Local 248, United Automobile, Aerospace, Etc.

National Labor Relations Board - Board Decisions

Oct 23, 1964

149 N.L.R.B. 67 (N.L.R.B. 1964)

LOCAL 248, UNITED AUTOMOBILE, AEROSPACE, ETC. 67
WE WILL offer to William C. Miller, Robert V . Harvey , and Gordon A.
Gillespie immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to seniority and other rights and privi-
leges they may have previously enjoyed and make each of them whole for any
loss of pay suffered by reason of the discrimination against them.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self -organization to form , join, or
assist the above -named union or any other labor organization to bargain col-
lectively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection or to refrain from any or all such activities.
CLETUS H. PATTERSON & SONS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue , Cleveland , Ohio, Telephone No. Main
1-4465 , if they have any question concerning this notice or compliance with its
provisions.
Local 248, United Automobile , Aerospace and Agricultural Im-
plement Workers of America, AFL-CIO and Allis-Chalmers
Manufacturing Company
Local 248, United Automobile , Aerospace and Agricultural Im-
plement Workers of America , AFL-CIO and Allis-Chalmers
Manufacturing Company
Local 401 , United Automobile , Aerospace and Agricultural Im-
plement Workers of America, AFL-CIO and Allis-Chalmers
Manufacturing Company. Cases Nos. 30-013-1 (Old Case No.
13-CP-1066), 30-CB-4 (Old Case No. 13-CB-1992), and 30-CR--5
(Old Case No. 13-013-1408). October 23, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Harold X. Summers issued
his Decision in the above case, finding that the Respondents had not
engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set forth in his at-
tached Decision. Thereafter, the Respondents and the Charging
Party filed exceptions to the Trial Examiner's Decision and support-
ing briefs. At the request of the Charging Party, the Board granted
oral argument herein by notice of hearing dal ed June 9, 1964. The
hearing was held on July 9, 1964, and all parties participated in the
argument. In addition, counsel for the American Federation of
Labor and Congress of Industrial Organizations participated in the
argument and filed a brief as amicus curiae and counsel for the Na-
tional Association of Manufacturers filed a brief as amicus curiae.
149 NLRB No. 10.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 De-
cision and the entire record in this case, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Each Respondent is a local of the United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-CIO, and,
for a number of years, has represented production and maintenance
employees of the Allis-Chalmers Manufacturing Company, herein-
after referred to as the Employer. Local 248 has been the represent-
ative at West Allis, Wisconsin, and Local 401 has had such status at
La Crosse, Wisconsin. From February 2 to approximately April 20,
1959, both Respondents conducted economic strikes against the Em-
ployer in support of new contract demands. At the West Allis
Works, approximately 175-out of a unit of 7,400-crossed the picket
line and worked during the strike. At the La Crosse Works, 2 em-
ployees crossed the picket line to work.
Each Respondent then began internal union proceedings against
those members who had crossed the picket lines, charging them with
violation of the International constitution and bylaws. These pro-
ceedings resulted in the imposition of fines ranging from $20 to $100
against 174 members. The Respondent began a "test case" in the
State courts to collect the fines imposed on one member. Judgment
in the trial court was for the Respondent and an appeal from this
judgment was pending at the time of the hearing herein.
In 1962 each Respondent again called an economic strike against
the Employer in support of new contract demands. The 1962 strikes
lasted from February 26 to approximately March 5. Once again, some
members of the Respondents crossed the picket lines and worked-
30 out of 5,500 at West Allis and 4 out of 625 at La Crosse. Again,
after internal union proceedings, fines were imposed.
As of the date of the instant hearing, 20 of the members had paid
the fines in whole or in part, while the rest of the fined members had
made no payments. No effort was made by the Respondents to affect
the employment status of any of the fined members and they con-
tinued to be employed by the Employer throughout the period of the
dispute. Nor was any effort made by the Respondents to terminate
the union membership of any of the fined employees.
The complaint, as amended, alleged that the Respondents, by im-
posing fines on members because they worked during the 1959 and
1962 strikes, by demanding payment of such fines, and by threaten-
ing to and instituting court proceedings to collect such fines, violated
LOCAL 248, UNITED AUTOMOBILE, AEROSPACE, ETC. 69
Section 8(b) (1) (A) of the Act. The Trial Examiner recommended
dismissal of the complaint on the ground that the instant case is gov-
erned by Wisconsin Motor Corporation.' We agree.
