IAM, Local Lodge No. 504

LAM, LOCAL LODGE NO. 504 International Association of Machinists and Aerospace Workers, AFL-CIO Local Lodge No. 504 (Arrow Development Co.) and David O'Reilly. Case 20-CB-1947 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH , BROWN, AND JENKINS Upon a charge duly filed on November 14, 1968, by David O'Reilly, an individual, the General Counsel of the National Labor Relations Board, by the Region- al Director of Region 20, issued a complaint and notice of hearing on February 26, 1969, against Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 504. The com- plaint alleged that the Respondent Union had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, by imposing a fine of $500 against David O'Reilly for crossing a picket line established by Respondent at Arrow Devel- opment Co., and by attempting to collect said fine. On March 3, 1969, Respondent filed an answer deny- ing the commission of any unfair labor practices. On various dates between April 14, 1969, and April 21, 1969, the parties executed a stipulation of facts and a motion to transfer proceeding to the Board by which they waived a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision and Recommended Order and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based upon a record consisting of the stipulation of facts and the exhibits attached thereto. On April 28, 1969, the Board approved the stipula- tion of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, the General Counsel, Charging Par- ty, and Respondent filed briefs, and the General Counsel and Respondent filed answering briefs. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION 365 Arrow Development Co., hereinafter also referred to as Arrow, is a California corporation with its principal place of business in Mountain View, Califor- nia, where it is engaged in the manufacture and wholesale distribution of rides for use in amusement parks. During the past year, in the course and conduct of its business, Arrow shipped goods valued in excess of $50,000 directly to customers located outside the State of California. We find that Arrow is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 504, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Respondent has represented Arrow employees for a number of years. The most recent collective-bargain- ing contract, which contained a union-security clause requiring membership in the Union as a condition of employment, was operative for the period April 1, 1967, to March 31, 1968. On March 31, Respondent held a meeting, attended by David O'Reilly, at which a strike was authorized by vote of the membership. The strike began on April 1 and lasted until April 29, when a new agreement between Arrow and the Union was reached. During the 4-week period of the strike, O'Reilly crossed the picket line and contin- ued to work, earning $610.62 (net earnings were $511.33) for this period. At all times material herein, O'Reilly has been a member of the Union. On April 29, 1968, he was notified by the Union that charges had been filed against him for crossing the picket line and working for Arrow during the strike. O'Reilly did not attend the subsequent trial and, in his absence, Respondent's trial committee found him guilty and recommended that he be fined $250. Thereafter, at a regular membership meeting, Respondent's members concurred in the verdict of the committee and voted to fine O'Reilly $500. O'Reilly was so notified. 185 NLRB No. 22 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 2, 1968, Respondent brought suit against O'Reilly in the Municipal Court for the San Jose- Milpitas-Alviso Judicial District, County of Santa Clara, State of California, to collect the fine. On November 15, the Union was awarded a judgment for $528.' Since that date, Respondent has attempted to collect on the judgment by garnisheeing O'Reilly's wages. B. Contentions of the Parties In Allis-Chalmers,' the Supreme Court held that a union does not violate Section 8(b)(1)(A) by impos- ing fines against its members for failure to honor an authorized picket line, and by attempting to enforce the fines through court action , for the reason that Section 8(b)(1)(A) was not intended by Congress to prohibit a labor organization from imposing such fines.' The fines in that case ranged from $20 to $100. In Scofield v. N. L. R. B.,' the union had imposed fines of $50 to $100 on members who violated its rule (imposing a ceiling on production for which members could accept immediate piecework pay). In holding that the union's foregoing conduct had not violated the Act, the Supreme Court observed, inter alia, that there was no showing that the fines were unreasonable in amount. The General Counsel urges in the instant case that "The Supreme Court has thus indicated that a union may violate Section 8(b)(1)(A) if it imposes an unreasonable fine on its members." According to General Counsel, regardless of the reason for the assessment once it is shown that a fine is unreasonably large, "the excessiveness of the . . . penalty makes . . [the] conduct an unprotected restraint upon employees ," since such a penalty necessarily coerces employees with respect to the exercise of their Section 7 right to refrain from assisting a labor organization . Thus, a fine, 1 Five hundred dollars on the debt, $26 50 in costs , and $1 50 in fees for issuance of the writ of execution On March 16, 1970, the Respondent filed a motion requesting that an affidavit and two exhibits