Carpenters Local Union 101

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Local Union 101 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Edward M. Swallow & Sons, Inc.) and Local Union No. 132, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Andrew D. Lewis. Cases 5-CB-908 and 5-CB-984 November 23, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 30, 1970, Trial Examiner William Kapell issued his Decision in the above-entitled proceeding, finding that 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. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and, contrary to the Trial Examiner's Decision, concludes that Respondents did not violate the Act as alleged. The Trial Examiner found, on the facts as stipulated by the parties, that the fine of $300 which Respondent Local 101 imposed upon Andrew and Henry Lewis, members of Respondent Local 132, for working for about 4 hours behind a picket line established by Local 101 at the Lewises' place of work, was unreasonably excessive in amount. The Trial Examin- er accordingly concluded that Respondent Local 101 violated Section 8(b)(1)(A) of the Act by imposing the fine, and that Respondent International and Respon- dent Local 132 also violated Section 8(b)(l)(A) of the Act by requiring that the Lewises pay the fine as a condition of retaining membership and by then expelling the Lewises for nonpayment of the fine. As noted above, we do not agree with the Trial Examiner's conclusion. In Arrow Development Co.,1 a case decided after the Trial Examiner's Decision herein, the Board held that where the union's fine is aimed at implementing a legitimate union rule which does not conflict with policies of the Act, the only question of relevance to the Board is "whether, in enforcing the rule, [a] union 186 NLRB No. 119 goes outside the area of union-membership relation- ship and enters the area of employee-employer relationship."2 Since the Respondents have not done so here, and since the facts also reveal that they did not seek to vindicate a policy in conflict with the National Labor Relations Act, "the Act does not authorize this Board to evaluate the fairness of union discipline meted out to protect a legitimate union interest." 3 Accordingly, we shall dismiss the complaint in its entirety. 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. ' International Association of Machinists and Aerospace Workers, AFL-CIO, Local No. 504 (Arrow Development Co.), 185 NLRB No. 22. z Id citing Allis-Chalmers Manufacturing Company, 149 NLRB 67, 70. :, Id. penultimate paragraph. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM KAPELL, Trial Examiner: Cases 5-CB-908 and 5-CB-984, proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were consolidated and an amended complaint was issued on March 24, 1970.1 The amended complaint in substance alleges that in violation of Section 8(b)(I)(A) of the Act, Respondents imposed unreasonable and excessive fines of $300 each on Andrew David Lewis and Henry W. Lewis, members of Respondent Local 132, because they continued to work on a construction project of Edward M. Swallow & Sons, Inc., hereafter referred to as Swallow, after Respon- dent Local 101 placed a picket line on said project in a labor dispute with Swallow, and thereafter suspended and/or expelled the Lewises from membership in their Local upon their failure to pay their fines. Respondents in their answers denied the commission of the alleged violations or that the fines imposed were unreasonable and excessive, and, in addition, Respondent United Brother- hood also moved for dismissal of the complaint on the ground that it was named as a party respondent for the first time by an amended charge filed more than 6 months after the imposition of the fines by Respondent Local 101. All parties entered into a Stipulation during April 1970, wherein they waived a hearing before a Trial Examiner and t In Case 5-CB-908 a complaint was issued on January 21, 1970, based on an initial charge and an amended charge filed by Andrew D. Lewis on May 15 and December 22, 1969, respectively , against Carpenters Local Union 101, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereafter called Respondent Local 101, and United Brotherhood of Carpenters and Joiners of America . AFL-CIO, hereafter called Respondent United Brotherhood . Case 5-CB-984 is based on a charge filed by Andrew D. Lewis on January 28, 1970, against Local Union No. 132, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereafter called Respondent Local 132. CARPENTERS LOCAL UNION 101 agreed that the entire record of the cases shall consist of the Stipulation, the charges, the order of consolidation of the cases, the pleadings, the notices, and affidavits of service. The Stipulation also requests that briefs may be submitted to the Trial Examiner by June 4, 1970. Pursuant to that request, which was granted, briefs have been submitted by all parties and have been carefully considered. Upon the entire record in the cases, I make the following: FINDINGS OF FACT 1. COMMERCE The Stipulation sets forth that Swallow is, and at all times material herein, has been a corporation duly organized under and existing by virtue of the laws in the State of New York. It maintains its principal place of business at Portchester, New York, where it is engaged as a general contractor in the building and construction industry in the Stale of