Local 12419, Mine Workers

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc.) and Sarah Schmidt. Case 3-CB-1068 THE WITNESSES% I make the following: Findings of Fact 1. THE BUSINESS OF THE EMPLOYER June 13, 1969 DECISION AND ORDER On July 30, 1968, Trial Examiner A. Norman Somers issued his Decision in the above-entitled proceeding , finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision , and a brief in support of its exceptions, and Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief. The National Labor Relations 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent , Local 12419, International Union of District 50, United Mine Workers of America, North Tonawanda, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner 's Recommended Order. r'In his exceptions, the General Counsel urges the Board to find Respondent's conduct unlawful for reasons beyond , and in addition to, those relied on by the Trial Examiner . However, like the Trial Examiner, we find it unnecessary to pass on these additional grounds in this case. TRIAL EXAMINER'S DECISION A. NORMAN SOMERS, Trial Examiner : This case was heard before me in Buffalo, New York, on April 17, 1968, on complaint of the General Counsel issued March 27, 1968, on a charge filed by Sarah Schmidt, an employee, on September 12, 1967. The complaint alleges that Respondent Local violated Section 8(b)(1)(6) of the Act in imposing a fine on Sarah Schmidt and other members of Respondent Local for crossing the picket line of a sister-local. Respondent Local and the General Counsel presented oral argument and filed briefs. On the entire record' and my observation of The Employer or Company here involved, National Grinding Wheel Company, Inc., is a New York corporation engaged at its plant in North Tonawanda, New York, in making and selling abrasives, grinding wheels and related products . At least $50,000 of its products are shipped by it across the State annually, and as is not disputed , the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED The following are labor organizations within the meaning of the Act: Local 12419 of District 50 (hereafter the Respondent or Respondent Local), Local 15148 of District 50 (hereafter the "sister-local"), and International Union of District 50, United Mine Workers of America (hereafter District 50). III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent Local and the Company have a contract (in effect during the time here involved) covering the production and maintenance employees. Included in the contract is a union shop clause . The contract also has a no-strike clause (art. XVIII) which reads: During the term of this agreement, the Company will not conduct a lockout at its plant, and the Union or Local Union will not cause or permit its members to cause any strike or slowdown, total or partial, of work at the Company' s plant. The sister-local, whose membership consists of the Company's clerical or office workers, struck and picketed for a contract from June 12 through 16, 1967 (with what result does not appear in the record , nor is it material). On June 9, the Friday before the sister-local's strike, Respondent Local held a regular meeting. At that meeting Sarah Schmidt, a member of Respondent Local, asked John Urban , International Representative of District 50, whether "if there would be a picket line Monday, June 12, when we got to work, should we cross it?" Schmidt testified: He said that he could not tell us what to do, it would be up to each individual to make their selection. And he said that he himself would not cross the picket line.' The morning of Monday, June 12, the pickets of the sister-local were on the sidewalk in front of the plant, while the factory workers, numbering about 300, were on the opposite sidewalk, carrying no picket sign but refraining from crossing the picket line. The only exceptions (apart from a handful of temporary employees who are not members of Respondent and are in no way here involved) were 'This includes a copy of District 50's constitution which , on consent, was added to the record some time after the hearing closed. 'On cross-examination , Schmidt testified that Urban further suggested she talk to him in private after the meeting, which she did . Schmidt did not recall what was said between them except that she told Urban that "according to the contract I felt as though I would have to go into work," and, "If it was my own decision that I would go into work Monday." 