Local 205, Lithographers and Photoengravers

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 205, Lithographers and Photoengravers Interna- tional Union, AFL-CIO and The General Gravure Service Co., Inc. Case 22-CB-1273 November 9, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 22, 1968, Trial Examiner Herbert Silber- man issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel and the Charging Party each filed exceptions to the Decision, together with supporting briefs. The Respondent filed an answering brief. Subsequently, in response to an invitation of the Board, the Charging Party, General Counsel, and Respondent filed supplemental 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 Organizations, joined by. the International Brotherhood of Teamsters and the International Union, UAW, as amici curiae. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Trial Examiner's Decision, the excep- tions and briefs, the answering brief, the supplemental briefs, the statements of position amici curiae, and the entire record in the case. The Board adopts the Trial Examiner's findings, conclusions, and recommenda- tions only to the extent that they are consistent with the decision herein. As more fully set forth in the Trial Examiner's Decision, the Respondent Union on July 5, 1967, established a picket line at the Company's premises. The five employees involved herein (William Brengel, Peter Ollendorf, John Haynie, Paul Fallot, and Louis Stirling) refused to honor the picket line and reported to work on a regular basis until August 30, 1967. On July 6, 1967, the second day of the strike, the Union notified each of the five employees that 1 N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175. 2 Scofield v. N. L. R. B., 394 U.S. 423. 3 The Trial Examiner found it unnecessary to "pass upon the question of whether the resignations from the Union of the five men named in the charges had been preferred against them under the Union's International constitution for crossing the picket line, and that a trial had been set for July 26, 1967, before the Union's executive board. On July 25, 1967, four of the employees telegraphed their resigna- tions to the Union. The fifth employee telegraphed his resignation to the Union on August 1, 1967. In response to the aforementioned telegrams the Union notified the employees that their resignations were ineffective under the Union's constitution, that the executive board had heard their cases, and that they would soon be advised of the results. On August 2, 1967, they were notified by the Union that they had been found guilty of the charges preferred against them. Each was further advised that the executive board had voted to censure them and that they should be warned that further evasion of their respective responsibilities would be grounds for additional disciplinary actions. When the five employees persisted in crossing the picket line, they were informed on August 10, 1967, that additional charges had been preferred against them and that a trial date had been set for August 30, 1967. On October 12, the employees, none of whom had attended the trial of August 30, 1967, were informed that they had again been found guilty and were each fined $250 on each of four counts for a total of $1,000, which, together with back dues, was payable "without delay." The Trial Examiner, after considering the argu- ments of the respective parties, concluded that "there are no material distinctions between the facts of this case and those appearing in the Allis-Chalmers 1 case" and, accordingly, recommended dismissal of the complaint in its entirety. We disagree. In Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, 185 NLRB No. 23, we concluded that Allis-Chalmers, supra, was carefully restricted to the facts of that case and that the Supreme Court's subsequent decision in Scofield2 indicated that union-imposed fines would not be violative of Section 8(b)(1)(A) of the Act when restricted solely to union members. In accordance with the aforementioned conclusions we found that union fines imposed against certain employees who had in fact resigned from the union prior to crossing a union-established picket line were violative of Section 8(b)(1)(A) of the Act. Inasmuch as the fines here involved similarly relate to picket line conduct occurring after August 1, 1967, when the employees had effectively resigned from the Union,3 the fines therefore were also violative of Section 8(b)(1)(A) of complaint were effective ." As the Union's constitution makes no provision for voluntary resignations while employees are still engaged in the industry, we find that the telegraphic resignations herein effectively terminated their respective memberships in the Union. Booster Lodge No. 405, supra, fn. 11. 