Communications Workers, Local 6222

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communication Workers of America, Local 6222 and John H. Reinbold. Case 23-CB-888 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 12, 1969, Trial Examiner James T. Barker 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 Respondent filed exceptions to the Trial . Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions thereto together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Trial Examiner's Decision, the excep- tions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent that they are consistent with the decision herein. Respondent Union and Southwestern Bell had been parties to a series of collective-bargaining agreements for several years. None of these contracts contained union-security clauses, as the statutes of Texas prohibit such clauses. John Reinbold, the Charging Party, had been a member of the Communications Workers for some 22 years and a member of the Respondent Local for 5 1/2 years when he was formally disciplined by the Respondent for failing to honor a picket line. In April 1968, Respondent was notified by its International that one of its sister locals, Local 6290, would commence an economic strike against South- western Bell in Houston, Texas, later that month and instructed Respondent to render assistance to the striking union. Thereafter, Respondent ordered its steward, committee members, and other coordinating groups to inform the membership of the contemplated strike and to order them to cease work and evacuate their buildings when the picket lines were established. The membership was notified that solidarity would be maintained during the strike and that members who disrupted the solidarity by disobeying orders would have charges filed against them. The Trial Examiner found and we agree that Reinbold "understood to a point of certitude it was union policy that all members should leave the job when the picket line went up" on the contemplated date of the strike. On April 18, 1968, the day the strike commenced, some 1,200 to 1,500 members of Respondent, consti- tuting approximately 25 percent of its membership, were employed at Southwestern Bell's Jefferson Street facility in Houston. When Reinbold reported for work at the Jefferson Street facility that morning, there were no pickets present. Thereafter, at 2 o'clock that afternoon the picket line was formed, and, according to schedule, the employees did in fact walk out. However, Reinbold and certain other employee members continued working and completed their shift which ended at 4:30 p.m. After that day, Reinbold honored the picket line and did not return to work until the strike was terminated on May 5. On April 23, at the request of the chief steward, Reinbold performed picket duty for some 4 hours. On May 31, the Union filed charges against Reinbold and 10 other members for "failing to comply with the lawful decision of the Union to leave the job when pickets were established at the Jefferson Toll Building at 2 p.m., on April 18, 1968." Although Reinbold cancelled his dues deduction authorization sometime in July, it is clear that he was a member of the Union on the day that he worked behind the picket line. Moreover, there is no indication in the record that Reinbold formally resigned from the Union either prior to the walkout on April 18, or thereafter. On August 19, Reinbold, apparently still a member,' and acting as his own counsel, appeared before the duly constituted union tribunal consisting of a presiding officer, a prosecutor, and five jury members. After a hearing, the jury found Reinbold guilty of the charges as alleged and agreed upon a fine of $200. Testimony in the present case disclosed that during its deliberations the jury considered as significant, among other things, the fact that Rein- bold, a veteran member of the Union who was familiar with its policies and needs, deliberately worked behind the picket line contrary to Union instructions and that such conduct could not but affect new members and relatively short term employ- ees who worked with Reinbold. Although the jury was apparently aware that after April 18 Reinbold did honor the picket line, nevertheless it was the consen- sus of the panel that Reinbold, a union member for 22 years, merited a severe fine for his break with union ' Under Section 5 of the Union's Constitution a member who is in dues, presumably he would be automatically expelled from the Union at default in the payment of his dues for 90 days is automatically suspended the end of September. It would thus appear that at the time of his trial he from membership. If Reinhold continued to withhold the payment of his was in fact a member of the Union. 186 NLRB No. 50 COMMUNICATIONS WORKERS, LOCAL 6222 solidarity and that $200 was an appropriate amount in this regard. The Union has not attempted to collect this fine through any legal proceedings , nor has it in any manner affected the employment status or rights under the collective-bargaining agreement of John Reinbold because of the nonpayment of the fine. The complaint alleged and the Trial Examiner found that by imposing a $200 fine on Reinbold Respondent restrained and coerced Reinbold and other employees in the exercise of rights guaranteed by Section 7 in violation of Section 8(b)(1)(A). We disagree. Reinbold was a voluntary member of Respondent who disobeyed his Union's instruction to honor a picket line established by a sister Local at his place of work . The complaint does not question Respondent's right to impose on its members the obligation to honor that picket line. Reinbold had not resigned from the Union prior to his act of working behind the picket line. He was fined by a tribunal duly constitut- ed under Respondent's Constitution and By-Laws for breaking Union solidarity as he had been warned would be the case. No question is raised , nor can it be, that the discipline meted out had any effect upon Reinbold's employment status. In these circumstances, it is apparent that the Respondent's actions against Reinbold were steps taken to enforce a legitimate internal union rule which in and of itself frustrated no aspect of national labor policy. It is further apparent that the only basis for finding the violation alleged is that the fine is purportedly unreasonable in amount and therefore coercive and restraining of Reinbold and other members in their exercise of Section 7 rights. However, the Board has recently considered and rejected such a basis for finding that a union's fine of its member for failing to honor an authorized picket line constitutes restraint and coercion cognizable under Section 8(b)(1)(a).2 For the reasons stated in Arrow Development, we find Respondent did not violate Section 8(b)(1)(A) by fining Reinbold $200 for failing to honor an authorized picket line . According- ly we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. Y International Association of Machinists and Aerospace Workers, AFL- CIO Local Lodge No 504 (Arrow Development Co) 185 NLRB No 22 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 313 JAMES T. BARKER, Trial Examiner : This matter was heard at Houston, Texas, on January 31, 1969 , pursuant to charges filed on August 26, 1968 , by John H. Reinbold. On December 27, 1968, the Regional Director of the National Labor Relations Board for Region 23 , consolidated this case with Case No. 23-CB-898, 898-2, and 898-3 and issued a consolidated complaint and notice of hearing. By order of January 21, 1969, Trial Examiner Paul E. Weil granted a motion of the Communications Workers of America, Local 6222, herein called Respondent or the Union, for severance of the instant case and the instant case was separately heard. The portions of the complaint