Local 767, Electrical & Machine Workers

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 767, International Union of Electrical, Radio, and Machine Workers, AFL-CIO-CLC and Gen- eral Electric Company' Bob Rowe, Individually and as President of Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and General Electric Company. Cases 9-CB-1726-3 and 9-CB-1726-4 November 20, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 23, 1970, Trial Examiner Sydney S. Asher issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also recom- mended that the complaint be dismissed with respect to allegations of unfair labor practices not found in his Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision, 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 these cases 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 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondent, Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Somerset, Kentucky, and Respon- dent Bob Rowe, its president, and their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER BROWN, dissenting: For the reasons stated in my dissent 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. The name of the Charging Party appears as amended at the hearing. 2 The Trial Examiner deemed it unnecessary to determine whether, as alleged in the complaint , Respondent Rowe, President of Respondent Local 767, had orally threatened an employee with an "unreasonably excessive" fine if the employee crossed a picket line. We agree. Not only do the facts of this case make it unnecessary to reach this issue , but, as we have recently stated, the Act does not authorize the Board to determine the fairness of union discipline, such as the reasonableness of fines of its members, International Association of Machinists and Aerospace Workers, AFL-CIO Local Lodge No. 504, (Arrow Development Co.), 185 NLRB No. 22. Members Fanning and Jenkins agree with the Trial Examiner that Mildred Tarter and Hubert Tarter could, and did , effectively resign from the Union before crossing the picket line and returning to work , and for the reasons set forth in Booster Lodge No., 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), 185 NLRB No. 23, agree with his conclusion that the threats thereafter to subject them to fines and union discipline constituted violations of Section 8(b)(I)(A) of the Act. TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, Trial Examiner: On December 9, 1969, Philip L. Thomas, of Somerset, Kentucky, filed charges in Case 9-CB-1726-3 against Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Somerset, Kentucky, herein called the Respondent Union. On the same date, Thomas filed charges in Case 9-CB-1726-4 against Bob Rowe, Individu- ally and as President of Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Somerset, Kentucky. On February 26, 1970, the General Counsel of the National Labor Relations Board issued a complaint alleging that since on or about November 23, 1969, the Respondents have restrained and coerced employees of General Electric Company,' Somerset, Kentucky, herein called the Company, in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. It is alleged that this conduct violated Section 8(b)(1)(A) of the Act. The Respondents filed a joint answer admitting the jurisdictional allegations of the complaint, but denying that they had restrained or coerced employees of the Company. Upon due notice, a hearing was held before me on April 14 and 15, 1970, at Somerset, Kentucky. All parties were represented and participated fully in the hearing. During the hearing the Company moved to amend the caption of the case. The motion was granted. The General Counsel moved to amend the complaint. This motion was likewise granted. At the end of the General Counsel' s case-in-chief, the Respondents jointly moved to dismiss the complaint for lack of a prima facie case. The motion was denied. After the close of the hearing, the General Counsel and the Company each filed a brief. The Respondents filed a joint brief. All briefs have been duly considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: ' The name of the charging Party appears as amended at the hearing. 186 NLRB No. 105 LOCAL 767, ELECTRICAL & MACHINE WORKERS 683 FINDINGS OF FACT A. Preliminary Findings The complaint alleges, the joint answer admits, and it is now found, that the Company is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards; 2 that the Respondent Union is, and at all material times has been, a labor organization as defined in the Act; and that Respondent Rowe is, and at all material times has been, an agent of the Respondent Union acting in its behalf. B. The Respondent Union's Constitution In 1966 the Respondent Union had in effect a Constitution which provided, in pertinent part: ARTICLE VIII Meetings s * s Section 2. Special meetings may be called by the President, the Executive Board, or on the petition of 25% or more members for the transaction of any special business. Notice of special meetings shall be given by the President at least 48 hours prior to the meeting, in a manner which shall reasonably assure that all members will receive the notice. The notice shall set forth specifically the purpose or purposes of the meeting and no other business shall be transacted. Section 3. A quorum of 10 members must be present at regular and special meetings for the transaction of business. s s s : s ARTICLE XII Duties and Privileges of Membership s s s s s Section 4. If any member of this Local is accused of an offense against the Constitution and By-Laws, or