186 NLRB No. 69 LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 455 the Act. This conclusion, however, does not make unlawful the censure imposed upon the five individu- als by the Respondent Union prior to their resigna- tions from among its ranks. Accordingly, we shall order the Respondent to cease and desist from such action and to remit any fine which may have been paid by the five individuals involved for picket line violations occurring subsequent to their resignations from the Respondent Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 205, Lithographers and Photoengravers Inter- national Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees, who had resigned from and who were no longer members 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 conduct in working at the Hillside plant during the July 5, 1967, strike. (b) In any like or related manner, restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Reimburse or refund to William Brengel, Peter Ollendorf, John Haynie, Paul Fallot, and Louis Stirling the amount of any fines they may have paid which were imposed because of postresignation conduct in working at the plant. (b) Post at its office and meeting hall and at the Hillside, New Jersey, plant of the General Gravure Service Co., Inc., if the Company is willing, copies of the attached notice, marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22, after being signed by an authorized representative, shall be posted at the aforementioned locations immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, 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: For the reasons stated in my dissenting opinion in Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), footnote 2, supra, I would find no violation of Section 8(b)(1)(A) of the Act and would dismiss the complaint in its entirety. T 4 In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 Section 7 of the Act, worked at the Hillside, New Jersey, plant during the July 5, 1967, strike, by imposing fines. WE WILL reimburse William Brengel, Peter Ollendorf, John Haynie, Paul Fallot, and Louis Stirlingl 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. LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS INTERNATIONAL UNION, 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, Federal Building, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner: Upon a charge filed by The General Gravure Service Co., Inc., herein called the Company, on October 24, 1967, a complaint was issued on March 22, 1968, alleging that the Respondent, Local 205, Lithographers and Photoengravers International Union, AFL-CIO, herein called the Union, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. In substance, the complaint alleges that the Union on August 30, 1967, levied individual fines in the amount of $1,000 against William Brengel, Peter Ollendorf, John Haynie, Paul Fallot, and Louis Stirling, employees of the Company, for crossing a picket line established and maintained by the Union at the Company's place of business, although said employees had not been members of the Union since August 1, 1967. The complaint further alleges that the fines are excessive. Respondent by its answer generally denies that it has violated the Act. A hearing in this proceeding was held in Newark, New Jersey, on April 15, 1968. Thereafter, briefs were filed on behalf of the General Counsel and the Charging Party which have been carefully considered. Upon the entire record in the case, I make the following: FINDINGS OF FACT I. JURISDICTION The material facts in this proceeding involve employees of The General Gravure Service Co., Inc., a New Jersey corporation, which is engaged in its place of business at Hillside, New Jersey, in the manufacture, sale, and distribution of gravure cylinders and related products. During the calendar year 1967, which period is representa- tive of the Company's operations, in the course and conduct of its business, the Company manufactured, sold, and shipped from its place of business products valued in excess of $50,000 to customers located outside the State of New Jersey. Respondent admits, and I find, that the Company is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events This case explores the reach of the Court's decision in N.LR.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175. Until sometime after June 1967 the Union had been the recognized representative of employees of the Company. The last collective-bargaining agreement between the parties expired in January 1967. Negotiations looking to the renewal of the contract were carried on between December 1966 and June 1967 but the parties were unable to reach an agreement. At various times during the negotiations the Union threatened to impose sanctions against the Compa- ny and in particular threatened to impose an overtime ban, that is, a refusal on the part of its members to perform any overtime work. At a chapel meeting of the Company's employees held on June 19, 1967, the union members were informed that because there still was no resolution of the contract differences with the Company an overtime ban was being imposed and any employee who worked overtime would be fined an amount equal to his overtime earnings. Shortly after this meeting the Union posted a notice confirming the overtime ban. On June 20, the