pertinent to this proceeding allege that the Respondent violated Section 8(b)(1)(A) of the Act by levying a fine in the amount of $200 against John H . Reinbold, a member of the Union, because he worked for approximately 2-1/2 hours behind a picket line established by the Union at a facility of Southwestern Bell Telephone Company in Houston, Texas. The parties timely filed briefs with me. Upon consideration of the briefs and upon the record in this case' and my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Southwestern Bell Telephone Company has been at all times material herein a Missouri corporation with an office and place of business at 1407 Jefferson Street, Houston, Texas, where it is, and has been at all relevant times, engaged in the business of transmitting and receiving local and long distance telephone communications as a commu- nications common carrier which operates under the Federal Communications Act throughout the State of Arkansas, Kansas, Missouri, Texas, and a portion of Illinois, with interstate communications service by wire and radio. During the 12-month period immediately preceding the issuance of the complaint herein the Company has received gross revenues in excess of $100,000 from the furnishing of its telephone communication services and related business above described. Upon these admitted facts, I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT AS A LABOR ORGANIZATION Communications Workers of America, Local 6222, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. i The transcript of this proceeding contains many errors in the recordation of record discussions between the Trial Examiner and counsel concerning the issues and contentions of the respective parties with respect thereto No motion to correct the transcript was filed. However, as the briefs of the parties fully develop the issues and relevant precedent, I shall order no correction 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues The issue present in this proceeding is whether the Union violated Section 8(b)(1)(A) of the Act by levying a fine against John Reinbold, a union member, because he worked for a period of time behind a picket line established by the Union at a Houston, Texas, facility of Southwestern Bell Telephone Company. This raises the question whether the Board has jurisdiction under the Act to scrutinize fines imposed by a union on a member for violation of an internal union rule so long as the member's job tenure is not affected. Respondent asserts that by reason of the decision in N.L.R.B. v. Allis-Chalmers Manufacturing Company 388 U.S. 175 and the Board's decision in Wisconsin Motors Corporation, 145 NLRB 10972 internal union fines are not subject to Board regulation. Assuming a resolution of this threshold issue adverse to Respondent, there remains the further issue of whether Allis-Chalmers may be interpreted as permitting a union to levy only "reasonable" fines against its members for failing to observe its picket lines. If reached, this latter interpretation of Allis-Chalmers requires a determination of whether the fine levied by the Respondent against Reinbold was a reasonable one. B. Pertinent Facts 1. Background facts At relevant times the Respondent and Southwestern Bell Telephone Company have been parties to a series of collective-bargaining agreements governing the rates of pay and terms and conditions of employment of certain of the Company's employees. The statutes of the State of Texas prohibit compulsory union membership and collective- bargaining agreements pertinent in this proceeding contain no union security clause requiring membership in the Union as a term and condition of employment. However, prior to July 1968,3 when his dues deductions were canceled, John Reinbold had been a member of Local 6222 for approximately 5-1/2 years and of the parent Communi- cations Workers of America, AFL-CIO-CLC, for approxi- mately 22 years. His monthly union dues at pertinent times were $6. Article XIX of the constitution of the Communication Workers of America, provides that locals may fine, suspend, or expell members for certain acts, including: (e) Working without proper Union authorization, during the period of a properly approved strike in or for an establishment which is being struck by the Union or Local. The constitution prescribes procedures for charging and trying members for violations of the constitution and provides for appeal of determinations of the trial panels convened pursuant to the provisions of the constitution. The bylaws of Local 6222 adopts by reference the aforesaid 2 Since the trial of the instant case , the U.S. Supreme Court has rendered its decision in Wisconsin Motors affirming the ultimate conclusion reached by the Board therein . Scofield v. National Labor Relations Board, 70 LRRM 3105 (1969). provisions of the constitution and promulgates procedures consistent therewith. Neither the constitution nor bylaws contain procedures for resigning from the Union but the constitution in Section 5 provides as follows with respect to the nonpayment of dues: A member in default, without good cause, in the payment of any installment of dues for sixty (60) days from the date such amount becomes due, shall be automatically suspended from the rights of membership and, if the default continues, without good cause for an additional thirty (30) days, after notice in writing by the Local Secretary, shall be automatically expelled from the Union. "Good Cause" shall be that which the governing body of the Local determines to be good cause. 2. The unlawful conduct a. The nature of the strike On April 18, Local 6290, a sister local of Local 6222 commenced an economic strike against Southwestern Bell Telephone Company and as an aspect of the strike established a picket line at the Company's facilities in Houston, Texas. The General Counsel makes no contention that the strike or the picket line was in any manner illegal. The picket line was maintained at the Houston facility until May 5. b. Strike preparations On approximately April 1, and for a period immediately thereafter, Joe Gunn, president of Local 6222, received written communications and verbal instructions from the International relative to establishing a picket line at the Jefferson Street facility of the Company in Houston, Texas. As a consequence of this, Gunn verbally instructed members of the executive board, his chief and district stewards, union committee members and coordinating group members that he had received communications from the International to the effect that a picket line would be established on or about April 12 at the Jefferson Street facility.4 Gunn instructed those individuals to whom he spoke to inform the rank-and-file membership that the picketing was to be orderly and in conformance with law, and that the members were to evacuate the buildings at such time as the picket line was established. c. The membership meeting On April 4, the Union held its monthly membership meeting. At the meeting Joe Gunn reported to the membership concerning the planned strike, advising the membership that a strike was imminent. He emphasized to the membership the necessity of maintaining solidarity in following the instructions of the leadership, he underscored the necessity for maintaining discipline in carrying out the instructions of the leadership and he asserted that charges 3 Unless specifically noted otherwise, all dates refer to the calendar year 1968. 