176 NLRB No. 89 LOCAL 12419, MINE WORKERS 629 Schmidt and 15 other members . These 16 crossed the picket line and worked during all of the week of the picketing . Beginning some time after the picketing ceased, Respondent instituted charges against these 16 members under the provision of the constitution concerning "conduct unbecoming a union member" in that they crossed the picket line of the sister -local "who were in the process of negotiating their first contract with the Company." This culminated in a fine of $25 for each day they crossed the picket line - June 12, 14, 15, and 16. (The $25 reflected the average earnings per day for each member, which "took into consideration the high rate and the low rate.") The fine has not been paid . Respondent has not sought the assistance of the Company to collect the fine , nor has it tried to collect it by court suit. B. Conclusionary Discussion The General Counsel' s claim that Respondent violated Section 8(b)(1)(A) is based first, on the premise that the honoring of the sister-local's picket line by the many members of Respondent Local constituted a breach by Respondent Local of its no-strike clause . From this the General Counsel concludes that Respondent Local's fining of the members that crossed the picket line was not immune under the proviso of Section 8(b)(1)(A) despite the fact that the fine was an internal discipline in enforcement of Respondent's "own rules in respect to the acquisition and retention of membership."' A union is generally not in violation of Section 8(b)(1)(A) if its sanctions are internal in character (in the form of fine , suspension or expulsion) and are not directed against the member' s employment status or tinged with violence . That standard has been applied from the earliest interpretation of the provision by the Board (in ITU as affirmed in ANPA)4 to its application in Allis-Chalmers, 149 NLRB 67, affd. 388 U.S. 173. The Allis-Chalmers case involved a fine on members for working during a lawful and authorized strike by the union . The Wisconsin Motors case (supra, fn. 4) involved a fine on members for exceeding the ceiling on piecework or incentive plan earnings of members as prescribed by the union's rules. The ANPA case (supra, fn. 4) involved a threat to expel members who , contrary to the union' s constitution and bylaws, worked with nonmembers.' The principle that the union is immune as long as it limits its sanction to internal discipline was departed from under the "Skura" doctrine.' There the member filed a charge with the Board of unfair labor practices against the union without exhausting the remedies provided by the 'Sec. 8(b) provides: It shall be an unfair labor practice for a labor organization or its agents - (I) 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 and retention of membership therein 4International Typographical Union (hereafter ITU), 86 NLRB 951, 955-957, aft as to this sub nom. American Newspaper Publishers Assn. (hereafter ANPA) v. N.L.R. B. 193 F .2d 782, 800, 806 (C.A. 7), cert. denied as to this 344 U.S. 812. See also Local 283 UAW /Wisconsin Motor Corp./, 145 NLRB 1098, affd . sub nom . Scofield v. N.L R.B.. 393 F.2d 49 (C.A. 7). 'See also Federation of Musicians /Don Glasser(, 165 NLRB No. 110, affd. sub nom . Glasser v. N.L.R.B., 395 F.2d 401, (C.A. 2). There the union was found not to have violated Sec. 8 (bXIXA) by maintaining and "enforcing" a rule forbidding members to work with nonmembers. union's procedures. Though the discipline was a purely internal one (a fine), the Board held the union violated Section 8(b)(1)(A) because the immunity was held to be superseded by the public policy against a private person or organization barring or hindering access to the Board's processes. That doctrine was recently upheld by the Supreme Court in the Marine & Shipbuilding Workers case,' where the discipline was expulsion (instead of a fine as in Skura and Roberts, supra, fn. 6). The General Counsel contends that if the immunity ordinarily accorded to internal union discipline can be overcome by the public policy inhering in the situation exemplified by Skura and the kindred cases (supra, fn. 6 and 7), so too can it be overcome by the policy involved in the instant case , where the union's discipline, though internal , was used to penalize members for refusing to honor a picket line whose observance by the bulk of the members of Respondent Local was a breach by Respondent of the no-strike clause of its contract. Respondent, on the other hand , contends its conduct was not in violation of the no-strike clause, and so its situation is legally on all fours with the union in the Allis-Chalmers case. It starts with the uncontested premise , that the sister-local's picketing was lawful, and, Respondent argues, it follows that in requiring its members to honor the picket line , it was as immune under the proviso of Section 8(b)(1)(A) as the union 's conduct in Allis-Chalmers Respondent points out that if there had not been a no-strike clause, Respondent's members would have been as protected by Section 7 of the Act in refraining from working during the sister -local's lawful strike as the members of the sister -local themselves were in striking . The rub, however, is in the fact that Respondent's contract included a