Company posted notices advising its employees that overtime work was a condition of their employment, that employees will be given 1 day's notice when called upon to work overtime and that any employee who then refuses to work overtime will be subject to immediate dismissal. On June 30 the Company discharged 14 employees who had refused to work overtime on that day and the preceding day. Beginning July 5, 1967, pursuant to due authorization, the Union established a picket line at the Company's premises. During the period from July 5 through August 30, 1967, the five individuals named in the complaint regularly reported to work despite the presence of the Union's picket line and the necessity of their crossing such line to enter the Company's premises. On July 6, 1967, the Union sent a letter to each of the five advising them that charges had been preferred against them under various sections of the International constitution because of their conduct in crossing the picket line and notifying them that 6 p.m. on July 26, 1967, was set by the executive board as the time for their trial on the charges. On July 25, 1967, Brengel, Ollendorf, Haynie, and Stirling each sent a telegram to the Union which read as follows, "Effective immediately, I hereby tender my resignation from New Jersey L.P.I.U. Local No. 205." Fallot sent a similar telegram to the Union on August 1, 1967. In response to the attempted resignations the Union sent each of the five the following letter: Your telegram of July 26th has been received. Obviously you ignored Section 17.9 of our Constitution which prohibits your resignation under present circum- stances. This section provides as follows: 17.9 RESIGNATION. A member may resign from membership only if he is in good standing and has ceased to be engaged as an employee or in a supervisory capacity in an industry within the jurisdiction of the International, but continues otherwise to be associated with such industry. Therefore we cannot accept your resignation and, in view of your refusal to attend the hearing of charges against you, the Executive Board sitting as Trial Board took evidence and proceeded in your absence. You will be advised later of its findings. None of the five men attended the union hearing on the charges which had been preferred against them. On August 2, 1967, each of the five was advised that the Trial Board had found him guilty of: LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 457 (1) Willful violation of their obligations of member- ship under Section 18.2(A). (2) Evasion of responsibilities during a recognized lockout under Section 18.2(B). (3) Willful failure to comply with the Constitution to the detriment of the organization under Section 18.2(C). (4) Knowingly undermining wage and work stand- ards to the detriment of the organization under Section 18.2(D). Each was further advised that the decision of the Trial Board was that he should be censured for his actions and should be warned that further evasion of his responsibilities under the constitution would be grounds for additional disciplinary action. The letter of transmittal from the Union's recording secretary, in addition to advising the men of their rights of appeal, also informed them that although no fine was imposed it was expected that they would cease the violations of their responsibilities under the constitution. On August 10, 1967, the Union wrote to each of the five men another letter advising that additional charges had been preferred against them and summoning them to appear for trial on such charges at 6 p.m. on August 30, 1967.1 None of the five attended the trial. On October 12, 1967, each of the five men. wasinformed of the outcome of the trial by the following letter from the Union's business manager: At the Executive Board Trial for which you had been summons, [sic] on August 30, 1967, you were found guilty on the four charges preferred against you and fined $250.00 on each charge for a total of $1000.00. This fine and your dues for June and to date are payable, thru the Business Manager of the Union, without delay. The weekly salaries of the five men during the relevant times herein, particularly July and August 1967, were: Haynie, $235; Fallot, $235; Stirling, $300; Ollendorf, $275; and Brengel, $275. None of the five men have paid union dues since May 31, 1967, nor have they paid the fines levied against them. The Union has made no attempt to collect the fines. Pursuant to a petition filed by Charging Party on August 16, 1967, the Board conducted a representation election on December 4, 1967, in the unit represented by the Union. The Union lost the election by a vote of 8 to 0.2 B. General Counsel's Argument General Counsel advances alternative theories in support of the complaint. His first theory is that in the Allis- Chalmers case, the Supreme "Court, while not faced with 1 The charges, dated August 9, 1967, which had been served on each of the five men with the Union's letter of August 10, were as follows: 1. Willful violation of the provision of the obligation of membership. (Consti. 