general good and welfare of the Local or the International Union he or she shall be given a fair trial. The offense of which he or she is charged shall be presented in writing to the Recording Secretary by the member making the charge, who, at the time, must be a member in good standing of IUE-AFL-CIO. The accused shall receive adequate notice in writing of the charges against him. He shall be given a reasonable opportunity to hear all evidence against him, and shall have the right to present and to cross-examine witnesses. The parties in these proceedings may be represented only by an IUE member in good standing. If found guilty, the defendant shall have the right of appeal to the District Council, which shall have the power to select from its body a committee to investigate the facts and hold hearings as deemed necessary. The accused may take an appeal to the Executive Board of the International Union and from there to the ensuing International Convention. The decision of the Local shall be final until otherwise decided by a higher body. If the Local does not finally act on charges within 60 days after the charges have been filed with the Local, the plaintiff shall have the right to appeal to the District Council. Only the defendant shall have the right of appeal after a trial is held. k # i # ARTICLE XVI Amendments ARTICLE XI Dues Section 1 . Dues shall be $4.00 per month, from which sum the International Union and District shall be paid their per capita tax . Any member who fails to pay for (one month but not more than three months) shall lose his good standing in the Local and forfeit his rights and privileges. (See Article XIII, Section A and Article XVI, Section B, of the IUE-AFL-CIO Constitution.) (b) Any member receiving wages for 10 days or more in any given month shall pay full monthly dues. Any member of the Local on strike shall be entitled to strike stamps unless he has received wages for 10 days in that month . (See Article XVI, Section F and H of the IUE-AFL-CIO Constitu- tion.) 2 General Electric Company is, and at all material times has been, a New York corporation which manufactures and sells electrical products throughout the United States During the 12 months prior to February 26, Section 1 . With the exception of Article XI, Section 4, any part of the constitution can be amended by 2/3 majority vote of the members present at any meeting, provided such amendments are submitted in writing and read to the membership at two meetings prior to the meeting at which the action is taken. At a special meeting held on September 20, 1967, called to order at 1:30 p .m., a proposed amendment to the constitution was submitted, which added the following to Article XV (Strikes): Any member who crosses a bona fide picket line to perform work for the Company will be subject to a fine of no less than $10 per day and no more than $500 per day for each day worked during the legal strike called by Local 767 . The fine will be set by the trials committee. The meeting was adjourned at 1:41 p .m. A second meeting was called to order at 1:42 p.m . and the same procedure 1970, the Company shipped products valued at more than $50,000 directly from its plant in Somerset, Kentucky, to points outside the Commonwealth of Kentucky 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD followed; this adjourned at 1:45 p.m. A third meeting was called at 1:46 p.m., at which the proposed amendment was adopted by more than the required "2/3 majority vote of the members present." This meeting adjourned at 1:55 p.m. At all three meetings a quorum attended. The Respondents contend that the above-quoted amend- ment to the constitution was properly adopted and that by virtue thereof the Respondent Union was armed with authority to fine its members should they cross a legally established picket line. In the view I take of this case, it is unnecessary to reach that issue. For the purposes of this Decision it will be assumed, without deciding, that the amendment in question was properly adopted and became a part of the constitution.3 It is clear, and I find, that the constitution of the Respondent Union contains no provision for the voluntary resignation of members who continue in the Company's employ. 'C. The Setting The Respondent Union is, and at all material times has been, the bargaining representative of certain employees at the Company's Somerset, Kentucky, plant. A collective- bargaining contract between the Respondent and the Company (which had contained provisions for the checkoff of union dues upon written authorization from the employee) expired on October 26, 1969. From October 27, 1969, through February 5, 1970, some of the employees of the Company were on strike authorized by the Respondent Union. A picket line was established by the Respondent Union at the Company's Somerset plant. Although the plant continued to operate, no collective-bargaining EFFECTIVE as of now NOVEMBER 19, 1969 Mildred M. Tarter /s/ Mildred M. Tarter The Respondent Union received the letter on November 21 .5 At about 5 or 6 p.m. on November 23 there was a telephone conversation between Mildred Tarter, who was at home, and Rowe, who was at the office of the Respondent Union. Each testified that the other initiated the call, but I deem it unnecessary to determine this fact. According to Mildred Tarter's testimony on direct examination: Well, he told me that I couldn't get out of the Union at this time because the Company and the Union didn't have a contract and that my contract with the Union was in effect and I couldn't get out as a union member