Local 205, Lithographers and Photoengravers

National Labor Relations Board - Board Decisions

Nov 9, 1970

186 N.L.R.B. 454 (N.L.R.B. 1970)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 205, Lithographers and Photoengravers Interna-
tional Union , AFL-CIO and The General Gravure
Service Co., Inc. Case 22-CB-1273
November 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 22, 1968, Trial Examiner Herbert Silber-
man issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter the General Counsel and the
Charging Party each filed exceptions to the Decision,
together with supporting briefs. The Respondent filed
an answering brief. Subsequently, in response to an
invitation of the Board, the Charging Party, General
Counsel, and Respondent filed supplemental briefs.
In response to the same invitation, statements of
position were filed by the National Association of
Manufacturers, and by the American Federation of
Labor and Congress of Industrial Organizations,
joined by. the International Brotherhood of Teamsters
and the International Union, UAW, as amici curiae.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the excep-
tions and briefs, the answering brief, the supplemental
briefs, the statements of position amici curiae, and the
entire record in the case. The Board adopts the Trial
Examiner's findings, conclusions, and recommenda-
tions only to the extent that they are consistent with
the decision herein.
As more fully set forth in the Trial Examiner's
Decision, the Respondent Union on July 5, 1967,
established a picket line at the Company's premises.
The five employees involved herein (William Brengel,
Peter Ollendorf, John Haynie, Paul Fallot, and Louis
Stirling) refused to honor the picket line and reported
to work on a regular basis until August 30, 1967.
On July 6, 1967, the second day of the strike, the
Union notified each of the five employees that
1 N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175.
2 Scofield v. N. L. R . B., 394 U.S. 423.
3 The Trial Examiner found it unnecessary to "pass upon the question
of whether the resignations from the Union of the five men named in the
charges had been preferred against them under the
Union's International constitution for crossing the
picket line, and that a trial had been set for July 26,
1967, before the Union's executive board. On July 25,
1967, four of the employees telegraphed their resigna-
tions to the Union. The fifth employee telegraphed his
resignation to the Union on August 1, 1967. In
response to the aforementioned telegrams the Union
notified the employees that their resignations were
ineffective under the Union's constitution, that the
executive board had heard their cases, and that they
would soon be advised of the results. On August 2,
1967, they were notified by the Union that they had
been found guilty of the charges preferred against
them. Each was further advised that the executive
board had voted to censure them and that they should
be warned that further evasion of their respective
responsibilities would be grounds for additional
disciplinary actions.
When the five employees persisted in crossing the
picket line, they were informed on August 10, 1967,
that additional charges had been preferred against
them and that a trial date had been set for August 30,
1967. On October 12, the employees, none of whom
had attended the trial of August 30, 1967, were
informed that they had again been found guilty and
were each fined $250 on each of four counts for a total
of $1,000, which, together with back dues, was
payable "without delay."
The Trial Examiner, after considering the argu-
ments of the respective parties, concluded that "there
are no material distinctions between the facts of this
case and those appearing in the Allis-Chalmers 1 case"
and, accordingly, recommended dismissal of the
complaint in its entirety. We disagree.
In Booster Lodge No. 405, International Association
of Machinists and Aerospace Workers, AFL-CIO, 185
NLRB No. 23, we concluded that Allis-Chalmers,
supra, was carefully restricted to the facts of that case
and that the Supreme Court's subsequent decision in
Scofield2 indicated that union-imposed fines would
not be violative of Section 8(b)(1)(A) of the Act when
restricted solely to union members. In accordance
with the aforementioned conclusions we found that
union fines imposed against certain employees who
had in fact resigned from the union prior to crossing a
union-established picket line were violative of Section
8(b)(1)(A) of the Act. Inasmuch as the fines here
involved similarly relate to picket line conduct
occurring after August 1, 1967, when the employees
had effectively resigned from the Union,3 the fines
therefore were also violative of Section 8(b)(1)(A) of
complaint were effective ." As the Union 's constitution makes no provision
for voluntary resignations while employees are still engaged in the industry,
we find that the telegraphic resignations herein effectively terminated their
respective memberships in the Union. Booster Lodge No. 405, supra, fn. 11.