New York and other States of the United States, including the State of Maryland. During the preceding 12 months, a representative period, Swallow, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 and received in the State of Maryland materials and supplies purchased and shipped from points and places outside that State valued at in excess of $50,000. I find at all times material herein that Swallow has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED The Stipulation provides, and I find, that at all times material herein the Respondents have been labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE ALLEGED VIOLATIONS A. The Stipulated Facts On or about April 1, 1969,2 Swallow commenced work as a general contractor in the construction of an addition to existing facilities for, and pursuant to a contract awarded it by Central Dodge, Inc., an automobile dealer (herein called Central project). At all times material herein said work (located at Baltimore, Maryland) was performed by Swallow's employees who were not represented by any labor organization Al all times material herein, Andrew D. Lewis and Henry W. Lewis were members in good standing of Respondent 2 All dates hereafter refer to the year 1969 unless otherwise noted 9 A copy of the minutes of the trial committee of said hearings is attached to the Stipulation as Exhibit A I xhibit B of the Stipulation Said section provides as follows OFFENSES AND PENALTIES A Section 55 Any officer or member found guilty after being charged and tried in accordance with Section 56, for any of the following offenses , may be fined, suspended or expelled only by a majority vote of the members of the Local Union present at a regular meeting or of the delegates to the District Council having jurisdiction of the offense (10) Working behind a picket line duly authorized by any 709 Local 132, and at all times material herein have not been members of Respondent Local 101. Commencing on or about April 7, and at all times material herein, Respondent Local 101 has had a labor dispute with Swallow and, in furtherance thereof, on or about April 15, established an authorized picket line at the Central project with signs stating that Swallow did not employ members of, or have a contract with, Respondent Local 101, said picketing having been begun at approxi- mately 7:30 a.m. after the Lewises had reported and begun work for their employer. The Lewises stopped working for Swallow on the Central project and left the jobsite at approximately 1:30 p.m. on April 15, and did not thereafter return and perform work for Swallow. On or about April 18 the Lewises returned to thejobsite and removed their tools. During the period of the picketing in which the Lewises performed work, each had gross earnings of $36 for performing 8 hours of work on April 15. On or about May 21, after hearings, Respondent Local 101 imposed fines on both of the Lewises in the amount of $300 because they had worked during the aforedescribed picketing.3 By letter4 dated May 28 Andrew D. Lewis was notified by Respondent Local 101 of the memberships' concurrence in the aforesaid action and his obligation to pay said fine within 30 days or be suspended from membership. On or about May 28, 1969, a similar letter was sent to and received by Henry W. Lewis. The hearings before a tribunal convoked by Respondent Local 101, set forth above, were based on allegations that the Lewises violated the provisions of section 55, A, (10) 5 of the constitution and bylaws of Respondent United Brotherhood and were conducted under the provisions of section 56 of said constitution and bylaws. On or about November 24 and December 5, respectively, the General Executive Board of Respondent United Brotherhood in ruling on the appeals of the Lewises from the action taken against them by Respondent Local 101, as described above, dismissed such appeals and sustained the imposition of the aforedescribed fines. On or about November 26, 1969, Respondent Local 101 advised Andrew D. Lewis by mail6 of the dismissal of his appeal, his obligation to pay the fine, and the loss of his membership in the event of his failure to pay the $250 balance 7 due on his fine within 30 days. An identical letter was sent to Henry W. Lewis on or about December 8. On or about January 19, 1970, Respondent Local 132, acting pursuant to section 45, E8 of the constitution and bylaws of Respondent United Brotherhood, struck from membership Andrew D. and Henry W. Lewis because they subordinate body of the United Brotherhood 6 Exhibit D of the Stipulation r He had paid $50 of the fine, as required by the constitution, in order to file an appeal Said provision reads as follows All fines imposed and assessments legally levied including strike assessments shall be charged by the Financial Secretary to the member from whom due, and must be paid within thirty days to entitle the member to any privilege, rights, or donations If a member owes a fine or assessment for a period of thirty days, he shall be notified by the Financial Secretary that unless the amount owing is paid within thirty days thereafter, his name shall be stricken from membership, except in case of a fine where an appeal is pending 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed and refused to pay the fines imposed on them by Respondent Local 101, which fines had been sustained on appeal by Respondent United Brotherhood. B. The