18.2 (A).) 2. Strikebreaking during sanctioned strike and evasion of responsibil- ities during a recognized lock-out. (Conti. 18.2 (B).) 3. Willful failure to comply with the Constitution or laws of the International or By-Laws of a Local to the detriment of the organization (18.2(C).) 4. Knowingly undermining wage and work standards established by contract or other requirements of the organization to the detriment of the organization. (Conti. 18.2 (D).) 2 At the hearing I reserved decision on certain objections to the receipt the issue, made it clear that the proviso to Section 8(b)(1)(A) would shield a union only if that union's action was reasonable." 3 He contends that union discipline which affects adversely a member's employment status-an unreasonably large fine or the threat thereof (which might make it pointless for the member to work because the fine might equal or exceed the member' s earnings) would be included in that category-exercises as much coercion and restraint upon a member's ability to go to work as bodily force that prevents him from crossing a picket line to enter his employer's premises or union action which induces the discharge of the member by his employer. In support of his position General Counsel refers to the portion of the opinion in the Allis-Chalmers case where the Court observed that federal labor policy permits a union to protect against erosion its status as chosen representative "through reasonable discipline of members who violate rules and regulations governing membership."4 Stressing the use of the word "reasonable," General Counsel argues that the inference to be drawn from the majority opinion in the Allis-Chalmers case is that the Court would have decided the case differently had the fine been unreasonably large. I interpret the Court's opinion differently. After observing that there "may be concern that court enforce- ment may permit the collection of unreasonably large fines," the Court in footnote 32 at page 193 specifically noted "that the state courts, in reviewing the imposition of union discipline, find ways to strike down `discipline [which ] involves a severe hardship.' " The Court thus suggests that a union would not succeed in a State court suit for the collection of an unreasonably large fine, and it is in that forum that a member will find protection against arbitrary union action. In footnote 33 at page 193 the Court quotes from its earlier decision in Machinists v. Gonzales, 356 U.S. 617, 620: "[T]he protection of union members in 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." The Court concludes, at page 195, "that Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforce- ment of a union's internal regulations to affect a member's employment status." It is my belief, contrary to General Counsel, that the Court's direction is not towards a limitation of its holding in the Allis-Chalmers case.5 Another deficiency in General Counsel's argument is his equation of an unreasonably large fine to direct union action which prevents an employee from working either because he is physically barred from entering his place of work or because the union causes his employer to deny him of evidence. I hereby overrule all such objections. 9 The decision of the Court is not based upon the proviso. As pointed out in the Court's opinion : "Our conclusion that § 8(bXl)(A) does not prohibit the locals' actions makes it unnecessary to pass on the Board holding that the proviso protected such actions." N.L.R.B. v. Allis- Chalmers, supra, 192, fn. 29. 4 N. L. R. B. v. Allis-Chalmers, supra, 181. 5 Mr. Justice Black draws a contrary inference from the majority opinion. He states in his dissenting opinion : "And then the Court cautions that its holding may only apply to court enforcement of `reasonable fines.' Apparently the Court believes that these considerations somehow bring reasonable court-enforced fines within the ambit of `internal union affairs.' " N.L.R.B. v. Allis-Chalmers, supra, 205. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the opportunity to work. The Supreme Court in Allis- Chalmers specifically considered and rejected the argument that for the purposes of applying Section 8(b)(l)(A) a fine which a union attempts to collect through a civil suit is similar to physical force or direct union pressure upon a member's employer. In essence, the Court held that, in deciding whether any category of union action violates Section 8(bXl)(A), the legislative intent is the critical determinant rather than a semantic exploration of the words "restrain or coerce." It is not necessary in this case to anticipate whether the Supreme Court will limit its decision in the Allis-Chalmers case in the manner suggested by General Counsel because the factual assumption upon which the General Counsel's argument is based has not been established. I find that General Counsel has not proved that the fines imposed upon the five men named in the complaint were excessive. From July 5 to August 30, 1967, each of the men regularly crossed