Local 488, Automobile Workers

National Labor Relations Board - Board Decisions

Oct 6, 1970

185 N.L.R.B. 890 (N.L.R.B. 1970)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 488 , International Union United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW) and Edward J. Hohmann. Case
7-CB-1712
October 6, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On August 20, 1968, Trial Examiner William Seagle
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in any
unfair labor practices in violation of the National
Labor Relations Act, as amended, as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Decision
and a supporting brief, and Respondent Union filed
a brief. A Statement of Position was filed jointly
by the AFL-CIO, 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 rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as herein modified.
Only two issues are involved in the present case.
The first is whether a $100 fine imposed on union
member Hohmann by Respondent Union because he
crossed Respondent Union's picket line on one occa-
sion was, under the circumstances of the case, violative
of Section 8(b)(1)(A) of the Act. The second is whether
Respondent Union, by sending Hohmann a letter
on January 23, 1968, in which he was advised that
the fine was to be paid by February 25, 1968, and
referring him to certain sections of the Union's Inter-
national Constitution relating to the consequences
of the failure to pay the fine within the specified
time, threatened Hohmann with discharge in violation
of Section 8(b)(1)(A) of the Act.
As to the first issue , the General Counsel admits
that the Supreme Court in Allis-Chalmers,' stated
' N.L.R.B. v. Allis-Chalmers M g. Co., 388 U.S. 175
that a labor organization may fine members who
crossed its picket line in a legal strike and that
it may bring suit to collect such fines. The General
Counsel, argues however, that an unreasonably large
fine extends beyond the mere administration of the
union's internal affairs, and amounts to restraint and
coercion of employees' Section 7 rights.
A majority of the Board held in the recent case
of Arrow Development Co., 185 NLRB No. 22, that
the reasonableness of the fine imposed on a union
member for his failure to honor his union's picket
line during a strike is not relevant to a determination
of whether Section 8(b)(1)(A) of the Act has been
violated. Moreover, the majority of the Board conclud-
ed that determination of the reasonableness of the
amount of union fines of its members is properly
within the power of the courts where the unions
file suit to collect and that such considerations "are
of an equitable nature rather than of a character
of restraint and coercion with which the National
Labor Relations Act treats."
Regarding the second issue, we agree with the
Trial Examiner, for the reasons stated in his Decision,
that the Respondent's letter of January 23, 1968,
to Hohmann, did not constitute a threat of discharge
in violation of Section 8(b)(1)(A) of the Act.
Accordingly, we shall dismiss the complaint in
its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts the recommendation of the Trial
Examiner, and hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: Upon a charge filed
on February 20, 1968, and a complaint issued on June
14, 1968, alleging violations of Section 8(b)(1)(A) of the
Act, I heard this case at Kalamazoo, Michigan, on July
16, 1968.
Subsequent to the hearing counsel for the respondent
filed a brief with the Trial Examiner.'
Upon the record so made, and in view of my observation
of the demeanor of the witnesses, I hereby make the follow-
ing findings of fact:
' Under date of July 24, 1968, counsel for the respondent moved
to correct the transcript of the hearing in several respects . The motion
is granted.
185 NLRB No. 126
LOCAL 488, AUTOMOBILE WORKERS 891
I THE EMPLOYER INVOLVED
General Motors Corporation, hereinafter referred to as
General Motors, is, and at all material times has been,
a Delaware corporation, which has maintained offices and
places of business throughout the State of Michigan. The
principal office of the corporation has been located, however,
in the city of Detroit, State of Michigan. The Kalamazoo
plant of the corporation, which is called the Fisher Body
Division, and which is an unincorporated operating division
of the corporation, is the only facility of the corporation
that is involved in the present proceeding
General Motors is engaged in the manufacture of motor
vehicles and vehicular parts. During the calendar year
1967, which is a representative period, General Motors,
in the course and conduct of its business operations, pur-
chased and caused to be transported and delivered at its
facilities in the State of Michigan, motor vehicle parts
and other goods and materials which were valued in excess
of $1 million, and which were transported and delivered
to its facilities in the State of Michigan, directly from
points located outside the State of Michigan
During the calendar year 1967, General Motors, in the
course and conduct of its business operations, manufactured,
sold and distributed from its facilities located in the State
of Michigan, products which were valued in excess of
$1 million and which were shipped from the said facilities
directly to points located outside the State of Michigan.