and if I went back to work I could be fined up to $500 and I would be fined after the strike was settled even if he had to take it all the way to the Supreme Court and he said that I would have to admit that things had been quiet on the picket line and there hadn't been any violence, but he couldn't promise what would happen then. On further examination by the General Counsel, she elaborated: MR. GRAVITT: What did he say about the $500? THE WITNESS: He said that I could be fined up to $500 a day and I would be fined even after the strike was over even if he had to take it all the way to the Supreme Court. Q. For doing what? A. For crossing the picket line as a Union member. contract between the Respondent Union and the Company * s was in effect during this period. Mildred Tarter and Hubert Tarter (no relation) are, and at all material times have been, rank-and-file employees of the Company and members of the unit represented by the Respondent Union. Each had signed a dues checkoff authorization under the contract which expired on October 26.4 When the strike began, they were both members in good standing of the Respondent Union and current in their dues. They both went on strike on October 27 with the other members of the Respondent Union. Each of them, on at least one occasion, participated in the Respondent Union's picketing of the Company's plant. D. The Resignations and Events Thereafter 1. Mildred Tarter On November 19, Mildred Tarter mailed the following letter to the Respondent Union: This is to inform you, I am officially withdrawing from membership in the union (Local 767 I. U. E.) And withdrawing any previous authorization to deduct dues from my pay. Q. Did Mr. Rowe mention anything about Septem- ber in this conversation? THE WITNESS: Oh yes. The legal time that you could withdraw from the Union was between the 21st and 30th of September in any given year. Rowe's version of this conversation was somewhat different. On direct examination he testified: She informed me that she had made up her mind, had made a decision to go back to work, cross the picket line and she wanted to inform me that the Union, myself or the Union, had better not make any efforts to detain her at the picket line, or take any action against her, her or her property, or her home, her car, and in the future if she crossed the picket line, if I took action of this sort she had a husband who would protect her and take care of her and I informed her that I had no intention of detaining her or doing anything to her in any way, form or fashion, but I advised my members in the same manner they would continue to do so, but if any action was taken it would be taken in a legal manner according to our Constitution and of course I asked her not to go back and that was about the extent of the conversation. 3 The Respondents introduced evidence tending to show that the 4 All dates hereafter refer to the year 1969, unless otherwise noted. constitution was further amended on May 18. 1968 . However, the minutes 5 At the same time Mildred Tarter sent a similar letter to the Company. indicate, and Rowe testified , that these amendments were submitted to However, I am not here concerned with the effectiveness of her attempt to only one meeting, instead of the required three . cancel her dues checkoff authorization. LOCAL 767, ELECTRICAL & MACHINE WORkERS She was telling me that she had made her decision to go back and no one could change it. Of course I agreed with her it was an individual decision for each person to make. On cross-examination Rowe flatly denied that there was any discussion concerning a fine: MR. GRAVITY: You did have some discussion about fining, didn't you? A. To my knowledge there was no discussion about fines at that time. Q. But you don't deny it? A. Yes, I deny it. Q. You absolutely deny mentioning levying a fine to Mildred Tarter on November the 23rd? A. During that conversation, yes. Q. Do you deny that a fine was discussed between the two of you on November 23rd? A. Yes. He further testified that it is "possible" that during that conversation he told Mildred Tarter that the only time she could revoke her dues checkoff authorization was from September 21 through September 30. In resolving the conflict thus presented, several factors must be considered. It is not without significance that Mildred Tarter at first testified that Rowe had warned that if she worked during the strike she "could be fined up to $500" but later enlarged upon this by testifying that Rowe had said that she could be fined "up to $500 a day"-a much more drastic threat. Furthermore, according to Rowe's undenied testimony on cross-examination, Rowe and Mildred Tarter had had a face-to-face conversation at the Union office about a week or two earlier, before Mildred Tarter sent the letter or resignation, during which Rowe mentioned "a $500 fine."6 It is quite possible that Mildred Tarter, in testifying, confused the two conversations. In view of these factors and of my observation of the demeanor of Rowe and Mildred Tarter while on the witness stand, I credit Rowe's version as the more accurate, and find that the telephone conversation of November 23 took place substantially as he described it. On November 24, while the strike was still in progress, Mildred Tarter returned to work for the Company, and she is still so employed. She has not paid any further dues to the Respondent Union, either directly or by authorized dues checkoff. On November 26 Rowe sent her a letter which read, in part, as follows: I.U.E. Local 767 Somerset, Kentucky November 26, 1969 