the Union's authorized picket line and thus was continuously engaged in strikebreaking activities in viola- tion of the Union's constitution. Charges were filed against the men for such conduct and following a hearing before the Union's trial board on July 26, 1967, they were found guilty of having violated the sections of the Union's constitution with which they had been charged. No fine was imposed upon them at that time, but they were advised that they had been censured and that further evasions of their responsibilities under the Union's constitution would be grounds for disciplinary action. The five men nevertheless continued to work in defiance of the Union's picket line and the warnings given to them. Further charges were filed against them, a second hearing was held before the Union's Trial Board on August 30, 1967, and each was then fined $1,000. The five men were in continuous violation of the Union's strike for a period of in excess of 8 weeks, during which time their respective wages for a basic workweek were between $235 and $300 or between $1,860 and $2,400 for the 8-week period. Had the men not been engaged in strikebreaking activities their income probably would have been limited to the benefits which the Union may have given its members who were supporting the strike. Although no evidence was adduced as to the amount by which the earnings of the five men exceeded the amounts they would have received in strike benefits, it is reasonable to infer that the excess was $1,000 or more for each. Thus, the fines imposed upon the five men probably did not place them in any less satisfactory financial situation than they would have been in had they supported their Union and their coworkers in the strike. The fine of $1,000 against each of the five men, which was approximately 50 percent of 6 See Minneapolis Star and Tribune Company, 109 NLRB 727, where the Board held that a fine of $500 for failure to attend union meetings and perform picket duty during a strike was not a violation of Sec. 8(bxlXA). I General Counsel's argument in his brief that the fine related only to the period between July 27 and August 9, 1967, is without basis. Although the second set of charges against the five men was filed on August 9, there is nothing in the record to indicate that the Union's Trial Board in arriving at the penalty which it imposed upon them did not consider their strikebreaking activities through August 30, 1967, the date of their trial. Furthermore, despite the fact that the charges filed against the men on August 9 accused them of "failure to comply with the decision of the Executive Board wherein these men were found guilty on July 26, 1967," there is no proof that in assessing the fine the trial board did not consider their aggregate earnings (excluding overtime earnings) during the period of their strikebreaking activities, in the circumstances,6 is not so large that it must necessarily be deemed excessive. The purpose of the fine was to exert pressure upon the five employees to abide by their union responsibilities and to honor the authorized strike in which their coworkers were engaged. A fine of $100 or other relatively small amount would hardly have been any more effective than the warnings which had been issued to them. For the fine to serve the purpose intended, particularly in the view of the five men's demonstrated recalcitrance, it had to be in a significant amount.? "The power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent ... "8 I find no merit to General Counsel's contention that the criteria which the Board uses in determining whether an initiation fee is excessive should be used in this case to determine whether the fines imposed upon the five men were unreasonably large. The General Counsel gives no reason why such criteria are applicable here.9 A fine is imposed as a punishment for an offense. It is intended as a penalty. As such it bears no similarity to an initiation fee. As I find that General Counsel has not proved that the fines imposed upon the five men involved in this case were unreasonably large, I find that his first argument fails even if the legal principle concerning unreasonably large fine which he espouses were valid. General Counsel's alternative argument is based on his contention that, despite the Union's contrary notification, the five men involved here had effectively resigned from the Union before their trial on August 30, 1967, and before the imposition of the fines upon them. Upon this factual assumption General Counsel argues that in the Allis- Chalmers case the Supreme Court indicated a "concern over a Union's fining a limited member and may have decided differently had that question been before it. It is, therefore, an even stronger argument that faced with the issue as in the instant case of a Union fining a non-member, it would have had no difficulty in finding a violation. For if the employees who are fined are non-members, it cannot then be argued that the proviso to Section 8(b)(1)(A) permits such fines.... [B]y no stretch of the imagination can it be argued that this proviso permits a union to take disciplinary action against non-members." General Counsel misconstrues the opinion of the Supreme Court. The Court specifically pointed out that in reaching its decision it was "[a ]ssuming that the proviso cannot also be read to authorize court enforcement of fines . . .1110 Thus, the question decided by the Court was whether the respondent union had violated Section the conduct of the men from the inception of the strike on July 5. Also, the trial board might have deemed as an adverse factor warranting a larger fine than it might otherwise have imposed the fact that the men involved had recently been tried and found guilty of the same offense. 