The respondent admits that at all material times General
Motors has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act, and
I so find
ii. THE RESPONDENT
Local 488, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW), hereinafter referred to as Local 488, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Circumstances of the Case
On November 17, 1967, there occurred a strike at the
Kalamazoo plant of General Motors, the strike having
been called by Local 488 The strike lasted only 3 days;
i.e , November 17, 18, and 19, 1967. The plant operated
on November 17 but was closed on November 18 and
19. On the one day that the plant was in operation, Edward
J Hohmann, who was employed at the plant as a toolroom
machinist , and who was then a member in good standing
of Local 488 , crossed the picket line established by the
union , and went to work He worked the whole day,
and received $ 36.02 in gross wages.
In reporting for work , Hohmann normally used Gate
5 but on November 17, he was prevented from gaining
entrance to the plant through that gate. He then tried
Gate 2 , the salaried gate, and succeeded in gaining entrance
to the plant . His success was due, apparently, to the fact
that he drove through the gate at an excessive rate of
speed in his pickup truck. The speed limit was 15 miles
an hour but Hohmann drove at a speed estimated to
be between 25 and 30 miles an hour.
On November 27, 1967, written charges that he had
crossed the union's picket line on November 17 were filed
by members of the union against Hohmann. On November
28, 1967, John E Lightner, president of Local 488, notified
Hohmann that the charges had been filed, and that a
special membership meeting would be held at the union
hall at 2 p.m , on December 10, 1967, for the purpose
of selecting a trial committee On December 15, 1967,
Hohmann was notified of the date of his trial, and the
trial itself took place on January 8, 1968. On January
9, 1968, Hohmann was advised of the results of the trial
in the following letter sent to him by Frank L. Van Devegaet,
the chairman of the trial committee:
This is to advise you that your trial was held on
January 8, 1968, at 4.00 p.m., at the Local Union
Hall, 3631 East Kilgore Road, Kalamazoo, Michigan,
as per you notification, however, since you did not
attend, this is your notification of the results
Verdict -Guilty
Penalty -$100 00 fine-to be paid
within thirty days (30)
of Membership Action.
Suspension -Automatic one year (1)
suspension from all or any
Union activities. Dues
remain payable as per
International Constitution
and applicable laws )
This action is to be voted on by Membership at
the Membership Meeting on January 21, 1968. In
order for you to take any action, on your part, at
the Local level, it will be necessary for you to attend
and so (sic) so at that time-January 21, 1968.
At the general membership meeting held on January
21, 1968, the recommendations of the trial committee with
respect to Hohmann were approved by the membership
of the union, and on January 23, 1968, Charles R. Thomas,
recording secretary of Local 488, advised Hohmann of
the results of the membership meeting in the following
letter:
At the general membership meeting, January 21,
1968, the recommendations of the trial committee were
acted on by the membership present at the meeting.
You received a letter, dated January 9, 1968, giving
you the results of the trial committee findings and
recommendations. The Membership agreed with the
trial committee unanimously, by secret ballot.
You will have until February 25, 1968, to pay the
fine of $10000 Please read Section 10, item (b) of
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article 30 of the International Constitution2 and Section
12 of Article 30, lines 21, 22, and 23.'
In the contract between General Motors and Local 488
that was in effect prior to the strike of November 17,
1967, and also in the contract that was negotiated with
General Motors after the termination of the strike, there
was in effect a union security clause under the terms
of which employees were required to remain or become
members of the union to the extent of paying initiation
fees and membership dues.
All the procedural steps taken in connection with the
trial of Hohmann and the assessment of the $100 fine
against him were taken in full conformity with the provisions
of the constitution and bylaws of Local 488 and of the
International union. Thus, he was advised of the nature
of the charges against him and of the date of the trial
and of the date of the membership meeting that affirmed
the findings of the trial committee, which was also selected
in full conformity with the constitution and bylaws of
the local and of the International. Hohmann did not appear
at the trial or at the membership meeting, nor did he
contest the proceedings against him in any other way.
Hohmann ignored the proceedings because he was of the
opinion that the union's trial committee was a kangaroo
court that had no jurisdiction over him. Instead of taking
any appeal from its findings he filed charges with the
Board.
B. Concluding Findings
There are two issues in the present case. The first is
whether the $100 fine imposed on Hohmann by the union
because he crossed the picket line on November 17 was,
under the circumstances of the case, unreasonable. The
second is whether Local 488 by sending Hohmann the
letter of January 23, 1968, in which he was not only
advised of the amount of the fine assessed against but
also of the possible consequences, under the terms of the
International Constitution, of his failure to pay the fine.
