Milwaukee Printing Pressmen No. 7Download PDFNational Labor Relations Board - Board DecisionsAug 23, 1971192 N.L.R.B. 914 (N.L.R.B. 1971) Copy Citation 914 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD Milwaukee Printing Pressmen & Assistants Union-No. 7, affiliated with the International Printing Press- men & Assistants Union of North America and North Shore Publishing ` Company. Case 30-CB-288 August 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 27,' 1970, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding , finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom , and take certain affirmative action , as set forth in the attached Trial Examiner's' Decision . Thereafter , the General Counsel filed exceptions to the Decision and a supporting brief. 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- memberLpanel.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions and, brief of the General Counsel, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 7 of the Trial Examiner , as modi- fied hereafter. The Trial Examiner found that the $700 fine the Respondent imposed on 'Robert Schneider for crossing its picket line at North Shore Publishing Company during a strike in April 1969 was excessive and unreasonable. However, he further concluded that the reduced fine of $150 was not excessive in these circumstances. Contrary to the findings of the Trial Examiner, we find it unnecessary to determine whether or not either fine imposed on Schneider was excessive, We have recently concluded that the Act does not authorize the Board to determine the fairness of union discipline, such as the reasonable- ness of fines of its members in such circumstances .2 Accordingly, we shall dismiss that allegation of the complaint. 1 With respect to the imposition of a fine on Daniel Thompson, see International Brotherhood of Electrical Workers, AFL -CIO (Illinois Bell Telephone Company), 192 NLRB No. 17, and cases cited therein. 2 International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 504 (Arrow Development Co.), 185 NLRB No. CONCLUSIONS OF LAW 1. By imposing , a fine on Daniel Thompson, a .pressroom foreman, Respondent ' restrained and coerced - North Shore Publishing Company in -the selection of its representatives for,the adjustment of grievances, and thereby 'engaged in unfair labor practices within the meaning of Section . 8(b)(1)(B) of the Act. 2. By fining Robert Schneider for, crossing its picket line at North Shore Publishing . Company and working during the strike , the Respondent did not engage in unfair labor practices within the meaning of Section 8(b)(1)(A). 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy _ Having found that,, the Respondent engaged in certain unfair labor practices we shall order that it cease and desist therefrom and that it take certain affirmative action as specified , below, which we find to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. We shall order that Respondent revoke and rescind the fines imposed on Daniel - Thompson, that it give written notice of such action to Thompson and that it refund to Thompson the $50 fine which he paid'on January 2, 1970, together with 6 percent interest from that date. We shall also order that Respondent not only post the ' notice to members, 'attached as an appendix hereto but that it provide additional signed copies for posting , by North Shore Publishing Company (it being willing) and that an officer of Respondent read said notice at two consecutive meetings of the assembled membership.3 ORDER Milwaukee Printing Pressmen and Assistants Un- ion No. 7, affiliated with the International Printing Pressmen & Assistants Union of North'America, its officers , agents , and representatives, shall: 1. Cease and desist from in any manner restrain- ing or coercing North Shore Publishing Company in the selection of representatives - chosen 'by'it for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action: (a) Expunge all records or other evidence in their 22. 3 The latter action is considered necessary to dissipate the coercive effect of the unfair labor practices on Respondent's membership which ratified and approved , in regular meetings , both the original assessment and the later reductions in the fine. 192 NLRB No. 122 MILWAUKEE PRINTING PRESSMEN NO. 7 915 files of Respondent Union's proceedings in which Daniel Thompson was -fined by Respondent Union. (b) Revoke and rescind the fines imposed on Daniel Thompson and give- written notice of such action to Thompson. (c) Refund to Daniel Thompson the $50 fine which he paid on January 2, 1970, together with interest thereon at the rate- of 6 percent per annum. Isis Plumbing & Heating Co., - 138 NLRB 716. (d) Post at its office and meeting places in Milwaukee copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. ,Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Forward signed copies of said, notice to the Regional Director for posting by North Shore Publishing Company, it being willing, at all locations where notices to employees are customarily posted. (f)`Read said notice to its assembled membership at two consecutive regular membership meetings. (g).Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it- hereby is, dismissed insofar as it alleges violations of the Act not found herein. ' s- In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board ' shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." - with the International Printing Pressmen Assistants Union of North America. - WE WILL revoke and rescind the fines imposed on Daniel Thompson and give written notice of such action to Thompson. WE WILL refund to Daniel Thompson the $50 fine which he paid on January 2, 1970, together with interest thereon at the rate of 6 percent per annum. WE WILL read this Appendix to our assembled membership at two'consecutive regular member- ship meetings. MILWAUKEE PRINTING PRESSMEN & ASSISTANTS UNION No. 7, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS. UNION OF NORTH AMERICA (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 compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-8600, Extension 3861. TRIAL EXAMINER'S DECISION APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the' United States Government WE WILL NOT in any manner restrain or coerce North Shore Publishing Company in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of griev- ances. WE WILL expunge all records or other evidence in our files of the proceedings in which Daniel Thompson was fined by Milwaukee Printing Pressmen & Assistants Union No. 7, affiliated STATEMENT OP THE CASE GEORGE A. DOWNING, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Milwaukee, Wisconsin, on February 11, 1970. The complaint, which was issued on January 23, 1970, alleged in substance that Respondent violated Section 8(b)(1)(A) and (13) of the Act by imposing a fine against Daniel Thompson, a pressroom foreman with grievance adjustment authority on behalf of the Charging Party, and by imposing an excessive fine against its member Robert Schneider for having crossed Respon- dent's picket line in April 1969. Respondent filed its answer denying the unfair labor practices as alleged; it denied further that Thompson exercised grievance adjust- ment on behalf of the Charging Party (North Shore herein) and denied that it coerced North Shore in the selection of its representatives. Upon the entire record in the case I make the following: 916, DECISIONS OF NATIONAL LABOR RELATIONS BOARD ]FINDINGS OF, FACT 1. THE BUSINESS OF THE EMPLOYER ; RESPONDENT AS A LABOR ORGANIZATION I find on the basis of admitted' allegations of the complaint that the Charging Party is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act,' and that Respondent Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issues This case concerns the legality of disciplinary fines imposed by Respondent Union upon Daniel Thompson and Robert Schneider for having crossed its picket line during a strike in April 1969. In Schneider's case the issue is whether the fine was so unreasonably large as to restrain and coerce employees within the meaning of Section 8(bXl)(A). In Thompson's case the issue is whether the fine operated to restrain or coerce North Shore in the selection of its representatives for the adjustments of grievances within the meaning of Section 8 (b)(1)(B). Though Respon- dent advanced at the hearing subsidiary contentions that Thompson was not a supervisor and that he did not exercise grievance authority on behalf of North Shore, it abandoned both contentions in its brief. B. The Evidence The evidence herein consisted first of stipulated facts and second of undenied testimony concerning Daniel Thompson's supervisory status and his authority to adjust grievances. Respondent and Franklin Association of Milwaukee, of which North Shore was a member, were parties to collective-bargaining contracts, the last of which will expire March 31, 1972. Thompson and Robert Schneider were members of Respondent as required by the contracts. Respondent engaged in a strike against North Shore from April 21 to 27, ,1969, picketing North Shore's premises. Schneider crossed the picket line and worked on April 23, 24, and 25, for a total of 27 hours, receiving gross earnings of $154.73. Thompson crossed the picket line and worked on April 23 for 9-1/2 hours, receiving total earnings of $50.25. On May 16 Respondent summoned Thompson and Schneider before 'a local trial board, charging them with a violation of article 29 of its International constitution. On June 24 Respondent informed them they had been found guilty of crossing the picket line during the strike and had been fined $250 and $700, respectively. On September 9 Respondent's attorney sent letters to Thompson and Schneider demanding payment of those fines. On October 1 North shore, a Wisconsin corporation engaged in the printing and publishing business, purchases and receives annually from extrastate points materials valued in excess of $50,000, and, it performs annually services valued in excess of $50,000 for customers located outside the State of Wisconsin. 2 Though T'hompson's testimony reflected at one point an assumption that he was acting for the men, the evidence as a whole showed that Polka 20 Thompson was informed by Respondent that in ^ it, meeting on October 18 his fine was reassessed in the 'sum of $50, and Schneider was informed on the same-date that his fine was reassessed in the sum of $150. On January 2, 1970, Thompson paid Respondent $50 in satisfaction of, the fine. Schneider has not paid the fine imposed against him. In 'view of the concessions in Respondent's brief it will suffice to find that the undenied testimony of `Thompson and North Shore's president, Eugene F. Polka, plainly established that Thompson, a working foreman in charge of the pressroom, was a supervisor within the meaning of the Act and that his supervisory, functions included the adjustment of grievances as management's representative.2 C.' Concluding Findings 1.' Section 8(b)(I)(B) It is established Board law that fines (or other forms of discipline) imposed by unions against, members who exercise authority to adjust grievances on behalf of the employer violate Section 8(b)(1)(B). See, e.g., San `Francis- co-Oakland Mailers Union No. 18 (Northwest Publications Inc.), 172 NLRB No. 252; Toledo Locals Nos.15P and 272 (The Toledo Blade Company Inc.), 175 NLRB No. 173; Sheetmetal Workers International Association,- Local 49 (General Metal Products Inc.),-178 NLRB No,. 