186 NLRB No. 69
LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 455
the Act. This conclusion, however, does not make
unlawful the censure imposed upon the five individu-
als by the Respondent Union prior to their resigna-
tions from among its ranks. Accordingly, we shall
order the Respondent to cease and desist from such
action and to remit any fine which may have been
paid by the five individuals involved for picket line
violations occurring subsequent to their resignations
from the Respondent Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 205, Lithographers and Photoengravers Inter-
national Union, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees, who had
resigned from and who were no longer members of
the Union, in the exercise of their rights guaranteed in
Section 7 of the Act, by imposing fines against such
employees because of their postresignation conduct in
working at the Hillside plant during the July 5, 1967,
strike.
(b) In any like or related manner, restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Reimburse or refund to William Brengel, Peter
Ollendorf, John Haynie, Paul Fallot, and Louis
Stirling the amount of any fines they may have paid
which were imposed because of postresignation
conduct in working at the plant.
(b) Post at its office and meeting hall and at the
Hillside, New Jersey, plant of the General Gravure
Service Co., Inc., 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 22, after being signed by an
authorized representative, shall be posted at the
aforementioned locations immediately upon receipt
thereof and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices 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 said Regional Director, in writing, within
10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violation has been found be,
and they hereby are, dismissed.
MEMBER BROWN, concurring in part and dissenting in
part:
For the reasons stated in my dissenting opinion in
Booster Lodge No. 405, International Association of
Machinists and Aerospace Workers, AFL-CIO (The
Boeing Company), footnote 2, supra, I would find no
violation of Section 8(b)(1)(A) of the Act and would
dismiss the complaint in its entirety.
T
4 In the event this Order is enforced by a Judgment of the 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 Hillside, New Jersey, plant
during the July 5, 1967, strike, by imposing fines.
WE WILL reimburse William Brengel, Peter
Ollendorf, John Haynie, Paul Fallot, and Louis
Stirlingl 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 205,
LITHOGRAPHERS AND
PHOTOENGRAVERS
INTERNATIONAL UNION,
AFL-CIO
(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, 970 Broad Street, Newark,
New Jersey 07102, Telephone 201-645-2100.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon a charge
filed by The General Gravure Service Co., Inc., herein
called the Company, on October 24, 1967, a complaint was
issued on March 22, 1968, alleging that the Respondent,
Local 205, Lithographers and Photoengravers International
Union, AFL-CIO, herein called the Union, has engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
Section 2(6) and (7) of the Act. In substance, the complaint
alleges that the Union on August 30, 1967, levied individual
fines in the amount of $1,000 against William Brengel,
Peter Ollendorf, John Haynie, Paul Fallot, and Louis
Stirling, employees of the Company, for crossing a picket
line established and maintained by the Union at the
Company's place of business, although said employees had
not been members of the Union since August 1, 1967. The
complaint further alleges that the fines are excessive.
Respondent by its answer generally denies that it has
violated the Act. A hearing in this proceeding was held in
Newark, New Jersey, on April 15, 1968. Thereafter, briefs
were filed on behalf of the General Counsel and the
Charging Party which have been carefully considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The material facts in this proceeding involve employees
of The General Gravure Service Co., Inc., a New Jersey
corporation, which is engaged in its place of business at
Hillside , New Jersey, in the manufacture, sale, and
distribution of gravure cylinders and related products.
During the calendar year 1967, which period is representa-
tive of the Company's operations, in the course and
conduct of its business, the Company manufactured, sold,
and shipped from its place of business products valued in
excess of $50,000 to customers located outside the State of
New Jersey. Respondent admits, and I find, that the
Company is an employer, as defined in Section 2(2) of the
Act, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
This case explores the reach of the Court's decision in
N.LR.B. v. Allis- Chalmers Manufacturing Co., 388 U.S. 175.
Until sometime after June 1967 the Union had been the
recognized representative of employees of the Company.
The last collective -bargaining agreement between the
parties expired in January 1967. Negotiations looking to the
renewal of the contract were carried on between December
1966 and June 1967 but the parties were unable to reach an
agreement. At various times during the negotiations the
Union threatened to impose sanctions against the Compa-
ny and in particular threatened to impose an overtime ban,
that is, a refusal on the part of its members to perform any
overtime work.