attached thereto be received into evidence The affidavit of counsel for Respondent recites the history of the proceed- ings before the state courts, and the attachments thereto consist of a copy of the judgment of the Superior Court of the State of California in and for the County of Santa Clara , on appeal, entered June 12, 1969, setting aside a judgment and against David O'Reilly and remanding the matter for a hearing on the merits , and a copy of the judgment of the Municipal Court for the San Jose-Milpitas Judicial District County of Santa Clara , State of California, dated February 2, 1970, directing payment of the fine in the sum of $500 with costs No opposition having been filed by the General Counsel or the Charging Party, the Respondent's motion is hereby granted and the said documents are hereby made a part of the record herein NLR B v Allis-Chalmers Mfg Co, 388 U S 175 The Board (149 NLRB 67) had reached the same result by application of the 8(b)(1)(A) proviso, a holding which the Supreme Court found unnecessary to pass upon 4 394 U S 423, 430 such as the one in the instant case, which equals or exceeds wages earned during a strike is a total restraint upon an employee's election to work, is confiscatory, and, therefore, presumptively unlawful.' Finally, General Counsel argues that the Board should not permit the state courts to become the sole arbiters of the question of whether or not a fine is reasonable (an issue which those courts will face in entertaining union suits to enforce fines) because a uniform national policy is required. The Charging Party, in addition to the contentions advanced by General Counsel, urges the following considerations: 1. The strike vote was not by secret ballot.' 2. The union constitution denies a member the right to select counsel of his choice to represent him during union disciplinary proceedings.' 3. The Union attempted to enforce the fine by engaging in conduct prohibited by Section 8(b)(2).8 4. After securing a judgment, the Union served the Employer with garnishment papers requiring the Employer to deduct 50 percent of the Charging Party's wages until the fine was satisfied.' 5. The Charging Party was not a voluntary union member, but joined the Union solely because of the requirements of the then operative contract union- security clause." As analogical support for his position , General Counsel directs the Board's attention to its decision in Charles S Skura, 148 NLRB 679 (approved by the Supreme Court in NL R B. v Marine & Shipbuilding Workers, 391 U S 418), which assertedly establishes the proposition that union imposition of fines on its members may, in some circumstances, constitute restraint and coercion However, in that case , it was the reason for the discipline (fining of members who had filed charges with the Board) rather than its severity which made the discipline unlawful We need not determine whether or not the vote was by secret ballot, the balloting procedure utilized for the strike vote in this case is an internal union matter not governed by any provisions of the National Labor Relations Act The Union constitution provides that a member must select his attorney from among the members of the Union The Board will not review the procedural regularity of this internal union disciplinary proceed- ing The alleged 8(b)(2) conduct has been the subject of a separate settlement agreement, approved by the Regional Director, and thus is not before us in the instant case By serving the Employer with garnishment papers, after securing a judgment, the Union was apparently following applicable procedures under California law for collection on a judgment These procedures are not subject to our review If the original imposition of the fine was lawful under this Act, and the suit to enforce the fine was also lawful, then it necessarily follows that the Union may avail itself of judgment collection procedures under state law 10 In Allis-Chalmers, a form of union-security clause was also in effect, and it was urged that membership was as a result of this requirement and not voluntary choice The Supreme Court held that the relevant question was not what motivated full membership , so long as full member- ship existed in fact The Court stated "Allis-Chalmers offered no evidence in this proceeding that any of the fined employees enjoyed other than full union membership We will not presume the contrary " We regard this holding as dispositive of the issue raised by the Charging Party herein iAM, LOCAL LODGE NO 504 Respondent urges that Allis-Chalmers establishes that a union's action in fining a member for crossing a lawful picket line does not conflict with any policy of the Act and, therefore, the amount of the fine is necessarily an internal union matter, removed from Board jurisdiction by the 8(b)(1)(A) proviso. Further, Respondent contends, the fine in this case is reasonable as the Union, in fining the Charging Party an amount roughly equal to his net strike-breaking earnings, has merely deprived him of the fruits of breaking the union rule. Employees who obeyed the rule suf- fered a comparable loss. Additionally, according to Respondent, a fine may lawfully serve a penal function and, in that case, may be greater "than the monetary benefit that the wrongdoer derives from his offense."" C. Conclusion As early as 1954, the Board held in Minneapolis Star and Tribune Company's that a union had not violated the Act by imposing a fine of $500 on a member for his failure to perform