking.
I accordingly find that by imposing the above-mentioned
fines upon the 37 employees involved in this proceeding,
Respondent violated Section 8(b)(1)(A) of the Act.
2. As already noted, during February, March and April,
the 37 fined employees sent letters to Respondent resigning
their union membership. I find that such letters were sent
by 22 of the 37 employees before they crossed the picket
line. However, based on the parties' stipulations relating to
the dates the letters were received, I find that only 14 of the
letters were received by Respondent before the senders first
crossed the picket line.16 With respect to the other 8
employees,17 the record shows that their letters were
received by Respondent on the same day that they first
crossed the picket line. I cannot assume that the letters were
delivered to Respondent before they reported for work
Since a resignation is not complete until it is communicat-
ed, I find that no more than 14 of the 37 fined employees
can be regarded as having resigned from membership in
Respondent at the time they crossed the picket line.
In Scofield, the Supreme Court stated:
Under this dual approach, Sec. 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.
The language implies, Respondent seemed to recognize at
the hearing, and I find that Section 8(b)(1)(A) prohibits a
union from fining an employee for conduct engaged in
when he was not a member of the union. Certainly, the
proviso to that section does not sanction such a fine.
Moreover, even though a fine may not be collectable from a
nonmember, the fact that he may be required to resist
possible court action to enforce the fine operates to restrain
or coerce him. See notes 13 and 14, supra. The question then
is whether or not the 14 employees mentioned above were
members or nonmembers of Respondent at the time they
crossed the picket line.
In support of its contention that their resignations were
ineffective and hence that they were members, Respondent
argues that although its constitution and bylaws are silent
regarding the subject of resignation, its "custom and
practice of over a decade have operated to write into
[Respondent's ] Constitution and Bylaws a provision which
limits resignations to the annual escape period"; and that
the resignation letters of the 14 employees were sent and
received during the months of February, March, and April,
i.e., outside the escape period. The escape period referred to
by Respondent is an annual 10-day period from September
21 through 30 during which, under the collective-bargain-
ing agreements entered into between Respondent and the
Company since 1956, members of Respondent may revoke
16 Banales , Mary Emilio, Furbish, Glenn, Hill, Luke, Neff, Remstadler,
Roman Riebli , Shaffer , Stockwell , Tate, Taylor, and Wickline
17 Clay, Floyd Durham, Vivian Durham, Alfred Fattarsi, William
Fattarsi , Maxwell, Plott , and Standon
18 The record shows that new letters were sent by all of the 14 in
their voluntary checkoff authorizations. Respondent points
to the fact that the checkoff authorization card, which
includes a reservation of the right to revoke during the
escape period, contains an application for membership on
the other side of the card; that Respondent has honored
resignations from membership only when made during the
escape period, and has always continued to accord voting
and other membership rights to employees (including the
14 here in question) who attempted to resign outside the
escape period; and that because of this long-established
practice, "the manner in which the membership obligation
can be terminated has merged with the so-called member-
ship dues revocation period." Finally, Respondent points
out that since a number of the employees who sent
resignation letters outside the escape period sent new
resignation letters during the escape penod,18 they must
have recognized that their earlier resignations were
ineffective. I disagree.
Since Respondent's constitution and bylaws contained
no procedure by which employees could voluntarily resign
their membership, the employees were free to resign at
will.19 I find no merit to Respondent's contention that
custom and practice have served to amend the constitution
and bylaws so as to limit resignations from membership to
the escape period provided for in the collective-bargaining
agreements relating to revocation of checkoff authoriza-
tion. Article XXIV of Respondent's constitution, which sets
forth the procedure for amending it, provides as follows:
Section 1. Any member in good standing of the Local
may, with the written endorsement of ten (10) members
in good standing of the Local, submit proposed
amendments to this Constitution. All amendments shall
be submitted in writing to the Local Executive Board.
Section 2. The Local Executive Board shall present the
proposed amendment to the regular membership
meeting within forty (40) days after the proposed
amendment has been received. The Executive Board
shall make its recommendations on the proposal to the
membership. The proposed amendment shall become
part of this Constitution if approved by a two-thirds
(2/3) vote, of the members present at this meeting,
provided such amendment does not conflict with the
Constitution of the International Union.
This procedure was not followed in adopting the
"amendment" to the constitution claimed by Respondent.
It is doubtful that Respondent can avoid a statutory
prohibition by relying upon a constitutional amendment
adopted under a procedure which failed to conform to that
required by the express terms of the constitution. Certainly
the claimed amendment cannot be relied on unless it was
communicated to and acquiesced in by Respondent's
membership prior to such reliance. The record does not
establish such communication and acquiescence. They are
not established by the use of Respondent's combined
membership and checkoff authorization card. The mem-
bership portion of the card is silent concerning termination
of membership, and an employee could not be expected to
question except Banales , Glenn, and Luke The latter did, however, revoke
his checkoff authorization dunng the escape period
19 Aeronautical Industrial District, Lodge 751 (Boeing Co.), 173 NLRB
No 71, Local Union No 621, United Rubber, Cork, Linoleum and Plastic
Workers (Atlantic Research Corp), 167 NLRB No 83
ST. LOUIS TYPOGRAPHICAL UNION NO. 8
same functions as the earlier mechanical typesetting
machines and hence are merely a more efficient
substitute for the earlier mechanical devices.
6. Efficiency of operations
The Company, despite its prior written assignment,
at the hearing indicated that it desires assignment of
all of the disputed maintenance work to the ITU
machine tenders , asserting that such assignment
would promote efficiency in its operations. The
record discloses that in the newspaper printing
business , time is a prime factor , as there are constant
deadlines to be met . It is apparent that at least one
advantage in the use of the fototronic 1200 machine is
its probable contribution to speed in production. The
record shows that the fototronic 1200 because of its
speed will be replacing older machines , thus doing a
greater volume of the work . This indicates that
"downtime" will become a more critical factor when
maintenance tasks are required . The ITU machine
tenders working in the composing room are available
to give immediate attention to maintenance tasks. We
find that the factor of efficiency favors the ITU.
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors appear-
ing in the record, we shall assign the disputed work to
the ITU machine tenders, who possess sufficient skill,
are more effective in the performance of such work
because of their broader knowledge of the machines
and of the typesetting process, and have performed
the work in the past to the satisfaction of the
281
Company, which desires to assign them the work. The
assignment of the work in dispute to the machine
tenders is consistent with that of other employers in
the industry. Moreover, the assignment of the
disputed work to the electricians would not promote
the efficiency of the Company's typesetting opera-
tions, and might result in delay and unnecessary cost.
We, accordingly, determine the instant jurisdictional
dispute by deciding that the ITU machine tenders,
rather than the IBEW electricians, are entitled to
perform the electronic maintenance work on the
Company's fototronic 1200 typesetting machine,
including the replacement of the electronic Compo-
nents previously assigned to the IBEW electricians. In
making this determination, we are assigning the work
to the machine tenders who are represented by the
ITU but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following determination of dispute:
The Machine tenders employed by the Pulitzer
Publishing Company, who are represented by the St.
Louis Typographical Union No. 8, affiliated with
International Typographical Union, AFL-CIO, are
entitled to perform the disputed work of maintaining
and testing the fototronic 1200 typesetting machine
located in the composing room of the Pulitzer
Publishing Company, St. Louis, Missouri.