no-strike clause. Respondent contends that the no-strike clause is irrelevant to this situation . It states (br. pp. 4-5): (1) Local Union 12419 (Respondent Local) did not engage in a strike violation of the "no-strike" clause; and, (2) The picket line of Local 15419 (the sister local) was lawful and as such should have been honored. [Emphasis supplied.] Thus Respondent's position is that since the sister-local's picket line was lawful , Respondent members' refusal to work in deference to that picket line was legitimate regardless of the no-strike obligation. In substance, then , Respondent's contention is that the no-strike clause, while it forbids a strike in furtherance of Respondent's own demands , nevertheless leaves untouched work stoppages by Respondent in furtherance of the strike or picket line of another union (in this instance a sister-local), provided that the other union's activity is itself lawful. The language of the no-strike clause makes no such distinction . The clause forbids Respondent to "cause or permit its members to cause any strike or slowdown, total or partial, of work at the Company's plant." The bulk of Respondent's members that stayed off the job were engaging in a work stoppage, which, pro tanto, was a partial strike . Whether they did so in furtherance of their own demands or of a cause of the sister-local, their work 'Local 138 Operating Engineers (Charles S. Skura). 148 NLRB 679; H. B. Roberts, Bus. Mgr. Local 923 Operating Engineers (Wellman-Lord Engineering Inc.!. 148 NLRB 674, affd. 350 F.2d. 427 (C.A.D.C.). 'N.L.R.B v. Industrial Union of Marine d Shipbuilding Workers of America, AFL-CIO and its Local 22, 391 U.S. 418, 159 NLRB 1065. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage suspended the continuity of their operations in either instance. This stoppage of work on their part was in the face of the language forbidding Respondent to "cause" it or even "permit" it. Whatever might be said for the reply of International Representative Urban to Sarah Schmidt, that it was up to each member to decide whether or not to cross the sister-local's picket line but that "he himself would not cross the picket line," Respondent's action in fining the members who crossed the picket line was a ratification of the work stoppage of the members that honored the picket line. Further, it was predicated upon an interpretation of the "conduct unbecoming a union member" clause as requiring members to abstain from work during the sister local's picket line in the teeth of Respondent's own no-strike obligation. Respondent does not dispute that had this work stoppage been in furtherance of its own or the members' interest, it would have been in violation of the no-strike clause. As to why it is different if this was in furtherance of the sister-local's cause, we return to Respondent's underlying premise - that the lawful character of the sister-local's picket line rendered legitimate Respondent's own conduct in requiring its members to stop work in deference to that picket line, even if the no-strike clause in Respondent's contract with the Company calls for continuity of the production workers' operations. The essence of Respondent's position is thus that its members and itself enjoy a higher status in striking in advancement of another union's cause than it would be in striking in advancement of a direct cause of its own. However, an employee who ceases work in deference to another's picket line, though he enjoys the same protection as if he engages in a strike of his own, enjoys no higher protection either. Illustrative is the Board's judicially approved doctrine in Redwing Carriers.' There employees working as truckers refused to cross the picket line of a union of which they were not members at a strike before another employer than their own. The Board, with court approval, held that in refusing to cross the picket line, these truckers were not subject to outright discharge but were protected by Section 7 of the Act in that they retained their jobs subject to the employer's replacing them with other employees. However, the Board further held, likewise with court approval, that the employer did replace these truckers in order to insure the continuity of its operations (but not in reprisal for supporting a union), and so the employer was held not to have violated the Act. In its decision in Redwing Carriers, the Board reaffirmed its prior holding in Rockaway News Supply Co., Inc., 95 NLRB 336, that an employee refusing to cross a stranger picket line is pro tanto a striker and enjoys the protection of Section 7, and so the employer's conduct in Rockaway in discharging the employee outright was held by the Board to have violated the Act. However, the Board was reversed, and its outcome at the successive judicial levels in Rockaway, was described by it in Redwing Carriers (137 NLRB 1545, fn. 5): A similar question was presented in Rockaway News Supply Company, Inc., 95 NLRB 336, where the Board expressly held such activity a protected form of concerted activity. The Court of Appeals for the Second Circuit agreed with the Board on this point, but 'Redwing Carriers, 137 NLRB 1545, affd. sub nom. Teamsters Local 79 v. N.L.R 8. 