Booster Lodge No. 405, IAM

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Booster Lodge No. 405 , International Association of Machinists and Aerospace Workers, AFL-CIO, and The Boeing Company . Case 15-CB-779 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, BROWN, AND JENKINS On December 30, 1968, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending 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, the Charging Party, and the Respondent each filed exceptions to the Decision, together with supporting briefs. The Charging Party filed a reply brief. Subse- quently, in response to an invitation of the Board, the Charging Party and the Respondent filed supple- mental briefs. In response to the same invitation, statements of position were filed by the National Association of Manufacturers, and by the American Federation of Labor and Congress of Industrial Organ- izations, joined by the International Brotherhood of Teamsters and the International Union, UAW, as amici curiae. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has con- sidered the Trial Examiner's Decision, the exceptions and briefs, the reply brief, the supplemental briefs, the statements of position amici curiae, and the entire record in the case. The Board adopts the Trial Examin- er's findings of fact, but adopts his conclusions and recommendations only to the extent that they are consistent with the decision herein. The essential facts of this case are not in dispute. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter call IAM or the Union, and Boeing were parties to a collective-bargaining agreement effective from May 16, 1963, through September 15, 1965.1 i At the time of the execution of the 1963 agreement, Booster Lodge 405 was not in existence. Boeing's Michoud, Louisiana, plant was consid- ered a "Remote Location" unit, identified with the "Primary Location" unit at Seattle-Renton, Washington. Production and maintenance employ- ees in the Michoud unit were represented by Aeronautical Industrial District Lodge No. 751, IAM, AFL-CIO, Seattle, a signatory to the contract with Boeing. Booster Lodge No. 405 came into existence some- time later in 1963, but the contract was not modified to reflect this event. Upon the expiration of the contract, the Union cont- menced a lawful strike against Boeing at its Michoud plant in New Orleans, Louisiana, and at various other locations. The strike lasted 18 days. On October 2, 1965, a new contract was signed. The strikers returned to work on the following day. Both contracts contained maintenance-of-membership clauses, which required new employees to notify both the Union and the Employer of their desire not to join the Union within 40 days of accepting employment. During the strike period, some 143 employees of a unit of approximately 1900 production and mainte- nance workers crossed the picket line and reported for work. All had been members of the Union during the contract ^ period. One group of strikebreaking employees, numbering some 24, made no attempt to resign from the Union. The remaining 119 strike- breaking employees submitted their voluntary resigna- tions, in writing, to both the Union and the Employer.2 Many resigned from membership prior to reporting for work during the strike. Others resigned during the course of the strike but returned to work before submitting their resignations.' All resignations were submitted after the expiration of the original contract and before the signing of the new one. All were submitted prior to the imposition of discipline by the Union. In late October or early November 1965, the Union notified all strikebreaking employees that charges had been preferred against them under the International constitution for "Improper Conduct of a Member" in "accepting employment . . . in an establishment where a strike . . . exists." Employees were advised of the dates of their trials, which were to be held even in their absence, and of the availability of union- member counsel. Prior to the strike, the Union had not warned members about the possible imposition of disciplinary measures. However, the IAM constitu- tion provides that members found guilty of misconduct after notice and a hearing are subject to "reprimand, fine, suspension, or expulsion from membership, or any lesser penalty or combination." The constitution sets no maximum dollar limitation on fines. Fines were imposed on all strikebreaking employees, regardless of whether, or when, they had resigned ' The Union objects to the fact that notices of resignation were sent to District Lodge 751 rather than to Booster Lodge 405 However, since Booster Lodge 405 was not a party to the original contract, as explained in In 1, supra, it would appear that employees who notified District Lodge 751 were attempting to comply with contractual require- ments Moreover, District Lodge 751 notified Booster Lodge 405 of all resignations ' Fines of $450 were imposed on 108 employees Of these, 61 had resigned their union membership prior to reporting for work during the strike, and others resigned during the course of the strike Reduced fines were imposed on 35 employees The record as to the timing of their resignations is not clear. 185 NLRB No. 23 BOOSTER LODGE NO. 405, IAM from the Union. Employees who did not appear for trial were fined $450, as were those who appeared and were found guilty. The fines of employees who appeared for trial, apologized, and pledged loyalty to the Union were reduced to 50 percent of strikebreak- ing earnings. The level of fines was set by the union membership. There is no indication of the method of computation. Strikebreaking employees earned between $2.38 and $3.68 per hour, or between $95 and $145 per 40-hour week. In some instances, earn- ings during the strike were supplemented by the inclu- sion of bonus or premium rates for weekends and overtime. Reduced fines have been paid in some instances. Payments have averaged $40. None of the $450 fines has been paid. The Union has sent out written notices that the matter has been referred to an attorney for collection, that suit will be filed upon nonpayment of fines, and that reduced fines will be increased to $450 in the event of nonpayment. The Union has filed suit against nine individual employees to collect the fines (plus attorney's fees and interest). The outcome of the suits has not been determined. A principal issue in this case is the legality of the Respondent's imposition of disciplinary fines on individuals who had resigned from the Union before engaging in the conduct for which the discipline was imposed. The complaint alleges, and the Trial Examiner found, that the Respondent's action in fining employees in this category violated Section 8(b)(1)(A) of the Act. We agree with the Trial Examiner's conclusion.4 However, as the Trial Examiner has not fully spelled out his reasoning in this regard, and, in light of the views of our dissenting colleague, we believe that further explication of our reasoning is appropriate here. Under Section 8(b)(1)(A) of the Act, it is an unfair labor practice for a labor organization to "restrain or coerce employees in the exercise of rights guaran- teed in Section 7." Included among those rights is the right to refrain from engaging in any of the protected concerted activities enumerated at the begin- ning of Section 7. The levy of a fine is calculated to force an individual both to pay money and to engage in particular conduct against his will. This is true regardless of the ultimate collectibility of the fine. A man who is held up at gunpoint is coerced whether or not the gun is loaded. As with the levy of a fine, the coercion lies in the calculated threat and, as has been held, ' The Trial Examiner's reference to a "compounded " violation of Sec 8(b)(1)(A) perhaps implies that the violation is merely derivative On the contrary, we find, as spelled out more fully herein, that the very imposition of a fine on nonmembers violates the Act, regardless of the amount of the,fine. 381 the "argument that the fines imposed were not collecti- ble in a court of law, even if accepted is beside the point."5 The imposition of a fine has immediate coercive consequences . Faced with the possibility of action against him, the employee may well be, for practical purposes, impelled to forego his statutory right not to honor the Union's picket line rather than risk involvement in a lawsuit whose outcome he cannot predict.' Or, should he choose to take that risk, he will find it necessary to hire counsel whose services he ordinarily would not require. The Board has long recognized that a fine is inher- ently coercive.' Yet in situations where a union impos- es disciplinary fines on its members the Board has held that the union does not violate Section 8(b)(1)(A).8 The basis of the Board's holdings in these early fine cases was the proviso to Section 8(b)(1)(A), which exempts "the right of a labor organi- zation to prescribe its own rules with respect to the acquisition or retention of membership" from the coverage of that section. Although a union's membership rules may well be coercive , their enact- ment is specifically protected by the Act. In Minneapo- lis, supra, the Board construed the levy of the fine as the prescription of a rule with respect to the retention of union membership and held that the union's conduct , which was protected by the proviso, therefore did not violate Section 8(b)(1)(A). In affirming the Board 's conclusions in Allis-Chal- mers, the Supreme Court held that the body of Section 8(b)(1)(A) was not intended to reach the conduct of a labor organization in imposing and enforcing a fine upon its members for crossing an authorized picket line.' Thus, the Court found it unnecessary to pass on the Board's holding that the proviso protect- ed the union's conduct . Nevertheless, the basis of the Court's holding was the underlying relationship between the union and its members . Throughout the opinion, the Court emphasized the right of unions to regulate their own internal affairs . Reference was made to the "contract theory" of union membership. And, finally, the Court cited the proviso to Section 8(b)(1)(A) as offering "cogent support for an interpre- Sie N L R B v American Bakery and Confectioners' Workers Loca, Un m300, 411 F 2d 1122, 1126, (C A 7), enft 167 NLRB 596 We do not share the confidence of our dissenting colleague in the ability of the ordinary employee to evaluate the ultimate legal conse- quences of the union 's act Nor would we require him to attempt to do so ' See, e g , Minneapolis Star & Tribune Co., 109 NLRB 727, 738. ' /bid. See also Local;283,Vnited Automobile, Aircraft & Agricultural Implement Workers of America, UAW-AFL-CIO (Wisconsin Motor Corp ), 145 NLRB 1097, Local 248 et a! , United Automobile, Aerospace & Agricultural Implement Workers of America, AFI -CIO (Allis-Chalmers Mfg Co), 149 NLRB 67 N.L.R.B. v Allis-Chalmers Mfg. Co., 388 U S 175 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tation of the body of Section 8(b)(1)(A) as not reaching the imposition of fines and attempts at court enforce- ment." The significance of the membership relationship is that it establishes the union's authority over its members. In joining a union, the individual member becomes a party to a contract-constitution. Without waiving his Section 7 right to refrain from concerted activities, he consents to the possible imposition of union discipline upon his exercise of that right." But the contract between the member and the union becomes a nullity upon his resignation. Both the member's duty of fidelity to the union and the union's corresponding right to discipline him for breach of that duty are extinguished. In the case at bar, the Union's right to discipline employees terminated upon the employees' submission of their letters of resignation." The attempted imposi- tion of discipline for subsequent conduct was beyond the powers of the Union.12 It was not consented to by the employees. Nor, in our view, was it protected by the proviso to the Act. The holding in Allis-Chalmers was carefully restrict- ed to the facts of that case. The Court expressly refused to pass on the legality of the imposition of a fine on "limited members" of the union." It appears to us that in this reservation there was the implication that such a fine when levied against non- members constitutes a form of restraint and coercion proscribed by Section 8(b)(1)(A). The decisions in two subsequent fine cases reinforce that implication. In its recent Scofield opinion," the Supreme Court summarized its construction of Section 8(b)(1)(A) as follows: [The section] 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 10 The power to discipline recalcitrant members is essential to the union's self-preservation This coercive power is protected by the proviso to Sec 8 (b)(1)(A) 11 The Union takes the position that voluntary resignation from its ranks is impossible of achievement because its constitution and bylaws set forth no procedure for such resignations As this argument is contrary to long-standing Board precedent, we reject it here See Communications Workers of America, CIO (\e" Jeriet Bell Tel to ) 106 NLRB 1322, enfd 215 F 2d 835 (C A 2), Local Union No 621 , United Rubber, ( o,3 / n,„!ru ' l' ,'!d- I ,,Ar,, , , lme,au I/ L ( 10 1 1,1,,,,,,, Re,ear,I, (o,p , 7 NI RB 610 Di,trv,t Lodr;, 75/ lnte,na ,nla/ 4cio lot, i, of Ila, nnn,, & ler spa(e Ilorder, Ifl-00 (Bw','' (o ) 171 NLRB No 71 \I(.'