picket duty during the course of a 1-week strike. The Board concluded that "the proviso to Section 8(b)(1)(A) precludes any such interference with the internal affairs of a labor organization." The Board adhered to this rationale in its more recent decisions in Wiscon- sin Motor Corporation" and Allis-Chalmers Manufac- turing Company," both involving fines and judicial proceedings to enforce the fines. In Allis-Chalmers the Board held: Here, too, the Respondents have properly maintained the distinction 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 concern of a union or properly the subject matter of internal discipline. It may be said then that the Respondents were engaged only in prescribing 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 " Respondent also urges that the complaint is defective because it does not specifically allege that the $500 fine is unlawful because the amount is unreasonable Respondent further contends that the complaint should be dismissed because of the Charging Party's failure to exhaust internal union procedures in view of our disposition of the case, we need not pass upon these contentions " 109 NLRB 727 " 145 NLRB 1097 14 149 NLRB 67, 69 367 impair the right of a labor organization to do this, it follows that the Respondents did not violate that Section. In affirming the Board's conclusions in Allis-Chal- mers, the Supreme Court reviewed the legislative histo- ry underlying the enactment of the Taft-Hartley Act and held that Section 8(b)(1)(A) was not intended to reach the conduct of a labor organization in fining its members for crossing an authorized picket line, and seeking court enforcement of those fines." The Court held at 195: Thus this history of congressional action does not support a conclusion that the Taft-Hartley prohibitions against restraint or coercion of an employee to refrain from concerted activities included a prohibition against the imposition of fines on members who decline to honor an author- ized strike and attempts to collect such fines. Rather, the contrary inference is more justified in light of the repeated refrain throughout the debates on 8(b)(1)(A) and other sections that Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment sta- tus. In Wisconsin Motor," the Court reaffirmed its hold- ing in Allis-Chalmers. It further noted that the Board's decision in Skura," and its own decision in Marine Workers," establish that if a union rule "invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating 8(b)(1)." The net effect of the two lines of cases, said the Court, is that: Under this dual approach, § 8(b)(I) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress had imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. The Court concluded at 436: The union rule here left the collective bargain- ing process unimpaired, breached no collective contract, required no pay for unperformed serv- ices, induced no discrimination by the employer against any class of employees, and represents no dereliction by the union of its duty of fair representation. In light of this, and the acceptable " The Court's rationale made it unnecessary to test the Union's conduct against the 8(b)(1)(A) proviso, as the Board had done Scofield v N L R B In 4 supra 17 Fn 5 supra e Id 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner in which the rule was enforced, vindicat- ing a legitimate union interest, it is impossible to say that it contravened any policy of the Act. Thus, the Court's synthesis of the Allis-Chalmers and Skura lines of cases makes the initial distinction that 8(b)(1)(A)'s prohibitions extend to union disci- pline imposed for certain prohibited purposes, but not the severity of otherwise lawful discipline. Given this precedent, particularly the holding of the Supreme Court that Congress did not, by enacting Section 8(b)(1)(A), undertake to regulate union fines (or court enforcement of same) imposed on members for their failure to honor an authorized picket line, we cannot conclude that Congress nonetheless intend- ed to have the Board regulate the size of these fines and establish standards with respect to their reason- ableness. Indeed, as the legal enforceability of these fines is grounded in contract theory, it is obvious that the local courts are the more logical tribunals for the establishment of standards of reasonableness. While in Wisconsin Motor the Court noted that the fines in that case were reasonable in amount, the Court addressed itself more fully to this question in Allis-Chalmers, stating: There may be concern that court enforcement may permit the collection of unreasonably large fines. However, even were there evidence that Congress shared this concern, this would not justi- fy reading the Act also to bar court enforcement of reasonable fines.32 [Other fns. omitted and emphasis supplied.] " It has been noted that the state courts, in reviewing the imposition of union discipline, find ways to strike down "discipline [which] involves a severe hardship " Thus, the Court's findings that the fines in those cases were reasonable seems directed to enforcing courts, encouraging those courts to make an independ- ent determination of the reasonableness of the fine in each case presented," in the same fashion as courts limit other union discipline which imposes a severe hardship. Such considerations are of an equitable nature rather than of the character of restraint and coercion with which the National Labor Relations Act treats.20 11 Where Congress