Issues The primary issue is whether the imposition of the $300 fines by Respondent Local 101 was so unreasonably excessive as to constitute a violation of Section 8(b)(1)(A) of the Act. If so found, was Respondent United Brother- hood in violation of said section by sustaining the fines on appeal,9 and was Respondent Local 132 also in violation by expelling the Lewises for failure to pay the fines? C. Conclusions Section 8(b) of the Act provides in pertinent part: It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. . . For a clearer understanding of the issues in the within case with respect to the application of the foregoing section it is desirable to distinguish it from those cases where the Board and the courts have held that it is an unfair labor practice for a union to fine or expel a member because he has filed an unfair labor practice charge with the Board; 10 or where the Board has held, with court approval, that it is not an unfair labor practice for a union to expel or fine a member who has filed a decertification petition with the Board.ii The General Counsel does not challenge the right of a union to impose a fine on a member for working behind an authorized picket line. He does, however, contend that such fine must conform to some limitations so as not to be unreasonably excessive. Any doubts as to the authority of a union to impose a fine under such circumstances have been dispelled by the Supreme Court in Allis-Chalmers Mfg. Co. v. N.L.R.B.12 There the Court held that it was permissive for a union, under the proviso to Section 8(b)(l)(A) of the Act, to impose and collect through civil process fines levied against members for crossing economic picket lines. Thus, the Court held: At the very least it can be said that the proviso [to 8(b)(1)(A)] preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the explicit or implicit threat of expulsion for nonpayment. Therefore, under the proviso the rule in the UAW constitution governing 9 1 find no merit in said Respondent's contention in its answer that inasmuch as it was first named as a respondent in the amended charge filed more than 6 months after the levying of the fines by Respondent Local 101, Section 10(b) of the Act precludes the instant recourse against it On November 24 and December 5, respectively, well within the statutory 6- month period, Respondent United Brotherhood affirmed the imposition of the fines on appeal Cf International Association of Machinists (Union Carbide Corporation), 180 NLRB No 135 10 See N L R B v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S 418, Local 138, Operating Engineers (Charles Skura), 148 NLRB 679 11 See Tawas Tube Products, Inc, 151 NLRB 46, Richard C Price v NLRB , 373 F 2d 443 (C A 9), cert denied 392 U S. 904 fines is valid and the fines themselves and expulsion for nonpayment would not be an unfair labor practice. In the more recent case of Scofield v. N.L.R.B.,13 the Supreme Court in citing the Allis-Chalmers case reaffirmed its position that a union could enforce a union rule by imposing a fine or expelling the member. The Court, however, qualified the fine as follows: "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 . ,..." (Id. at p. 430.) (Emphasis supplied.) There are also scattered specific references to the reasonableness of a fine in the Allis-Chalmers case. The Court there appeared to be deciding a case involving reasonable fines. Thus, in the concurring opinion of Mr. Justice White, which was essential to the five-member majority, he states: My 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 rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of § 7 rights, nevertheless intended to bar enforcement of another method which may be far less coercive. " ( Id. p. 198, emphasis supplied.) It appears further that Mr. Justice Black writing for the dissenting justices, also interpreted the decision of the Court as dealing with reasonable fines for he observes: "With no reliance on the proviso to § 8(b)(1)(A) or on the meaning of § 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." (Id. at p. 200-201, emphasis supplied.) There are also other references to the " reasonableness" of fines in the majority opinion with respect to Court enforcement. Thus at pp. 192-193, the Court stated: There may be concern that court enforcement may permit 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 enforcement of reasonable fines.14 To same effect see Local 248 UA W v. Benjamin Natzhe, 36 Wis.2d 237, 153 N.W.2d 602. Based on the Allis-Chalmers and Scofield cases, I conclude that the Union herein was empowered to fine the Lewises, provided that the fines were not unreasonably excessive. The Board has not as yet prescribed any guidelines to determine the reasonableness of fines levied 12 388 U S 175 19 394 U S 423 In this case the union fined a member for failing to comply with its rules governing production quotas and brought suit in a state court to collect the fine 14 Respondent Local 101 contends that the aforesaid statement leaves the question of reasonableness of a fine to the court upon the Union's attempt to obtain judicial enforcement, and therefore supports its assertion that the Board has no authority to pass judgment on the reasonableness of a fine, and that this matter should be left solely to the courts I find no persuasive ground on which to base Respondent 's asserted construction