At a chapel meeting of the Company's employees held on
June 19, 1967, the union members were informed that
because there still was no resolution of the contract
differences with the Company an overtime ban was being
imposed and any employee who worked overtime would be
fined an amount equal to his overtime earnings. Shortly
after this meeting the Union posted a notice confirming the
overtime ban. On June 20, the Company posted notices
advising its employees that overtime work was a condition
of their employment, that employees will be given 1 day's
notice when called upon to work overtime and that any
employee who then refuses to work overtime will be subject
to immediate dismissal.
On June 30 the Company discharged 14 employees who
had refused to work overtime on that day and the preceding
day. Beginning July 5, 1967, pursuant to due authorization,
the Union established a picket line at the Company's
premises. During the period from July 5 through August 30,
1967, the five individuals named in the complaint regularly
reported to work despite the presence of the Union's picket
line and the necessity of their crossing such line to enter the
Company's premises . On July 6, 1967, the Union sent a
letter to each of the five advising them that charges had
been preferred against them under various sections of the
International constitution because of their conduct in
crossing the picket line and notifying them that 6 p.m. on
July 26, 1967, was set by the executive board as the time for
their trial on the charges.
On July 25, 1967, Brengel, Ollendorf, Haynie, and
Stirling each sent a telegram to the Union which read as
follows, "Effective immediately, I hereby tender my
resignation from New Jersey L.P.I.U. Local No. 205."
Fallot sent a similar telegram to the Union on August 1,
1967. In response to the attempted resignations the Union
sent each of the five the following letter:
Your telegram of July 26th has been received.
Obviously you ignored Section 17.9 of our Constitution
which prohibits your resignation under present circum-
stances. This section provides as follows:
17.9 RESIGNATION. A member may resign
from membership only if he is in good standing
and has ceased to be engaged as an employee or in
a supervisory capacity in an industry within the
jurisdiction of the International, but continues
otherwise to be associated with such industry.
Therefore we cannot accept your resignation and, in
view of your refusal to attend the hearing of charges
against you, the Executive Board sitting as Trial Board
took evidence and proceeded in your absence. You will
be advised later of its findings.
None of the five men attended the union hearing on the
charges which had been preferred against them. On August
2, 1967, each of the five was advised that the Trial Board
had found him guilty of:
LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 457
(1) Willful violation of their obligations of member-
ship under Section 18.2(A).
(2) Evasion of responsibilities during a recognized
lockout under Section 18.2(B).
(3) Willful failure to comply with the Constitution to
the detriment of the organization under Section 18.2(C).
(4) Knowingly undermining wage and work stand-
ards to the detriment of the organization under Section
18.2(D).
Each was further advised that the decision of the Trial
Board was that he should be censured for his actions and
should be warned that further evasion of his responsibilities
under the constitution would be grounds for additional
disciplinary action. The letter of transmittal from the
Union's recording secretary, in addition to advising the
men of their rights of appeal, also informed them that
although no fine was imposed it was expected that they
would cease the violations of their responsibilities under the
constitution.
On August 10, 1967, the Union wrote to each of the five
men another letter advising that additional charges had
been preferred against them and summoning them to
appear for trial on such charges at 6 p.m. on August 30,
1967.1 None of the five attended the trial. On October 12,
1967, each of the five men. wasinformed of the outcome of
the trial by the following letter from the Union's business
manager:
At the Executive Board Trial for which you had been
summons , [sic] on August 30, 1967, you were found
guilty on the four charges preferred against you and
fined $250.00 on each charge for a total of $1000.00.
This fine and your dues for June and to date are
payable, thru the Business Manager of the Union,
without delay.
The weekly salaries of the five men during the relevant
times herein, particularly July and August 1967, were:
Haynie, $235; Fallot, $235; Stirling, $300; Ollendorf, $275;
and Brengel , $275. None of the five men have paid union
dues since May 31, 1967, nor have they paid the fines levied
against them. The Union has made no attempt to collect the
fines.
Pursuant to a petition filed by Charging Party on August
16, 1967, the Board conducted a representation election on
December 4, 1967, in the unit represented by the Union.