It is established by N.L.R.B. v. Allis-Chalmers Manufac-
turing Co., 388 U S 175, that a labor organization does
not violate Section 8(b)(1)(A) of the Act by fining members
who cross its picket line in a legal strike, and that it
' This provision readg "It (the trial committee) may, by a two-thirds
(2/3) vote, assess a fine not to exceed one hundred ($100 00-with automat-
ic suspension, removal from office or expulsion in the event of the
failure of the accused to pay the fine within a specified time
' The whole of Sec 12, including 1. 21, 22, and 23, which are in
italics, reads : "A member who is under suspension from membership
including a temporary suspension, shall be required to pay all dues
during the period of suspension Suspended members shall not be entitled
to "Out-of-Work" credits In the case ofa plant in which union membership
is a condition of employment, suspension from membership, including
temporary suspension, shall not require removal from the job, provided
that in cases of extreme emergency , removal from the job may be
required by a two-thirds (2 / 3) vote of the Local Union or unit membership
suspending the member or approving his suspension In the case of
a plant in which Union membership is a condition of employment, expulsion
from membership shall require removal from the job Application of
this Section shall in all cases, however, be limited by applicable state or
federal laws, and no provision of this section shall be applied in any situation
where the application would violate any controlling state or federal law"
(emphasis supplied)
may enforce collection of such fines either by expulsion
from membership or by suit in court' The court also
upheld the reasonableness of the fines in this case which
were in amounts from $20 to $ 100, which is the amount
of the fine imposed on the Charging Party in the present
case.
The report of the Allis-Chalmers case before the Boards
shows the circumstances under which the fines were
imposed In 1959, there was a strike at the West Allis
plant of Allis-Chalmers called by Local 248 of theVAW and
a strike at the La Crosse plant called by Local 401 of the
UAW. The strikes lasted from February 2, 1959 to
approximately April 20, 1959. During the strike at West
Allis, approximately 175 out of a total of 7,400 unit
employees , crossed the picket line and worked , and 174 of
them were fined. During the strike at La Crosse , only two
employees crossed the picket line to work . In 1962, the two
locals again called strikes at the West Allis and La Crosse
plants of Allis- Chalmers . These strikes in 1962 lasted from
February 26, to approximately March 5. Again some
members of the locals crossed the picket lines to work, 30
out of 5,500 at West Allis and 4 out of 625 at La Crosse,
and again after appropriate union proceedings fines were
imposed . It is also stated in the Board ' s decision in Allis-
Chalmers : "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 continued 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 record in the present case supplies some additional
information concerning the fines involved in the Allis-Chal-
mers case . More than half of those fined after the 1959
strike, who worked at West Allis , were clerical employees
who were paid at a maximum rate of $2.55 an hour,
apart from a night rate differential . The production or
maintenance employees who were fined were paid at an
average rate of $2.94 an hour , apart from the night rate
differential , and the maximum rate at which employees
in these categories were paid was $3 05 an hour. As for
the La Crosse plant, the union member who was fined
$100 after the 1959 strike was paid at the rate of $2.15
an hour , and of the four union members who were fined
$100 after the 1962 strike the highest rate of pay received
by any of them was $2.64 an hour . In setting the fines,
however, no consideration was given to the wage rates
of the offenders . The cases in which only $20 fines were
imposed were those in which extenuating circumstances
were shown , or the offenders promised to mend their ways.
It is apparent that the Charging Party in the present
case, who earned $36 .02, was paid at a higher rate of
pay than those who were fined after the Allis-Chalmers
strikes, nor have any other circumstances been shown which
4 Only one of the fines was enforced by suit in court, the defendant
in this case being Benjamin Natzke, who had been fined $100 See
Local 248, UAW v Natzke, 153 N W 2d 602 (Sp Ct. Wisconsin),66
LRRM 2439 (1967)
' See 149 NLRB 67, 68.