4 This date for the commencement of picketing was subsequently changed to April 18. COMMUNICATIONS WORKERS, LOCAL 6222 315 would be filed against those members who disregarded these instructions and disrupted the solidarity of the strike. He stated that the members, and particularly the chief steward, had responsibility for reporting those members who were not maintaining union discipline . He asserted that those who were charged with faihng to abide by the discipline would be subject to trial. In the course of this report, Gunn also asserted that the leadership had no knowledge of how long the strike would last and warned the membership that the leadership would make a $25 per capita assessment against each member to support the strike fund. No representative of International attended the April 4 meeting . John Rembold testified credibly that he did not attend the April 4 meeting. d. The events of April 18 On the morning of April 18, John Refnbold reported for his normal tour of duty at the Jefferson Street facility of the Company at 8 a.m. When he entered the building there was no picket line. When Reinbold left the building at the termination of his shift at 4:30 p.m., however, he observed that a picket line had been established at the Jefferson Street premises. At the Jefferson Street facility are employed 1,200 to 1,500 members of the Union, comprising approximately 25 percent of its membership. In the meantime, at approximately 8:30 a.m., on April 18, Reinhold participated in a conversation with two employ- ees of Western Electric Company, one of whom he knew to be a rank-and-file member of the Union. The Western Electric employees inquired why the Southwestern Bell Telephone Company employees had to "walk out" at 2 p.m. The Southwestern Bell employees in the group participating with Reinbold in this conversation, asserted that they did not know the reason and they did not know under whose authority the strike had been authorized. During the course of the day Refnbold also heard discussion among union members to the effect that they were to walk off thejob at 2 p.m., when the picketing commenced. Later in the morning of April 18, between the hours of 10 a.m. and 12 noon, C. O. Peters, a member of the Union Executive Board and an employee of the Company, conversed with a group of employees on the Company's premises. Present in the group was John Refnbold who stood during the course of the conversation within 10 feet of Peters, and across a small table from him. During the conversation with the employees Peters was questioned by one of the employees as to what he, Peters, was going to do "about the walkout." Peters replied it was union policy that when the picket signs went up at 2 o'clock the union members would leave the building. An employee present asserted that there had been no official union notification. Peters answered that there were 5,000 members in the local 5 John Rembold testified at the hearing he could not recall, one way or the other, this interlude with Peters . In this regard his testimony was not convincing and I credit Peters both as to the occurrence of the event and the substance of the remarks he made during it 6 Gunn had come to the Jefferson Street building to contact and instruct the stewards and other key personnel charged with coordinating strike activities The General Counsel does not contend that the teal was other than fair and regular and in conformance to established and promulgated and that it would be impossible for everyone to be individually contacted.5 At approximately 1:50 p.m., on April 18, John Reinbold was in the employee cafeteria at the Jefferson Street facility of the Company and observed Joe Gunn in the cafeteria 6 Rembold did not seek instructions from Gunn with respect to the strike and Gunn gave none to him. Gunn testified that he did not recall issuing any written instructions to members informing them what to do when picketing commenced. e. Reinbold honors picket line After leaving the premises of the Company at 4:30 p.m., on April 18, John Refnbold did not work at any subsequent time during the strike which terminated on May 5. On April 23, at the request of a chief steward, he performed picket duty with C. O. Peters at the Jefferson Street facility from 8 p.m. until 12 midnight. f. Union charges and the fine On May 31, written charges were filed with the secretary- treasurer of the Union charging 11 individuals, including John Refnbold, with "failing to comply with the lawful decision of the Union to leave the job when pickets were established at the Jefferson Toll Building at 2 p.m., on April 18, 1968." On July 1, Reinbold was advised in writing of a trial to be held on August 19 on the issue raised by the May 31 charge. A trial was held on August 19 and a fine of $200 was levied against Rembold.7 g. The trial proceedings Reinbold attended the August 19 trial and chose to serve as his own counsel. The proceedings were before a trial panel comprised of a presiding officer and five jury members. An individual designated as prosecutor presented evidence in support of the charge and examined and cross- examined witnesses. At the conclusion of the trial, the trial panel adjourned to conduct its deliberations. Discussed at the deliberations was, (1) the fact that Refnbold had continued to work behind the picket line; (2) the effect of this action on new members and relatively short term employees employed in the group in which Reinbold worked; (3) the likelihood that Refnbold was familiar with union policies, and the provisions of pertinent official documents of the Umon, including the constitution and bylaws; (4) the impressions of panel members with respect to the truthfulness of testimony introduced by Refnbold at the hearing relating to a dialed telephone message ; 8 and (5) the threat of Reinhold to take counteraction against panel members which threat he uttered at the conclusion of the hearing.9 During the deliberations of the jury panel, some procedures of the Union. 8 At the hearing representations were made and testimony introduced by Rembold to the effect that a dialed telephone instruction from union sources left to the individual employee the choice of honoring or working behind the picket line. The consensus of the panel members was that Refnbold had endeavored to mislead the panel during the hearing into believing he had first-hand and not hearsay knowledge of the contents of the message 9 As the hearing was nearing completion Reinbold stated in substance, (Continued) 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consideration was given to the inferences drawn from the specifications of the charges against Reinbold, that he had honored the picket line on and after April 18. There was no discussion during the deliberations among the members of the jury panel of the amount of Reinbold's earnings for the 2 1/2 hours he worked behind the picket line. No formula for arriving at the amount of a fine was discussed among the panel members. However, as the discussion of the evidence adduced before the jury panel evolved, amounts were discussed and a consensus was reached on the $200 fine. In this latter regard Dorothy Sparks, who served as foreman of the trial panel, on cross-examination testified as follows: A. I really don't believe I understand exactly what you mean about how we arrived at that figure. I know what we said about it. attitude, belligerent. And also we felt that in threatening Q. Tell me what you said? Tell me what you said about it? A. That anybody who did this with that service and took that us, you dare not do anything to me, is the way we felt about it. Q. Yes. A. That person did deserve a heavy penalty. s • s s s Q. Were various amounts of fines imposed on other trials than Mr. Reinbold's? A. Yes. Q. Was there any discussion during the considera- tion of Mr. Reinbold's case of the amount of fines that you may have already decided in other cases in arriving at the $200 here? A. No. s s s s s ... please tell me is there anything that you can think of that was said or discussed that decided as