The Union lost the election by a vote of 8 to 0.2
B. General Counsel's Argument
General Counsel advances alternative theories in support
of the complaint. His first theory is that in the Allis-
Chalmers case, the Supreme "Court, while not faced with
1 The charges, dated August 9, 1967, which had been served on each of
the five men with the Union 's letter of August 10, were as follows:
1. Willful violation of the provision of the obligation of membership.
(Consti. 18.2 (A).)
2. Strikebreaking during sanctioned strike and evasion of responsibil-
ities during a recognized lock-out. (Conti. 18.2 (B).)
3. Willful failure to comply with the Constitution or laws of the
International or By-Laws of a Local to the detriment of the
organization (18.2(C).)
4. Knowingly undermining wage and work standards established by
contract or other requirements of the organization to the detriment of
the organization . (Conti. 18.2 (D).)
2 At the hearing I reserved decision on certain objections to the receipt
the issue, made it clear that the proviso to Section
8(b)(1)(A) would shield a union only if that union's action
was reasonable." 3 He contends that union discipline which
affects adversely a member's employment status-an
unreasonably large fine or the threat thereof (which might
make it pointless for the member to work because the fine
might equal or exceed the member' s earnings) would be
included in that category-exercises as much coercion and
restraint upon a member's ability to go to work as bodily
force that prevents him from crossing a picket line to enter
his employer's premises or union action which induces the
discharge of the member by his employer.
In support of his position General Counsel refers to the
portion of the opinion in the Allis-Chalmers case where the
Court observed that federal labor policy permits a union to
protect against erosion its status as chosen representative
"through reasonable discipline of members who violate
rules and regulations governing membership."4 Stressing
the use of the word "reasonable," General Counsel argues
that the inference to be drawn from the majority opinion in
the Allis-Chalmers case is that the Court would have
decided the case differently had the fine been unreasonably
large. I interpret the Court's opinion differently. After
observing that there "may be concern that court enforce-
ment may permit the collection of unreasonably large
fines," the Court in footnote 32 at page 193 specifically
noted "that the state courts, in reviewing the imposition of
union discipline, find ways to strike down `discipline
[which ] involves a severe hardship.' " The Court thus
suggests that a union would not succeed in a State court suit
for the collection of an unreasonably large fine, and it is in
that forum that a member will find protection against
arbitrary union action. In footnote 33 at page 193 the Court
quotes from its earlier decision in Machinists v. Gonzales,
356 U.S. 617, 620: "[T]he protection of union members in
their rights as members from arbitrary conduct by unions
and union officers has not been undertaken by federal law,
and indeed the assertion of any such power has been
expressly denied." The Court concludes, at page 195, "that
Congress did not propose any limitations with respect to
the internal affairs of unions, aside from barring enforce-
ment of a union's internal regulations to affect a member's
employment status." It is my belief, contrary to General
Counsel, that the Court's direction is not towards a
limitation of its holding in the Allis-Chalmers case.5
Another deficiency in General Counsel's argument is his
equation of an unreasonably large fine to direct union
action which prevents an employee from working either
because he is physically barred from entering his place of
work or because the union causes his employer to deny him
of evidence. I hereby overrule all such objections.
9 The decision of the Court is not based upon the proviso. As pointed
out in the Court's opinion : "Our conclusion that § 8(bXl)(A) does not
prohibit the locals' actions makes it unnecessary to pass on the Board
holding that the proviso protected such actions." N.L.R.B. v. Allis-
Chalmers, supra, 192, fn. 29.
4 N. L. R. B. v. Allis-Chalmers, supra, 181.
5 Mr. Justice Black draws a contrary inference from the majority
opinion . He states in his dissenting opinion : "And then the Court cautions
that its holding may only apply to court enforcement of `reasonable fines.'
Apparently the Court believes that these considerations somehow bring
reasonable court-enforced fines within the ambit of `internal union
affairs.' " N.L.R.B. v. Allis-Chalmers, supra, 205.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opportunity to work. The Supreme Court in Allis-
Chalmers specifically considered and rejected the argument
that for the purposes of applying Section 8(b)(l)(A) a fine
which a union attempts to collect through a civil suit is
similar to physical force or direct union pressure upon a
member's employer. In essence , the Court held that, in
deciding whether any category of union action violates
Section 8(bXl)(A), the legislative intent is the critical
determinant rather than a semantic exploration of the
words "restrain or coerce."