In the Wisconsin Motor case, a union fined members who had ex-
ceeded production ceilings set by a union rule which was designed to
limit incentive earnings. The Board found that such fine was pro-
tected by the proviso to Section 8(b) (1) (A) of the Act, which states:
[T] his paragraph shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition or
retention of membership therein.
We pointed out there, after a review of the cases and the legislative
history of the Section, that ". . . the Union deliberately restricted the
enforcement of its rule to an area involving the status of a member
as a member rather than as an employee," and that it was thus com-
plying with the requirements of the proviso.
Here, too, the Respondents have properly maintained the distinc-
tion between treatment of the individual as a member of the Union
and treatment of him as an employee. They have imposed the fine
only on their own members. It is not alleged that the Respondents
ever attempted to affect the jobs or working conditions of any of the
fined individuals. Nor is it alleged that the rule prohibiting members
from crossing a picket line during a strike is not the legitimate con-
cern of a union or properly the subject matter of internal discipline.
It may be said then that the Respondents were engaged only in pre-
scribing and enforcing their own rules with respect to the acquisition
or retention of membership. Since, under the proviso, Section 8(b)
(1) (A) does not impair the right of a labor organization to do this,
it. follows that the Respondents did not violate that Section.
In reaching this conclusion, we do not deny that imposition of a
fine by a union may, under certain circumstances, constitute the sort
of restraint and coercion which is forbidden by Section 8(b) (1) (A).
Thus, in our recent Skura and Wellman-Lord decisions,2 we found
violations where a union imposed fines on members because of their
having filed charges with the Board before exhausting internal union
remedies. However, as we were careful to point out in those cases,
the rules involved there were beyond the competence of the union to
enforce since they interfered with the right of union members to seek
redress with the Board through the filing of charges. In Member
Leedom's dissent, he argues that it is beyond the competence of a
1145 NLRB 1097 ( Member Jenkins concurring , Member Leedom dissenting).
2 Local 138 , International Union of Operating Engineers , AFL-CIO (Charles S. Skura),
148 NLRB 679; H. B. Roberts, Business Manager of Local No. 925, International Union of
Operating Engineers and Local No 925 (Wellman Lord Engineering, Inc.), 148 NLRB 674.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union to promulgate and enforce a rule prohibiting members from
crossing a picket line. We cannot conceive of a subject which would
be more within its competence, since it involves the loyalty of its
members during a time of crisis for the union. The Act does not de-
prive a union of all recourse against those of its own members who
undermine a strike in which it is engaged. When the strike is lawful
and the picket line is lawful, we cannot hold that a union must take
no steps to preserve its own integrity. This is a far cry from the
above-mentioned Skura and Wellman-Lord cases, where the union's
conduct interfered with the members' utilization of Board processes
and thereby hindered effective enforcement of the Act.
With respect to Member Leedom's further argument that the union
rule here impinges on "employment" and is therefore not protected
by the proviso to Section 8(b) (1) (A), we stated in Wisconsin Motor,
and we recognize again here, that "In a sense, virtually all union
rules affect a member's employment relationship." The question is
whether, in enforcing the rule, the union goes outside the area of
union-member relationship and enters the area of employer-employee
relationship. We think it clear that the Respondents did not do so in
this case.
Furthermore, the Board long ago held in the Minneapolis Star and
Tribune case' that it union did not violate Section 8(b) (1) (A) by
fining a member who did not perform picket duty during a strike.
The facts herein are analogous. Accordingly, as no reason appears
to us, and as our dissenting colleague has not indicated reasons why
Minneapolis Star should be overruled, we reaffirm the conclusion in
that case that the Respondents have not violated Section 8(b) (1) (A)
of the Act.
[The Board dismissed the complaint.]
MEMBER JENKINS, concurring :
Union competency to adopt internal rules is not in issue. The issue
before us centers on whether union action, concededly coercive, has
impinged on rights guaranteed employees under Section 7 of the Act.
The resolution of this issue does not turn on whether the union rule
impinges on "employment" as urged by the dissent. Neither, in my
view, does it turn on whether the union enforcing action invades the
employer-employee relationship, as urged by the majority. The cen-
tral question appears to me to be whether the Act seeks to regulate
the right of a union to discipline its members for refusing to respect
a picket line lawfully erected by the union.