Rather, I find that the Court's reference to judicial enforcement of the fine relates to a proceeding outside of the Act and in no way reflecting upon its provisions CARPENTERS LOCAL UNION 101 by unions to prevent or penalize members for conduct violating their internal rules. There are, however, several Trial Examiners' Decisions pending exceptions to the Board involving criteria to be applied in determining the reasonableness of fines.15 In some of these decisions a fixed percentage of the amount earned in defiance of union rules is urged as the criterion to be applied in determining whether the fine levied is unreasonably excessive. Trial Examiner Downing declined to apply any mathematical formula in determining the reasonableness of a fine and recommended the resolution of each case on an ad hoc basis until guidelines are established by the Board.16 The term "unreasonably excessive" inherently relates to the circumstances involved. These would significantly include the nature of the member's offense, the duration of the offense, the relationship of the fine to the amount earned in defiance of the union rule, and any other attendant circumstances. In the instant case the Lewises began working before the picket line was established. It does not appear when they became aware of the picket line. Conceivably, it could have been immediately prior to their departure from the job or they may have been involved in an operation which for safety or economic reasons required its completion before leaving the job. It appears that they left the job about 1:30 p.m. and earned $36 each for the day's work. Denying an employee the retention of the benefits he received by disregarding an authorized picket line would appear to be nothing more than depriving him of what in the view of union policy was an "ill gotten gain." Thus, a fine to that extent would appear to be not unreasonably excessive because it would only place him in the position of fellow-employees who honored the picket line. Also, one of the purposes of imposing a fine is to serve as a deterrent to others who might be tempted to challenge the union's position or power by defying its legitimate directives. Thus, in an aggravated situation where, for example, a member publicly attacks the union's action and seeks to induce others to dishonor the picket line, thereby discrediting and undermining the union, it could be argued that the union should have the right to increase the fine by an amount bearing a direct relationship to such circum- stances on an ad hoc basis. This principle would have no application to the instant case because of the mitigating circumstances. Accordingly, I conclude that the $300 fines imposed on each of them were unreasonably excessive and therefore violative of Section 8(b)(1)(A) of the Act. Inasmuch as their expulsions from membership were 15 E g , see Boston Lodge No 405, International Association of Machine and Aerospace Workers, AFL-CIO (The Boeing Company), Case 15-CI3-779, TXD 737-68, Local 1012, United Electrical Radio and Machine Workers of America (General Electric Company), Case 31-CB-511, TXD S F 87-70 16 See Milwaukee Printing Pressmen & Assistants Union No 7 (North Shore Publishing Company), Case 30-CB-288, TXD-187-70 711 inextricably tied in with their refusal to pay the excessive fine, I would also find that to be violative of Section 8(b)(I)(A), regardless of whether their expulsions without the fine would have constituted permissive action by Respondents. Since each of the Respondents participated to some extent in the violations and acted in concert in their implementation, I find each of them in violation of Section 8(b)(l)(A).17 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Swallow's operations described in section I, above, have a close, intimate, and substantial relationship 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. Upon the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. At all times material herein the Respondents have been labor organizations within the meaning of Section 2(5) of the Act. 2. At all times material herein Swallow has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. By levying unreasonably excessive fines upon the Lewises and expelling them from union membership for failing to pay said fines, as found herein, Respondents have restrained and coerced them in the exercise of their statutory rights within the meaning of and in violation of Section 8(b)(1)(A) of the Act. THE REMEDY It having been found that Respondents have engaged in unfair labor practices, my Recommended Order will require that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action shall include recision of the unreasonably excessive fines imposed upon the Lewises and their expulsion from membership in Respondent Local 132 for failure to pay said fines, giving written notice of such of said action to them, and refunding the $50 payments made by them in appealing their fines. [Recommended Order omitted from publication.! 17 In his brief, the Charging Party raises certain asserted irregularities in the trial procedure followed in levying the fines However, the stipulation of facts signed by all parties, which constitutes the entire factual record of the cases, makes no reference to any procedural deficiencies Furthermore, the disposition of the cases on the merits makes it unnecessary to consider any procedural objections