It is not necessary in this case to anticipate whether the
Supreme Court will limit its decision in the Allis-Chalmers
case in the manner suggested by General Counsel because
the factual assumption upon which the General Counsel's
argument is based has not been established. I find that
General Counsel has not proved that the fines imposed
upon the five men named in the complaint were excessive.
From July 5 to August 30, 1967, each of the men regularly
crossed the Union's authorized picket line and thus was
continuously engaged in strikebreaking activities in viola-
tion of the Union's constitution. Charges were filed against
the men for such conduct and following a hearing before
the Union's trial board on July 26, 1967, they were found
guilty of having violated the sections of the Union's
constitution with which they had been charged. No fine was
imposed upon them at that time, but they were advised that
they had been censured and that further evasions of their
responsibilities under the Union's constitution would be
grounds for disciplinary action. The five men nevertheless
continued to work in defiance of the Union's picket line
and the warnings given to them. Further charges were filed
against them, a second hearing was held before the Union's
Trial Board on August 30, 1967, and each was then fined
$1,000. The five men were in continuous violation of the
Union's strike for a period of in excess of 8 weeks, during
which time their respective wages for a basic workweek
were between $235 and $300 or between $1,860 and $2,400
for the 8-week period. Had the men not been engaged in
strikebreaking activities their income probably would have
been limited to the benefits which the Union may have
given its members who were supporting the strike.
Although no evidence was adduced as to the amount by
which the earnings of the five men exceeded the amounts
they would have received in strike benefits, it is reasonable
to infer that the excess was $1,000 or more for each. Thus,
the fines imposed upon the five men probably did not place
them in any less satisfactory financial situation than they
would have been in had they supported their Union and
their coworkers in the strike. The fine of $1,000 against each
of the five men, which was approximately 50 percent of
6 See Minneapolis Star and Tribune Company, 109 NLRB 727, where the
Board held that a fine of $500 for failure to attend union meetings and
perform picket duty during a strike was not a violation of Sec . 8(bxlXA).
I General Counsel's argument in his brief that the fine related only to
the period between July 27 and August 9, 1967, is without basis . Although
the second set of charges against the five men was filed on August 9, there
is nothing in the record to indicate that the Union 's Trial Board in arriving
at the penalty which it imposed upon them did not consider their
strikebreaking activities through August 30, 1967, the date of their trial.
Furthermore, despite the fact that the charges filed against the men on
August 9 accused them of "failure to comply with the decision of the
Executive Board wherein these men were found guilty on July 26, 1967,"
there is no proof that in assessing the fine the trial board did not consider
their aggregate earnings (excluding overtime earnings)
during the period of their strikebreaking activities, in the
circumstances,6 is not so large that it must necessarily be
deemed excessive. The purpose of the fine was to exert
pressure upon the five employees to abide by their union
responsibilities and to honor the authorized strike in which
their coworkers were engaged. A fine of $100 or other
relatively small amount would hardly have been any more
effective than the warnings which had been issued to them.
For the fine to serve the purpose intended, particularly in
the view of the five men's demonstrated recalcitrance, it
had to be in a significant amount.? "The power to fine or
expel strikebreakers is essential if the union is to be an
effective bargaining agent ... "8
I find no merit to General Counsel's contention that the
criteria which the Board uses in determining whether an
initiation fee is excessive should be used in this case to
determine whether the fines imposed upon the five men
were unreasonably large. The General Counsel gives no
reason why such criteria are applicable here.9 A fine is
imposed as a punishment for an offense. It is intended as a
penalty. As such it bears no similarity to an initiation fee.
As I find that General Counsel has not proved that the
fines imposed upon the five men involved in this case were
unreasonably large, I find that his first argument fails even
if the legal principle concerning unreasonably large fine
which he espouses were valid.
General Counsel's alternative argument is based on his
contention that, despite the Union's contrary notification,
the five men involved here had effectively resigned from the
Union before their trial on August 30, 1967, and before the
imposition of the fines upon them. Upon this factual
assumption General Counsel argues that in the Allis-
Chalmers case the Supreme Court indicated a "concern
over a Union's fining a limited member and may have
decided differently had that question been before it. It is,
therefore, an even stronger argument that faced with the
issue as in the instant case of a Union fining a non-member,
it would have had no difficulty in finding a violation. For if
the employees who are fined are non-members, it cannot
then be argued that the proviso to Section 8(b)(1)(A)
permits such fines.... [B]y no stretch of the imagination
can it be argued that this proviso permits a union to take
disciplinary action against non-members."