far as the jury was concerned that $200 was what you wanted to fine him as opposed to picking $200 out of the air? That's what I'm trying to find out. Why did you get the $200? What was said about it? That's what I'm trying to find out. A. You say that $200 out of the air-that would be near it than to say-we are not comparing it to any other case we had heard or anything. Q. All right. A. We strictly was on the case itself. Q. O.K. A. And they felt like if it should run in the discussion that they should have a severe fine, and -that's why we finally compromised on the $200-that was the low figure, not below that. h. Fine unenforced The Union has undertaken no civil or other legal action to collect the fine that was levied against Reinhold nor has it in any manner affected the employment status or rights under the collective-bargaining agreement of Reinbold because of the nonpayment of the fine. The record contains no evidence revealing that it had been the practice of the Union to enforce through trial and fines the bylaw and constitutional proscriptions against strikebreaking. i. Reinbold's wage rate John Reinhold is paid biweekly and under the plant agreement in effect at the time of the strike was compensated at the rate of $158 for a 40-hour basic workweek. Under the 1968 plant agreement which became effective on July 17 Reinbold was compensated at the rate of $170 for a similar workweek. CONCLUSIONS The initial issue in this case is whether under the decision of the United States Supreme Court in Allis-Chalmers the Board has jurisdiction to entertain a complaint alleging a violation of Section 8(bXl)(A) arising from the imposition of a fine against a member for working behind a picket line established by the Union in support of a legal strike. The Respondent contends that this jurisdiction does not reside with the Board, and that, in any event, the fine actually imposed was the reasonable one, viewed in context of all surrounding circumstances. On the other hand, the General Counsel contends that the Allis-Chalmers decision must be read as rendering violative of Section 8(b)(1)(A) of the Act fines imposed in the aforesaid circumstances which are not "reasonable" or are "unreasonably large." In Allis-Chalmers the court framed the issue before it for decision as follows: The question here is whether a union which threatened and imposed fines, and brought suit for their collection, against members who crossed the union's picket line and went to work during an authorized strike against their employer, committed the unfair labor practice under Section 8(b)(1)(A) of the National Labor Relations Act of engaging in conduct "to restrain or coerce" employees in the exercise of their right guaranteed by Section 7 to "refrain from" concerted activities. The fines under consideration by the court were concededly reasonable. The court held, in substance, "the body" of Section 8(b)(1)(A) may not be interpreted as reaching the imposition of fine against recalcitrant members who worked behind a union picket line, and attempts at court enforcement. The court observed "(O)ur conclusion that Section 8(b)(1)(A) does not prohibit the local's action makes it unnecessary to pass on the Board holding that the proviso protected such actions." 10 However, the court observed, by way of dicta, "(A)t the very least it can be said that the proviso preserved the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the explicit or that if the Union continued to harass him, and if they took any "hide off "plenty of trouble." him," they had better do a good job because he would give the Union 10 N.LR.B. v. Allis-Chalmers, supra, p. 192, at note 29. COMMUNICATIONS WORKERS, LOCAL 6222 implicit threat of expulsion for nonpayment. Therefore, under the proviso the rule in the UAW constitution governing fines is valid and the fines themselves and expulsion for nonpayment would not be an unfair labor practice." It is pertinent to observe that Justice Brennan, writing for the majority of a closely divided court, was deciding a case involving reasonable fines. In his concurring opinion, Justice White ascribes to the court the "more persuasive and sensible construction of the statute" observing: "(M)y Brother Brennan, for the court, takes a different view, reasoning that since expulsion would in many cases-certainly in this one involving a strong Union-be a far more coercive technique for enforcing a union rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of Section 7 rights, nevertheless intended to bar enforcement by another method which may be far less coercive." '[Emphasis supplied.] Writing for the four dissenting justices, Justice Black similarly interprets the decision of the court as dealing with reasonable fines for he observes, "(W)ith no reliance on the proviso to Section 8(b)(1)(A) or on the meaning of Section 7 the Court's holding boils down to this: A court-enforced reasonable fine for nonparticipation in a strike does not `restrain or coerce' an employee in the exercise of his right not to participate in the strike." Additional language crucial to the formulation of the "reasonable" fine theory is found in the following passage from the court's decision: 11 There may be concern that court enforcement may permit the collection of unreasonably large fines. However, even were there evidence that Congress shared this concern, this would not justify reading the Act also to bar court enforcement of reasonable fines. [Footnote citations deleted.] In context with this observation, however, the court also observed: It has been noted that the State Courts, in reviewing the imposition of union discipline, find ways to strike down "discipline [which] involves a severe hardship." Sum- mers, legal limitations on union discipline, 64 Harv. L. Rev. 1049, 1078 (1951). In answer to the observation of the court in this regard, Justice Black, writing for the dissenting justices, asserted: Thus, although the union herein posed 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. Although an employee might be willing to work even if it meant the loss of union membership, he would have to be well paid indeed to work at the risk that he would have to pay his Union $100 a day for each day worked. Of course, as the court suggests, he might be able to defeat the Union's attempt at judicial enforcement of the fine by showing it was `unreasonable' or that he was not a `full member' of the union, but few employees would 11 N L R B v Allis-Chalmers, pp 192-193 12 N L R B v Allis-Chalmers, p. 204 317 have the courage or the financial means to be willing to take that nsk.12 If doubt lingered as to the existence of a distinction between "reasonable" and "unreasonably large" fines under the court's Allis-Chalmers decision, the court's recent decision in the Wisconsin Motors case13 goes far to dispell that doubt. In finding no violation of Section 8(b)(1)(A) the court observed as follows: Based on the legislative history of the section, [Section 8(b)(1)(A)] including its proviso, the court in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195, distinguished between internal and external enforcement of union rules and held that `Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status.' A union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line during a strike was therefore enforceable against voluntary members by expulsion or a reasonable fine. The Court thus essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star and Tribune Co., 109 NLRB 727, where the Board also distinguished internal from external enforcement in holding that a union could fine a member for violating a rule against working during a strike but that the same rule could not be enforced by causing the employer to exclude him from the work