• oier .i, Ind,,,ted u,/,a the',upreme Court in the Su,/it'll L,i, e\pre„ % ,an,uoned the ,tr.ueen 01 Ie.o im_ Ili union to a,oid dt,uphne " The Union's disciplinary authority was, as we hold, limited to conduct engaged in during the period of membership " While the Court did not specifically refer to the fining of nonmembers, the cited reservation indicates the relevance of the membership issue 14 Scofield, etal v NL R B., 394 U S 423 enforced against union members who are free to leave the union and escape the rule. [Emphasis supplied.] This suggests that the prohibitions of Section 8(b)(1)(A) encompass union rules which do not con- form with the enumerated qualifications. Included in this latter category is a rule enforced against nonun- ion members. By observing that members could "leave the union and escape the rule," the Court seems to have envisaged the possibility that union members could, indeed, resign membership and avoid discipline. In the Shipbuilding Workers case," the Supreme Court found unlawful a union's attempt to discipline members for filing charges with this Board before exhausting their intraunion remedies. The Court con- strued Section 8(b)(1)(A) as assuring a union freedom of self-regulation only "where its legitimate internal affairs are concerned." But the imposition of discipline on nonmembers can hardly be deemed an internal affair. Our dissenting colleague treats Allis-Chalmers as if it existed in a vacuum, overlooking subsequent decisions and the statutory provisions themselves. But to extend the Allis-Chalmers doctrine beyond the perimeters of the situation there involved is to emascu- late the provisions of Section 8(b)(l)(A). Such a result can hardly have been intended by the Supreme Court. It should not be reached here. In the interplay between the statutory policy to prevent coercion of employees for exercising Section 7 rights on the one hand and the policy to permit unions to guide their internal affairs and determine their membership qualifications on the other, the former must prevail where the membership relation which justifies the latter is terminated. For the foregoing reasons, we find that the Respond- ent violated Section 8(b)(1)(A) of the Act by imposing disciplinary fines on resigners from its ranks for acts committed after their resignations. We shall order the Respondent to cease and desist from such conduct, including attempts to collect the illegal fines through court proceedings. Also at issue in this case is the legality of the Respondent's imposition of disciplinary fines on two other categories of strikebreaking employees, those who crossed the picket line without resigning from the Union and those whose resignations were submit- ted after the commencement of strikebreaking activi- ties but prior to the initiation of disciplinary action against them. The legality of the imposition of disci- pline on members for conduct engaged in during " NL.R B v Marine & Shipbuilding Workers, 391 U S 418 BOOSTER LODGE NO 405, IAM the period of membership is clear.16 Accordingly, we find that the Respondent did not violate Section 8(b)(1)(A) by fining the nonresignees. Nor, in our opinion, does the Respondent's failure to exercise its disciplinary authority with respect to the second group until after the submission of their resignations affect the legality of its action. As the source of the Union's disciplinary authority lies in the contractu- al relationship between the organization and its mem- bers, it is to the rules of contract law that we turn in evaluating the Union's conduct. The provisions of a contract are enforceable, and a cause of action can be brought upon them, even after the expiration or termination of the agreement. The rights and duties created by an agreement are extinguished only pro- spectively by the termination thereof. Thus the termi- nation of some employees' membership here did not affect the Union's subsequent assertion of rights which had accrued to the Union during their earlier period of membership, such as the right to discipline the employees for prior strikebreaking. The effect of these employees' resignations was only to extinguish the Union's future authority over them. Accordingly, we further find that the Respondent did not violate Section 8(b)(1)(A) of the Act by fining former members for misconduct engaged in prior to their resignations from among its ranks. However, this conclusion does not legitimize the impo- sition of discipline for conduct engaged in after the resignations. We shall order the Respondent to cease and desist from such action and to remit a prorata portion of the fine, so that what remains reflects only preresignation conduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board hereby orders that the Respondent , Boost- er Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Restraining or coercing employees who had resigned from and who were no longer members 16 N.LR B v Allis-Chalmers Mfg Co, supra As a majority of the Board (Members Fanning, Brown, and Jenkins), would find that the lee.ihu ut union lines does not depend on their reasonahlsness the Board does not adopt the Trial hsaminer s lindines LonLlusnins and reuimmend,tions on that issus Su Irrmi Dei elurynrnt ( rip 1,16 N I R B No 22 I or the reasons stated in his dissenting opinion in the luun a.u Member \ILCulloLh uould e\amini the 'mount of the line, to determine their reasonableness in those situations iihere the union , imposition thereof and threatened or auw,tl Lourt t.tion to 1011 -1 snl.h lens. iiould in all othsr respeLts he Liiilul \\here espulsnm Irom membership is ilearh the unit mailable method tit enlur ement he iiould uuisider the sive ul a line irreleiant 383 of the Union in the exercise of their rights guaranteed in Section 7 of the Act by imposing fines against such employees because of their postresignation con- duct in working at the Michoud plant during the September 1965 strike or by threatening to seek or seeking court enforcement of such fines. (b) In any like or related manner, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Reimburse or refund to any employees, described in paragraph 1(a) of this Order, who have paid fines under the circumstances described in that paragraph, the amount of said fines imposed because of postresig- nation conduct in working at the plant, plus interest at the rate of 6 percent per annum.'' (b) Post at its office and meeting hall and at the Michoud, Louisiana, plant of the Boeing Company, if the Company is willing, copies of the attached notice, marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 15, shall, after being signed by an authorized represent- ative, be posted at the aforementioned locations, in conspicuous places, including all places where notices to employees are customarily posted, and reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (c) Notify said Regional Director, in writing, within 10 Days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those portions of the complaint as to which no violation has been found be, and they hereby are, dismissed. MEMBER BROWN, concurring in part and dissenting in part: I join with my colleagues in dismissing the allega- tions of the complaint with respect to the imposition of discipline on members for conduct engaged in during their period of membership. However, I would also dismiss the remaining allegations concerning the imposition of fines upon purported resigners from the Union. My colleagues' disposition of this question is predi- cated on the premise that an employee, faced with the threat of a union fine, "may well be impelled " The Board has long included an award of 6 percent interest on dues, fees, or other moneys unlawfully withheld from an employee Se \i•alu,r, i 1wet nnn.„tal I trim -,t N-0, I'.',•r„ a Great Lakes District, AFL-CIO, 138 NLRB 1142 " In the event this Order is enforced by a Judgment of the United States Court ul \ppeals the fiords in the nuULi. rs,tdine Posted nt Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to forego his statutory right not to honor the Union's picket line rather than risk involvement in a lawsuit whose outcome he cannot predict." But this is what Allis-Chalmers was all about. There, a union fine, or the threat of it, expressly designed to force employ- ees to "forego [their] statutory right not to honor the Union's picket line" was nevertheless held not to violate Section 8(b)(1)(A) even though such a fine was collectible, or collected, in court. The Supreme Court reasoned that 8(b)(1)(A) was not intended to apply to this kind of coercion. If, as is the case here, a Union does not violate 8(b)(1)(A) by imposing or threatening to impose a collectible fine, it is difficult to see how a presumably uncollecti- ble fine can be violative of that Section. Even if, as the majority reasons, the employee concerned may not be sufficiently knowledgeable to evaluate the Union's fine as "un-collectible," and thus feel com- pletely free to cross the picket line with impunity, he is plainly no more coerced than the full-fledged member. A further consideration, ignored by my colleagues, impels me to this view. Each of the employees involved here, and in all other situations of which I am aware, was a member of the Union in all senses of the word before the strike began. Thus, the fealty owed by a member to his union in effect came into play when the strike was authorized and began, and a "resignation" at that point was already a disloyal action from the standpoint of the Union and his fellow members. Moreover, I cannot conceive of a case arising where a union would "fine" someone who had never been its member at all. It is only because the employees here were, in the eyes of the Union, and pursuant to the Union's constitution and bylaws, still union members, that the fines would have any impact at all on them. In this respect, whether employees are still members of the Union for purposes of imposition of a union fine, the proviso to Section 8(b)(1)(A), in express terms, applies to a union's rules for acquisition or retention of member- ship." For all these reasons, I would find no violation of Section 8(b)(1)(A) of the Act in the Union's fining a nonmember or a purported nonmember. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees who had resigned from the Union and who, in the exercise of their rights guaranteed in Sec- tion 7 of the Act, worked at the Michoud plant during the September 1965 strike by imposing fines or by threatening to seek or by seeking court enforcement of said fines as to such employ- ees. WE WILL reimburse nonmembers above men- tioned for any fines they may have paid to us for working during the said strike. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act. BOOSTER LODGE No. 405 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 19 The cases cited by my colleagues in fn i i concern a Union's application of its membership rules to job tenure, and thus are inapposite to the instant situation, where the rules pertain solely to another internal union matter RAMEY DONOVAN, Trial Examiner The charge in this case was filed on February 18, 1966, by The Boeing Compa- ny, herein the Employer or Boeing. The General Counsel of the National Labor Relations Board, herein the General Counsel, issued a complaint under date of August 9, 1968, against Booster Lodge No. 405, International Association BOOSTER LODGE NO 405, IAM of Machinists and Aerospace Workers, AFL-CIO, herein Respondent or the Union. The Complaint alleged that, in the period October-December 1965 and January 1966, the Union levied fines against named employees and other employees of Boeing in the sum of $450 each for crossing the Union's picket lines and working during a union strike against Boeing from September 16, 1965, to October 4, 1965 It is alleged that the above fines were unreasonable, excessive, and discriminatory. Further alleged is that, in the period aforementioned, the Union levied fines against named and other employees for the same reasons described above although these employees had resigned from the Union prior to working during the strike and prior to being fined. These fines are also alleged to be unreasonable, excessive, and discriminatory The complaint additionally alleges that, in connection with all the fines in the situations hereinabove, Respondent instituted or threatened to institute legal proceedings against employees who failed or refused to pay the fines. All the aforementioned conduct is alleged to have restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the act and thereby constituted a violation of Section 8(b)(1)(A) of the Act. In general terms, Respondent's answer denies the allega- tions of the complaint aforedescribed although admitting that Respondent "did institute legal proceedings against certain employees who failed or refused to pay fines imposed upon them." The case was tried before Trial Examiner Ramey Donovan in New Orleans, Louisiana on October 2-3, 1968 All parties were represented by counsel. I. JURISDICTION Boeing is a Delaware corporation with its principal office in Seattle, Washington, and it is engaged in the manufacture of aircraft and aircraft parts at Wichita, Kansas, and at Seattle and Renton, Washington. Boeing also operates a plant at New Orleans, Lousiana, known as the Michoud plant, which is the only plant directly involved in this proceeding. The Michoud plant is performing work for the National Aeronautics and Space Administration. It is estimated that in September 1965 approximately 6000 employees were employed at Michoud, of which approxi- mately 1,500-1,900 were in the unit represented by Respond- ent Union. Boeing is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ii. THE ALLEGED UNFAIR LABOR PRACTICES The Facts A contract between Boeing "and The International Asso- ciation of Machinists, AFL-CIO and those of its lodges now and hereafter representing employees of the Company " was in effect from May 16, 1963, to September 15, 1965. Various units of production and maintenance employees were covered by the contract, such as the Seattle- Renton unit, the Atlantic Missile Test Section unit, the 385 Wichita unit. The Seattle-Renton unit included company employees in the unit in the state of Washington and company employees in the unit "at Remote Locations identi- fied with the Seattle-Renton Primary Location .11 Following a description of the Seattle-Renton unit the con- tract states that "Such unit is primarily identified with the Primary Location known as Seattle-Renton and with Aeronautical Industrial District Lodge No. 751 (IAM, AFL-CIO).` A "Remote Location" is defined as "a compa- ny operation located in an area away from a Primary Location and designated by the Company as a Remote Location, such as Michoud Plant . . ." The signatories to the contract were the IAM and " Boeing and District Lodge 751, District Lodge 70, and Banana River Lodge 2061. Booster Lodge 405, herein Lodge 405, which embraces the unit employees at Michoud, was not in existence at the time of the execution of the above contract. At that time, Michoud was a "Remote Location" under the contract, the primary location being Seattle-Renton. The unit was identified with the primary location and with District Lodge 751, Seattle Lodge 405 came into existence sometime later in 1963. Lodge 405 is not mentioned in any contract until the contract that was executed in October, 1965. The contract provides that unit employees who are mem- bers of the Union or who become members are required to maintain their membership as a condition of employment. Employees hired after the effective date of the contract, who are not members of the Union, have a specified period in which to give notice that they do not desire to become union members. Such notice, in writing, is to be sent to District Lodge 751 in Seattle, with a copy to the Boeing Corporate Labor Relations Office in Seattle. Upon the expiration of the contract on September 15, 1965, the Union struck and picketed Boeing at Michoud and other locations. The strike was over economic issues between the parties The strike ended on October 3, 1965, and a new contract was entered into. During the strike, certain employees who were in the contract unit at Michoud crossed the picket line and worked At one time during the period of the contract all these employees were members of the Union. Some of these employees had allegedly resigned from the Union prior to returning to work and all of these alleged resignees had taken their steps of alleged resignation prior to any action by the Union against them because of their return to work during the strike. Another group of the returners- to-work during the strike, who were union members, made no attempt to resign from the Union. The Union made no distinction between the two foregoing groups and, after the strike, it proceeded to try and to fine these employees and to institute legal action to collect unsatisfied fines. There is no evidence that before or during the strike the Union warned employees that fines or any other action would be taken against those who worked during the strike. Article L, article XXIV, section 3, of the constitution of the International Association of Machinists, provides, under the caption, "Improper Conduct of a Member" that. Aeronautical