3 Minneapolis Star and Tribune Company, 109 NLRB 727.
LOCAL 248, UNITED AUTOMOBILE, AEROSPACE, ETC. 71
Certain it is that Section 7 assures to each employee the right to
refrain from engaging in any concerted activities with which he is in
disagreement. Neither Section 7 nor any other provision of the Act,
however, grants assurance that the employee thus choosing to refrain
shall be relieved of duties and obligations undertaken as a conse-
quence of his acquisition or retention of membership in a labor
organization.
As I pointed out in the concurring opinion in Wisconsin Motor
Corporation,' alternative choices must often be made by employees
seeking to exercise rights conferred on them by Section 7. Just as
the first amendment, to the United States Constitution protects the
right to speak, but does not insulate the speaker against all conse-
quences of having exercised the freedom of speech, in like fashion the
Act, as I read it, protects the right of an employee to choose either
to support a lawful picket line or to refuse to do so, but does not
insulate the employee from all consequences flowing from his choice.
Here, at the time the employee makes his choice, he is on notice (by
virtue of the existence of a published union rule which he as a mem-
ber of the union has obligated himself to observe) that his exercise
of the statutory right to violate his union's picket line may subject
him to consequential discipline by the union. It must be remembered
that the same statutory language relied upon to protect the right of
the individual employee to refrain also protects the right of the
group of employees to engage in the concerted activity here involved.
Therefore without reference to the proviso to 8(b) (1) (A) it would
follow that where a group of employees in furtherance of their Sec-
tion 7 rights form a union and provide as one of the rules governing
membership therein that all members must, on pain of specified dis-
ciplinary action, refrain from working behind a statutorily permitted
picket line of the union, the specified disciplinary action may be
taken by the union without offending Section 8(b) (1) (A) unless the
disciplinary action itself violates some other section of the statute or
is at odds with the public policies which the statute is designed to
implement.
All that is added to the equation by the proviso language is the
congressional assurance that Section 8(b) (1) (A) is not intended to
strip unions of the preexisting right to formulate eligibility require-
ments for union membership and rules governing the conduct of
union members.
In summary, I am persuaded that it would be a statutory anomaly
to conclude from reading Section 7 and Section 8(b) (1) (A) -with
or without the proviso-that all union action which restrains or
6145 NLRB 1097.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerces an employee violates 8(b) (1) (A) even though it is action not
otherwise proscribed ( and indeed may be authorized ) by the Act, and
is a necessary adjunct or corollary to the preservation of solidarity
inherent in the "mutual aid or protection " protected by Section 7.5
For the reasons stated herein , I join the majority in dismissing the
complaint herein.
MEMBER LEEDOM, dissenting :
Unlike my colleagues and essentially for the reasons indicated in
my dissent in Wisconsin Motor, supra, footnote 1, I would find that
the Respondent Union violated Section 8(b) (1) (A) by imposing a
fine on its members for violating its rule against crossing a union
picket line. In that case, it was my view that the imposition of fines
for exceeding union-imposed production quotas fell within the ambit
of Section 8(b) (1) (A) and, further, that the proviso to that section
was inapplicable because the union rule, instead of relating to the ac-
quisition and retention of membership, affected members in their em-
ployment relationship. The violation seems more patent here. Thus,
the rule itself contravenes a right guaranteed by Section 7 of the Act,
namely, the right to refrain from engaging in concerted activities, in-
cluding strike activity. Further, the impact on the employment re-
lationship is greater here since the imposition of the fine for disre-
garding the rule was calculated to preclude entirely, rather than
partly, the gainful employment of members who were willing to
work.
I find my colleagues' position herein difficult to understand in light
of the views they expressed in the Skura cases which was decided
after the Wisconsin Motor case. In Skura, they said that a rule re-
quiring a member to exhaust his internal union remedies before filing
charges with the Board is not ". . . within the competence of the
union to adopt and enforce." They held, therefore, that imposition
of a fine on a union member for violation of that rule constituted re-
straint and coercion in violation of Section 8(b) (1) (A) and that
such conduct is not immunized from our processes by the proviso to
that Section.