LOCAL 488, AUTOMOBILE WORKERS
would indicate that a lesser fine than $100 should have
been imposed. Indeed, considering the inflation that has
occurred since 1959 and that has depreciated the value
of the dollar, a fine in excess of $100 in 1967 could
readily have been justified. The burden of establishing the
unreasonableness of the fine imposed on Hohmann was
on counsel for the General Counsel, and this burden was
a particularly heavy one in view of the fact that Hohmann
had not contested the fine imposed on him in the union
proceedings. Except for calling the Charging Party as a
witness in rebuttal to deny that he had crossed the picket
line at an excessive rate of speed, counsel for the General
Counsel offered no evidence at all, however, in support
of his case, and whatever evidence there is in the record
bearing on the reasonableness of the fine was offered by
counsel for the respondent. Counsel for the General Counsel
appears to contend that the fine imposed on Hohmann
was unreasonable because it exceeded what he earned on
the day that he crossed the picket line, and because he
only crossed the picket line once.` But the amount of
the fine did not have to be directly related to Hohmann's
earnings,' and he cannot be credited with good intentions
in refraining from crossing the picket line the other 2
days that the strike lasted because the plant was closed
on those 2 days and he could not have worked even
if he had desired to. Indeed, counsel for the General Counsel
comes close to espousing the theory that the $100 fine
imposed on Hohmann was unreasonable per se but this
can hardly be true in a case in which the fine did not
exceed $100. Quite apart from the fact that $100 fines
were upheld as reasonable in the Allis-Chalmers case by
the land's highest tribunal, the Board itself has upheld
a $500 fine that was imposed on a union member who
did not perform picket duty during a strike' I find, therefore,
that the respondent did not violate Section 8(b)(1)(A) by
fining Hohmann $100 for crossing its picket line during
the 1967 strike.
Counsel for the General Counsel does explicitly contend
that the respondent's letter of January 23, 1968, to Hoh-
mann, notifying the latter of the result of the proceedings
against him was a violation per se of Section 8(b)(1)(A)
of the Act. I am also unable to accept this contention.
The complaint is not framed on the theory that Section
The record shows that Benjamin Natzke, who furnished the cause
celebre in the AIlis-Chalmers case, earned less than Hohmann and that he
crossed the picket line only once
In Leeds & Northrup Company v NLR B. 357 F 2d 527 (C.A
3), the court indeed declared in one of its many dicta that "to equate
union fines with total wages earned by a nonstriking employee is the
grossest form of economic coercion effecting not only union membership
status but also the relationship between the employee and his employer
in violation of the Act "
See Minneapolis Star and Tribune Company, 109 NLRB 727, 729,
cited by the Board in the Allis-Chalmers case
893
8(b)(1)(A) of the Act was violated by the expulsion of
Hohmann from the union and the making of any demand
by the respondent on General Motors that would have
affected his employment relationship. He appears to have
been suspended and not expelled, and he appears to be
working for General Motors today. The whole contention
of the General Counsel on this aspect of the case would
appear to be that the mere sending of the letter constituted
a threat in violation of Section 8(b)(1)(A). But I cannot
read section 12 of article 30 of the International Constitution,
which is a rather bad example of turgid prose, as threatening
Hohmann's removal from his job. In the case of suspension
from membership, as opposed to expulsion from member-
ship, removal from the job is not threatened, except "in
cases of extreme emergency" (whatever that may mean)
and no such extreme emergency is shown to have existed
in the present case. But, if there is any taint in this
constitutional provision, it would seem to have been reme-
died by the further provision that any action that may
be taken by the union shall "be limited by applicable
state or federal laws, and no provision of this section
shall be applied in any situation where the application
would violate any controlling state or federal law."°
CONCLUSIONS OF LAW
1. The respondent, Local 488, International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UAW), is a labor organization within
the meaning of Section 2(5) of the Act.
2. General Motors Corporation is an employer engaged
in commerce or whose activities affect commerce, within
the meaning of Section 2(2), (6), and (7) of the Act.
3. By imposing a fine of $100 on Edward J. Hohmann
for crossing its picket line at the Kalamazoo plant of
General Motors Corporation on November 17, 1967, while
a legal strike was in effect at the said plant, and by
notifying the said Edward J Hohmann on January 23,
1968, of the consequences of his failure to pay the said
fine, the respondent did not restrain or coerce the said
Edward J. Hohmann in the exercise of any of the rights
guaranteed to him in Section 7 of the Act, and did not,
therefore, commit any unfair labor practice affecting com-
merce within the meaning of Section 8(b)(1)(A) of the
Act.
In view of my findings of fact and conclusions of law,
I recommend that an order be entered dismissing the com-
plaint.
9 See N L R B v News Syndicate Co . Inc 365 U S 695, 700 See also
American Federation of Television & Radio Artists, etc , 155 NLRB 479