Industrial District Lodge No 751 will be referred to as District Lodge 751 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following actions or omissions shall constitute misconduct by a member which shall warrant a repri- mand, fine, suspension and/or expulsion from member- ship, or any lesser penalty or any combination of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided- Refusal or failure to perform any duty or obligation imposed by this constitution ; the established policies of the I A M.A.W.; the valid decisions and directives of any officer or officers thereof. . Accepting employment in any capacity in an establish- ment where a strike or lockout exists as recognized under the constitution , without permission. Although the internal due process of the steps taken by the Union with respect to the employees aforedescribed, who had worked during the strike, is not in issue , a brief description of the various steps is appropriate. The record indicates that these steps were initiated in November 1965, or possibly the latter part of October, 1965. By mail, an employee was notified that he had been charged with violating the constitution of the Union , specifi- cally article XXIV, article L, section 3, "Accepting employ- ment . in an establishment where a strike . . exists . . . " He was advised of the time and place of his trial before the trial committee and the fact that the charges would be read to him and that he could have an attorney who was "a member of the I.A.M.A.W " to defend him. The trial, it was stated, would proceed if he did not appear. According to Higgins, business representative of Lodge 405 during the strike and immediately thereafter and subsequently president of Lodge 405, those employees who did not appear at their trial were fined $450; those who appeared and were found guilty were fined $450;' those who appeared before the trial committee and said that they were sincerely sorry about what they did and said t at t ey wished to be good union members had their $450 fines reduced to 50 percent of what they earned by working during the strike 3 By letter or otherwise, there was no notification to employees by the Union that it had reduced or would reduce the fines to 50 percent of earnings under some circumstances Higgins states, however, that the foregoing reduction was "general conversation " This appears to be a dubious basis for a factual finding of general knowledge and at best would indicate that some employees, other than those who had actually received such reductions, may have heard of some reductions. Regarding the implementation of the reduction in those cases where it was granted, Higgins states that the Union did not know the earnings of the ' There is no evidence that anyone was found not guilty In addition to the fine the employee, depending on his years of employment, was barred from holding union office for periods of 1 to 5 years Employee Thomas, a witness called by Respondent, whose fine had been reduced from $450 to 50 percent of earnings during the strike at Boeing , testified that in September 1968, about 2 weeks before the instant hearing, as a result of his plea of personal hardship to the union membership and to a new administration in Lodge 405 , his fine was reduced to $20 ' This 50 percent policy , according to Higgins , was initiated in the "first part" of 1966 particular individuals and took their word as to earnings in arriving at the 50 percent balance 4 Some "fleshing out" of Higgins' testimony is to be found in typical letters in the record that were sent by the Union to the employees who were fined A November 3, 1965, letter to employees who had been fined 50 percent of earnings noted nonpayment in full and requested that the employee contact the business representative of the Union regarding payment "since we are now in the process of turning all fines over to our attorney for collection Failure to do so could cause your fine to be increased to $450 as was noted at your trial " A letter of February I. 1966, sent to an employee who had been fined $450, and signed by the Union's attorney, states that the matter has been referred to the attorney for collection 5 The letter then sets forth a demand for the $450 and advises that failure to respond promptly "will require our filing suit against you, with the additional cost to you of attorney fees and court costs incurred by the Union in the process. plus legal interest " The record also discloses that the Union cited employees on a petition for money judgment in the City Court of New Orleans. For instance, a citation, dated April 11, 1966, shows the amount as $630 "with legal interest." The figure of $630 was based on $450 for the fine, plus $180 attorney's fees. Boeing undertook to defend the suits against individual employees but made no general communi- cation of this policy to employees. Thus, the employee cited in the April 11 action, above, contacted Boeing's Labor Relations Manager, Nau, about the citation. Nau referred the employee to the Company's attorney although Nau advised the employee that he could retain his own attorney if he wished. The Resignations At an earlier point, one of the categories of employees involved in the instant case was described as alleged resignees from the Union . It is now appropriate to describe and determine the facts regarding the alleged resignations. Nau testified that, in 1962, in a period when there was a hiatus in the contractual relationship between the Union and Boeing, the practice was for the union members who wished to resign from the Union to send a registered letter to the Union and to the Company, stating that they wished to resign their membership and to have their dues deduction authorization cancelled . Nau states that in past years, including 1962, this practice was recognized by both parties. Higgins testified that there was no provision in the constitution allowing resignation by sending a letter to the Union and no by-laws or practices of Lodge 405 permitting members to resign their membership. Higgins was then asked by Respondent's counsel about "testimony here by Mr. Nau with respect to an employee who dropped ' In letters notifying employees of the fines imposed, the right of appeal to the president of the International Union , pursuant to the constitution, was mentioned There is no evidence that any appeals were taken ' The particular letter was sent to Katz who had allegedly resigned from the Union prior to working during the strike BOOSTER LODGE NO 405, IAM out of membership in Local 405 during a period of time when there was no contract in effect, in 1963."6 Higgins testified that no employee "dropped" from the Local but Higgins went on to describe some employee who had never been a member in the first place and from whom, in any even, the Union had never received a letter It is the Examiner's opinion that in the past, in 1962, when the Michoud plant was represented by District Lodge 751, the Michoud plant management, the Labor Relations Manager, believed, and so advised personnel when such matters arose, that in a no-contract period an employee who wished to resign from the Union and to discontinue authorization for checkoff of dues could do so by writing to the Company and to District Lodge 751, both in Seattle. The extent to which employees availed themselves of this procedure is unclear but apparently no issue arose between the Company and District Lodge 751' on the matter and the Company had no reason to believe that its understanding of the procedure was disputed The evidence reveals in many respects a general orienta- tion toward Seattle of company and union relations at the Michoud plant. This situation arose from the fact that Boeing's corporate labor relations office was in Seattle and that city was also the situs of, and the area embraced by, District Lodge 751 When the 1963-1965 contract was entered into, District Lodge 751 was the union organization representing the Michoud employees The contract provided in its union-security clause that those employees who were not union members and who did not wish to join the Union were obliged to write to the Company in Seattle and to District Lodge 751 in Seattle stating that fact. The Company, in the past, in notices to newly hired employ- ees, set forth the above provisions , including the Seattle addresses of the Company and District Lodge 751. There is no evidence that the contract or the company notices were amended in the above respects after Lodge 405 came into existence at Michoud. Nor is there evidence that, when a new Michoud employee wrote such letters to the Company and to District Lodge 751 in Seattle, Lodge 405 contended that such letters by a Michoud employee were ineffective under the contract because the letters had not been addressed to Lodge 405. This Seattle orientation was also present in the 1965 period when the events herein involved occurred Thus, the contract negotiations for the various units, including Michoud, were conducted on the basis of one contract embracing various units and locations.' These negotiations were held in Seattle Also, in 1965, before the strike Nau advised his labor relations staff people of the Company's position if confronted with inquiries regarding withdrawals from the Union when, by lapse of the contract, there might be no contractual obligation to maintain union mem- bership . This intramanagement communication read. 1 The Company does not encourage or discourage anyone from withdrawing his membership from the Union .... ` Nau's testimony was as described above Lodge 405 was not yet in existence The subsequent strike occurred at all locations 387 2. The Company cannot assure the employees that sending a letter will terminate his membership in the Union. However, in the past, the procedure has been to send a registered or certified letter to the Union and to the Company in Seattle stating he wishes to terminate his membership in the Union and to cancel his payroll authorization for Union dues deductions. [There are then listed the full name and Seattle address of District Lodge 751 and the name and Seattle address of the Company, to wit, "Corporate Labor Relations Office " Neither the Company's Labor Relations office at the Michoud plant nor Lodge 405 at Michoud were mentioned ] Around September 1965, various individual employees at Michoud spoke to their supervisors or other management people about how they could resign from the Union. The evidence reveals that, in substance, they were told that it was necessary to write a registered or certified letter of resignation to the Company and to District Lodge 751 in Seattle There is no evidence that the Company solicited or initiated withdrawal inquiries or withdrawal action by the employees but the Company did respond to inquiries as aforedescribed. Beginning about September 16, 1965, and on various succeeding dates in September, over 100 employees wrote to the Company and to the Union (District Lodge 751) in Seattle certified or registered letters of resignation In substance, the writer said that he no longer wished to be a union member or that he was resigning from the Union. By letter of November 4, 1965, Lodge 405 stated to Nau: Attached is a list of Boeing employees who wrote certified letters, either to District 751 or Local 405, terminating their membership in the International Asso- ciation of Machinists and Aerospace Workers [The list of names attached numbered 235] Although we have not yet described Respondent's princi- pal contention regarding the resignations , Respondent does make, in its brief, a subsidiary contention that is, in effect, assuming arguendo, that employees could resign from the Union, the resignations should have been addressed to Local 405. In support of this position Respondent states that the Michoud employees "signed Local 405 membership application cards and payroll deductions are made locally."' To further present the contention in its full strength, the Examiner will also state that there is no doubt that the Michoud employees were members of Lodge 405 in Septem- ber 1965, and not members of District Lodge 751. While it is probably true that, from the standpoint of legal precision, Lodge 405 should have been an addressee for the resignations, the evidence which we have described Before Lodge 405 came into being, the Michoud employees signed District Lodge 751 union application cards Those who had so signed were not thereafter required to sign Lodge 405 cards when that Lodge came into existence For a time , after Lodge 405 came into existence, District Lodge 751 cards were used at Michoud but this ceased when Lodge 405 became fully functional and had its own cards The evidence indicates that at one time dues checked off at Michoud were remitted to Seattle but, when Lodge 405 came into being, it received the checked- off dues directly from the Company 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above in detail leaves no doubt in our mind of the substantial history of Seattle orientation of union and management matters at Michoud. The contract that was in effect until September 15, 1965, specifically mentioned only the Seattle offices of the Company and the Union, District Lodge 751 in Seattle, as the bodies to be notified if an employee did not wish to join the Union. This and the other factors we have previously mentioned would not unnaturally lead to the belief that the Seattle formula was also applicable to resignations. Also, there can be little doubt of the fact that the Seattle labor relations office of the Company informed its Michoud counterpart of Michoud communica- tions that it received and that a similarly close liaison existed between District Lodge 751, in some respects the ancestor or parent of Lodge 405, and the latter The letter of November 4, 1965, from Lodge 405 to Nau fully supports the conclusion that Lodge 405 was fully aware of the resignations. 10 Respondent's basic position is that the resignations were an exercise of futility and that regardless of where or when they were sent or received Respondent regarded and regards them as having no effect. Charges were filed and trials conducted against those employees who worked during the strike irrespective of resignations." The reason advanced by Respondent for disregarding the resignations is, in substance, that there is no provision for voluntary resignations under the constitution or by- laws. The constitution provides that membership may be cancelled where a member is delinquent for 3 months in the payment of dues or special levies. There is also a constitutional provision for honorary withdrawal cards to a member who ceases working at the trade or who becomes a supervisor. Higgins testified that the union posi- tion at the time of the purported resignations was that the employees did not have the right to resign from the Union. 