6 This apparently was the view of Senator Taft in the debates leading to adoption of
8(b) (1) (A). He observed that the acceptable ( to him ) alternatives were "either an open
shop or an open union " and that 8 (b)(1)(A) "decreed an open union ." He stated that
the section permits a union to expel a member for whatever reason seems valid to it, and
prohibits only an attempt by the union to have the employer discharge the employee or
otherwise act against him. 93 Cong. Rec . 8088. If a union must (as the Act requires)
admit to membership employees who tender dues and initiation fees , or forgo the right
under 8 ( a) (3) to limit employment to members , it would seem that the right to engage in
"concerted" activity would almost necessarily include the power to discipline the member-
ship toward maintaining the "concert."
6 Supra, footnote 2. 1 concurred in that case , separately.
LOCAL 248, UNITED AUTOMOBILE, AEROSPACE , ETC. 73
If, as the Board has found , there was a violation in Skura then,
surely it seems to me, there is a violation here. Just as in Skura, it is
here beyond the competence of a union to promulgate and, by coercive
means, to enforce a rule prohibiting members from crossing a picket
line, as the right to cross a picket line is encompassed by the guar-
anteed right to refrain from engaging in union or concerted activi-
ties. To hold otherwise is to permit a union to deprive employees of
a right guaranteed to them by the Act-the very thing the Board
frowned upon in Skura.
Yet, my colleagues of the majority revert again to the reasoning of
the Wisconsin Motor case and find no violation because, in their view,
the fined individuals are affected only in their status as members and
not as employees . I think it will come as a surprise to the affected
individual when he is told that a union fine designed to induce him
to respect picket lines and stay away from his job does not touch him
as an employee , but only as a union member . One of the indispensa-
ble factors in any employment relationship is the employee 's willing-
ness to come to work. It seems undeniable that such willingness is
impeded by any penalty imposed because of it. Therefore , just as I
could not agree that the production quotas or earnings ceilings which
were involved in Wisconsin Motor did not concern "employment," I
cannot agree here that the question of crossing a picket line does not
concern "employment."
As we are all agreed that the imposition of fines constitutes a form
of coercion , and as there should be no disagreement with the proposi-
tion, stated above, that the right to cross a picket line is protected by
Section 7 of the Act, it follows that imposition of a fine for the pur-
pose of coercing employees to refrain from crossing a picket line vio-
lates Section 8(b) (1) (A ). The fact that the Union has adopted a
rule on this matter cannot insulate unlawful conduct here, any more
than it could in Skura. By their decision here, as well as their de-
cision in Wisconsin Motor, my colleagues seem to say that some pro-
tected activities are not protected from the coercion of a union fine.7
7In its brief and in oral argument before the Board , the AFL-CIO, as amicus curiae,
argues in substance that union disciplinary proceedings , including fines , are not regulated
as such by the National Labor Relations Act but rather by the Landrum-Griffin Act and by
State law . I concur in this position insofar as it implies that there should be a single rule
for union fines infringing upon protected activities , i.e., they are either all unfair labor
practices or are all outside the ambit of the Act In this connection , I think it significant
the majority , by distinguishing between the fines involved in Skura and Wellman-Lord on
the one hand , and the fines in Wisconsin Motor and this case on the other , has rejected
the clear implications of this argument by antic-us . However, I disagree with amicus
that the fact that union fines may be unlawful under other statutory enactments deprives
the Board of authority to find that such fines are unfair labor practices . Thus, to take
an obvious example, union violence on a picket line may give rise to State civil and
criminal proceedings , and yet, it is well-established that such conduct is also an unfair
labor practice under Section 8(b) (1) (A)
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I see no warrant for distinguishing in this respect between various
kinds of protected activities, and I must therefore dissent.8
8 Msnncapoliti Star and Tribune Co., 109 NLRB 727, relied on by the majority, is in my
opinion of doubtful precedential value. I did not participate therein, nor have I ever
subscribed to the principle stated therein. In that case the Trial Examiner rather sum-
marily rejected the General Counsel's contention that the imposition of a fine violated
Section 8(b) (1) (A), and the Board was equally summary in affirming him, citing
only International Tiupographical baron, et al (American Newspaper Publishers Associa.
tion ), 86 NLRB 951, 955-957. That cited case, however, despite some broad language,
dealt only with the right of a union to threaten expulsion, and was decided on the ground
that in view of the proviso such a threat could not be considered as "coercion " In my
opinion the Wisconsin Motor case is the first ease in which the Board has fully considered
the applicability of' the proviso to union lines As I stated in Wisconsin Motor and re-
iterate here, I think it was wrongly decided.