Mrs. Mildred Tarter 302 Vaught Somerset, Kentucky 42501 Dear Member: 6 On cross-examination, Mildred Tarter testified: REPORTER . after the strike started and prior to the 23rd of November, 1969, did Mr. Rowe make any mention to you about fines, in any of these conversations that you had with him? THE WITNESS: I believe he did. 7 Pointing to the words "CC: All members of Local 767" the General 685 . You are attempting to revoke your membership and dues checkoff in I.U.E. Local No. 767, and have already crossed a legally established picket line at the G.E. plant and returned to work as a "SCAB." s If you truly harbor the idea that you can resign from the union, revoke dues (sic), and return to work without any legal recourse by the union, then let me make it clear to you that the union must insist that you are not free at this date to take such a step. It is the position of the union that as of the date of the strike you were a member in good standing in Local 767 I.U.E. That as of such date the time for revoking your dues (sic) had passed and as of this date you are still a member of Local 767 I.U.E. That as a member of Local 767 I.U.E., any crossing of a legally established picket line makes you liable to a fine and other penalties as provided in the local union constitution and by-laws. Further, that even if you could at this date resign your membership in Local 767, I.U.E. and revoke your dues checkoff, you would still be a member in good standing in Local 767 I.U.E. until you are delinquent in the payment of such dues for a period of three (3) months; that during such three (3) months period you would be subject to any and all fines and penalties as provided in the local union constitution and by-laws. Let me make it unequivocally clear that at this time it is the intention of the union to subject any of its members guilty of crossing its duly established picket line to the stiffest penalties legally permissable (sic). Going to court if necessary to compel compliance with the penalty assessed. This information is made available to you solely for the purpose of letting you know that the union-regardless of what you think or are told to the contrary still considers you a member of Local 767 I.U.E., as such, subject to the provisions of its constitution and by-laws. s * * t s Respectfully submitted, /s/ Bob Rowe Bob Rowe, President Local 767 I.U.E. CC: All members of Local 767 7 On about December 5 Rowe wrote another letter to Mildred Tarter which states, in pertinent part: Dear Fellow Member: Also, more effort should be made to stop the local transit across the line. Get out and ask them not to cross Counsel stated on the record "As I understand it there were a bunch of these mimeographed copies mailed to all the employees ." While the record on this point is not entirely clear. Rowe's testimony on cross-examination might perhaps be interpreted as indicating that copies of this letter were sent to other employees of the Company. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and many, if not most, will cooperate. They cannot be expected not to cross if they are not asked. Every person who enters the plant only makes it easier for the "Scabs" who are inside. Remember that we are the ones they are hurting. Also, remember well the smiles of our "Scabs" as they cross. They are proud of what they are doing to us. People of this type should never be forgotten. They should be made to remember what they have done. Never let them forget! Here are their names again: (Here follows a list of names) Fraternally yours, /s/ Bob Rowe Bob Rowe, President Local 767 I.U.E. On about December 12, after the filing of the charges herein, Rowe wrote still another letter to Mildred Tarter which states, in pertinent part: To all I.U.E. Local 767 Members: Unfair Labor Practices: Recently you received a letter from the company concerning unfair labor practices (sic) they filed against us. Our only comment, we do have a constitution and by-laws for this local union concerning fines for crossing picket lines and that constitution will be followed. (Emphasis in original.) s s s s s Fraternally yours, /s/ Bob Rowe Bob Rowe, President I.U.E. Local 767 This letter was addressed "To all I.U.E. Local 767 Members." While the matter is not entirely clear on the record, there is some evidence tending to indicate that copies of the letters of December 5 and 12 were sent to other employees of the Company. Mildred Tarter has received no further communication from Rowe or the Respondent Union and, so far as the record shows, no steps have been taken to assess a fine against her. 2. Hubert Tarter On November 20 Hubert Tarter mailed to the Respon- dent Union a letter similar to the one Mildred Tarter had sent the previous day, quoted above. The Respondent Union received this letter, probably on or about November 21.On November 23 Hubert Tarter telephoned to the office of the Respondent Union and talked to Rowe. According to Rowe's uncontradicted testimony: 8 He said that he had made a final decision that he decided, considering his financial position that he felt that he had to return to work. He had made his decision to return to work and he had promised in case he didn't make the decision before he went in, that was the reason he called. His decision was final. There was no point in me saying anything to him and I agreed with him, that we had talked about the situation before, and there was no point in any further discussion and no further reason for calling me on the phone. On November 24, while the strike was still in progress, Hubert Tarter