325 F.2d 1011 (C.A.D.C.), union' s petition for cert. denied 377 U .S. 905. denied enforcement on another theory (197 F.2d 111). The Supreme Court affirmed the Second Circuit's conclusion in effect on the grounds that the activity in question was itself in breach of an operative no-strike agreement (345 U.S. 71). [Emphasis supplied.] The Board in its decision in Rockaway News had considered the no-strike clause to be inoperative, since it regarded the whole contract to be void because the compulsory membership clause did not meet the conditions of the union-shop proviso of Section 8(a)(3). The Supreme Court, on the other hand, held the compulsory membership clause to be separable from the rest of the contract, and therefore that the no-strike clause was still operative. The result under the Supreme Court's holding was that under the no-strike clause, the employee's conduct in interrupting his work in deference to the stranger picket line was held to be unprotected, under the doctrine of N.L.R.B. v. Sands Mfg. Co., 306 U.S. 332.' The employee in Rockaway News acted on his own, but the principle would be the same if he had done so at his union's behest or if he done so along with other members. The basic point is that the no-strike clause meant what it said and governed the rights and obligations of the union and the employees covered by it. The proposition that a cessation of work conveys no greater rights when it occurs in furtherance of another union's cause than when done directly on one's own behalf would seem aptly phrased by the Second Circuit in the Rockaway News case (197 F.2d 113): The right to assist a union of which one is not a member by refusing to cross its picket line is certainly of no higher dignity or importance to the individual than the right to ask his fellow workers in his own plant to join with him in the union of which he is a member in concerted activities which will directly protect or aid in promoting their common interests. The conclusion is that the work stoppage of the members, and Respondent's adoption of it, was no less a breach of the no-strike clause, though done in deference to the sister-local's picket line and in furtherance of the latter' s cause, than it would have been had the conduct been in furtherance of a direct demand of Respondent or its members. The fine imposed by Respondent Local on the members who crossed the picket line was thus a penalty for refusing to participate in a work stoppage in violation of the no-strike clause of Respondent's contract. It is the same in effect as if the fine had been a penalty for refusing to engage in a strike that Respondent had itself authorized and called outright in violation of the no-strike clause. The main thrust of Respondent's position, however, has been that its own situation is comparable to Allis-Chalmers in that there the fine enforced conduct on the part of the members which would have been legitimate 'The clause, in Rockaway News read: "No-strike, lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof, except as against a party failing to comply with a decision award or order of Adjustment Board." In stressing the effective character of the clause, the Court, after quoting the clause, observed that at the hearing, the employer had made an offer of proof (which the trial examiner received) that during the negotiations, the union had unsuccessfully proposed the qualifying clause, "No man shall be required to cross a picket line." The court did not suggest that the clause's true purport derived from the union's unsuccessful offer of the qualifying clause, but merely to answer any suggestion that the clause might in any way be deemed ambiguous. LOCAL 12419, MINE WORKERS if engaged in. However, as indicated, this is not so here. Respondent is thus in the situation of defending the fine, as stated, as a penalty for engaging in a no-strike violation. Respondent to be sure, falls back on the doctrine initiated in the American Newspaper Publishing Co. case (supra, fn. 4) which renders the union immune for conduct respecting acquisition or retention of membership provided its discipline is a purely internal one. The absoluteness of the immunity based on the internal character of the discipline was restated by the Board in the Wisconsin Motors case (supra, fn. 4). However, it was not long afterwards that the Skura case was decided (supra, fn. 6), in which the internal character of the discipline ceased to be the final word on the union's immunity and that liability could also be based on the reason for the discipline even