TRIAL EXAMINER'S DECISION
This case was heard upon the amended complaint' of the General Counsel of the
National Labor Relations Board , herein called the Board, alleging that Local 248,
UAW, herein called Respondent 248, Local 401, UAW, herein called Respondent
401, had engaged in and were engaging in unfair labor practices within the mean-
ing of Section 8(b)(1)(A) of the National Labor Relations Act, herein called the
Act. Respondents ' answer to the amended complaint admitted some of its allega-
tions and denied others; in effect, it denied the commission of any unfair labor
practices . Pursuant to notice , a hearing was held before Trial Examiner Harold
X. Summers , at Milwaukee , Wisconsin , on June 11 , 1963. All parties were afforded
full opportunity to examine and cross -examine witnesses , to argue orally, and to
submit briefs. Briefs filed by the General Counsel , Respondents , and the Charging
Party, and a "reply brief" filed by Respondents , have been fully considered.
Upon the entire record in the case,' I make the following:
FINDINGS OF FACT'
1. COMMERCE
The Charging Party, Allis-Chalmers Manufacturing Company, herein called the
Employer, is a Delaware corporation , with its principal office and place of business
at West Allis, Wisconsin . Engaged in the manufacture , sale, and distribution of
basic industrial equipment , farm and construction machinery , electrical equipment,
food processing machinery , and related products, it operates plants and facilities in
the States of Alabama , California , Illinois, Indiana, Iowa, Massachusetts , Missouri,
Ohio, Pennsylvania , and Wisconsin , among them plants at West Allis and La Crosse,
Wisconsin ( hereinafter called the West Allis Works and the La Crosse Works,
respectively).
During each of the calendar years 1961 and 1962 , representative periods, the
Employer, in the course and conduct of its business operations at the West Allis
Works and the La Crosse Works, purchased and received directly from points out-
side the State of Wisconsin supplies and materials valued in excess of $500,000;
and sold and shipped directly to points outside the State of Wisconsin finished
products valued in excess of $ 500,000.
i The original charge In Cases Nos . 13-GCB-1066 was filed on May 31 , 1961 ; in 13-CB-
1222, on May 22, 1962: and in 13-CB-1408 ( then numbered 18-CB-177) on May 22, 1962.
An order of consolidation of 13-CB-1222 and 13-CB-1408, a complaint , and a notice of
hearing were issued on April 12, 1963 ; and an order of further consolidation of all three
cases. an s niended complaint , and a new notice of hearing were issued on May 15, 1963
2 The caption of the case Is here corrected to reflect the full name of the International
Union, which will hereinafter be referred to as UAW
a On September 1'i, 1963 , 1 issued an order to show cause why the transcript should not
be corrected In specified respects No good cause to the contrary having been shown, the
corrections indicated in the order to show cause , which is received in evidence as Trial
Examiner's Exhibit No. 1, are hereby ordered made
i No witnesses were offered All testimony was presented in the form of stipulations by
the parties , supported or explained by documentary material . The findings recited herein,
therefore , are based upon the pleadings and the stipulations.
LOCAL 248, UNITED AUTOMOBILE, AEROSPACE, ETC. 75
The Employer is an employer engaged in commerce within the meaning of the
Act.
II. THE UNIONS
Respondent 248 and Respondent 401 are labor organizations within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and chronology of events
At all times material herein, Respondent 248 and Respondent 401 have been the
-exclusive bargaining representatives of appropriate bargaining units-composed,
generally speaking, of nonsupervisory production and maintenance employees-at
the West Allis Work and La Crosse Works respectively. The working conditions
of each unit have been governed by separate collective-bargaining contracts between
the Employer and the respective bargaining representatives, which contracts have
contained union-shop clauses. For the purposes of this case, it has been stipulated,
and I find, that all employees who had completed their periods of probation were
members of Respondent 248 or Respondent 401, whichever was appropriate.'
At the termination of the 1955-58 contract at the West Allis Works, Respondent
248 engaged in an economic strike in support of new contract demands, which
strike lasted from February 2 through April 20, 1959. During the strike, the Em-
ployer attempted to operate the plant, and approximately 175 employees-of a unit
of 7,400-worked on one or more days during the strike despite the presence of
the picket line.