returned to work for the Company, and he is still so employed. He has not paid any further dues to the Respondent Union, either directly or by authorized dues checkoff. On November 26 Rowe sent Hubert Tarter a letter identical to that which Rowe sent to Mildred Tarter on the same day. While the record is not entirely clear, Hubert Tarter probably received letters from Rowe on December 5 and 12 similar to those received by Mildred Tarter on those dates. So far as appears from the record, Hubert Tarter has received no further communications from Rowe or the Respondent Union. No steps have been taken to levy a fine against him. E. Contentions of the Parties The complaint, as amended at the hearing, alleges, and the answer denies, that on or about November 23 Rowe "orally threaten[ed ] an employee, who had previously resigned her membership in Respondent [Union], that said Respondent [Union] would fine said employee the unreasonably excessive amount of $500 a day if the said employee crossed the said picket line [presumably the one at the Company's Somerset plant] established by Respon- dent [Union]." It is also alleged that on or about November 26 Rowe "[sent] identical letters to two employees, who had previously resigned their membership in Respondent [Union], which contained threats that Respondent [Union] would fine and otherwise penalize them for crossing a picket line which Respondent [Union] had established at [the Company's ] Somerset, Kentucky plant, and in advising all of its members, in writing, of such action." It is further alleged that this conduct "was engaged in by Respondents in retaliation for the failure of said . . . employees to engage in protected activities . . . and to discourage other employees from doing the same." At the hearing, and again in their joint briefs, the Respondents put forth a double defense. As their primary defense, they maintain that the efforts of the Tarters to resign were ineffectual, and the Tarters remained members of the Respondent Union. As such, the Respondents urge, the Tarters were subject to being fined by the Respondent Union, under the doctrine of the Supreme Court's decision in Allis-Chalmers.9 Alternatively, they contend that if the resignations were effective, and the Respondent Union had no authority to impose sanctions on the Tarters, then warnings of possible fines become mere empty threats which the Respondent Union lacked the ability to carry through, and could not therefore reasonably have had a coercive effect. As the Respondents put the matter in their joint brief, "Once a person has resigned from an organization, he realizes that he is not subject to the rules and regulations of the organization and cannot feel any threat." B Although Hubert Tarter testified, he did not mention this telephone 9 N.L.R.B. v. Allis-Chalmers Manufacturing Company et at., 388 U.S. conversation. 175. LOCAL 767, ELECTRICAL & MACHINE WORKERS 687 F. Effectiveness of the Resignations The Respondents argue that, short of relinquishing employment with the Company, the only way a member in good standing (as were the Tarters at the beginning of the strike) can effectively give up membership in the Respon- dent Union is by becoming delinquent in dues, thereby causing an automatic expulsion. Moreover, urge the Respondents, as dues were not required to be paid during a strike, "while on strike members could not effectively resign." I do not agree. On this subject the Board has held: As stated above, Steib resigned from the Union on March 26. The union constitution sets out no proce- dures for voluntary withdrawal of membership; it makes no mention of resignations. It does contain a provision (article VI, section 5, entitled "Non-Payment of Dues, Fines and Assessments") which treats with suspension and expulsion of members who fail to pay dues By virtue of this clause a member who was delinquent for 60 days "shall be automatically suspend- ed from the rights of membership, and, if the default continues without good cause for an additional thirty (30) days, . . . shall be automatically expelled from the Union." The only other provision relating to termina- tion of membership is article V, section 4, which provides that employees who progress to supervisory status must leave the Union in 30 days, that employees may be expelled [cross-reference to article VI ], and that members may transfer from one local to another of the International by withdrawal card. It is a fundamental principle that an employee joining a voluntary labor union for an indefinite period may resign therefrom at will. We see nothing in the Union's constitution which can be said, even through the loosest construction of words, to have bound Steib to involuntary membership a single day . . . We find therefore that, upon her unequivocal resignation, her union membership ceased in March and that she was not a union member on April 14, 1952.10 In enforcing this decision of the Board, the United States Court of Appeals for the Second Circuit, in its majority opinion, stated: The Union's argument hinges on the assertion that Mrs. Steib could not voluntanly resign. In support of this argument our attention is directed to the proviso to Section 8(b)(1)(A) of the Act which states the following: " .. this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." We agree that the proviso protects the Union's right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and bylaws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association. (Emphasis in original.) i i And the Board more recently has reaffirmed this doctrine. i 2 