desire, that the Board make this type of determination it has said so Thus Sec 8(b)15) of the Act authorizes the Board to decide whether or not initiation lees charged of employees required to join a labor organvation under a union-sec urrh clause are excessne and discriminatory 20 Our dissenting colleague suggests that because no contention was made in the h(h)(I)(A) cases before it that the line, invoked were unreasonable, the Supreme Court did not "squareh rule' on the question of reasonableness To so interpret these decisions is to hold that the Supreme Court will not accord weight to the cers considerations it clearly indicates It expects lower courts to applx where collection of such lines is imohed It is more logical to conclude that no specific ruling on this issue was made Finally, it is urged that large fines are a deterrent to the exercise of "job rights ," and therefore coercive. Apparently our dissenting colleague would not go this far-for he states that "regardless of the amount of a fine" he would find it clearly privileged under the proviso to 8(b)(1)(A) if enforced solely by internal union methods such as expulsion or suspension , except where the reason for the fine offends some overriding statutory policy . Thus, it is not the unreasonableness of the fine which the dissenting opinion finds to be an invasion of the statutory prohibition of Section 8(b)(1)(A), but the attempted collection of the fine through legitimate court proceedings . We find nothing in the Act or in the opinions of the Supreme Court which justifies so limiting a union 's method for enforcement of its legitimate internal rules to its own internal procedures. If our colleague would further limit "coercive fines" to those actually enforced through external collection proceedings, our differing views would have no mean- ingful impact; for the courts , under the mandate of the Supreme Court, will have enforced only reason- able fines. However, in his view, the threat to collect an excessive fine by external methods is also coercive. To this suggestion we would pose the query, what threat cognizable under Section 8(b)(1)(A) is there in an uncollectible fine that is not present in a reason- able collectible fine?" The Board has long recognized that , as a practical matter, "virtually all union rules affect a member's employment relationship."22 However, given the legiti- macy of the rule, the only question of relevance to the agency enforcing this Act is "whether, in enforcing the rule, the Union goes outside the area of union-membership relationship and enters the area of employee-employer relationship."23 The Union has not done so here, nor has it sought to vindicate a policy in conflict with the National Labor Relations Act, and the Act does not authorize this Board to evaluate the fairness of union discipline meted out to protect a legitimate union interest. Accordingly, we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. because reasonableness was not releiant to the 8(b)ll)(4) issue belore tile Court " The court in \ I R B \ American Bakery & Confecnunerr Workers, 411 F 2d 1122, (C A 7), did not treat with the argument that a fine, uncollectible in a court of law, was noncoercive but instead "specifically" found the argument "beside the point," because the purpose for which the fines were imposed, namely, to discipline employees for filing charges and cooperating in Board proceedings, would make any fine unlawful " Allis-Chalmers Manufacturing Company, 149 NLRB 67,70 iS Allis-Chalmers Manufacturing Company, supra IAM, LOCAL LODGE NO. 504 MEMBER MCCULLOCH, dissenting: I am unable to agree with the conclusion of my colleagues that the reasonableness of the amount of a court-collectible fine imposed on a union member for 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." In my view, the Supreme Court decisions cited by the majority do not command the result they reach, but rather support an opposite conclusion. In neither of the cited cases, as the Court was careful to note, was any contention made that the fines were unreasonable in amount.25 As the question of reasonableness was therefore not directly before the Court, it was not squarely ruled on. There are however, clear indications in these decision, when read together, that a majority of the Court likely would have come to a different result had it appeared in those cases that the fines imposed were unreasonable in amount. In Allis-Chalmers, the opinion for the Court was joined in fully by four justices; Mr. Justice White wrote a separate concurring opinion in which, while agreeing generally with the opinion of the Court, he expressed doubts "about the implications of some of its generalized statements."26 Four other justices joined in the dissenting opinion written by Mr. Justice Black. In holding that the imposition of court-enforced fines for crossing a union picket line was outside the intended reach of Section 8(b)(1)(A), the Court, in the course of its principal opinion, at several points used the term "reasonable fine " Thus, at page 183, it stated: where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine [Emphasis supplied.] At page 192, the Court rejected, in effect, the argument that its holding might result in the enforcement of unreasonably large fines, stating that such a contention "would not justify reading the Act also to bar court enforcement of reasonable fines." (Emphasis supplied.) And Mr. Justice White, explaining why he found the majority more