On or about February 24, 1959, Respondent 248 sent a letter to each member
who, according to its information, had crossed the picket line to work at the West
Allis plant, calling his attention to the fact that his action was in violation of the
constitution and bylaws of the UAW and the Local, constituted conduct unbecom-
ing a union member, and subjected him to a fine of up to $100 for each such day's
activity; and it expressed the hope that the addressee would desist from the con-
duct complained of. Between February 2 and June 30, 1959, formal charges were
filed with Respondent 248 against those who had worked during the strike, alleging
that, by their actions, they had engaged in conduct unbecoming a union member, in
violation of the UAW constitution. Due notice having been served upon the charged
members, hearings on the charges were conducted by Trial Committees between
July 7 and August 19, 1959.' Reports by the Trial Committees, finding 172' mem-
bers guilty of conduct unbecoming a union member and assessing fines of from $20
to $100, were approved by the Local membership on September 19, 1959. By
letter dated September 18, 1959, Respondent 248 made a demand upon each fined
member for payment of his fine; on October 6, 1960, it reminded each fined mem-
ber of the obligation, notified him of the outcome of a Wisconsin Supreme Court
case on the subject of union fines, and again asked for payment; on April 21, 1961,
it notified each fined member of the action of the United States Supreme Court with
respect to the Wisconsin case above mentioned and warned that a continued failure
to pay the fine owed would result in the case being turned over to counsel "for civil
suit."
Meanwhile, a similar situation existed at the La Crosse Works. Respondent 401,
the bargaining agent there, engaged in an economic strike over the terms of a new
collective-bargaining contract from February 2 to April 19, 1959. Here again,
certain union members, two in number, chose to cross the picket line and to work
for the Employer during the course of the strike. They, too, were charged with
conduct unbecoming a union member, given a hearing before a Trial Committee,
and pursuant to an approval of the committee report by the Local membership on
July 11, 1959, were fined $100 each.
Respondents subsequently took steps toward collection of the fines by court action.
On or about August 29, 1961, Respondent 248 took a "pilot case" to court. It filed
suit in Milwaukee County Court, Civil Division, against Benjamin Natzke, one of
those at West Allis who had been fined $100. The case came up for hearing in
October 1962, and, on April 26, 1963, the trial court found for the plaintiff. Notice
'In the absence of any contentions to the contrary , I find that all relevant union-
security provisions were lawful.
9 One hundred and fifty-five of the accused were tried by one Trial Committee , seventeen
by another . Apparently, only eight appeared In person, but all were represented by legal
counsel.
7 A summary list of fined members attached to a written stipulation contains the names
of 173 persons . The variance is immaterial In this matter.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of appeal to the Cricuit Court, Milwaukee County, was filed, which appeal, at the
time of this hearing, was pending. Likewise, on or about May 15, 1962, Respon-
dent 401 filed suit against the two La Crosse employees who had been fined. One
of the suits was dropped less than a month later, but the other was still pending at
the time of this hearing'
Meanwhile, history repeated itself in connection with negotiations for new con-
tracts early in 1962. Once again, Respondent 248 engaged in an economic strike,
lasting from February 26 to March 4, 1962; once again, a number of employee-
members-this time, approximately 30 of the 5,500 then employed in the West Allis
unit-worked on one or more days during the strike; once again, beginning on
April 11, 1962, there were "warning" letters, the filing of charges of conduct un-
becoming a union member, a trial,' and-pursuant to a Local membership vote on
August 5, 1962-the assessment of fines against 29 members, 6 of whom had been
fined in 1959." At the La Crosse Works, there was a strike from February 26 to
March 5, 1962; 4 members-out of 625-crossed the picket line; charges were
filed during the month of March; and the report of the Trial Committee, fining each
of the four $100, was approved by the Local membership on June 7, 1962.
As of the date of this hearing, 20 of the members fined by Respondent 248 had
paid all or part of the fines assessed against them; the rest, plus all 6 members fined
by Respondent 401, had made no payments.
During the entire relevant period, the members who were fined in either 1959 or
1962 continued to be employed by the Employer in one or the other of the bargain-
ing units involved herein; neither Respondent made demands on the Employer to
discharge or otherwise to affect the employment status of any of them. None of
them has been dropped from membership in one or the other of Respondent Locals,
and none of them has resigned or otherwise terminated his union membership
except, perhaps, in connection with a termination of employment or for other rea-
sons irrelevant hereto.