General Counsel misconstrues the opinion of the
Supreme Court. The Court specifically pointed out that in
reaching its decision it was "[a ]ssuming that the proviso
cannot also be read to authorize court enforcement of fines
. . .1110 Thus, the question decided by the Court was
whether the respondent union had violated Section
the conduct of the men from the inception of the strike on July 5. Also, the
trial board might have deemed as an adverse factor warranting a larger fine
than it might otherwise have imposed the fact that the men involved had
recently been tried and found guilty of the same offense.
8 N.L.R.B. v. Allis-Chalmers, supra, 181.
9 Appropriate criteria might be "traditional internal union discipline in
general, [and] disciplinary fines in particular." N.LR.B. v. Allis-Chalmers,
supra, 185-I86 . That is, the reasonableness of a particular union fine may
be determined by measuring the fine against the discipline traditionally
imposed by labor organizations against persons committing similar
offenses and in particular the fines assessed in such instances.
10 N.LR.B. v. Allis-Chalmers, supra, 192.
LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 459
8(b)(1)(A) and was not whether the proviso to the section
creates an exemption for conduct which otherwise is
prohibited by the Act. However, later in its opinion the
Court observed: "Indeed, it is and has been Allis-Chalmers'
position that the Taft-Hartley prohibitions apply whatever
the nature of the membership. Whether those prohibitions
would apply if the locals had imposed fines on members
whose membership was in fact limited to the obligation of
paying monthly dues is a question not before us and upon
which we intimate no view." This observation was directed
specifically to the position of the "majority en banc below,"
appearing at 358 F.2d at 660,11 and possibly also to the part
in Mr. Justice Black's dissent appearing at 388 U.S. at
206-208. The quoted portion of the Supreme Court's
opinion when read with reference to the cited portion of the
dissent and the Court of Appeals opinion reveals that the
issue under consideration was whether an employee who
becomes a member of a labor organization because of the
compulsion of a union-security clause in an applicable
collective-bargaining agreement is as much subject to union
discipline as a voluntary, full member. There was no
question being raised that a nonmember was subject to
union discipline. Contrary to General Counsel, I find no
implication in the Court's opinion that the imposition of a
fine by a labor organization upon a nonmember would
constitute a violation of Section 8(b)(1)(A).
Further, I find no support in the legislative history of
Section 8(b)(1)(A) and no controlling precedent for
General Counsel's thesis that a fine attempted to be
imposed by a labor organization upon a person who is not a
member and over whom the labor organization has no
jurisdiction would constitute a violation of Section
8(b)(1)(A). Such fine normally is so clearly uncollectible
that it cannot reasonably be deemed to constitute restraint
or coercion upon the person sought to be fined. According-
ly, it is unnecessary to pass upon the question of whether
the resignations from the Union of the five men named in
the complaint were effective.
C. Charging Party's Argument
The Company's thesis is that sufficient distinctions follow
from the differences in the facts between the instant case
and Allis-Chalmers so that the holding of the latter case is
here inapplicable. It makes three separate arguments in
support of its position.
The Company's first point turns upon the purported
resignations of the five men named in the complaint from
the Union. It argues: "If there is one point which the
Court's decision in Allis-Chalmers makes clear it is that the
degree of Union membership enjoyed by the fined
11 "The expressed Congressional policy of protecting the union member
is particularly apt where, as in the case before us, membership is the result
not of individual voluntary choice but of the insertion of a union security
provision in the contract under which a substantial minority of the
employees may have been forced into membership. Such membership
properly incurs an obligation to pay dues and fees but may not be
extended to include liability to submit to fines for indulging in a protected
activity "
12 "But the relevant inquiry here is not what motivated a member's full
membership but whether the Taft-Hartley amendments prohibited
disciplinary measures against a full member who crossed his union 's picket
line." N L R B v Allis-Chalmers, supra, 196.
is In its brief the Company states that "[alt no time did Respondent
employees establishes whether the fine is coercive within
the meaning of Section 8(b)(1)(A). The Court was at pains
to note that it was confronted with `full members' who had
assumed full membership obligations voluntarily. It
specifically reserved decision on the question of coercive-
ness insofar as employees who hold more limited forms of
membership are concerned. Thus, if it is the degree of
membership which is significant in determining
coercion-the theory of the Court apparently being that the
employee who has voluntarily assumed full membership
obligations cannot be held to be' coerced- certainly the
employees involved in this proceeding have been coerced
within the meaning of the Act."