8 N.L.R.B. v. Allis-Chalmers, supra, 181. 9 Appropriate criteria might be "traditional internal union discipline in general, [and] disciplinary fines in particular." N.LR.B. v. Allis-Chalmers, supra, 185-I86. That is, the reasonableness of a particular union fine may be determined by measuring the fine against the discipline traditionally imposed by labor organizations against persons committing similar offenses and in particular the fines assessed in such instances. 10 N.LR.B. v. Allis-Chalmers, supra, 192. LOCAL 205, LITHOGRAPHERS AND PHOTOENGRAVERS 459 8(b)(1)(A) and was not whether the proviso to the section creates an exemption for conduct which otherwise is prohibited by the Act. However, later in its opinion the Court observed: "Indeed, it is and has been Allis-Chalmers' position that the Taft-Hartley prohibitions apply whatever the nature of the membership. Whether those prohibitions would apply if the locals had imposed fines on members whose membership was in fact limited to the obligation of paying monthly dues is a question not before us and upon which we intimate no view." This observation was directed specifically to the position of the "majority en banc below," appearing at 358 F.2d at 660,11 and possibly also to the part in Mr. Justice Black's dissent appearing at 388 U.S. at 206-208. The quoted portion of the Supreme Court's opinion when read with reference to the cited portion of the dissent and the Court of Appeals opinion reveals that the issue under consideration was whether an employee who becomes a member of a labor organization because of the compulsion of a union-security clause in an applicable collective-bargaining agreement is as much subject to union discipline as a voluntary, full member. There was no question being raised that a nonmember was subject to union discipline. Contrary to General Counsel, I find no implication in the Court's opinion that the imposition of a fine by a labor organization upon a nonmember would constitute a violation of Section 8(b)(1)(A). Further, I find no support in the legislative history of Section 8(b)(1)(A) and no controlling precedent for General Counsel's thesis that a fine attempted to be imposed by a labor organization upon a person who is not a member and over whom the labor organization has no jurisdiction would constitute a violation of Section 8(b)(1)(A). Such fine normally is so clearly uncollectible that it cannot reasonably be deemed to constitute restraint or coercion upon the person sought to be fined. According- ly, it is unnecessary to pass upon the question of whether the resignations from the Union of the five men named in the complaint were effective. C. Charging Party's Argument The Company's thesis is that sufficient distinctions follow from the differences in the facts between the instant case and Allis-Chalmers so that the holding of the latter case is here inapplicable. It makes three separate arguments in support of its position. The Company's first point turns upon the purported resignations of the five men named in the complaint from the Union. It argues: "If there is one point which the Court's decision in Allis-Chalmers makes clear it is that the degree of Union membership enjoyed by the fined 11 "The expressed Congressional policy of protecting the union member is particularly apt where, as in the case before us, membership is the result not of individual voluntary choice but of the insertion of a union security provision in the contract under which a substantial minority of the employees may have been forced into membership. Such membership properly incurs an obligation to pay dues and fees but may not be extended to include liability to submit to fines for indulging in a protected activity " 12 "But the relevant inquiry here is not what motivated a member's full membership but whether the Taft-Hartley amendments prohibited disciplinary measures against a full member who crossed his union's picket line." N L R B v Allis-Chalmers, supra, 196. is In its brief the Company states that "[alt no time did Respondent employees establishes whether the fine is coercive within the meaning of Section 8(b)(1)(A). The Court was at pains to note that it was confronted with `full members' who had assumed full membership obligations voluntarily. It specifically reserved decision on the question of coercive- ness