B. Discussion and conclusions
The amended complaint alleges that Respondents' actions in imposing fines upon
employees because they worked for the Employer during the 1959 and 1962 strikes,
in demanding payment of such fines, and in threatening the institution of and in-
stituting civil proceedings for the collection thereof constituted violations of Section
8 (b) (1) (A) of the Act." Respondents deny that their conduct is violative of the
section."
Section 8 (b) (1) (A) provides:
It shall be an unfair labor practice for a labor organization or its agents ... to
restrain or coerce . . . employees in the exercise of their rights guaranteed in
Section 7, provided, that this paragraph shall not impair the right of a labor
organization to prescribed its own rules with respect to the acquisition or re-
tention of membership therein; .. .
8 Reasons are unspecified herein
0 INght accused members appeared In person Two of the eight represented themselves
the rest, including those who did not appear, were represented by legal counsel
10 In addition, the charges against one person were dismissed for lack of proof ; those
against two were "stricken" because the two were not union members The 29 were fined
from $35 to $100 each ; with respect to 6 of these, there were provisions for remission of
part or all of the fines conditioned upon certain required attendance at future local
meetings
11 With respect to Respondent 401, the allegations of the complaint were confined to
developments au•Ising out of the 1962 strike only.
12 Respondents, in argument and briefs, interpose a number of defenses above and be-
yond the merits of the case: (1) Because of procedural delays herein, the General Counsel
is barred by Inches from proceeding on Case No. 13-CB-1066; (2) proceedings with re-
spect to any conduct arising out of the 1959 strike are barred by the 6-month limitation
contained In Section 10(c) ; and (3) the Board should not proceed in view of provisions
in the contracts creating a collective-bargaining forum for disposing of these matters.
These defenses are rejected. (1) Laches does not apply against the United States Govern-
ment (IV. C. Nabors d/b/a W. C. Nabors Company, 134 NLRB 1078, 1079, enf. 323 F. 2d
686 (C A. 5)) ; (2) where, as here, implementing action Is taken within the 6-month
period, Section 10(c) does not bar the proceeding (cf. Bryan Manufacturing Co., 362
U S. 411) ; and (3) the Board's authority to remedy unfair labor practices is paramount
to other available means of adjustment (see Section 10(a) of the Act).
LOCAL 248, UNITED AUTOMOBILE, AEROSPACE, ETC. 77
In the recently issued Wisconsin Motor case," the Board comprehensively dis-
cussed the applicability of Section 8(b)(1)(A) to the imposition of union fines on
members for infraction of union rules. The Board concluded that, even if the
reach of 8(b) (1) (A) might-as contended by General Counsel in that case14-
conceivably go beyond "union organizational tactics tinged with violence, duress, or
reprisal," " it was "nonetheless evident that internal union disciplines were not
among the restraints intended to be encompassed by the Section." Thereupon, a
Board majority approved the Trial Examiner's determination that the actions com-
plained of in the case-a union's assessment of fines against members who had
violated a union rule relating to "ceilings" on production for an employer and its
institution of lawsuits to recover the amounts of such fines-were not the kinds of
activity with which Section 8(b)(1)(A) is concerned. I am convinced, and I find,
that there is no relevant difference between a union's action directed against mem-
bers who violate a union rule against crossing their own picket line and action
directed against members who produce more than a specified amount; if anything,
it would appear that the former is more justified than the latter.
Furthermore, in the Wisconsin Motor case above referred to, the Board noted
that, even if the acts there complained of were the type of restraint or coercion
within the ambit of the section, they were protected by its proviso. In the Board's
view, the allusion to "rules with respect to the acquisition or retention of member-
ship" should not be so narrowly construed as 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 to enforce payment of a fine by explusion but not by a suit for
collection. Whatever the views of others," the history of the passage of Section
8(b) (1) (A) demonstrated to the Board that Congress was more concerned with
placing restrictions on a union's right to expel than to fine members.
Finally (in the same decision). the Board took note that Congress, aware of the
Board's treatment of Section 8 (b) (1) (A) vis-a-vis unions' internal affairs, did not
thereafter indicate that a broader interpretation was intended or desired. Rather;
in 1959, it enacted a fairly comprehensive code governing certain of the internal
affairs of labor organizations, jurisdiction to enforce which was placed with the
Federal courts, not the Board.