'I This continues to be the union position The Allis-Chalmers Decision" and Reasonable Fines The applicability of the Allis-Chalmers decision to the present case is apparent, but preliminarily, it is appropriate to describe and to understand the holding in that case since the doctrine of unreasonable fines, which is advanced by the General Counsel in the instant case, is distilled from the Allis-Chalmers decision The majority of the Supreme Court held, in substance, that "the body of Section 8(b)(1) [(A)] [which prohibits restraint or coercion by a union of the rights of employees to engage in or to refrain from engaging in union activities as guaranteed in Section 7 of the Act]" does not proscribe " ° The resignation letters addressed to Seattle were sent to Lodge 405 and received by the latter about October 15, 1965 " Higgins testified that if an employee had sent in a resignation he was not charged and tried if he had not worked during the strike The converse was also true , that is, the employee who had resigned was charged and tried if he had worked during the strike " Higgins referred to the constitutional provisions above and the absence of any provision for resignation Higgins did, however, testify that a member could resign "by death " " NL R B v Allis-Chalmers Manufacturing Company, 388 U S 175 "the imposition of fines and attempts at court enforcement . ."10 The Court stated "Our conclusion that Section 8(b)(1)(A) does not prohibit the locals' action [of imposition of fines and court action to collect the fines] makes it unnecessary to pass on the Board holding that the proviso protected such action "15 The critical role of court enforce- ment of fines as a significant factor in appraising the union conduct, and a further indication of the nondetermina- tive role of the proviso in the majority's decision is found in the comment regarding the fact that one of the local unions in Allis-Chalmers had notified strikebreaking employ- ees that they might be subject to a $100 fine for each day they worked The Court said that " .. no inference can be drawn from that notification that court enforcement would be the means of collection. Therefore, at least under the proviso, if not the body of Section 8(b)(1), such notifica- tion would not be an unfair labor practice." At another point, it is said that "Assuming that the proviso cannot also be read to authorize court enforcement of fines, a question we need not reach . "I6 In upholding the imposition of fines and the court enforce- ment thereof, the Court, in the course of its opinion, at several points used the term "reasonable fine " Thus, at page 183. "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"; at page 192• "There may be concern that court enforcement may permit the collection of unrea- sonably large fines However, even where there is evidence that Congress shared this concern, this would not justify reading the Act also to bar court enforcement of reasonable fines." In a footnote on the same page it is stated that "It is not argued that the fines for which court enforcement was actually sought were unreasonably large " Accordingly, we find an implied requirement that the court enforceable fine must be "reasonable" or not "unrea- sonably large." Having rejected the position that the high water mark of internal union discipline of members regard- ing fines or other strictures was the right of expulsion from membership, what remained was the conclusion that a union could fine its members and enforce the fines in court without violating Section 8(b)(1)(A). Since the Act, under the foregoing construction , supplied no standard or limitation on the amount of the fines, the standard of reasonableness, often invoked in legal construction, was apparently invoked as appears from the above excerpts in the Allis-Chalmers decision. " In reaching this conclusion , the majority had perceived "inherent imprecision" in the words "restrain or coerce" in Sec 8(b)(1)(A) and, in its view of the legislative history, Congress did not intend to interdict, as "restraint or coercion" , the imposition of fines and court enforcement thereof The majority also stated that "weak" unions would be disadvan- taged if court enforcement of fines were encompassed in the prohibition of Sec 8(b)(1)(A) and that therefore it had not been intended to interdict such conduct " Immediately following the body of Sec 8(b)(1)(A), described above, is the proviso, "That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein " 1' Elsewhere the Court did perceive "cogent support" for its interpreta- tion of the body of Sec 8(b)(1)(A) in the proviso BOOSTER LODGE NO 405, 1AM 389 We proceed, therefore, on the basis, as indicated by the Court, that under the body of Section 8(b)(1)(A) the fine imposed and enforced or sought to be enforced must be "reasonable." The principal or sole point of references in Allis-Chalmers to determine what is a reasonable fine or one that is not "unreasonably large" is the actual amount and circum- stance of the fines in that case The factual circumstances are most fully described in the Trial Examiner's Decision, adopted by the Board, and not disputed in the Court of Appeals or in the Supreme Court." In Allis-Chalmers, Local 248 struck the Company from February 2 through April 20, 1959 On February 24, 1959, 248 notified employees who had crossed the picket line to work that they were subject to a fine of up to $100 per day for each day's activity Between February 2 and June 30, 1959, charges were filed with 248 against the strikebreakers. By September 1959, 172 members had been fined $20 to $100. On September 18, 1959, 248 demanded payment of the fines On October 16, 1940, 248 again asked for payment, citing a Wisconsin case holding that fines were enforceable. On April 21, 1961, 248 notified each fined member of the action of the US Supreme Court in the Wisconsin case and warned that a continued failure to pay the fines would result in the case being turned over to counsel "for civil suit " Local 401 struck at another installation of the Company from February 2 to April 19, 1959. After teal, it fined strikebreakers $100 each on July 11, 1959. On August 29, 1961, 248 took a pilot case to court against a strikebreaker who had been fined $100 Plaintiff was successful on April 26, 1963 Appeal was pending A suit by 401 against one of its strikebreakers was pending. In 1962, both 248 and 401 had a similar situation as described in earlier years In 1962, the actions of the Unions were similar to their earlier actions and strikebreakers were fined $35 to $100 by 248 and 401 fined its strikebreakers $100. In 1962, however, there were no threats of court enforcement nor warnings of court action. A high percentage of 248 strikebreakers paid fines in 1962 and all 401 strikebreakers paid Aside from initial general descriptions of the factual situation in the case, the Allis-Chalmers decision devotes little space to factual details but is principally concerned with the broad legal issues of the case Perhaps the most specific comment made by the Court about the actual fines in Allis-Chalmers is as follows:" The notification by Local 248 to its strikebreaking employees that each day they continued to work might constitute a separate offense punishable by a fine of $100 was sent only to members of Local 248, not those of Local 401, and only during one of the two strikes called by Local 248 The notification was sent I` Local 248. United Autontobde 4erospateand 4,griuthuralImplement Won,erv of America, 4 FL-CIO( 411n-Chalniers Manufacturing (onipani) 149 NLRB 67. 75-76 4llis-Chabnerc Manu/aituringCompani v 'V L R B 258 F 2d 656, 657 (C A 7) N L R B v Alhs-Chalmers Manufacturing Conipant, 388 U S 175 192 In 30 " P 192,fn 30 only to those employees who had already decided to work during the strike. Most important, no inference can be drawn from that notification that court enforce- ment would be the means of collection. Therefore, at least under the proviso, if not the body of Section 8(b)(1), such notification would not be an unfair labor practice. It is not argued that the fines for which court enforcement was actually sought were unreason- ably large. An appraisal of the factual situation in Allis-Chalmers sheds little light on what standards the conclusion was reached, as it quite apparently was, that the fines were reasonable or not unreasonably large. All we know is that, in that case, fines of $20 and $100 on strikebreakers who worked during two stnkes that lasted over 2 months each were reasonable. We do not know if the Court would regard the actual imposition, as threatened in Allis-Chalmers, of a fine of $100 per day for each strikebreaker as reasonable It is this lack of a standard or guideline in determining reasonableness that presents a problem. And this is a prob- lem that may apse in every case involving fines and threat- ened or actual court enforcement of the fines. We can conclude that, in those cases that arise where the strike lasts more than 2 but less than 3 months and the fine is $20 or $100, the fine is reasonable." But suppose the fine is $150, $200, $300, $400 or some other figure for a strike of similar duration What is the standard in a 1-month strike, a 6-month strike, or a strike of some other duration? In this connection, the basic nature of the problem was recognized by the dissenting justices in Allis-Chalmers in the following observations (p. 204) In this case, each strikebreaking employee was fined from $20 to $100, and the Union initiated a `test case' in state court to collect the fines. In notifying the employees of the charges against them, however, the Union warned them that each day they crossed the picket line . . . might be considered a separate offense punishable by a fine of $100. In several of the cases, the stnkes lasted for many months Thus, although the Union here imposed minimal fines for the purpose of its `test case', it is not too difficult to imagine a case where the fines will be so large that the threat of their imposition will absolutely restrain employees from going to work during a strike . . . of course, as the Court suggests, he [the fined employee] might be able to defeat the union's attempt at judicial enforcement of the fine by showing it was `unreasonable' . . . . but few employees would have the courage or the financial means to be willing to take that risk [citation omitted 1.20 " To be on all fours with Allis-Chalmers, the comparative strike situation must also include a warning of fines to individual strikebreakers during the course of the strike and not deferment of threats of, or imposition of, fines until after the strike 30 Aside from these observations, the contests of whether particular fines in particular strikes of various types and duration are unreasonable or not, could find their way individually to the Board Without a standard by which to determine reasonableness, this task could be formidable Conceivably, the administrative task could be lessened by deciding that (cont'd) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his brief, the General Counsel, recognizing, at least in some degree, the decisional task of determining what is a reasonable fine, states that "Since neither the Board nor Courts have established any criteria in this type case for determining what constitutes a reasonable fine, all rele- vant factors should be considered " We would agree with this observation although the "relevant factors" are almost as recondite as what is "reasonable" since the Court has not informed us what are the hallmarks of reasonableness If we knew even one standard of reasonableness as to the Allis-Chalmers fines, the relevant factors therein could be determined. All that can be said is that in that case, where strikebreakers worked abour 2 1 /2 months and earned possibly between $2.50 and $3 per hour or possibly $1,000 overall, whereas if they had not worked as required by the union rules they would have earned nothing or would have received possibly appreciably less in strike benefits, a fine of $100 or $20 and court action thereon is reasonable But, again, at the risk of belaboring the point, what is reasonable if the fine was some other amount or if the strike was of different duration?21 The various factors, submitted by the General Counsel as relevant in assessing the reasonableness of the fines in the instant case and as supporting his contention that the fines were unreasonable and excessive, are as follows. The General Counsel cites Section 8(b)(5) of the Act. This section provides that it is an unfair labor practice for a union, in situations where a contract requires union membership as a condition of employment, to require pay- ment of a membership initiation fee in an amount "which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected." It is therefore argued, in effect, that the wages of the strikebreakers and other economic factors pertaining to them should, by analogy to the factors deemed relevant in Section 8(b)(5), be considered in the instant case. While we do not have an 8(b)(5) situation before us" and cannot say that the standards set forth in that section govern the instant case, the considerations in that section, and in the decisions applying it, do manifest, in some almost any duly enacted fine short of outright confiscation was reasonable, but leaving to a patchwork of state court decisions the determination of whether the particular court would actually enforce a fine that it might consider unreasonable or excessive Surely this approach cannot be recommended as the lot of individual employees covered by Sec 7 of the Act and by Sec 8(b)(1)(A) even as the latter has been interpreted in Allis-Chalmers " We mention amount of the fine and duration of the strike because these were the only factual elements that appear in Allis-Chalmers The Court evinced no interest in any other factors and did not comment specifically on either factor that was present other than to observe that no one had argued that the fines were unreasonably large As we shall see, there are other considerations that have at least potential relevance on the qustion of what is a reasonable fine " Fairly typical 8(b)(5) cases are Television and Radio Broadcast and Studio Employees, Local 804 (Triangle Publications, Inc.), 135 NLRB 632, enfd 315 F 2d 398 (CA 3), Local 839, Motion Picture Screen Cartoonists (1A TS.E), 121 NLRB 1196 degree, congressional, Board, and court thinking on the matter of unreasonable or excessive union fees. An initiation fee and a fine are of course distinguishable but both represent an exercise of union power as to membership obligations of employees, and, regarding the initiation fees, at least, we have some guidelines by which a fee is judged reasonable or excessive. The employees involved in the instant case normally earned approximately $2.38 to $3.63 per hour which would mean about $95 and $145 per 40-hour week, respectively. The fines were $450, although under certain conditions described earlier in this decision individual strikebreakers had obtained a reduction from the $450 fine to a fine in the amount of 50 percent of the strikebreaker' s earnings at Boeing during the strike 21 It is pointed out by the General Counsel that the $450 fine alone, even without the $180 attorney's fee for a total of $630, is more than 4 1/2 times the weekly earnings of the lowest paid strikebreakers.24 We ourselves likewise observe that $450 is more than double the weekly earnings of the highest paid strikebreaker. The General Counsel also characterizes $450 as "exorbitant" when compared with the union's initiation fee of $10 and the monthly dues of $5 50 or $66 per year. Another factor that the General Counsel urges as support- ing the contention that the fines were unreasonable is the fact that Hurricane Betsy had struck the New Orleans area a week before the strike. The hurricane caused extensive damage in the area, affecting, among others, the employees, their homes, families, possessions, and transportation. The record does not show how much each individual strikebreak- er, over 160 in number, was affected by the hurricane nor how the more than 10 times as many employees who did not work during the strike were affected. There is testimony from a few strikebreakers as to how they were affected by the hurricane. 