Applying this principle to the facts in the instant case, it is found that the Respondent Union's constitution in effect at times here material contained no provision for the voluntary withdrawal of membership therein; that the letters sent to the Respondent Union by Mildred and Hubert Tarter on November 19 and 20 respectively constituted unequivocal resignations of membership, and that the Respondent Union, having received these letters, was apprised of the resignations promptly and by reasonable means. I conclude that the letters constituted valid and effective resignations and that upon receipt thereof by the Respondent Union the Tarters ceased to be members. It follows, and I find, that the doctrine enunciated by the United States Supreme Court in Allis Chalmers, namely, that a union may, without violating Section 8(b)(1)(A) of the Act, fine its members who cross its legally established picket line, is not applicable here. G. Conclusions We come then to the final and crucial issue in this case, namely: Does a union violate Section 8(b)(I)(A) of the Act by threatening to fine employees, former members who have effectively resigned, should they cross the Union's legally established picket line? The issue is not entirely new. Trial Examiner James T. Barker, in a somewhat similar situation, stated: The Board has long recognized that a fine by nature is coercive. [Footnote omitted.] "Section 8(b)(l) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest [and] impairs no policy Congress has imbeded (sic) in the labor laws . ... " [Footnote omitted.] However, the Union acquires no exoneration under Section 8(b)(1) or its proviso when it seeks to subject nonmembers to its internal disciplinary authority through assessment of a fine, recognized to be by nature coercive. To find that the Act invested the Union with such a power would be the equivalent of holding that a union may enforce its internal disciplinary rules against an employee not as a member, as the decided cases clearly require be the case, but as a mere unit employee. [Footnote omitted.] Finding as I do that the proviso to Section 8(b)(1)(A) does not immunize the Union in its assessment of fines 10 New Jersey Bell Telephone Company, 106 NLRB 1322, 1324 " Communications Workers of America, CIO v N L R B, 215 F 2d 835, 838 (C A 2) 12 Local Union No 621, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (Atlantic Research Corporation d/b/a R & G Sloane Manufacturing Division of Atlantic Research Corporation), 167 NLRB No 83, fn 1, and Aeronautical Industrial District Lodge 751, affiliated with International Association of Machinists & Aerospace Workers, AFL-CIO (The Boeing Company), 173 NLRB No. 71 See also Marlin Rockwell Corporation, 114 NLRB 553. 562; and Mechanical and Allied Production Workers Union, Local 444, AFL-CIO, Its New England Joint Board, AFL-CIO and R W D S U, AFL-CIO ( Pneumatic Scale Corporation. Lid), 173 NLRB No 58. enfd 74 LRRM 2457 (C.A 1) 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against nonmembers, I am unable to agree with the contention of the Respondent that fines levied against nonmembers are noncoercive because they are a nullity and unenforceable . . . . Few employees who look to a union for representation would have the sophistication or discernment to determine or comprehend which fines of the union are enforceable against them and which are not. To the average employee, a fine outstanding against him connotes a detriment of significance. Thus, I reject the Respondent's contention that merely because a fine against a nonmember may not be legally enforceable in court, it can have no coercive effect under the Act.13 Similarly, Trial Examiner Ramey Donovan, in a compara- ble case, stated: An individual who has been fined and who believes that the action was without legal justification can have no certainity (sic) of the outcome .... Some persons and some employees will pay fines, although they consider the fines unmerited or unlawful, rather than become involved in litigation. The prospect of the measures that an employee may be forced to resort to in order to vindicate his position against an unlawful fine is in itself coercive. The employee has no assurance and certainly no certainty that collection and enforcement steps will not be taken. In view of Allis-Chalmers, the possiblity of resort to court to collect a union fine cannot be discounted. How various contentions or defenses will fare in a particular state court is a matter of conjecture. Moreover, a fine itself, for violating union rules and constitution, stigmatizes the employee as an individual who has violated asserted obligations of membership and as one who has not fulfilled his obligations. This is coercive when the employee in fact was not a member and hence violated no duty of membership by exercising his right under Section 7 to work during a strike.14 It is true that the unions in those cases had in fact levied fines against the employees (former members) who had effectively resigned before they crossed a lawful picket line, whereas the Respondents here merely threatened to fine the former members. However, the basic principles remain the same. I am persuaded by Trial Examiner Barker's reasoning in Local 6135 and Trial Examiner Donovan's reasoning in Local 2108, and adopt them insofar as quoted above. In the letters of November 26, set forth in part above, Rowe coupled statements that the Tatters were still members with a threat to fine them, and to enforce the fines by court action if necessary. In so doing, he was acting within the scope of his