insofar as employees who hold more limited forms of membership are concerned. Thus, if it is the degree of membership which is significant in determining coercion-the theory of the Court apparently being that the employee who has voluntarily assumed full membership obligations cannot be held to be' coerced- certainly the employees involved in this proceeding have been coerced within the meaning of the Act." The Charging Party has given greater scope to the area of decision reserved by the Court than the language used by the Court in its opinion suggests. The Court states at page 197 that it intimates no view as to whether the prohibitions of 8(b)(1)(A) would apply "if the locals had imposed fines on members whose membership was in fact limited to the obligation of paying of monthly dues." This reservation of view does not encompass nonmembers nor persons who sought membership in the Union because of the existence of a union-security clause in an applicable bargaining agreement but who did not choose to limit their membership.12 I have rejected a similar contention advanced by General Counsel. I am no more persuaded by the Company's more extensive exposition of essentially the same argument than I am by General Counsel's presenta- tion. The Company's second point is more subtle. It contends that the decision in Allis-Chalmers might have been different had the strike in that case not been a lawful economic strike called after a democratic strike vote. In the instant case, according to the Company, the strike 13 was the Union's response to the discharge of 14 employees who had refused to work overtime, which refusals were actions outside the protection of Section 7 of the Act. The Company argues: The Court [in Allis-Chalmers] stressed the fact that the power to "discipline members" is "particularly vital in the case of strikes." It is the Charging Party's contention that this power is not sufficiently vital in the case of unprotected activity-the Union's conduct being one of the few forms of economic pressure to qualify for such status-so as to warrant dismissal of a Section 8(b)(1)(A) complaint alleging Union coercion through the imposition of fines. It would be entirely illogical and unjustified to place conduct which the statute in effect condemns (i.e., the employee working on his own terms `call' a 'strike" " This contention has no ment There is no dispute that the picket line which was established at the Company's plant was duly authorized Sometime between June 19 and July 5, 1967, at a union meeting attended by approximately 100 members, including 16 employees of the Company among whom were 2 of the men named in the complaint, it was voted that the Executive Board of the Union be authorized to call a strike or take whatever action the Executive Board deemed necessary against the Company In these circumstances the establishment of the picket line constituted a stoke against the Company I further find that there is no evidence in the record to suggest that the stoke was anything other than an authorized stoke called by the Union following a democratic vote by its membership 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by refusing to work overtime) on the same plateau with the right to strike. The latter is a fundamental right, specifically recognized and protected by the Act. The former is at variance with public policy. But it is not only the strike which is absent in the instant case; it is also the strike vote which was emphasized so heavily by the Court in Allis-Chalmers. In Allis-Chalmers, the Court was constrained to turn aside the argument that the employees' "right to refrain" under Section 7 and free choice had been impaired because in that case, employees had partici- pated in the democratic process. The foregoing argument is based largely on unwarranted assumptions. First, the Company assumes that the employees' refusals to work overtime constituted "conduct which the statute in effect condemns." While such conduct may not constitute protected activity within the meaning of Section 7 of the Act it does not follow that it is condemned by the Act.14 Secondly, assuming that the Act somehow condemns the action by, the 14 employees who refused to work overtime and assuming further that the strike was precipitated by their discharges, nevertheless, as the strike was not for an unlawful purpose nor, so far as the record shows, carried on in any unlawful manner, I find no reason why the Union's authority to discipline members who violate such strike is any more restricted then in the case of the strike with which the Allis-Chalmers case was con- cerned. Nowhere does the Court in Allis-Chalmers suggest that its decision in any way was dependent upon the causes or objectives of the strike.15 Third, the argument that there was no strike vote in this case and that employees had not participated in "the democratic process" is not factually correct. Finally, although the strike began shortly after the 14 employees who had refused to work overtime were discharged, the record does not