2' In some degree the testimony may be regarded as illustrative of the type of problems that beset people in the area, including strikebreakers and nonstrikebreakers. Undoubtedly some people suffered more and some less, but unless an individual survey was made of some 1,500-1,900 employees in the unit, we can do little more than conclude that the hurricane adversely affect- ed the area and its people from the economic standpoint. In the same connection, the record shows that the Michoud plant was severly damaged by the hurricane and was closed for 3 or 4 days, reopening just a matter of a few days before the strike Nau had spoken to Higgins " Atypical and not properly part of the general picture of the amount of the fines is the case of a strikebreaker who, in 1968, 2 weeks before the instant hearing, secured a reduction in his fine to $20 , supra. " In using the term "strikebreakers" to describe employees who worked during the strike, no value judgment is intended We use the term simply as a convenient one word description rather than the longer phrase of "employees who worked during the strike " Both the majority and the dissenting opinions of the Supreme Court in Allis-Chalmers used the term "strikebreaking employees" in referring to those who worked during the strike " For instance, 30 inches of floodwater in the home , destruction of lifetime possessions and property, large family in stringent financial straits for basic necessities BOOSTER LODGE NO 405, iAM with regard to the impending multiunit strike by the Union against Boeing . Nau urged that, in view of the effect of the hurricane on the Michoud plant and its employees, Higgins should request the International Union to exclude the Michoud plant from the coming strike against various Boeing installations . Higgins responded negatively Higgins testified that the Union did take the hurricane situation into consideration regarding the fines He states that he personally had thought that the fines should be more than $450 because he believed some strikebreakers had earned more than $450 by working during the strike The reduction of the $450 fines to 50 percent of earnings during the strike was attributed by Higgins to consideration of the effects of the hurricane on employees We believe that this may be partially true but the reduction was due to other factors also and the reduction did not apply ipso facto simply on the basis that all strikebreakers had been affected by the hurricane Thus, as earlier described, the reduction of the $450 fine to the 50 percent of earnings basis was not accorded to all strikebreakers but only to those who appeared at their trial, confessed their wrongdo- ing, and affirmed a desire to be good union members in the future. No notice was issued that the above formula was being followed or would be followed." We have before us, therefore, a variety of factors that, the General Counsel asserts, demonstrate that the fines in the instant case were unreasonable. These factors include the amount of the normal earnings of the employees and the normal dues and initiation fees, as well as the severe economic consequences of a hurricane that struck the area shortly before the strike. It is our opinion that normal earnings and the amount of the regular dues and initiation fees are relevant consider- ations. The normal earnings are particularly important in a situation, such as here, where the charges and fines did not occur until after the strike and where there were no prior warning of a specific fine for working during the Michoud strike or of the possible amount of the fine.27 It is apparent that such fines will probably have to be paid from normal earnings and that whatever earnings there were during the strike were probably spent as normal living expenses, without saving part thereof for an expected future fine of $450 From the standpoint of the Union, however, a more important consideration would be that the strikebreakers received earnings during the strike. These earnings were received as a result of violating membership obligations not to work during the strike and the strikebreakers' earnings are in contrast to the lack of earnings of the loyal union 'a Both the Union and the Company had taken steps to relieve suffering caused by the hurricane Upon application by an individual and after mvetittgation a special fund set up by the international Union was the source of payments of $124 to employees who were seriously affected by the hurricane Thomas, a witness called by the Union, who was a strikebreaker, testified about there being 30 inches of water in his house as a result of the hurricane and about he and his wife and eight children then sleeping on the floor of his uncle's apartment , occupied by his uncle's own large family Thomas applied to the Union for the $124 relief and his uncontroverted testimony is that Higgins told him he was not eligible since he worked during the strike ii Respondent, moreover, had never before fined any of its members 391 members. 28 It is thus apparent that both normal earnings and earnings secured during the strike are relevant consider- ations in evaluating the reasonableness of the fines. As to normal dues and initiation fees of the Union, they, like normal earnings, have relevance because they are indicative of the amount of the economic obligations that normally exist between the Union and its members. For dues of $5 50 per month or $66 00 per year, the normal financial obligation of a member to the Union is discharged. From such a standpoint, a fine of $450 is a major escalation in financial obligation. Then we come to the economic consequences of the hurricane and the attendant economic and personal pressures therefrom that had been placed on individuals who worked during the strike The difficulty of assessment in this area as to relevance on the amount of the fines is apparent In promulgating or administering a penalty where a large number of individuals is involved there are two somewhat conflicting considerations. One consideration is a desire for uniformity in order to avoid contentions of partiality but another consideration is the desire to assess guilt on an individual rather than on a group basis. Uniformity also makes for ease of administration as contrasted with the time and difficulty entailed in arriving at varying individ- ual penalties Does a reasonable fine in the instant case necessitate a differentiation between two strikebreakers, one with three children and one with eight? Suppose one strike- breaker had a dependent mother-in-law and a spastic child requiring special medical attention Should the fine be differ- ent for a man who had 30 inches of water in his house whereas another had only 2 inches? All sorts of differentia- tions are possible, including values of destroyed or damaged cars, furniture, and so forth that varied in individual case; children or no children; working wives or nonworking wives; and many types and degrees of individual financial obligations. How is the adjudication in any of the foregoing types of situations of strikebreakers to be affected if the nonstrikebreakers had equivalent or greater numbers of children, personal problems, and damage to property'? Perhaps a conclusionary and determinative assessment of the various factors of normal earnings, initiation fees, dues, strike earnings, hurricane, and individual situations of strikebreakers as guidelines to what is a reasonable fine is not necessary. None of these elements were presented to the Court in Allis-Chalmers and as far as appears the Court evinced no interest in such real or potential factors in arriving implicitly at its conclusion that the fines in that case were reasonable or not unreasonably large. It can be said that, since the fines in Allis-Chalmers were $20 and $100 for working during a 2 1/2-month strike, the instant fines of $450 for working during an 18-day strike were unreasonable. It can also be said that in the i" The strike occurred through 18 calendar days, including 3 Saturdays and 3 Sundays Different strikebreakers, of course, had different rates of pay and worked either a few days or many days during the strike As provided in the expired contract, bonus or premium rates were earned by some employees for weekend work or for work properly classed as overtime Varying pay rates, lesser or greater days worked, plus the existence or nonexistence of premium pay in individual cases, would give a wide range of earnings 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cited case there was ample advance warning not only that strikebreakers would be fined but also that the fines could be severe. 29 In the instant case there was no warning before or during the strike that fines would be imposed and, of course, no indication of the amount or severity of the fines While the foregoing approach is temptingly available, the Examiner believes that the parties, as well as other employees, unions, and employers, are entitled to some explication of what are the elements that make one fine in one strike reasonable and which factors in another strike might make certain fines unreasonable . It is scarcely helpful or enlightening to conclude that only a $20 or $ 100 fine is reasonable regardless of the length of the strike and regardless of other factors that we have touched on above. A fine of $ 100 in a 1-day strike and a fine in the same amount for working during an 8-month strike are surely not the same as to reasonableness even if we disregard every other variable factor. A determination of whether the instant fines are reason- able or unreasonable should itself be based on a formula that has a reasonable basis. The reasonableness of the basis or standard will be more evident if it is reasonable not only with respect to the instant case but has general applicability to other strikes and to other strikebreakers. A measure of predictability in such situations would certain- ly be of help to employees , unions, employers, to the General Counsel of the Board, and to those charged with adjudicatory responsibilities While Allis-Chalmers may have decided reasonableness in that case, the lack of explication of any basis for conclusion limits its general applicability as a guideline. A fine by its nature and definition is a punishment. Punishment has the elements of retribution, deterrence, prevention, and reformation. The latter three elements are generally accorded greater weight in our contemporary society than is retribution in dealing with nonconformity or wrongdoing in the various facets of human conduct. In a regulatory and remedial statute such as the Act the sanctions are not punitive or retributive in nature. We therefore are of the opinion that, while the Supreme Court found that the Act vested in a labor organization the protected right under the Act to impose reasonable fines and to seek court enforcement thereof, it was not intended, we believe, that such fines should be punitive or retributive. This conclusion, in some degree, finds confirmation in the fact that the Court used the term "reasonable" in connection with fines.70 Since we believe that the fines with which we are con- cerned should be essentially deterrent in nature , the question is, how much deterrence A deterrent can be total or virtually total or it can be partial or less than total Without reference to larger fines, it would appear that a fine of $100 per day and court enforcement thereof on a strikebreak- " At one point the Allis-Chalmers strikebreakers had been notified that their activities could subject them to a fine of $100 per day worked " It is probably true that a punishment such as a fine may have an inherent punitive element The deterrent factor , however, is properly predominant as contrasted with a situation where far and beyond any reasonable deterrent it is evident that a punitive result is being imposed er, earning average industrial wages, is a total deterrent to any union member working during the strike. We also believe that a fine in the total amount of what the strike- breaker earned by working during the strike is a total deterrent " There can be a variety of fines that are less, in effect, than total deterrents but are nevertheless deterrents in varying degrees . Probably fines in amounts of more than 50 percent of earnings during a strike but less than 100 percent are also total deterrents for all practical purpos- es. This is most evident if the percentages exacted are 80 or 90 percent The more difficult question arises when the percentage is 50 percent or some percentage above or below that figure. Before endeavoring to discern whether the Supreme Court was speaking of a reasonable fine in terms of total or partial deterrence , it should be made clear that the Examiner believes that the Allis-Chalmers doctrine of reasonable fine is most appropriately interpreted in terms of the relationship of the amount of the fine to the earnings of the strikebreakers during the strike . We believe that such a standard, given the Allis-Chalmers decision regarding the right to impose and to collect fines in court, is basically equitable. The elements of normal earnings in nonstrike periods, the amount of initiation fees and dues, and other factors are taken into consideration in determining what percentage of strike earnings may be assessed by fine If the percentage of earnings during a strike that can be properly extracted by a fine can be determined by some equitable standard, then we are prepared to submit such a fine as being the reasonable fine contemplated by the Court in Allis- Chalmers Further, if such a standard or formula can be evolved it would be readily understandable by employees, unions, employers and all other concerned parties interested in their respective rights and obligations in this matter of fines Having previously narrowed the nature of the fines that concern us to fines that are deterrents , we return to our consideration of whether the deterrence envisaged by the Court was total deterrence from any work during the strike or less than total deterrence . The resolution of this matter is initially essential since if the court was sanctioning total deterrence then a fine of 100 percent of total strike earnings might be the reasonable fine envisaged, with any greater amount of fine being unreasonable Conversely, if the Court did not contemplate total deterrence, our problem is to ascertain the percentage of earnings extracted by fine that equates with the degree of partial deterrence that the Court would consider reasonable An important portion of the reasoning of the majority of the Court in reaching its basic decision in Allis-Chalmers was the strong and weak union analogy. Thus, It is no answer that the proviso to Section 8(b)(1)(A) preserves to the Union the power to expel the offending member. Where the Union is strong and membership therefore valuable,to require expulsion of the member " Employees warned before or during the strike of fines of the two