force or by affecting seniority without triggering violations of Section 8(b)(1), 8(b)(2), 8(a)(1), 8(a)(2), and 8(a)(3). These Sections form a web, of which Section 8(b)(1)(A) is only a strand, preventing the Union from inducing the employer to use the emoluments of the job to enforce the Union's rule. [Footnote citations deleted.] In conjunction with the foregoing by a footnote observation the court also noted: The Board has long held that Section 8(b)(1)(a's) legislative history requires a narrow construction which nevertheless proscribes unacceptable methods of union coercion, such as physical violence to induce employees to join the Union or to join a strike. In re Maritime Union, 78 NLRB 971, enfd. 175 F.2d 686 (C.A. 2nd Cir. 1949). In its Scofield decision the court stated, as it had done in Allis-Chalmers, that the Landrum-Griffin Act did not purport to overturn or modify the Board's interpretation of a Section 8(b)(1). In further delineating the reach of its decision the court continued as follows: Although the Board's construction of the Section [Section 8(b)(1)(A)] emphasizes the sanction imposed, rather than the rule itself, and does not involve the Board in judging the fairness or wisdom of particular union rules, it has become clear that if the rule invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating the Section 8(b)(1). In both Skura [Local 138 International Union of Operating Engineers 148 NLRB 679], and Marine Workers [Industrial Union of Marine Shipbuilding Workers of America, 159 NLRB 13 Scofield v N L P, B, et al, 70 LRRM 3105 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1065 ], the Board was concerned with union rules requiring a member to exhaust union remedies before filing an unfair labor practice charge with the Board. That rule, in the Board's view, frustrated the enforce- ment scheme as established by the statute and the Union would commit an unfair labor practice by fine or expelling members who violated the rule. Pursuant to this analysis the court then formulated the following rule: Under this dual approach Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the Union and escape the rule. This view of the statute must be applied here. [Emphasis supplied.] Applying its formulated rule to the facts of the case before it, the court in Scofield observed further: In the case at hand, there is no showing in the record that the fines were unreasonable or the mere fiat of a union leader, or that the membership of petitioners in the Union were voluntary. Moreover, the enforcement of the rule was not carried out through means unaccepta- ble in themselves, such as violence or employer discrimination. It was enforced solely through the internal technique of union fines, collected by threats of expulsion of judicial action. The inquiry must therefore focus on the legitimacy of the union interest vindicated by the rule and the extent to which any policy of the Act may be violated by the Union impose production ceiling. [Emphasis supplied.] Thus, the decision in Scofield reinforces the view gleaned from Allis-Chalmers, that to escape the prohibition of Section 8(b)(1)(A) a disciplinary fine levied against a member must be reasonable in amount.14 Those that are not "impinge on the policies enunciated in Section 7 of the Act" and lose the shelter of the "federally unentered 14 If this were not so, and if it had viewed Congress by the passage of Section 8(b)(1)(A) as having intended no Board authority in the area of disciplinary fines, it is apparent that the court would have refrained from the carefully drawn distinction between "reasonable " and "unreasonable" fines. 15 Cf. Scofield, supra, at p. 3106 In . 3. The observation of the court in Machinists v. Gonzales, 356 U.S. 617 to the effect that, "[T]he protection of union members and their rights as members from arbitrary conduct by unions and union officers has not been undertaken by Federal law, and indeed the assertion of any such power has been expressly denied" must be read in light of the amplification afforded in Scofield. 16 The Respondent contends that, as the Board has not "announced any approved standards or guidelines by which it intend(s) to judge union discipline as to . . . reasonableness [in the imposition of disciplinary fines ]" the General Counsel is proceeding improperly by attempting to use this case as a vehicle to establish Board jurisdiction in the area and to promulgate new standards . Moreover, the Respondent criticizes the failure of the General Counsel to spell out "either in the complaint or at the hearing" the standards he intended to urge . "(I)n exercising its quasi- judicial function an agency must frequently decide controversies on the basis of new doctrines, not theretofore applied to a specific problem, though drawn to be sure from broader principles reflecting the purposes of the statutes involved and from the rules invoked in dealing with related problems. If the agency decision reached under the adjudicatory power becomes a precedent, it guides future conduct in much the same way as though it were a new rule promulgated under the rule making power, and both an adjudicatory order and a formal "rule" are alike subject to review. Congress gave the Labor Board both these separate but almost inseparably related powers . No language in the National Labor Relations Act requires that the grant or exercise of either power was intended to exclude the enclave" open to state, regulation of the contractual relationship between union and employee.15 The criteria or standard for determining what is a reasonable fine has been established in no Board or court decision. However, a definitive standard and formula for determining that a fine is reasonable has been found by Trial Examiner Ramey Donovan in Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), Case No. 15-CB-779, TXD-737-68, issued December 30, 1968.16 In his Boeing decision Trial Examiner Donovan stated: 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 strikebreak- ing or any other internal rule violation. But the Court, recognizing 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 thereof. By the same token, it was concluded that the weak union could seek court enforcement of fines because it 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 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 Board's use of the other." [Footnote citation deleted.] N.L.R.B. v. Wyman- Gordon Co., 70 LRRM 3345 ( 1969), concurring opinion of Justice Black, supra, page 3349. "The short of it would seem to be that when an administrative agency makes law as a legislature would, it must follow the rule-making procedure prescribed in Section 4 [of the Administrative Procedure Act], when it makes law as a court would , it must follow the adjudicative procedure prescribed in Sections 5, 7, and 8 [of the Administrative Procedures Act]; whether to use one method of law making or the other is a question of judgment, not of power. N.LR.B. v. A. P. W. Products Co., 316 F.2d 899, 905 (C.A. 2); see also N.L.R.B. v. Wyman- Gordon Co., supra, pp. 3346-3347. In Allis-Chalmers the Supreme Court delineated an area of union conduct arguably proscribed by Section 8(b)(I)(A). As was clearly within his authority under Section 3(d) of the Act, the General Counsel proceeded by way of notice, complaint, and adversary hearing under Section 10 of the statute to determine adjudicatively the reach of Section 8(bxl)(A), construed in light of the Allis-Chalmers decision. This is consistent not only with the Administrative Procedure Act but with the time-honored approach of the Board, affirmed by the courts, in seeking to give administrative application to the various provisions of the statute "expressive of such large public policy" Phelps