persuasive than the dissent, focused " I would reach a different conclusion where the only sanction invoked or threatened for nonpayment of the fine, is expulsion or suspension from union membership For, regardless of the amount of a fine, its enforcement solely by such internal methods appears clearly to be pnvi- leged by the proviso to Sec 8 (b)(1)(A), except of course in a situation- not the one before us-where the reason for the fine offends some overriding statutory policy In Minneapolis Star and Tribune Company, 109 NLRB 727, relied on by the majority as Board precedent for its position in this case , it does not appear that there was any actual or threatened court enforcement of the fine there involved " NLRB v Allis-Chalmers M f g Co, 388 U S 175, 193, fn 30, Scofield v NLRB , 394 U S 423 430 " NL.R B. v Allis-Chalmers, supra, at 199 369 on the reasoning of the Court's opinion that since expulsion would in many cases-cer- tainly in this one involving a strong union- be a far more coercive technique for enforcing a union rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of § 7 rights, nevertheless intended to bar .nf:)rcement by another method which may be (u_ ess coercive. [Emphasis supplied. J17 It is noted, too, that the dissenting opinion in Allis- Chalmers interprets the Court's holding as limited in its scope to "a court-enforced reasonable fine."28 (Emphasis supplied.) Any doubt that the Court did not intend its holding in Allis-Chalmers to extend beyond "reasonable fines" was laid to rest by the Court's subsequent decision in Scofield.29 The Court there summarized its decision in Allis-Chalmers as holding that [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 enforceable [without violating 8(b)(1)(A)] against voluntary union members by expulsion or a reasonable fine. [Emphasis supplied.]" The Court in Scofield further stated that § 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. [Emphasis supplied.]" It was "this view of the statute," the Court added, that "must be applied"32 in determining whether Sec- tion 8(b)(1)(A) was violated by the enforcement of the fine in the case before it. (Emphasis supplied.) Then, after noting the absence of any "showing in the record that the fines were unreasonable,"" and after finding that the other aforementioned conditions had been satisfied, the Court concluded: We affirm, holding that the union rule is valid and that its enforcement by reasonable fines does Id.at198 the Court's holding boils down to this a court-enforced reasonable fine for nonparticipation in a strike does not 'restrain or coerce' an employee in the exercise of his right not to participate in the strike " [Emphasis supplied ] Id at 200 Scofieldv NLRB,394US 423 Scofield v N L R B 394 U S at 428 "Id.at430 32 Id. 3 Supra, fn. 25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not constitute the restraint or coercion proscribed by 8(b)(1)(A). [Emphasis supplied.]" The Court's repeated use of the adjective "reason- able" in both Allis-Chalmers and Scofield to describe the fines there in issue cannot be passed over casually as without significance. By its carefully drawn distinc- tion between "reasonable" and "unreasonable" fines, the Court, it seems to me, meant not only to define the limits of its holdings in these cases, but also to indicate affirmatively that it regarded court-collecti- ble fines which were unreasonable, either in their nature or size, as not serving a legitimate union interest, and therefore not privileged from the pros- cription of Section 8(b)(1)(A). Support for the view that the Supreme Court did not read the Act and its legislative history as removing "unreasonable" fines from the reach of Section 8(b)(1)(A) is to be found in the language from Scofield, quoted above, wherein the Court outlined the test that "must be applied." Additional support is to be found in the Court's analysis in Allis-Chalmers of national labor policy considerations which led it in substantial part to conclude that Congress, in amending the Act in 1947, did not intend Section 8(b)(1)(A) to condemn a union's continued use of reasonable disciplinary measures. The Court stated in part: Integral to this federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through rea- sonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when members engage in strikes. The economic strike against the employer is the ultimate weapon in labor' s arsenal for achieving agreement upon its terms, and "[t]he power to fine or expel strike-breakers is essential if the union is to be an effective bargaining agent...." [Emphasis supplied.]" Implicit in the Court's analysis of this aspect of national labor policy is the concept that a union has a legitimate interest in imposing reasonable disci- pline upon a voluntary member if needed to protect its status as an institution for effective bargaining, even though such discipline also serves to restrain and coerce the member's exercise of his Section 7 right to refrain from engaging in concerted activities. The corollary is that where otherwise lawful discipline oversteps reasonable bounds of needed protection and becomes essentially punitive in nature, it impairs feder- al labor policy. And since no legitimate union interest i' Scofield v NLRB 394 U S at 436 11 NLR.B v Allis-Chalmers, 388 U S at 181 is then served, it remains within the compass of Section 8(b)(1)(A). Thus, expulsion, or enforcement of a fine solely by expulsion, constitutes a legitimate exercise of internal union discipline, as it serves only to rid the union of a member not in sympathy with its objectives." So, too, a court-enforced fine for viola- tion of a legitimate rule must be viewed as presump- tively protective, and therefore privileged, when the amount of the fine, taking into account the character and importance of the ends served by the rule being enforced, is reasonably related to the need for protec- tion. However, if the amount of a fine is such as to be inordinately disproportionate to the needed protection, an inference is warranted that the fine was imposed on the member, not in vindication of a legitimate union interest, but as a reprisal for having exercised a statutorily protected right." As is indicated in the Supreme Court cases cited above, and as is more concretely reflected in NL.