aforementioned types would normally not work, etipeually if there had been a few test cases with such court awards staring them in the face Such fines , if imposed after the strike , without prior warning, would deter working in any future strikes BOOSTER LODGE NO 405, 1AM visits a far more severe penalty upon the member than a reasonable fine Where the Union is weak, and membership therefore of little value, the Union faced with further depletion of its ranks may have no choice except to condone the member 's disobedience [unless it can impose fines and enforce them in court] At the very least it can be said that the proviso preserves the rights of unions to impose fines as a lesser penalty than expulsion . . to interpret the body of Section 8(b)(1) [as applying to the imposition and collection of fines but not to expulsion would be making] a distinction between court enforcement and expulsion [which] would have been anomalous . . . such a distinction would visit upon a member of a strong union a potentially more severe punishment than court enforcement of fines, while impairing the bargaining facility of a weak union by requiring it either to condone misconduct or deplete its ranks The concurring opinion of Mr Justice White who constitut- ed the fifth member of the court majority is based almost exclusively on the strong and weak union reasoning, above, in Mr. Justice Brennan's majority opinion . The same reason- ing was also the subject of critical comment in the dissenting opinion written by Mr. Justice Black and concurred in by three other justices. Our attention to the strong and weak union comments of the Court is based on our interest in the question of whether they tell us anything about the Court's views on deterrence. Evidently the Court views a "strong" union as one that possesses a deterrent power over its members that a "weak" union does not possess . A strong union, according to the Court, is one whose membership the members view as "valuable" and therefore expulsion is a more severe penalty than court enforcement of fines. A weak union is one where membership is of "little value" to the members and therefore expulsion is no deterrent If, as the Court states, expulsion from a strong union is a more severe penalty than a court-enforced fine, then such expulsion or power to expel by a strong union is probably equivalent to total deterrence In other words, when the strong union, of which the Court speaks, strikes an employer, the union members will not work because the union cannot only fine strikebreakers and enforce the fine in court but can , if it chooses, impose the greater penalty of expulsion from membership . If expulsion is a greater penalty than the court -enforced fines then the loss of membership can probably be presumed to be a greater economic loss to the member than would a court enforced fine It is doubtful that in the majority of cases unadulterated loyalty to the Union or sentimental attachment to the concept of membership is the element that makes loss of membership a greater penalty than a court enforced fine. Moreover, the Court in describing a strong union as one where the membership was "valuable " was using a term not generally used to describe pure loyalty or sentiment. The Court, in the same sense, described a weak union as one whose membership was of "little value." Nothing was said about comparative loyalty of members in different unions but the comparative description was solely in terms of the value of the memberships . Perhaps 393 it may be said that the aforementioned strong union in a plant, since it would have secured better contract terms than would a weak union , was in that sense the union whose membership was more valuable . This is true to some degree but the same beneficial contract terms would continue to accrue to the member expelled for strike- breaking so that expulsion , realistically , in such a situation, would not be a penalty that was greater than a court- enforced fine. It is reasonably apparent , in our opinion, that the strong union , membership in which is so valuable that explusion therefrom is a greater penalty than court-enforced fines, is most likely a craft union in an industry where membership in that union is essential to secure or to retain employment." Expulsion from membership is therefore a severe penalty and greater than court enforced fines. In such situations a high degree of discipline is possible and there is little or no strikebreaking activity by members . We therefore conclude that expulsion from a strong union , which the Court described as a greater penalty than court -enforced fines, if, for all practical purposes, equivalent to total deter- rence to strikebreaking activity by members . The question then is, did the Court, while in effect recognizing that expulsion from a strong union was an exercise of total deterrence, intend or contemplate that a reasonable fine was one the amount of which would totally deter strikebreak- ing-for instance, a fine of $ 100 per day? Or was a reasonable fine to be a fine that would deter strikebreaking but not totally eliminate any possibility that any member could, as a practical matter, work during a strike? For several reasons, it is our opinion that the Court contemplated that a reasonable fine was one that would be less than a total deterrent to working during a strike. As we have seen , the expulsion of a member from a strong union is, in effect, total deterrence to strikebreaking or any other internal rule violation . But the Court , recogniz- ing the aforementioned power of the strong union, said that the strong union could impose a lesser penalty than expulsion , to wit, fines and court enforcement therof. By the same token , it was concluded that the weak union could seek court enforcement of fines because this was a lesser penalty than expulsion . Since expulsion by a strong union is equivalent to total deterrence and since the Court referred to court enforcement of fines, as a lesser penalty than expulsion , then a reasonable fine, enforceable in court, should not be so large in amount that it is equal to " The efforts of minority groups to secure membership in certain unions is explainable on the ground that employment in certain trades is not a practical possibility without union membership in specific unions There are two aspects of the foregoing One is the problem of the untrained and inexperienced to gain admission to the union apprenticeship program and then to become full-fledged journeymen The other is that of a trained and experienced worker to gain union membership since membership is as essential to him as to the untrained Under the Act, of course , membership in a union cannot be required as a condition of securing employment and in a union -security contract retention of employment may not be dependent on union membership if that member- ship was denied or terminated on some ground other than the nonpayment of initiation fees and dues Legally, therefore, expulsion from union membership for anything except nonpayment of dues is difficult to describe as a penalty more severe than court enforced fines 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD total deterrence If this is not so, court-enforced fines are not lesser penalties than expulsion by a strong union. Another reason for believing that a reasonable fine is one that is less than a total deterrent to any union member working during a strike is the fact that, under the Act, the right to strike and to shut down the employer's operation is not unlimited. The Supreme Court has held that during an economic strike an employer has a right to protect and carry on his business by hiring permanent replacements for the strikers." In a less developed period of industry where a relatively high proportion of work was unskilled, the employer might effectively exercise his right to try to carry on his business by hiring people off the street, who had no particular skill or experience in the employer's operation The employer could, of course, also employ striking employees who returned to work during the strike but, even if all strikers remained on strike, the employer still could resort to hiring replacements off the street. Today, to a great extent, many employers, including probably Boeing at the Michoud plant, could not operate in any degree, in a strike, as allowed by the Mackay decision, if all the regular experienced employees were subject to court enforced fines so large in amount that total deterrence would exist as to any union employee who might, for his own reasons, wish to work. It is one thing for a union and its members, through loyalty, dedication, conviction, and solidarity, to strike and to remain voluntarily on strike and thereby exert maximum economic pressure by closing down a plant com- pletely, but it is another thing to obliterate all aspects of individual freedom by court-enforced fines of a private organization when the fines are so large in amount that no member could work. Section 7 and Section 8(b)(I)(A) of the Act underwent some attenuation in Allis-Chalmers but it is doubtful that they disappeared completely. If there is one thing reasonably clear regarding the enactment of Section 8(b) of the Act in 1947, it is that the section was intended to prevent a union from affecting the employ- ment of employees except in the narrow area of nonpayment of dues under a union-shop contract A fine that is so great that it is an absolute deterrent to working prevents an employee from working and deprives him of employment Again, if the fine is per se a total deterrent, then we have total deterrence and this result is inconsistent with the Court's definition of a reasonable fine as a lesser penalty than expulsion by a strong union, the expulsion being, as previously described, equivalent to total deterrence A further consideration in reaching the conclusion that a reasonable fine is less than a total deterrent is the nature of a union and its relationship to employee members The union's strength, except in a nonfree society, ultimately and in the long run, depends on the voluntary support and loyalty of its members. The objective of fines or other discipline would seem to properly be the rehabilitation " NLRB v Mackay Radio & Telephone Co, 304 U S 333 In effect, this principle rejects the contention that the employer , by hiring strikebreakers and thereby carrying on his business during a strike is interfering with the right to strike paruwlarh since replaced strikers ma\ lose their jobs of recalcitrant members into loyal members rather than further or complete alienation of the recalcitrants. The good and the bad members of the union will continue to be employees in the plant represented by the union A reasonable fine, imposed on strikebreakers, that deters such activity, would appear more consonant with the term reasonable fine as used by the Supreme Court than would a fine so large in amount, accompanied by court enforcement and costs, that it is a total deterrent which quite possibly could completely alienate the member from any voluntary cooperation with, or support of, the Union thereafter. As previously stated, it is our opinion, that a reasonable fine, in the context in which we are considering the term, should be based on a relationship of the fine to the strike- breaker's earnings during the strike. We have rejected, for reasons stated, total deterrence as compatible with a reasonable fine This would eliminate a fine that if equivalent to 100 percent of earnings during a strike and it would eliminate any fine in a greater amount than such total earnings. The reasonable fine is, we believe, equitably and conveniently defined as a percentage of the strikebreaker's earnings, where the percentage of the earnings encompassed by the fine is large enough to deter the normal employee from violating his obligation as a union member to refrain from working during a duly authorized strike, but not so large that it completely eliminates, as'a practical matter, all freedom of choice on the part of the employee to exercise some measure of individual freedom as guaranteed under Section 7 and 8(b)(1)(A) of the Act Governed as we are by the Allis-Chalmers decision, it is apparent from the decision that a reasonable fine in the Court's contemplation was to be more than a token demonstration that the Union could impose some court- enforced fine. The Court's focus on the situation of a "weak" union makes it clear that the court-enforced fine was to be a genuine deterrence to strikebreaking although, as we have previously stated, less than an absolute deter- rence. It is apparent that the choice of some specific percentage of earnings as being the reasonable fine contemplated by the Court will appear to be an arbitrary choice and, in a sense, the charge will be correct. But this is true of all line-drawing The Board requires a 30 percent showing of interest by a petitioning union before it will process a petition for certification as collective-bargaining agent. The percentage is 30, not 29, 25, 31, 35, or some other figure. Individuals attain majority at 21, not 20 years and 6 months or at some other age. Voters must reside in a jurisdiction for 30 days, 3 months, 6 months or some other period before they may exercise their franchise It is the Examiner's opinion that a fine of 35 percent or less of a strikebreaker's earnings at his regular straight- time rate is, presumptively, a reasonable fine. We also believe that a fine of 80 percent or less of overtime or premium pay, earned by a strikebreaker, which he would not normally have earned but for the fact that his fellow union members were engaged in an authorized strike, pre- sumptively, is a reasonable fine. We believe that a total fine embracing some earnings at the 35 percent or less rate and some earnings at the 80 percent or less rate is, presumptively, a reasonable fine. BOOSTER LODGE NO 405, 1AM 395 The 35 percent or less rate on regular earnings is, in our opinion, an effective deterrence but not a total deter- rence. If a strikebreaker's rate is $3 per hour and he works 5 days, 8 hours a day for 40 hours, his gross earnings are $120. Assume his normal deductions leave him $100 net pay. A fine of 35 percent on $120 in earnings is $42 His net take home pay is therefore $58. Taxes and other deductions will have been paid on the entire $120 he earned His take home pay of $58 is equivalent to $1 45 per hour or less than half his normal rate and less than the Federal minimum wage. His normal working expenses of transportation to and from the job, lunch, and work clothes would continue, of course, and would have to be paid out of his $58 take home pay It is one thing to bear the foregoing expenses when the take home pay is $100 but it is something else when the same expenses are borne by $58 in take home pay 34 It is also to be observed that the reality of all the foregoing factors would be evident whether there is specific warning of the fine before the commencement of the strike or whether the fine is imposed during the strike or after the strike The financial impact might well be greatest where, without prior specific warning, the fine is imposed after the strike. In such situations the average strikebreaker would probably have used all or most of his earnings to meet day-to- day needs of himself and his family without making provision for payment