Dodge Corp. v. N.L.R.B. 313 U.S. 177 (1941), Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N.L.R.B., 366 U.S. 667 (1961). The procedural validity of this proceeding is not marred by the failure of the General Counsel to define, in detail, a set rule for determining "reasonableness." It is enough that upon a legally sufficient complaint and notice he challenged the Respondent's conduct, adjudicatively, invoking the Board's remedial powers only over the conduct proclaimed to have violated the proscriptions of the Act. He sought no formulation and retroactive enforcement of a rule of general application. COMMUNICATIONS WORKERS, LOCAL 6222 319 employer has the right to protect and carry on his business by hiring permanent replacements for the strikers. [Footnote citation deleted.] s s s It is one thing for a union and its members, through loyalty, dedication, conviction, and solidarity, to strike and to voluntarily remain on strike and thereby exert maximum economic pressure by closing down a plant completely, 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)(1)(A) of the Act underwent some attenua- tion 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 employment 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 a 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 fines and other discipline would properly be the rehibilitation of recalcitrant members into loyal members rather than further or complete alienation of the recalcitrants. The good and bad members of the Union will continue to be employees in the plant represented by the Union. A reasonable fine, imposed on strikebreakers, that deterred 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 strikebreakers' earnings during the strike. We have rejected, for reasons stated, total deterrence as compati- ble with a reasonable fine. This would eliminate a fine that is 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, equitable and conveniently defined as a percentage of the strikebreakers' earnings, where the 17 Booster Lodge No 405, etc, supra, p 20 18 The fine was also comprised of an element of reprisal against Reinhold personally (deriving from his threat at the trial to gain retribution percentage of 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 major of individual freedom as guaranteed under Section 7 and 8(b)(1)(A) of the Act. s s * * s 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, presumptively, 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. In agreement with Trial Examiner Donovan, and for the reasons stated by him, I find that a fine, to be reasonable, may be of sufficient magnitude "to deter the normal employee from violating his obligation as a union member to refrain from working during a duly authorized strike, but [may not be] 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 . . . of the Act." 17 As observed by Trial Examiner Donovan, all fines have an element of punishment. When the size of the fine is such as to leave to the member a genuine choice of alternatives the fine does not derogate the guarantees of Section 7 of the Act and serves to protect the legitimate interests and ends sought to be achieved by the collective-bargaining agent invested with the responsibility under the Act of represent- ing unit employees. However, when the magnitude of the fine is such that, in terms of economic reality, the member has no choice at all, his Section 7 rights are subordinated thereby to the ends sought to be achieved by the collective- bargaining agent, and the fine assumes a punitive and retributive character. The record evidence is convincing that in deliberating the fine to be assessed against Reinbold, the jury panel undertook no balancing of rights, and that union interests totally dominated the judgment of the panel. The fine that emerged, by the testimony of its foreman, was a "heavy penalty" which, while it reflected legitimate union concern over the erosion of membership discipline suffered at Rembold's hand, was in no discernable manner moderated by a consideration of Rembold's statutory rights to abstain from supporting the strike or of his strike or normal workweek income. is It is apparent that, in the case at bar, the fine of $200 imposed against Reinbold for working 2 1/2 hours behind the picket line, whereby he earned $9.11, was of such a magnitude as to deprive Reinhold of any practical choice of against the Union) which bore no relationship to any interest of the Union in maintaining the efficacy of its rule and which was unrelated to any reasonable deterrent objective 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alternatives. The fine exceeded by more than 20 times the amount of his strike earnings and was 126 percent of his then currently weekly earnings. This fine assessed against Reinbold by the Union also had a precedential effect of foreseeably depriving members of any realistic choice in the event of a future strike called or supported by the Union. It is sufficient for the purpose of this case to decide, as I do, that a fine of the amount here assessed against John Reinbold reflects the failure of the Union through its trial panel to properly balance Reinbold's Section 7 rights against the legitimate interests of the Union; 19 and to find further that, as a consequence of the unreasonably large fine imposed through this process, the Union coerced John Reinbold in the exercise of his Section 7 rights and thereby violated Section 8(b)(1)(A). The fine was not purged of its coercive elements by reason of the freedom Reinbold had, which he did not exercise, to resign from the Union prior to undertaking to remain at work behind the picket line.20 Unlike the employees in Scofield where the fines to be imposed for breach of the union's rule had been promulgated and long established, Reinbold had no basis for assuming, in the absence of any known past practice of the Union, that he would be fined, or that the fine for his initial offense would be as repressive as it turned out to be. Moreover, the coercion, which I find occurred, arose at the moment of the fine's imposition and at that moment the Union's right to satisfaction21 and Reinbold's obligation to perform became fixed, as they arose from the contractual relationship between union and member which existed at the time of Reinbold's picket line offense. The right and concomitant obligation thus survived the Respondent's subsequent termination of his dues deduction.22 Nor was the fine rendered noncoercive, and therefore nonviolative of the Act, by reason of the fact, undisputed, that Respondent has not resorted to court enforcement for its collection. To the wage earner against whom it was assessed, the fine, as I have found, remained an obligation, and not a nullity. So long as it retained this status it constituted a detriment of significance to be weighed by Reinhold in reaching any future decision regarding the 19 It is essential , as noted by the court in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1968), that a union, as an attribute of its strike power, have the right to fine and expell strikebreakers. This right in support of the strike, declared to be "the ultimate weapon in labor's arsenal for achieving agreement on its terms," however, in my view, is not unlimited and must be balanced against the rule of "reasonableness" specified in Scofield and Allis-Chalmers. 