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418, the determination of whether union disciplinary action violates Section 8(b)(1)(A) involves a balancing proc- ess in which the union's interest in maintaining disci- pline is measured against public policies imbedded in the labor laws. In considering whether a fine, court-enforced, may, at least in certain circumstances, be so excessive in amount as to overcome a union's otherwise legitimate interest in enforcing its internal rules, the policy of the Act protecting employees from interference with their job rights is a consider- ation which, I believe, should not entirely be ignored. Thus, where, as in this case, a court-enforceable fine imposed on employee-members for working dur- ing a strike is greater than the wages earned during the strike, it constitutes a total restraint on their right to refrain from engaging in the concerted activity, different in form but in economic reality the same as if they had been blocked at the plant gate by unlawful violence or a mass picket line. Few employees indeed will feel they have any choice in the matter knowing that if they do violate the union rule and go to work, they will be deprived of all the fruits " An exception would be a case such as Skura, 148 NLRB 679, where the rule enforced by expulsion invades and frustrates an overriding statutory policy See also NLR B v Marine and Shipbuilding Workers, 391 U S 418 " The imposition of such a disproportionately large fine may also be condemned as arbitrary union action Although the Supreme Court in 4lhr-Chalmers erpressh retrained Irvin deeding since it ii as unnece„ar\ to the disposition of that case, "whether 8(b)(1)(A) proscribes arbitrary imposition of fines," the Court elsewhere in its decision at least intimated its view that federal labor policy, as shaped by the Courts, encompasses a policy against unfair or arbitrary conduct by a bargaining representative Cf Vaca v Sipes, 386 US 171 Though the policy embodied in a rule may not itself be objectionable, a fine for violation of the rule may nevertheless be considered "an arbitrary imposition" if it is so excessive in amount as to bear no fair relationship to the legitimate purposes of the policy served iAM, LOCAL LODGE NO 504 of their labor. It may perhaps be arguable-a matter on which I now express no judgment-that a fine is justifiable in the protective interests of a union, if it does no more than strip an offending member of the profits of his rule violation. But such an argument is more difficult to sustain where, as here, the fine levied exceeds such gains.18 In economic effect, to the extent of the excess, the employee is being assessed a sum representing wages he earned after the strike is over when the Union no longer needs protection. If the Union had caused the Employ- er to suspend the fined members without pay for even a brief period after the strike because they had worked during it, there could be no doubt of the Union's violation of Section 8(b)(1)(A). Yet in practical effect what the Union did here, and its coercive impact on employees, is no different. The last consideration, at the very least, it seems to me, would warrant an inference that the fines involved in this case were so excessive in amount in relation to the Union's legitimate disciplinary interests as to place them outside the scope of privileged internal union action.39 My colleagues take the position that the reasonable- ness of fines is an issue that must, and should, in all situations, be left for determination solely by local enforcing courts. I am unable to agree. To begin with, I do not share my colleagues' view that the Court's findings in Allis-Chalmers and Scofield point- ing to the reasonableness of the adjudicated fines were simply "directed to enforcing courts" to encour- age their examination of reasonableness in fine cases presented to them. That view overlooks the context in which the findings of reasonableness were made and the emphasis given them. Both cases were con- cerned with unfair labor practice issues only. And, in both, the Court was faced with an argument that though the fines then before the Court might be reasonable in amount, in other cases they might not be; that if all fines were ruled exempt from 8(b)(1)(A), it would allow the imposition of court-enforceable fines so large as to be the coercive equivalent of job loss. Considered in this context, I think the only logical conclusion is that the Court stressed the reason- ableness of the fines which were before it only because it wanted to ensure that its decisions would not be overinterpreted to mean that unreasonable fines " Cf D Bok and J Dunlop, Labor