The Charging Party has given greater scope to the area of
decision reserved by the Court than the language used by
the Court in its opinion suggests . The Court states at page
197 that it intimates no view as to whether the prohibitions
of 8(b)(1)(A) would apply "if the locals had imposed fines
on members whose membership was in fact limited to the
obligation of paying of monthly dues." This reservation of
view does not encompass nonmembers nor persons who
sought membership in the Union because of the existence
of a union-security clause in an applicable bargaining
agreement but who did not choose to limit their
membership.12 I have rejected a similar contention
advanced by General Counsel. I am no more persuaded by
the Company's more extensive exposition of essentially the
same argument than I am by General Counsel's presenta-
tion.
The Company's second point is more subtle. It contends
that the decision in Allis-Chalmers might have been
different had the strike in that case not been a lawful
economic strike called after a democratic strike vote. In the
instant case, according to the Company, the strike 13 was
the Union's response to the discharge of 14 employees who
had refused to work overtime, which refusals were actions
outside the protection of Section 7 of the Act. The
Company argues:
The Court [in Allis-Chalmers] stressed the fact that the
power to "discipline members" is "particularly vital in
the case of strikes."
It is the Charging Party's contention that this power
is not sufficiently vital in the case of unprotected
activity-the Union's conduct being one of the few
forms of economic pressure to qualify for such
status-so as to warrant dismissal of a Section
8(b)(1)(A) complaint alleging Union coercion through
the imposition of fines. It would be entirely illogical and
unjustified to place conduct which the statute in effect
condemns (i.e., the employee working on his own terms
`call' a 'strike" " This contention has no ment There is no dispute that the
picket line which was established at the Company's plant was duly
authorized Sometime between June 19 and July 5, 1967, at a union
meeting attended by approximately 100 members , including 16 employees
of the Company among whom were 2 of the men named in the complaint,
it was voted that the Executive Board of the Union be authorized to call a
strike or take whatever action the Executive Board deemed necessary
against the Company In these circumstances the establishment of the
picket line constituted a stoke against the Company I further find that
there is no evidence in the record to suggest that the stoke was anything
other than an authorized stoke called by the Union following a democratic
vote by its membership
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by refusing to work overtime) on the same plateau with
the right to strike. The latter is a fundamental right,
specifically recognized and protected by the Act. The
former is at variance with public policy.
But it is not only the strike which is absent in the
instant case; it is also the strike vote which was
emphasized so heavily by the Court in Allis-Chalmers.
In Allis-Chalmers, the Court was constrained to turn
aside the argument that the employees' "right to
refrain" under Section 7 and free choice had been
impaired because in that case, employees had partici-
pated in the democratic process.
The foregoing argument is based largely on unwarranted
assumptions. First, the Company assumes that the
employees' refusals to work overtime constituted "conduct
which the statute in effect condemns." While such conduct
may not constitute protected activity within the meaning of
Section 7 of the Act it does not follow that it is condemned
by the Act.14 Secondly, assuming that the Act somehow
condemns the action by, the 14 employees who refused to
work overtime and assuming further that the strike was
precipitated by their discharges, nevertheless, as the strike
was not for an unlawful purpose nor, so far as the record
shows, carried on in any unlawful manner, I find no reason
why the Union's authority to discipline members who
violate such strike is any more restricted then in the case of
the strike with which the Allis-Chalmers case was con-
cerned. Nowhere does the Court in Allis-Chalmers suggest
that its decision in any way was dependent upon the causes
or objectives of the strike.15 Third, the argument that there
was no strike vote in this case and that employees had not
participated in "the democratic process" is not factually
correct. Finally, although the strike began shortly after the
14 employees who had refused to work overtime were
discharged, the record does not show whether or to what
extent this factor triggered or contributed to the ; trike. The
strike vote was taken by the membership and authority was
given to the Executive Board to call a strike before the
discharges. Thus, it may have been mere coincidence that
the strike was called 5 days after the discharges. Contrary to
the Company, I find no reason for distinguishing the
instant case from Allis-Chalmers on the alleged grounds
that the strike here was not authorized, was not pursuant to
a democratic strike vote, or was begun for a reason
condemned by the Act.