20 I find, as a fact, both by reason of union practice and the conversations which he heard on April 18, Reinhold understood to a point of certitude it was union policy that all members should leave the job when the picket line went up at 2 p.m. 21 It was of course, subject to reduction or remittitur by a court, in an enforcement suit. 22 In Scofield the employees could reach an informed judgment as to the consequence of any breach of the union's rule because they knew the rule and had been apprised of the formula for assessing fines. Thus the rule enunciated in Scof:el4 considered together with Reinbold's failure to resign from the Union, may not be viewed as excusing the union action herein. Moreover, in Scofield, the fines assessed were found by the court to have been "reasonable" and thus noncoercive. As the court found, "(U)nless the rule or its enforcement impinge on some policy of the federal labor law, the regulation of the relationship between union and employees is a contractual matter governed by local law." Scofield supra, p. 3106, fn. 3. 23 1 find no merit in Respondent's contention that the Board should participation in or abstention from union activities for which a fine could be assessed as the price of nonparticipation.23 While the foregoing findings are sufficient, in my view, to determine the issues raised in this case, in further agreement with Trial Examiner Donovan, I am of the opinion that in the interest of orderly and efficient administration of the Act it is desirable to establish a formula by which individuals and organizations subject to the Act may reasonably predetermine fines which are "reasonable" and those which are not. After careful consideration of the variant alternatives, I am in agreement with Trial Examiner Donovan that a fine of 35 percent or less of a strikebreak- er's earnings at regular straight time pay rate and of 80 percent or less of his premium time earnings accrued during the strike is a presumptively reasonable fine within the meaning of the Allis-Chalmers concept.24 However, I would augment this formula by permitting a union to impose against a member a minimum fine equivalent to 1 day's straight time pay for any work unauthorized by the Union performed by the member behind the picket line during the course of a legal strike approved by the Union.25 A fine of the size suggested would have the effect of encouraging membership support of the strike both at the outset and during its duration, while, in keeping with the spirit and mandate of Section 7 of the Act, not foreclosing employees of the choice whether to commit, withhold, or, during the strike, withdraw his support of the strike in accordance with his wishes, evaluations, and judgments as to the merits of the strike or its continuation, as the case may be. In this manner the Union's internal rules are given meaning and the guarantees of Section 7 of the Act are given realistic dimension.26 Thus, in emphasizing as I have the disparate nature between the amount of the fine levied against Reinbold and Reinbold's strike earnings during his 2-1/2 hour stint behind the picket line, I intend no inference that the Union's interest in maintaining the credibility and integrity of its internal rules against strikebreaking were so relatively subordinate to the superior guarantees of Section 7 of the Act as to relegate the Union to token action.27 Obviously, to protect against such transitory departures abstain herein by reason of Reinbold's failure to resort to internal union appellate procedures to test the validity of the fine. Because the fine herein was unreasonably large and therefore violative of the Act , the conduct of the Union "touches the public domain covered by the Act" and the Board has jurisdiction to entertain the complaint. N.LR.B. v. Marine & Shipbuilding Workers, 68 LRRM 2257 ( 1968). 24 Generally, fines which would discourage strikebreaking by extracting all earnings accrued by the member from work performed behind the picket line are deemed incompatible with the Supreme Court's concept of "reasonable," as these fines would constitute a total deterrent to the member's exercise of a realistic choice. A case to case approach creates so variable and imprecise a climate for the exercise of judgment by the employer-member unskilled in the nuances and niceties of the law as to decisively militate against this approach. 26 At the time of the strike John Reinbold's earnings for 8 hours' work were $31 .60, as contrasted to the $200 which he was fined. 26 A token or wrist-slap type of fine falls far short of achieving this latter objective. It is for this reason, and not because transitory nonobservance is more, or less, serious than prolonged nonobservance that a minimum must inhere. 27 Under the 35/80 percent formula proposed by Trial Examiner Donovan in his Boeing decision, the maximum fine the Union could have imposed against Reinhold would have been $3.46 extracted from the $9.875 straight time pay which Reinbold earned. COMMUNICATIONS WORKERS, LOCAL 6222 321 and flaunting of the rule, which if widespread, would have substantial, cumulative adverse effect upon any legitimate strike effort, a union must have the right to impose a significant minimum fine for any breach of its rule. The fine here suggested would reach this accommodation.28 The application of the 35/80 percent formula articulated in Boeing would thus become operative against a member's earnings behind a picket line accrued after the completion of one normal shift and, in calculating the total fine assessable, would be in addition to the minimum fine permitted under the aforesaid standard. I am of the further opinion, in substantial agreement with Trial Examiner Donovan, that in order to strike the proper balance between rights guaranteed under Section 7 of the Act and the responsibilities residing with the statutory collective-bargaining agent, a union, prior to the com- mencement of an authorized strike, must apprise each of its members in a manner calculated to achieve actual notification to them29 that, (1) members who work behind the picket line during the strike may be subject to fines enforceable in court, (2) the amount of the minimum fine assessable against a member for his initial breach of the union rule, (3) the formula or standard to be applied in determining the ultimate total fine assessable against a recalcitrant member and (4) to escape the ultimate imposition of a fine, the member, prior to crossing a picket line, must notify the union, in writing, of his intention to immediately withdraw from full membership in the union.30 In this latter connection, the Union's notification to members covered by a maintenance of membership or other union security arrangement must accurately apprise the member of his membership obligations and options under prevailing collective-bargaining terms, including the dates and method by which the member may terminate his maintenance of membership as well as the member's obligation under a union security contract to continue to pay the equivalent of dues in the event he accomplishes withdrawal from full union membership. Moreover, under this notification requirement, the Union must apprise its members that under applicable rules the required written notification to it is accomplished by deposit in the United States mails of the appropriate written instrument or by dispatch of a telegram of like content. Thus, under the foregoing rules, an employee is capacitated to make a reasoned judgment whether to exercise the guarantees of Section 7 of the Act so as to engage or refrain from engaging in union activities. A fine imposed against an employee who serves the described written notice upon the union and in a timely fashion, 28 Although it is recognized that in a brief strike of a duration of a day or less, this minimum might equal or exceed strike earnings , the rule for the reasons stated is believed "reasonable" and justified in striking a proper balance of rights 29 A form notice posted at union meeting halls and offices and on bulletin boards at employee work locations would be an acceptable method of notification 30 Cf Scofield, supra, p. 3108 