24.uBasic to those findings, is the principle that "an employer must =be free of pressure in choosing his representatives .for collective bargaining.", Portland Stereotypers,,'etc. (Journal Publishing'Co.), 137 NLRB' 782, 787; cf.' International Typographical Union (Haverhill Gazette) v. -N.L:RB., 270 F.2d 7, affd,. 365 U.S. 705. ' As the Board has noted, the firing or other disciplining' of a management representative, will-have an inhibiting eff ect on his future conduct as a supervisor and representative of the employer and will accordingly restrain , the employer from retaining him as its representative. Such disciplinary measures will also be , a clear signal to other foremen, who under the established practice are members'of the Union, that they would' be 'subject to similar discipline if they administer the contract or dispose of grievances in a manner displeasing to the union. Thus the effect of the disciplinary action is to restrain and coerce the employer within the meaning of Section 8(bx1XB) by limiting its "right at any time to make and rely upon a selection of representatives from an'uncoerced group of such supervi- sors whose loyalty to [it] has not been prejudiced." Dallas Mailers' Union etc. (Dow Jones Company, Inc,), 181 NLRB No. 49, quoting from Toledo Blade Company,, supra. I therefore conclude and find that, by imposing a fine against Thompson for crossing its picket line, Respondent restrained' and coerced North Shore in the selection of its representatives ' for the adjustment=of grievances within the meaning of Section 8(b)(IXB). permitted Thompson to handle and to settle practically all employee complaints and grievances which arose in the shop and that 'when employees sought to go over Thompson's head^to Polka he referred them back to Thompson. Toput, a stop, to that practice Thompson himself posted a notice in the pressroom informing the employees they were not to go to the front office (to Polka) with their grievances. MILWAUKEE PRINTING PRESSMEN NO. 7 917 '2. Section 8(b)(1)(A) It is an unfair labor practice under Section 8(b)(1)(A) for a labor organization to restrain or coerce employees in the exercise of rights guaranteed in Section 7, but a proviso was added that, "this paragraph shall not impair the rights of a labor organization to prescribe its own rules with respect to the acquisition or. 'retention of membership." Despite the absence of apparent limitation on the Union's rights, however, it is now established that certainly, in the case of disciplinary fines the Union's right of assessment are by no means unlimited. This was first made apparent,in N L.R.B. v. Allis-Chalmers, 388 U.S. 175, a case in which the fines were concededly reasonable and in, which the various opinions took note of that fact, referring at various points to fines which were "reasonable" or "unreasonable" or "unreasonably large" and, to discipline which "involves a severe hardship." Any doubt that the court was suggesting a crucial distinction between "reasonable" and "unreasonably large" fines was wholly disspelled by the later decision in Scofield (Wisconsin Motors) v. N.L.R.B., 394 U.S. 423. Thus after citing, the Allis-Chalmers holding that there was no limitation under Section 8(b)(1)(A) with respect to, the internal affairs of unions aside from barring enforcement of `a union's regulations to affect amember's employment status, the Court. continued: A union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line, during -a strike was therefore-enforceable against voluntary union members by expulsion or a reasonable fine. [Emphasis supplied.] Elsewhere the Court continued in similiar vein: Under this dual approach § 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. This view of the statute must b_e_ applied here. [Emphasis supplied.] Finally, in applying that view to the case before it, the Court noted that, "there is no showing in the record that the fines were unreasonable or the mere fiat of a union leader, or that the membership of petitioners in the union was involuntary." [Emphasis supplied.] There was no issue that the fines involved in Allis- Chalmers and in Scofield were so unreasonably large as to lose the protection of the proviso and there are no existing guidelines on that question, which is presently before the Board in a number of cases. Before proceeding to my own determination of the issue, it is appropriate to note briefly certain factors which I have considered and which have influenced my judgment. Any fine is by nature punitive and coercive, for it is imposed as punishment for an offense. It need not be limited merely to requiring the offender to disgorge the 3 Though analogies with principles of criminal law may be inapt, it may be noted that the mere restitution of the proceeds of a robbery or an embezzlement , for example, plainly does not expunge the commission of the crime itself though it is a factor which may be considered in mitigation of punishment. It may also be noted that even in some types of civil actions fruits of his offense for it may properly include penalties as punishment for the offense itself .3 Moreover, the penalty may even go beyond the matter of making the punishment fit the offense, for it may be designed td'set an example as a deterrent to others. - Turning to the present situation there are many factors- which may enter into a determination of -the "reasonableness" of a fine imposed - for crossing a picket line. No definitive listing can be attempted at this, early_ stage of the adjudicatory process but there are a number of considerations which come immediately to mind, as follows : The