show whether or to what extent this factor triggered or contributed to the ; trike. The strike vote was taken by the membership and authority was given to the Executive Board to call a strike before the discharges. Thus, it may have been mere coincidence that the strike was called 5 days after the discharges. Contrary to the Company, I find no reason for distinguishing the instant case from Allis-Chalmers on the alleged grounds that the strike here was not authorized, was not pursuant to a democratic strike vote, or was begun for a reason condemned by the Act. Charging Party's third point is that by August 30, 1967, when the employees named in the complaint were fined, the Union was no longer the collective-bargaining representa- tive of the Company's employees. According to Charging Party: In Allis-Chalmers, the rationale essential to the Court's conclusion was that the power to discipline was necessary to the exclusive bargaining agent's discharge 14 See N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, 361 U.S. 477. 15 The Court has taken pains in other cases to avoid inquiry into the "wisdom" of employees' concerted action. See N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16. 16 By citing with approval its earlier decision in N.LR.B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639, Teamsters, 362 U.S. 274, it is clear that the Court did not overlook the fact that a labor organization may lawfully, in various circumstances , picket premises although the labor organization may not be the statutory representative of the employees of of its responsibilities. But the Respondent in this case was not exclusive bargaining agent at any time during the alleged violation of Union rules. I am not persuaded by this argument. It is true that the Court observes that "[t]he majority-rule concept is today unquestionably at the center of our federal labor policy"; that the chosen union must have power to protect its status against erosion through reasonable discipline of members who violate its rules and regulations governing member- ship; and that such power is particularly vital when the members engage in strikes. However, there is nothing in the opinion of the Court which warrants the inference drawn by the Company that the Court's decision would have been different had the union in that case not been the statutory representative vis-a-vis the employer of the striking employees.16 While the "majority-rule concept" may underly the rationale of the Court (and its interpretation of congressional intent) in its determination that Section 8(b)(1)(A) does not prohibit reasonable union discipline of members for strikebreaking activities, it does not follow, and nowhere in the Court's opinion is there any suggestion, that the authority to so discipline members is limited to members who are within a collective bargaining unit for which a labor organization is the exclusive bargaining agent and only during such times as the labor organization is such agent. Furthermore, although the election among the Company's employees which was held on December 4, 1967, demonstrated that the Union by that time had lost its majority, contrary to the Company, there is no basis in the record for assuming that it was not the majority representa- tive when the strike was begun on July 5, 1967, and when the five men named in the complaint first crossed the Union's picket line. D. Conclusions I have read and considered the arguments of the General Counsel and the Charging Party and I am not persuaded by them. The conflicting points of view regarding the principles involved in the Allis-Chalmers case are fully explicated in the various opinions written by the Supreme Court, the Court of Appeals, and the Board, in the briefs submitted to the Supreme Court and the Court of Appeals, and in various law review articles. No useful purpose would be served by reviewing these arguments here. I find that there are no material distinctions between the facts in this case and those in the Allis-Chalmers case. Accordingly, I shall recommend that the complaint herein be dismissed in its entirety.17 such employer. There are various purposes for such picketing, including efforts to organize the plant or to protect the wage standards of its members, etc. Many of these reasons , if not directly, at least indirectly, serve to bolster the labor organization's majority at other plants and "protect against erosion its status" as the statutory representative of the employees at such other plants. 17 The decisions in N.LR.B. v. Industrial Union of Marine & Shipbuilding Workers of America, 389 U.S. 1034, and Scofield v. N.LR.B., 393 F.2d 49 (C.A. 7), do not impel any different conclusion. LOCAL 205 , LITHOGRAPHERS AND PHOTOENGRAVERS 461 CONCLUSIONS OF LAW RECOMMENDED ORDER Respondent has not violated Section 8(b)(1)(A) of the Upon the basis of the foregoing findings of fact and Act as alleged in the complaint . conclusions of law and upon the entire record in this case I recommend that the complaint in this case be dismissed in its entirety.