31 When the bylaws and constitution of a union contain no procedures for resigning all that is required is that the employee make clear and unequivocal his intent See Aeronautical Industrial District Lodge 751, affiliated with The International Association of Machinists & Aerospace Workers, AFL-CIO (The Boeing Company), 173 NLRB No 71 When provisions are spelled out in bylaws and/or constitutions the employee consonant with the aforesaid rules, effectuates his with- drawal from the union would be coercive and violative of Section 8(bxlXA).31 Similarly, a fine which substantively departs from any of the elements of the aforesaid rule would be, presumptively, not a reasonable fine and would be violative of Section 8(b)(1)(A) of the Act when imposed against an employee who breaks the union's rule but retains his membership in the union. On the other hand, a fine levied by a union against such an employee after compliance with all the notice elements of the aforesaid rule, and which complies with the 35/80 percent formula element of the above rule, would be, presumptively, a reasonable fine and would not be subject to attack under the Act.32 In sum and for the reasons stated above, I find that the Union violated Section 8(b)(1)(A) by assessing against John Reinbold, a member, a fine so large in relation to his strike or normal weekly earnings as to constitute for practical, economic purposes, a total deterrent to his exercise of the right guaranteed by Section 7 of the Act to refrain from participation in concerted activities. This disparity between fine and income is such as to deprive the fine of the requisite reasonableness demanded under the Allis-Chal- mers and Scofield decisions. Because of this disparity, this decision does not and need not rest upon a retroactive application of the formula or notice provisions articulated herein.33 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Southwestern Bell Telephone Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Having found that labor organizations under the statute may impose reasonable fines upon members for working behind a picket line during a legal, authorized strike, and having further found that the instant strike was of that after giving notice of intention may reasonably be required to take the subsequent steps required to complete his resignation in conformity to prevailing bylaw and constitutional provisions In those instances where the appropriate notice of intent is not alone sufficient to accomplish a resignation, it is reasonable to require a union to abstain from passing judgment upon the acts of a recalcitrant employee until the time and opportunity requisite for accomplishing resignation under applicable procedures has passed 32 The presumption of the aforesaid rules, like all presumptions, may be in a specific factual situation, overcome by sufficient evidence to establish their inapplicability 33 However, the underlying rationale and the minimum fine provision is deemed relevant to the fashioning of an appropriate remedy 322 DECISIONS OF NATIONAL variety, in order to balance the right of the Union to impose reasonable fines against the superior guarantees to John Reinbold of Section 7 of the Act to refrain from engaging in concerted activities, I shall recommend that the Union expunge and rescind so much of the fine levied against John Reinbold as exceeds the amount of John Reinbold's entire earnings in the employ of Southwestern Bell Telephone Company on the day of April 18, 1968. I shall further recommend that the records of the Respondent Union with respect to the fine against John Reinbold be corrected to reflect the imposition of the lesser fine in the amount here indicated, and that the Union notify John Reinbold in writing of this action. Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Communications Workers of America, Local 6222 is a labor organization within the meaning of Section 2(5) of the Act. 2. Southwestern Bell Telephone Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By imposing a fine of $200 against John Reinbold, a member, for working 2-1/2 hours behind a picket line at a facility of Southwestern Bell Telephone Company during a strike authorized by the Union, the Union restrained and coerced John Reinbold in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondent, its officers, agents and representatives, shall: 1. Cease and desist from: (a) Fining members in amounts of money that constitute unreasonably large fines because they worked behind a picket line during a lawful strike authorized by the Union. (b) In any like or related manner restraining or coercing its members in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and rescind so much of the fine levied against John Reinhold as exceeds the amount of the wages earned by John Reinbold in the employ of Southwestern Bell Telephone Company during the entire workday of April 18,1968. (b) Correct all pertinent records relating to the trial and the fine of John Reinbold to reflect this modification and inform John Reinbold, in writing, of the action taken. (c) Post at its office and meeting halls and at the Jefferson Street facility of Southwestern Bell Telephone Company, in Houston, Texas, the Company willing, copies of the notice attached hereto and marked "Appendix." 34 Copies of said LABOR RELATIONS BOARD notice, on forms provided by the Regional Director of the National Labor Relations Board for Region 23, after being signed by an authorized representative of the Respondent, shall be posted at the aforesaid locations in conspicuous places, including all places where notices to members and employees are customarily posted, and reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director, in writing, within 20 days of the receipt of this Decision, what steps it has taken to comply herewith.35 34 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 35 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial in which the Union and the General Counsel of the National Labor Relations Board were represented by attorneys, a Trial Examiner of the Board, who heard the evidence, has found that we have violated the National Labor Relations Act in certain respects, and has recom- mended that we post this Notice and comply with its terms. WE WILL NOT restrain or coerce our members in the exercise of their right guaranteed in Section 7 of the National Labor Relations Act which guarantees to employees the right to engage in or to refrain from engaging in union activity, such as a strike. WE WILL NOT restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act to refrain from engaging in union activities, such as a strike, by imposing unreasonable fines against our members. WE WILL withdraw so much of the $200 fine imposed against John H. Reinbold on August 19, 1968, because he had worked 2-1/2 hours behind our picket line at Southwestern Bell Telephone Company in Houston, Texas, on April 18, 1968, as exceeds the amount of his wages from Southwestern Bell Telephone Company for April 18, 1968. WE WILL correct the records of the August 19, 1968, union trial of John Reinhold, and the other records of the fine assessed against him, to show the change in the amount of the fine. WE WILL notify John Reinbold, in writing, that these changes have been made and that we are entitled to collect a fine in the amount of his wages for April 18, 1968. COMMUNICATIONS WORKERS, LOCAL 6222 323 WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed to them in Section 7 of the National Labor Relations Act. Dated By (Representative) (Title) COMMUNICATIONS WORKERS OF AMERICA, LOCAL 6222 (Labor Organization) 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 may be directed to the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4722.