length or brevity of the strike, whether the union won or lost, the extent of member defections, the strength or weakness or the union, whether the employee was otherwise a good, bad, or indifferent member (cf. Radio Officers Union v. N.L.R . B. 347 ` U.S: 17, 40), the necessity of preserving "solidarity" and- for setting an example as a deterrent to other members , the amount of earnings during the strike , and the employee's need or lack of need for income beyond any strike, benefits which he might have received . Concerning the latter factor urgent family or financial obligations may be such in: some=cases as, in the employee's - -mind, _: to give him little practical choice but to continue working. In some cases also -the amount of ; the fine might well be reasonably related to the importance to the union of the particular obligation of membership and the flagrancy ' oT the violation., So, too, a "bad" union member might reasonably expedt to receive a more severe penalty than that . imposed on a "good" one. It is obvious that in the absence of prior adjudications no mathematical formula can be devised which can properly weigh all the varying factors which may enter into given cases as they henceforth arise. Adjudications necessarily proceed on a case-by-case basis, particularly in the initial stages of elucidatory litigation, and the true rule of the law is developed by pricking out from a series of ad hoc decisiomm a discernible line as it emerges . Until an adequate number of "examples" become available any conclusion based on them is likely to represent that familiar fallacy of inductive reasoning , the "hasty generalization." Though the absence of guidelines adds to the difficulty of weighing the factors involved, we are, of course, not spared "the anguish of judgment"4 In the immediate situation before us what we have, under the bare bones of the stipulation, is that the strike lasted roughly a week, that Schneider worked 3 days, receiving gross earnings of $155, that he was fined $700, and that his fine was later - reduced to $150 after the filing of the original charge herein. The General Counsel contends that both the original fine and the reduced fine are excessive and unreasonable. I have no difficulty in concluding , in agreement with hi, contention, that -the $700 fine was unreasonable for it would have mulcted Schneider of almost 5 times ' his earnings during the strike and would have constituted multiple "overkill," exceeding the Union's right to take reasonable steps to protect its legitimate interests. punitive damages are allowable above and beyond actual damages sustained. 4 Frankfurter, "Some Reflections on the Reading of Statutes ," 47, Col. L. Rev. 527, 544. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I ,am unable, to find, however, that the reduced fine of $150,wwas,excessive for the reason- that the General Counsel failed,to prove that it was. All that he showed was that the fine was approximately equal to Schneider's strike earn- ings . There was no showing whether or to wbat'extent any of the factors catalogued above-or any others now unthought of--entered into or influenced the amount of the fine. The mere appropriation of the fruits of the offense can hardly be viewed as an excessive penalty, for on the face= of it such action would seem to place Schneider in no, worse, position than if, he had honored his obligations of membership by not crossing the picket line. Aside from that, since the fine might properly have been aimed at serving both as a lesson to Schneider and as a deterrent to others, it cannot be found that a fine substantially equal to his strike earnings was unreasonably punitive. Upon,the foregoing findings of fact and upon the entire record in the case,,l make the following: CONCLUSIONS OF LAW ,1. By restraining and coercing North Shore Publishing Company in the selection of its representatives for the adjustment of grievances, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 2. By imposing an unreasonably large fine of $700 against Robert Schneider for crossing its picket line at North Shore Publishing Company and working during the S The latter action is considered necessary to dissipate the coercive effect of the unfair labor practices on Respondent's membership which ratified strike, Respondent restrained and coerced Schneider in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in, unfair labor practices within the meaning of Section 8(b)(I)(A). 3. The aforesaid unfair labor practices affect commerce, within the meaning of Section 2(6) rand (7) ,of the Act. TBE REmErr Having-found that'the Respondent engaged in certain unfair labor practices, I shall recommend that-itcease and desist therefrom and that it take certain affirmativeaction as specified below, which I find'to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall recommend that Respondent revoke and rescind the fines imposed against Daniel Thompson and the' $700 fine imposed against Robert Schneider, that it give written noticed such action to Thompson and Schneider, and'that it refund ' to Thompson the ' $50- fine ' which' he 'paid on January 2, 1970, together with 6.percent interest from that date. I shall also recommend that Respondent not only post the notice to members attached as an-appendix hereto but that it provide additional signed copies for:posting'by North, Shore Publishing - Company (it being_ willing) and that an officer of Respondent read said notice at two consecutive meetings of assembled' membership.5' [Recommended ' Order omitted from publication.] and approved,- in regular meetings, both the original assessments and the later reductions-in the fines. Copy with citationCopy as parenthetical citation