if the discipline was an internal one. This calls into play the manner in which the interpretation of Section 8(b)(l)(A) evolved in the light of experience. We consider first the prohibitory clause of 8(b)(l)(A), the part that concerns restraint or coercion of employees generally without reference to unions' membership rules as mentioned in the proviso. In its earliest interpretation of the prohibitory clause , the Board, in the light of legislative history, had concluded that a finding of violation of Section 8(b)(1)(A) required an independent showing that the union made overtures to the employees relating to their job or personal safety. The most extensive treatment of the subject in the early line of case was in National Maritime Union, 78 NLRB 971, enfd. 175 F.2d 686 (C.A. 2). There the Board had found that the union violated Section 8(b)(2) by a discriminatory application of a hiring hall which caused or attempted to cause employers to discriminate against nonmembers, but that the union had not thereby violated Section 8(b)(1)(A), even derivatively, since there had been no independently coercive overtures on the employees . In the ITU (ANPA) case (supra, fn.4), the Board , applying that same doctrine, held that though the employer violated Section 8(b)(2) by imposing closed shop conditions on employers, thereby causing or attempting to cause employers to discriminate unlawfully against nonmembers , it had not thereby violated Section 8(b)(l)(A), even derivatively, since there too there had been no independent overreaching of the employees in respect to their jobs or personal safety. See 86 NLRB at 955 and fn. 15. Yet eventually, in the light of insights derived from experience , a union's violation of Section 8(b)(2) in causing or attempting to cause an employer to discriminate unlawfully against employees was found also to be derivatively a violation of Section 8(b)(l)(A),10 even if there was no independent showing of in terrorem overtures upon the employees . The decisions of the Supreme Court, first in the Curtis Brothers case" and later in Bernhard-Altmann," reflect a similar development in the light of experience . In Curtis Brothers, the Court held that a minority union that picketed to compel the employer to recognize it as exclusive bargaining representative had not thereby violated Section 8(b)(1)(A). The Court noted that the legislative history showed that "the note repeatedly sounded is as to the necessity for protecting individual workers from union organizing tactics tinged with violence, duress or reprisals," and concluded that "Sec . 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, 'intimidation, and reprisal or threats thereof - conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes." 362 U.S. 631 at 290. Yet in the Bernhard-Altmann case, where a minority union actually received from the employer and accepted recognition as exclusive bargaining representative of the employees, the union was found to have thereby restrained and coercing the employees in violation of Section 8(b)(1)(A) of the Act, though there too it had made no in terrorem overtures upon the employees. A comparable development is reflected in the cases concerned with the portion of Section 8(b)(1)(A) dealing with union membership rules mentioned in the proviso. In its decision in Wisconsin Motor, the Board had observed that whatever the broader reach of Section 8(b)(l)(A) under the Supreme Court's Bernhard-Altmann decision, "it is nonetheless evident that internal union disciplines were not among the restraints intended to be encompassed by the section." 145 NLRB 1100. However, despite the statement in Wisconsin Motors (of this trial examiner as there upheld by the Board) that the sole test of the union's immunity was the internal character of the discipline, it was, as stated earlier, only a short time afterwards, beginning with Skura, that the immunity based on enforcement of membership rules underwent a change in the manner that the prohibitory clause of 8(b)(l)(A) had itself undergone change. The fact that the discipline imposed was an internal one no longer served as an inexorable basis of immunity against liability under Section 8(b)(1)(A), and where the reason for the discipline contravened public policy so as to overcome the immunity based on the internal character of the discipline, the union was found liable under Section 8(b)(1)(A). To be sure, in the decisions in Skura and Marine & Shipbuilding Workers (supra, fn. 6, 7), the union's liability for the discipline imposed, despite its internal character, was based on reasons found to have an overriding character. In essence, the disciplining of a member for filing an unfair labor practice charge against the union without exhausting his internal remedies was found to be beyond a union's power because it purports to prevent or control access to the Board's processes. Yet