and the American Community, 106-107(1970) " It is true, of course , that any fine, however small and reasonable in amount, may indirectly result in some degree of coercion of employees affecting their job rights But it does not follow, as the majority appears to reason, that since small fines do not violate the Act, ipso facto, the Act is not violated by the imposition of any fine , however large and unreasonable The situation here presented is one, I believe, in which a difference in degree constitutes a difference in kind 371 were also exempt from the coverage of Section 8(b)(1)(A). If, as the Court's carefully circumscribed holdings appear to imply, and my own study confirms, unreasonable fines, court collectible, remain subject to the statutory prohibition, it follows that where a fine is attacked as unreasonable in an unfair labor practice proceeding before the Board, the issue of reasonableness is relevant and must be decided. It is true, as my colleagues suggest, that local courts may, and perhaps must, pass on the reasonable- ness of fines when suits are brought by unions to collect them. But this does not, of course, foreclose the Board from also doing so in an unfair labor practice proceeding. Nor do I think it appropriate for the Board to defer to another forum, thereby applying in effect a doctrine of "reverse preemption," on an issue so closely intertwined with considerations of statutory and federal labor policies. Other policy considerations also favor the result I would reach. Thus, to leave an employee to his remedy from a state court might well leave him without any effective relief at all, for the cost of attorney fees alone in many cases will discourage attempts to defeat fines that are excessive. Moreover, I believe this is an area in which uniformity is desir- able Courts are likely to differ widely in their appraisal of what is or is not excessive, and the Board is in the best position to develop fair and uniform standards that are likely to gain general acceptance. Although the line between what is a reasonable fine and what is not may not always be easy to draw, this is not reason enough for deferral to another forum. -Nor is the Board disabled from acting because Congress has laid down no standards. The Board is neither powerless to, nor inexperienced in, making judgments of this kind when relevant to a determina- tion of whether the statute has been violated.40 Indeed, in a situation such as here presented, I believe that in the discharge of our statutory responsibilities we must do so, unless we are to ignore completely the almost certain coercive impact that clearly excessive fines, backed by actual or threatened court enforce- ment, will have on statutorily protected rights.41 40 As noted in the majority decision, Sec 8(b)(5) requires the Board in certain situations to determine whether a union initiation fee is "in an amount excessive and discriminatory under all the circumstances " Although Congress set out certain relevant factors for the Board to consider, among others, in making the appraisal required by that section, it does not follow, as the majority seems to imply, that because of the absence of statutory guidelines with respect to the reasonableness of fines, the Board must be deemed without authority to consider that question by developing its own in NL R B v Radio & TV Engineers, Local 1212, 364 U S 573, the Court , in rejecting the Board's contention that it should not make an affirmative award of work under Sec 10(k), since Congress failed to set forth standards to guide it in determining jurisdictional disputes on their merits , said that given this agency's expen- ence in handling similar labor problems , "it need not disclaim the power given it for lack of standards " 364 U S at 583 ' i See page 372 for In 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because I believe my colleagues are in error in not considering on its merits, and deciding , the issue relating to the reasonableness of the fines involved in this case, I note my dissent from the majority decision. " It is clear that a threat to collect an unreasonable fine may be found unlawfully coercive even if the fine itself is not collectible An employee confronted with the threat of court collection is not only uncertain of how the court will rule , but is also acutely aware that the costs of litigation come high The possibility , or even the likelihood, that a court will ultimately refuse to enforce the fine to the extent that it is unreasonable does not withdraw from the threat its coercive impact The argument that a fine may not be found violative of Sec 8(b)(1)(A) if it is not collectible in a court of law has already been specifically considered and rejected in NLR B v American Bakery & Confectioner v Workerc 411 F 2d 1122 (C A 7), enfg 167 NLRB 596 It is true , of course, that a threat to collect a reasonable fine may also be coercive in fact, yet is not to be viewed as unlawful for that reason alone But in the area of union fines a distinction must be drawn between coercion in fact and coercion in law Under the Supreme Court holdings, as I interpret them, court -enforced reasonable fines, regardless of their impact on employees, are outside the intended reach of Sec 8(b)(1)(A)'s ban on coercive conduct , unreasonable fines, however, are not similarly exempt Since court enforcement of a reasonable fine is lawful, the threat of such enforcement is also so The opposite is true in the case of an unreasonable fine.