of a fine. His normal earnings would therefore be important An additional element that is relevant in establishing what constitutes a reasonable fine is the fact that in addition to the fine the strikebreaker, during and after the strike, is usually subjected to considerable pressure by his fellow employees who remained on strike Scornful epithets and remarks as well as alienation from friends or acquaintances both at work and in the community can be some of the pressures which the strikebreaker may incur These pressures are not to be underestimated. The combination of such pressures or the prospect of such pressures when combined with the warning of, or the actuality of, a court-enforceable fine of 35 percent or less of strikebreaker earnings,in our opinion, constitute a genuine deterrence. In the illustration which we gave previously, the employee might well conclude that the $58 a week to be garnered by going to work during the strike was not worth the candle. We therefore have little doubt that the formula regarding fines that we have described above and which we propose to apply herein is a genuine deterrence and that a maximum in excess of 35 percent of earnings would tip the scale in the direction of total deterrence, a result not compatible, as we have explained, with the concept of a reasonable fine The next aspect of the formula to be considered is whether a 35 percent maximum is itself too much of a deterrence and too close to total deterrence. We would answer in the negative. Despite the fact that the formula provides a real deterrence, the individual employee could decide, in the illustration we gave, that while $58 in pay was not much for a week's work it was to him and his family better than being at home or on a picket line with no earnings Individual circumstances would undoubtedly enter into the decision If the individual was convinced that he did not agree with the merits of the issue over which the strike had been called, this could be a factor in his decision If the need of a man's family were acute, this could be a factor. A man with substantial seniority might be concerned that he might be permanently replaced by the employer if he remained on strike In some individual cases, various factors or a combination thereof might be enough to pursuade the individual that the reasons for working were greater than the deterrence In other cases, the deterrence to going back to work would prevail. And it is this kind of a picture, which we believe is reasonably accurate, that illustrates the difference between a partial, though genuine, deterrence and a total deterrence. We further believe that such a deterrence comports with the concept of a reasonable fine and that the formula described for fixing the fine is calculated to result in the aforemen- tioned reasonable fine. In stating what we considered to be the standards of a reasonable fine we used two figures. One figure was up to 35 percent of earnings of the strikebreaker which he earned at his regular rate of pay for his normal work day The other figure was up to 80 percent of earnings of the strikebreaker earned at premium pay which normally he would not have earned but for the strike. The differentia- tion is based on the following considerations There is, as we have seen, a combination of rights and interests that are to be balanced as equitably as possible in implement- ing the Allis-Chalmers doctrine that a union may impose a court-enforceable reasonable fine. The strikebreaker, being an employee, has certain rights under the Act as does the employer and the Union The fine at 35 percent of earnings for work performed at regular rates for normal work day35 was, as pointed out, a genuine deterrence but not a total deterrence. The employee strikebreaker, albeit deterred from doing so by the 35 percent fine, could, nevertheless, work the same amount of time, at the same rate, with the same gross earnings as would have been the case but for the strike. By the same token, the employer would receive from the strikebreaker the same amount of work hours at the same pay as would have been the case but for the strike. The union's interest in defeating or minimizing the performance of work by its members during the strike is reasonably protected by the court- enforceable fine of up to 35 percent of normal earnings. As pointed out previously, this fine is a genuine deterrence but not a total deterrence. As to some individuals the deterrence will prevail and they will not work. Other individ- uals may react differently but there is, in our opinion, an equitable balance of all factors and interests and that 14 Using the same figures as above but assuming a fine of 50 percent " In other words , we are referring to a strikebreaker who before of earnings instead of 35 percent, we have the following Take home the strike worked 8 hours a day, 5 days a week at, for instance, $3 00 pay of $100 after normal deductions, 50 percent fine on $120 earnings per hour During the strike he works under the same conditions as or $60, net take home pay is $40, equivalent to $1 per hour to hours, days, and wage rate 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is our definition of the reasonable fine referred to in the cited case. However, when the strikebreaker, instead of performing his normal amount of work at his regular rate, which would have been his right and custom but for the strike, performs overtime work in excess of 8 hours per day and 40 hours a week and works on weekends so that he earns premium pay, a different situation exists. The strikebreaker is now profiting by the strike and is the recipient of what may be termed a windfall He is no longer earning what he would have earned but for the strike but is affirmatively profiting by reason of the fact that his fellow union members are on strike and are obeying the union rule against strikebreaking a rule which, of course, he is not obeying He is no longer exercising simply the normal "right" of an employee to work as he would have worked but for the strike For each strikebreaker who is working at his normal rate and hours, there may be two, three, five, ten, or more strikers who are not working at all By working even at his normal rate and hours, the strikebreaker is affecting, in some degree, the efficacy of the strikers' lawful strike. But the 35-percent fine, being a genuine deterrence, is, in our view, a reasonable weapon in such situations since it will deter some, perhaps many, potential strikebreak- ers, but, being less than a total deterrence, it is not absolute However, by working overtime at premium rates, the strike- breaker is materially going beyond protection of his own right to work normally and he is affirmatively performing not only his own normal work but is also performing the work of one or two strikers. This, of course, infringes substantially on the union's interest in waging an effective strike as the representative of the employees and it infringes on the rights of the strikers whose work is being performed by the strikebreaker in addition to his own amount of work but the work of one or two strikers he is, in a sense, cancelling the effect of the strikers' refusal to work and nullifying the effectiveness of strikers' exercise of the right to strike. And the strikebreaker whom we are discuss- ing is, of course, a member of the Union, who by performing even his own normal work during the strike has violated the rules of his union. The foregoing reasons, therfore, are the basis of our use of a fine of up to 80 percent of earnings at premium pay which normally would not have been earned by the strikebreaker We believe that the higher deterrence inherent in this aspect of the strikebreaking situation, although even here less than total deterrence, is equitable and, presumptive- ly, constitiutes a reasonable fine. Let us illustrate the matter by using the same hypothetical strikebreaker whom we used previously. Assume the strikebreaker normally works 8 hours a day, 40 hours a week, at $3 per hour. His gross pay is $120. After normal deductions he would take home $100. He is fined at the 35 percent of earnings rate or $42. His net take home pay is, therefore, $58. However, assume that in addition to his normal amount of work and pay he worked 20 hours overtime during the week at a premium rate of $6 (to use a round number) This increases his earnings by $120. He also works 8 hours over the weekend at $6 per hour, for an additional $48 His total earnings for work beyond his normal 40 hours is $168. Assume that after normal deductions he would have $138 left from the $168 If he was fined at the 35 percent rate on the $168, the fine would be $59. Deduct $59 from the $138 net, above, and what remains is $79. His overall take home pay for the week is, therefore, $58, plus $79, or a total of $137. His normal take home pay for his normal hours at his normal rate would have been $100 but for the strike Because of the strike and despite a fine of 35 percent on both normal and premium earnings, he now takes home $137 Despite the fact that he worked 68 hours in order to take home $137, he is better off financially than he was before the strike and strikebreaking is clothed with a silver, if not a gold, lining 16 It is therefore reasonably apparent that a fine of 35 percent of earnings loses any reasonable degree of deterrence when it is applied to earnings from overtime work at premium pay which the strikebreaker would not have received but for the strike. However, if the fine is 35 percent of normal earnings and 80 percent of overtime premium earnings, the following is the situation Assume the same earnings figures as used previously in our illustration. The strikebreaker is fined 35 percent of his normal gross earnings of $120. The fine is $42. After normal deductions, take home pay would have been $100, but this was reduced to $58 because of the fine. Additional gross overtime pay is $168 which, after normal deductions, would be reduced to $138 If the fine is 80 percent of overtime earnings of $168, it is $134 When this amount is deducted from the $138 take home pay, the actual take home pay from the overtime work is $4, which, when added to the $58 take home pay from normal work, results in $62 total take home pay Since the amount of time worked overtime was 28 hours, it is evident that the 80 percent fine on overtime earnings is substantially a total deterrence to the strikebreak- er working more than the normal hours that he would have worked but for the strike. For reasons previously stated, we believe that the foregoing degree of deterrence regarding overtime not normally performed by the strike- breaker is consistent with the concept of a reasonable fine. While the guidelines or formula that we have used as a standard for determining what is a reasonable fine under Allis-Chalmers are not meant to be inflexible with regard to particular factual situations that may arise, we believe that the formula is sound. The guidelines are in terms of maximums, beyond which the fine, in our opinion, would enter the area of an unreasonable or excessive fine The maximum limit of a fine can, of course, have a tendency to become the normal fine but not necessarily, since, in particular situations, the specific circumstances or the objec- tive may indicate the appropriateness of a lesser fine. In any event, we believe, that the maximums are sound norms 16 The prevalence of moonlighting (holding two jobs) and the general interest of most employees in overtime work at premium pay is indicative of the fact that in our consumer oriented society, particularly in periods of rising standard of living and inflation and the desire for luxuries that are often regarded as necessities, the amount of take home pay is a or the major desideration BOOSTER LODGE NO 405, 1AM 397 and that deviation therefrom will tip, or begin to tip, a rather careful balance that must enter into the standard of a reasonable fine We therefore use, in the instant case, the standard that a fine imposed on a member by a union that is the authorized bargaining representative, and pursuant to due internal process, because the member has worked during the strike in violation of a union rule, is presumptively not a reasonable fine enforceable in court if the fine is. more than 35 percent of the member's earnings during the strike if the member in gaining such earnings, was working the same number of hours at his normal wage rate as before the strike; or, more than 80 percent of the member's earnings during the stnke if the member in gaining such earnings was working overtime hours at premium pay, which he could not normally have done and which would not have been available to him, but for the strike. It is also our opinion that prior to, or in the course of, strikebreaking activity by union members, the union should issue a warning to the strikebreakers not only about the possibility or the reality of a fine but should also indicate the amount or potential amount of the fine or the method of computing the fine and the possibility of court enforcement thereof The requirement of a warning, in our opinion, is consistent with the deterrent characteristic of the union's power to impose and collect a fine, whereas, in the absence of a warning, the fine takes on more of the coloration of a reprisal. Moreover, it would appear to be more in the union's interest to deter strikebreaking from either commencing or continuing rather than to punish after the strike And it certainly is in the employee's interest to be reasonably apprised and warned of the definite likeli- hood of a fine, its potential amount, and its enforceability, if he engages in or continues stnkebreaking activity dunng a particular strike. In Allis-Chalmers, although the Court did not stress this element, the fact was that the strikebreakers had been warned during the strike that they would be or might be fined, and the possible extent of and the size of the fine was indicated. It is not enough that the union constitu- tion provides that various types of conduct by members, including working dunng an authorized strike, are subject to or shall warrant "reprimand, fine, and/or expulsion . . 11 The member cannot know from this that his working during a particular strike will result in punishment (albeit it warrants punishment), or what kind of punishment, or, if there should be a punishment and if it should be a fine, he has no idea whether it might be $20, $500 or what elements would enter into the determination of the amount of the fine He does not know whether the union would resort to court proceedings to collect any fine. Moreover, in the instant case, the Union had never previously imposed a fine on any of its members It has been held that: Among the most important of labor standards imposed by the Act . is that of fair dealing, which is demanded of unions in their dealings with employees [citation omitted] The requirement of fair dealing . is in a sense fiduciary in nature and arises out of two factors One is the degree of dependence of the individual employee on the union organization. the other, a corollary of the first, is the comprehensive power in the Union with respect to the individual (IUE, Frigidaire Local 801 (General Motors Corp ) v N L R B, 307 F 2d 679 (C.A.D.C.)), cert. denied 371 U S 936. Another court has stated: At the minimum, this duty requires that the Union inform the employee of his obligations . . (N L R B v. Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corp.), 320 F 2d 254 (C.A. 3).) This comprehensive power of the Union over the individ- ual employee, mentioned in the first cited case, would certainly be an apt characterization of the situation herein, where the Union has imposed substantial fines on individuals and court enforcement thereof. Both the Board and the courts have held that, although a valid union security contract is found to exist whereby union membership and the payment of dues is required as a condition of employment, a union cannot cause the discharge of an employee under the contract unless the employee had been informed of his obligation and the consequences that would follow from failure to fulfill his obligation. As the Court of Appeals, Second Circuit, phrased it, ". . . the Board has fleshed out the statute by requiring the Union to give reasonable notice to an employee that he will lose his job for nonpayment of dues."" Since the existence of the contract in the cited cases set forth the requirement for the payment of union dues as a condition of employment , it, like the union constitution in the instant case with its description of improper conduct by members and the possible consequences, could be said to have generally informed individuals of their obligation But this was not enough Where an individual did not know of or was uncertain about his obligation or the amount, the Union could not simply cause his discharge for failure to abide by the contract terms. Yet the contract was more precise than the instant constitution in defining the obligation and the consequence. Under the contract the individual was required to pay dues if he wished to continue as an employee. The constitution set forth, inter alia, an obligation not to work but the consequences for violation were described in terms of a variety of potentialities which included among others , reprimand, fine, and/or expulsion . Neither in the constitution nor by other means were members warned that, for working dunng the strike at Michoud, they would be fined and, a fortiori, there was no indication given of the amount of, or the factors in, the fine. The fines and their amount did not make an appearance until after the strike. In the court cases cited above, the action against the employees was the causing or attempting to cause their discharge for nonpayment of dues under the contract. Since the Union had not informed them of their obligation, including the amount, beforehand , it could not legally attempt to cause, or cause, the discharge of such employees under the terms of the union-shop contract. By the same " N L R B k Local 182 International Brotherhood of Team curs, Chaal- feurs, Warehousemen and Helpers of America (Associated Transport, Inc), 401 F 2d 509 See also cases cited above 398 DECISIONS OF NATIONAL token, in the instant case, the action against the employees was the imposition of fines in the amount of $450. There was no warning beforehand that fines would be imposed nor was the amount given . As previously indicated , perhaps some employee members, who worked during the strike, would not have done so if warned or they might have desisted , if they had already commenced work , upon being warned that they would be fined and told the approximate amount of the fine. Accordingly, we include as a constituent element of a reasonable fine not only the standards and formula as to the amount of the fine, previously described , but the necessity of advising members, with regard to the particular strike, that such a fine will be imposed on those who work or continue to work during the strike Since we also believe that the approximate amount of the fine should be indicated , this aspect would be taken care of, if the standards or fomula, aforedescribed , to be used in determin- ing the amount of the fine, were mentioned . Believing as we do that a fine arrived at by the use of the standards or formula will be presumptively a reasonable fine, the use of the formula should insure that the employees have not been threatened with an excessive or unreasonable fine and that the fine itself when eventually computed will not be unreasonable We also believe that the possibility of court enforcement of the fine if contemplated should be stated, so that employees may completely understand the full import of their obligations under the union rules and the consequences that a violation may entail. Applying, therefore, the above standards , including the 35-80-percent formula for computing what is a reasonable fine, we now consider the fines of $450 in the instant case that were imposed on all strikebreakers 38 Consistent with our view above, that a reasonable fine entails an antecedent warning that fines will be imposed for working during the particular strike , we find the $450 fines unreason- able since all action regarding fines occurred after the instant strike. As to the amount of the fines, we regard this as simply a matter of applying the 35-80 formula to the earnings of each strikebreaker. There were approxi- mately 145 strikebreakers From the payroll information in the record the Examiner is unable to make a precise determination of what would be a reasonable fine in amount as to each individual but this can be done at the compliance stage " However, as a rough illustration , we have taken, at random, two names of strikebreakers, Aragon and Bailey, from the payroll records at hand . On a comparative basis, Aragon has a relatively low hourly rate, $2.50 in round numbers Bailey has one of the highest hourly rates, $3.63. " To the Examiner, the utility and the equity of employing a standard or formula to determine whether or not a fine is reasonable in now rather concretely evident Absent such an approach , what workable basis is there for reaching a conclusion about the reasonableness of a $450 fine in the instant case9 What is reasonable-$20, $50, $500, $125, $200, $350, $400, $450, or some other figure , and why is one amount reasonable and another unreasonable'? 39 For instance, payroll records show regular hours worked , overtime hours, and a figure under "bonus" which may indicate bonus hours We are uncertain about the computation of overtime and bonus Total dollar earnings under regular , overtime , and bonus are not shown LABOR RELATIONS BOARD During the strike, Aragon worked 65 regular hours and the figures 8 and 4, for overtime and bonus , respectively, are shown As indicated, we are uncertain as to the distinc- tion between overtime and bonus or whether time and one-half or double time are paid under one but not the other or both In any event , for illustration, we will assume a total of 12 premium hours which were paid at double time rate or $60 for Aragon . His 65 regular hours, we assume, were paid at his regular rate which would mean $162 His total earnings therefore were $222. The 35- 80 formula, if applied, would mean a fine of $57 on his $162 regular earnings and a fine of $48 on premium earnings or a total fine of $105 Adopting the same approach as to Bailey, we have 75 regular hours and a total of 22 under overtime and bonus . Bailey's regular earnings would be $272 and his premium hours at double time would be $159 or total earnings of $431 . Applying the 35-80 formula, the fine on regular earnings would be $95 and the fine on premium earnings would be $128 or a total fine of $223. Since other strikebreakers had different hourly rates and worked varying amounts of regular work and different or no overtime and bonus work, a varied picture will eventually appear. The indication is, however, from the admittedly imprecise data which we used in our two illustrations , that the fine of $450 on all strikebreakers was not a reasonable fine in amount in most, and possibly all, cases But this, as indicated , can be determined precisely at the compliance stage . The $450 fine of any strikebreaker, in our opinion , which exceeds the amount of a fine under the 35-80 formula when applied to the individual's earnings is not a reasonable fine The complaint alleges that the fines "in the sum of $450 each" are "unreasonable, excessive, and discriminato- ry." The sole reference , in the complaint , to any fine other than the $450 fines is with respect to employees who had resigned from the Union As to that category, the complaint alleges that the fines "in the sum of $450 each or lesser amounts" are "unreasonable, excessive, and dis- criminatory " The General Counsel 's brief is consistent with the forego- ing allegations but the brief also reveals why the General Counsel believes that the $450 fines as to everyone involved are "discriminatory" in addition to being unreasonable and excessive. It is argued that, since, in some instances, the Union reduced the $450 fines to 50 percent of earnings by the strikebreaker at Boeing during the strike, but did not do so in all instances , this was discriminatory Thus, "This action in denying the same right to the discnmmatees as afforded other employees , even though they did not appear at their union trials, is clearly discriminatory " From this, and from the allegations in the complaint, above, it can be said that, except as to employees who had resigned , fines less than $450 are not attacked by the General Counsel . Fines less than $450 are otherwise referred to only in support of the argument that the $450 fines were discriminatory, in addition to being unreasonable and excessive. In the etymological sense the 50 percent of earnings as distinguished from $450 is discriminatory since there is a distinction or difference in treatment and amount. But, in our opinion , in itself it is not an illegal discrimination BOOSTER LODGE NO 405, IAM for a union to treat differently those members who appear at their teal, repent, and pledge future loyalty, as distin- guished from members who never appeared or never made a plea All members were duly notified of their trials and all could have appeared and all would evidently have received the same treatment under similar conditions. We therefore do not find that the $450 fines were discriminatory. For reasons previously stated at length, it is found that the fines of $450 that were imposed after the strike, without prior specific warning that they would be imposed at Michoud, and in amounts that exceeded the 35-80 standard or formula in relation to earnings, were unreasonable fines and that, under all the circumstances in this case, including court enforcement of the fines, there was a violation of Section 8(b)(1)(A) of the Act. It is our opinion that the violation was compounded in those cases of members who had resigned from the union prior to the imposition of fines. It is our opinion that resignations received by District Lodge 751 constituted valid resignations in view of the circumstances descnbed earlier in this decision. In any event, Lodge 405 was aware of the resignations before taking action regarding fines 40 Moreover, since the Union took the position that a member could not resign from the Union, the resignations and the details thereof, including receipt, were futile gestures insofar as the Union was con- cerned, but, in our opinion, effective notwithstanding, since the intent of the resignees is clear.41 CONCLUSION OF LAW As set forth heretnabove and for the reasons hereinabove stated, it is found that, by threatening to seek, or by seeking, court enforcement of unreasonable fines imposed on employees, who were union members, or by imposing fines or by seeking court enforcement of fines upon employ- '° In some instances, the resignations were received prior to the time the employee went to work during the strike In more instances, the resignations were deposited in the mail before the employee returned to work All or practically all resignations were received by the Union prior to any action on the subject of fines "Aeronautical District Lodge 751, International Association of Machinists & Aerospace Workers, AFL-CIO (The Boeing Company), 173 N LRB No 71 At the conclusion of the body of his decision in the instant case, the Examiner finds, although it may be of no moment to anyone but himself, that his effort to apply and to implement the Allis-Chalmers decision and its rationale in the present case, confirms him in his respectful disagreement with the Allis-Chalmers decision regarding the meaning of Section 8(b)(1)(A) and its proviso In our opinion, the above section of the Act reveals a congressional intent that union fines and their amount were to be a matter for the union, including the enforcement of such internal disciplinary measures by internal means The maximum internal sanctions preserved to the union for enforcement of its disciplinary measures such as fines were, we believe, denial of membership or expulsion 399 ees, who were former union members who had resigned from the Union, all because said employees worked dunng the September 1965 strike at Boeing's Michoud plant, the Respondent Union restrained and coerced said employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, heretnabove described, it will be recommended that Respondent cease and desist from such conduct. It will also be recommended that, with respect to any employee who had resigned from membership in the Union, who had formerly been a union member, and who was fined after his resignation, and who paid any such fines to Respondent, Respondent refund or reimburse said employee the amount of such paid fine As to employees who had remained union members, it will be recommended that any such employee, who paid an unreasonable fine after Respondent threatened to institute or instituted steps for the court enforcement of such unreasonable fines, be reimbursed or refunded by Respondent the said unreasonable fine. The determination of whether or not the fine was reasonable or unreasonable will be on an individual basis since, as set forth in our decision above, the earnings and types of earnings, regular or premium earnings, of the employee member are important elements in determining whether or not the fine was reasonable pursuant to the standards or formula that we have adopted. [Recommended Order omitted from publication.] The rights and restrictions in the Act are applicable to all unions, the weak and the strong, the effective and the ineffective If, for instance, one union because of its economic strength and bargaining power, in the exercise of the rights under Section 8(a)(5) of the Act, is able to secure a contract from an employer with substantial wage increases and other benefits but another union, lacking effective economic bargaining power, can secure no appreciable benefits in a contract with an employer, these differences do not alter the meaning or the limitations of Section 8(a)(5) Expulsion from membership or the threat thereof may be an effective disciplinary tool in some organizations and not in others, or it may be more effective in one organization than in another and may vary in different situations In our opinion, these factors do not alter the meaning of Section 8(b)(1)(A) and its proviso as we read and under- stand them and their legislative history But Allis-Chalmers is the law on the subject and it is that decision that has governed the instant decision and has involved us in the matter of what is a reasonable union fine for violation of a union rule