Charging Party's third point is that by August 30, 1967,
when the employees named in the complaint were fined, the
Union was no longer the collective-bargaining representa-
tive of the Company's employees. According to Charging
Party:
In Allis-Chalmers, the rationale essential to the
Court's conclusion was that the power to discipline was
necessary to the exclusive bargaining agent's discharge
14 See N.L.R.B. v. Insurance Agents' International Union , AFL-CIO, 361
U.S. 477.
15 The Court has taken pains in other cases to avoid inquiry into the
"wisdom" of employees ' concerted action . See N.LR.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9, 16.
16 By citing with approval its earlier decision in N.LR. B. v. Drivers,
Chauffeurs, Helpers, Local Union No. 639, Teamsters, 362 U.S. 274, it is
clear that the Court did not overlook the fact that a labor organization may
lawfully, in various circumstances , picket premises although the labor
organization may not be the statutory representative of the employees of
of its responsibilities . But the Respondent in this case
was not exclusive bargaining agent at any time during
the alleged violation of Union rules.
I am not persuaded by this argument. It is true that the
Court observes that "[t]he majority-rule concept is today
unquestionably at the center of our federal labor policy";
that the chosen union must have power to protect its status
against erosion through reasonable discipline of members
who violate its rules and regulations governing member-
ship; and that such power is particularly vital when the
members engage in strikes. However, there is nothing in the
opinion of the Court which warrants the inference drawn
by the Company that the Court's decision would have been
different had the union in that case not been the statutory
representative vis-a-vis the employer of the striking
employees.16 While the "majority-rule concept" may
underly the rationale of the Court (and its interpretation of
congressional intent) in its determination that Section
8(b)(1)(A) does not prohibit reasonable union discipline of
members for strikebreaking activities, it does not follow,
and nowhere in the Court's opinion is there any suggestion,
that the authority to so discipline members is limited to
members who are within a collective bargaining unit for
which a labor organization is the exclusive bargaining agent
and only during such times as the labor organization is such
agent. Furthermore, although the election among the
Company's employees which was held on December 4,
1967, demonstrated that the Union by that time had lost its
majority, contrary to the Company, there is no basis in the
record for assuming that it was not the majority representa-
tive when the strike was begun on July 5, 1967, and when
the five men named in the complaint first crossed the
Union's picket line.
D. Conclusions
I have read and considered the arguments of the General
Counsel and the Charging Party and I am not persuaded by
them. The conflicting points of view regarding the
principles involved in the Allis-Chalmers case are fully
explicated in the various opinions written by the Supreme
Court, the Court of Appeals, and the Board, in the briefs
submitted to the Supreme Court and the Court of Appeals,
and in various law review articles . No useful purpose would
be served by reviewing these arguments here. I find that
there are no material distinctions between the facts in this
case and those in the Allis-Chalmers case . Accordingly, I
shall recommend that the complaint herein be dismissed in
its entirety.17
such employer. There are various purposes for such picketing, including
efforts to organize the plant or to protect the wage standards of its
members, etc. Many of these reasons , if not directly, at least indirectly,
serve to bolster the labor organization 's majority at other plants and
"protect against erosion its status" as the statutory representative of the
employees at such other plants.
17 The decisions in N.LR.B. v. Industrial Union of Marine &
Shipbuilding Workers of America, 389 U.S. 1034, and Scofield v. N.LR.B.,
393 F.2d 49 (C.A. 7), do not impel any different conclusion.
LOCAL 205 , LITHOGRAPHERS AND PHOTOENGRAVERS 461
CONCLUSIONS OF LAW RECOMMENDED ORDER
Respondent has not violated Section 8(b)(1)(A) of the Upon the basis of the foregoing findings of fact and
Act as alleged in the complaint . conclusions of law and upon the entire record in this case I
recommend that the complaint in this case be dismissed in
its entirety.