authority as agent of the Respondent Union. For the foregoing reasons it is found that, by such conduct, both Respondents restrained and coerced employ- ees of the Company in the exercise of their Section 7 right to 13 Communications Workers of America, Local 6135 (Southwestern Bell Telephone Company), Cases 23-CB-898, 23-CB-898-2, and 23-CB-298-3 (TXD, 270-69), currently pending before the Board on exceptions. Trial Examiner Barker further stated : "This rejection of Respondent's contention is required ... out of further recognition that the Union has an affirmative statutory duty to fairly represent all unit employees . . . . When, as here, to effect discipline for nonconformance to its rules a union undertakes to assess fines against unit employees who are no longer its refrain from concerted activities, and thereby violated Section 8(b)(I)(A) of the Act. In this posture of the case, I deem it unnecessary to decide whether there was a threat to levy an "unreasonably excessive" fine, as alleged in the complaint. I further consider it unnecessary to determine whether the telephone conversation between Rowe and Mildred Tarter on November 23 constituted an additional violation of Section 8(b)(1)(A) of the Act for, in any event, such a finding would merely be cumulative and would not affect the remedy hereafter recommended. 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. General Electric Company is , and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Bob Rowe is, and at all material times has been, an agent of the Respondent Union , acting in its behalf, within the meaning of Section 2(13) of the Act. 4. By threatening to fine , and to collect said fines by lawsuit if necessary, Mildred Tarter and Hubert Tarter for crossing the Respondent Union's picket lines to work for General Electric Company, at a time when these individu- als were no longer members of the Respondent Union, thereby restraining and coercing employees of General Electric Company in the exercise of rights guaranteed them in Section 7 of the Act, the Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(b)(l)(A) of the Act. 5. The above-described labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy It will be recommended that the Respondents cease and desist from the illegal conduct found, or any similar conduct which restrains or coerces employees of the Company in the exercise of rights guaranteed them in Section 7 of the Act. Affirmatively, it will be recommended that the Respondents notify Mildred Tarter and Hubert Tarter, in writing, that they rescind the letters to Mildred Tarter and Hubert Tarter dated November 26, 1969, and post appropriate notices. members, it engages in invidious conduct inconsistent with the obligation of fair representation which resides with all collective-bargaining representatives." I do not adopt this part of his reasoning. 14 Communications Workers of America, Local 2108, AFL-CIO (The Chesapeake and Potomac Telephone Company of Maryland, Inc.), Case 5-CB-861 (TXD 221-69), currently pending before the Board on exceptions. LOCAL 767, ELECTRICAL & MACHINE WORKERS 689 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 Local 767, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Somerset , Kentucky, Bob Rowe, its president , and their agents, officers, representatives, successors , and assigns, shall 1. Cease and desist from: (a) Fining or threatening to fine former members of the Respondent Union for crossing picket lines established by the Respondent Union to work for General Electric Company, or attempting to collect such fines by lawsuits or any other means. (b) In any like or related manner, restraining or coercing employees of General Electric Company in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act. (a) Notify Mildred Tarter and Hubert Tarter, in writing, that they revoke the letters sent to Mildred Tarter and Hubert Tarter, dated November 26, 1969. (b) Post at the offices and meeting halls of the Respondent Union in Somerset , Kentucky, copies of the attached notice marked "Appendix." 15 Copies of the said notice, on forms provided by the Regional Director for Region 9, after being duly signed by their representatives, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places , includ- ing all places where notices to members of the Respondent Union are customarily displayed . Reasonable steps shall be taken by the Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (c) Cause copies of this notice, to be furnished by the said Regional Director, to be signed by the Respondents' representatives and promptly returned to the said Regional Director for posting by General Electric Company, if the said Company should be willing (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.is IT IS FURTHER RECOMMENDED that the complaint herein be dismissed, insofar as it alleges unfair labor pracitces not found herein. 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD" iS In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fine or threaten to fine former members of this Union for crossing picket lines established by this Union to work for General Electnc Company, nor will we try to collect such fines by lawsuits or any other means. WE WILL NOT in any like or related manner restrain or coerce employees of General Electric Company in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. LOCAL 767, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS , AFL-CIO-CLC (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, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Tel. 513-684-3686.