it is apparent from Skura itself that the policy given overriding effect there did not exhaust the extent to which the immunity based on internal discipline can be overcome by other overriding policy. In distinguishing it from Wisconsin Motor, the Board stressed that the union's rule in Wisconsin Motor "did not run counter to other recognized policies." The Seventh Circuit, in its decision in Scofield, affirming Wisconsin Motor (supra, fn. 4), developed in some detail the proposition that the union's rule (setting a ceiling on pieceworkers' earnings) was compatible with public policy (393 F.2d at 50-51). And in reconciling the result in Wisconsin Motor with the doctrine in Skura the court, after stating the overriding policy in the Skura doctrine, noted: "No policy considerations of comparable strength militate against the Union here at issue." (Id. at 54.) The policy in this case concerns the adherence to the terms of a contract between representatives of employers and employees and the condemnation of their violation. This is indeed implicit in the preamble of the Act from its inception (Sec. 1) and in the reports of both houses of '• B v. Philadelphia Iron Works, 211 F.2d 937, 939 (C.A. 3), enfg. 103 NLRB 596. "Drivers. Chauffeurs etc /Curbs Bros / v N L R . B., 362 U.S. 274; affg. 274 F.2d 351 (C.A.D.C.), setting aside 119 NLRB 232. "International Ladies Garment Workers' Union /Bernhard-Altmann Texas Corp /, 366 U.S. 731, enfg. 122 NLRB 1289. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress." The Supreme Court had early in the administration of the Act, in the Sands case, held that the violation of a collective-bargaining contract by employees is not a protected activity and they were validly subject to discharge for its violation. To hold that a union, despite the prohibition in Section 8(b)(1)(A) against restraining or coercing of employees in their rights under Section 7, could nevertheless with impunity penalize members for failing or refusing to participate in a violation of a no-strike clause is to provide an incentive to unions and members to violate contracts. This too runs counter to a basic policy of the statute. Though the Supreme Court in Marine & Shipbuilding Workers distinguished between "internal union matters" and those which "are part of the public domain," these are indeed matters of degree. The union rule in Skura and Marine & Shipbuilding has a tradition of its own based on the view that members' grievances should be accommodated intramurally before resort to governmental tribunals, and so that too is an "internal union matter." However, on balance, this was held to be outweighed by the public policy against private organizations barring or controlling access to Board processes. There is a kindred element of balance in the case before us. Indeed, the Supreme Court in Marine & Shipbuilding, in its explanation of the doctrine in Allis-Chalmers, stated that Sec. 8(b)(IXA) assures a union freedom of self-regulation where its legitimate internal affairs are concerned." It is difficult to conceive of the rule as applied and interpreted here as being part of a union's legitimate internal affairs, and in view of the underlying public policy regarding the end and purpose of the collective bargaining process, a rule applied to compel the violation of a no-strike provision, if internal, nevertheless overreaches the bounds of legitimacy. Further, to require a member to participate in a violation of a no-strike clause under pain of fine, or suspension or expulsion is in any event inherently unreasonable. International Representative Urban, in his answer to Sarah Schmidt's question concerning what to do if the sister-local should picket (that the choice lay with the member but that "he himself would not cross the picket line") betrayed his own misgivings about the propriety of compelling members of Respondent to abstain from working under the circumstances here discussed. Respondent's brief would itself seem to suggest that if the strike had been one that Respondent had called in conceded violation of its no-strike clause, it would have been unreasonable to compel members to comply with it under pain of union discipline. The fact, here, however, is that the work stoppage, however much it might have been in deference to the sister-local's lawful picket line, was itself a violation by the Respondent's own no-strike obligation with the Employer. The immunity normally vouchsafed to union rules are no more inexorable here than in Skura. Nor has that immunity been deemed inexorable in other contexts. Thus, where union members in compliance with a union rule requiring members to refrain, under penalty of internal discipline, from installing doors other than those made by the union, refused to make these installations, the union was found to have engaged in a secondary boycott in violation of Section 8(b)(4), N.L.R.B. v. Local 75 Carpenters [Mengel Co.], 285 F.2d "H. ep. No. 1147, 74th Cong., 1st Sess. 20: ("... collective bargaining [has as its end] the making of collective agreements stabilizing employment relations for a period of time "). S . Rep. No. 753, id. p. 13 ("The object of collective bargaining is the making of agreements that will stabilize business conditions .. '). 