The instant situation is governed by the Wisconsin Motor case. Its only distinc-
tion-there, the fine was for exceeding production ceilings; here, it was for cross-
ing a union-authorized picket line-is one without a difference. Both cases involve
the infraction of an internal union rule; in both cases, the union rule "relates to" a
condition of employment; in neither case is there an attempt to bring about a
termination of an employment relationship. In this connection, the General Coun-
sel and Employer urge that employment was here involved, and that, therefore, the
matter goes beyond "internal union affairs." A like argument was made in Wis-
consin Motor by the dissenting Board Member; the answer is that given therein by
the majority:
Our dissenting colleague argues forcefully that the proviso to Section 8(b)
(1) (A) permits the imposition of union rules on employees as union mem-
bers, but does not apply to the enforcement of rules against employees as
employees . Proceeding from this premise , the dissenting opinion then finds
that the subjects of production and wages are "matter clearly related to employ-
ment, and not to membership ." But the conclusion does not follow the
distinction. Obviously, production and wages are related to jobs. Jobs are
related to employees and employees may, if they so desire, be union members.
A union rule that a member is subject to a fine if he exceeds a production
ceiling does not mean that he is subject to such a fine as an employee. Nor
does it mean that his employment status is affected so long as the Union does
not attempt to exact payment of the fine by pressure on his employer or dis-
crimination in his job opportunities.
It should not need saying that unions exist for the purpose of collective
bargaining with respect to wages, hours, and conditions of employment.
"Local 283, United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-AFL-C10 (Wisconsin Motor Corporation), 145 NLRB 1099.
14 Citing International Ladies' (Garment Workers' Union v. N.L.R.B. (Bernhard-Altmann),
3G2 U.S. 731, 738.
15 Quoted from N.L.R B. v. Drivers, Chauffeurs, and Helpers, Local 639, etc (Curtis
Brothe)s), 362 U.S 279, 286.
10 Respondents herein, it is urged by the General Counsel and Employer, regarded the
imposition and collection of fines as a more potent weapon than expulsion.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Necessarily, their constitutions reflect this basic purpose. In a sense , virtually
all union rules affect a union member's employment.
But the Board has not been empowered by Congress to police a union de-
cision that a member is or is not in good standing or to pass judgment on the
penalties a union may impose on a member so long as the penalty does not
impair the member's status as an employee. Our dissenting colleague's view
should require the Board to sit in judgment on union standards of conduct for
its members even though such standards are not enforced by threats affecting
the member's job tenure or job opportunities. Whether or not the Union's
rule in this case is desirable or equitable is a matter we need not and do not
decide. It is sufficient, in our view, that the Union deliberately restricted the
enforcement of its rule to an area involving the status of a member as a
member rather than as an employee.
I find, in short, that the General Counsel has failed to demonstrate by a pre-
ponderance of the evidence that (1) Respondents restrained or coerced employees,
in the exercise of their rights guaranteed in Section 7 within the meaning of Section
8(b)(1)(A), and (2) assuming , without finding, that such restraint or coercion
existed, that they were not protected in their right to prescribe their own internal
rules.
Upon the basis of the foregoing factual findings and conclusions, I come to the
following:
CONCLUSIONS OF LAW
1. Respondent 248 and . Respondent 401 are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. The Employer is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Neither Respondent 248 nor Respondent .401 has engaged in or is engaging in
unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record of the case, I recommend that the amended complaint be
dismissed in its entirety.
Operative Plasterers ' and Cement Masons' International Asso -
ciation of United States and Canada Local 526, AFL-CIO;
International Union of Operating Engineers , Local 66, AFL-
CIO; Bricklayers , Masons and Plasterers' International Union
of America , Bricklayers , Masons and Cement Finishers Local
No. 62 , AFL-CIO ; International Hod Carriers ', Building and
Common Laborers ' Union of America , Local No. 323, AFL-CIO;
United Association of Journeymen and Apprentices of the,
Plumbing and Pipe Fitting Industry of the United States and
Canada, Local Union No. 356 , AFL-CIO ; United Brotherhood
of Carpenters and Joiners of America , Local 500, AFL-CIO
Building and Construction Trades Council of Butler and
Butler County, Pennsylvania and National Storage Company,
Inc., and Walters & Haas, Inc. Cases Nos. 6-CD-153 and 6-CD-
154-1,0,3,4,5,7, and 8. October 23, 1964
DECISION AND ORDER QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the Act following
charges filed by National Storage Company, Inc., and Walters &
149 NLRB No. 11.