633, 640-641 (C.A. 9) See also Elliott v. Amalgamated Meat Cutters, 91 F.Supp. 690, 697 (W.D. Mo.) In a recent case, the fining of members for refusal to cross a picket line whose observance constituted a secondary boycott was held the basis for a remedy requiring the union to rescind the discipline and refund the fine to the members. Bricklayers and Masons Local No. 2 [Robert L. Willis, Masonry Contractor], 166 NLRB No. 26. The veil of that immunity had been pierced even earlier in Newspaper Mail Deliveries Union [Hearst Consolidated Publications] 93 NLRB 237 (1951). The Board found that the union had, in violation of Section 8(b)(2) and (l)(A), caused and attempted to cause employers to engage in discriminatory action against nonmembers. The union had engaged in strikes and shutdowns and, in addition, threatened with discipline and actually fined a foreman who was a member of the union for declining to give unlawful preference to union members. The foreman, to be sure, had a dual relationship in that though he was a member of the union, as a foreman, he was also part of management . However, the point here was that neither the union's internal rule nor the internal discipline invoked against him as a union member acted as an insulator against liability where a basic principle of the statute was thereby violated. The Skura doctrine breaches the wall of that immunity in an 8(b)(1)(A) situation where countervailing policy of the Act is involved. The instant case, where the fine is a penalty to compel conduct in violation of a no-strike obligation is also one where the immunity based on the internal character of the discipline is overcome by its offense to basic statutory policy.' I accordingly find that by imposing a fine on the 16 members who crossed the picket line of the sister-local, Respondent has restrained and coerced them and other employees in the exercise of their rights guaranteed by Section 7 of the Act, thereby violating Section 8(b)(1)(A) of the Act. On the basis of the foregoing facts and the entire record, I hereby state the following: CONCLUSIONS OF LAW 1. The abstention from work on the part of Respondent's members in deference to the sister-local's picket line was a work-stoppage in breach of the no-strike clause of the contract of Respondent with the Employer. 2. Respondent was responsible for that work-stoppage and Respondent thereby violated the no-strike clause. 3. The fine assessed on the members who crossed the picket line was a penalty imposed upon them for honoring the contract and refusing to participate in Respondent's violation of the no-strike clause. _"-As- earlier described in ANPA and in Glasser (supra, fns. 4 and 5, respectively), the union was held not to have violated Sec 8(bXLXA). In ANPA the union threatened members with expulsion if they disobeyed the rule forbidding members to work with nonmembers, and in Glasser the union "enforced" such a rule . However, the court decisions in each case did not construe the union's action as having in fact provoked the action in contravention of policies of the Act. Compare, however, Local Union No. 2, United Assn of Plumbers lAstrove Plumbing]. 152 NLRB 1093, 1102, enfd. as modified 360 F.2d 428 (C.A. 2), cited by the court in its Glasser decision, 395 F.2d 401. That is to say, the member could conform with the rule and he would not by that token have himself engaged in conduct in opposition to basic policy of the statute. In the instant case, however, the very conduct in which the members were required to engage constituted the violation of the no-strike obligation , and the fine was for refusing to participate in the violation. LOCAL 12419, MINE WORKERS 633 4. By this conduct Respondent restrained and coerced the said members and other members as employees in their rights under Section 7 of the Act, thereby violating Section 8(b)(l)(A) of the Act. 5. The said violation affects commerce within the meaning of Section 2(6) and (7) of the Act." THE REMEDY It has been found that Respondent violated Section 8(b)(l)(A) by assessing a fine on members for crossing the picket line of sister-local thereby penalizing them for refusing to participate in a violation by Respondent of the no-strike clause of its contract with the Employer. It will be recommended that Respondent cease and desist from fining or otherwise disciplining the said members or other employees for refusing to engage in a work stoppage in violation of the no-strike clause, whether the no-strike violation is in advancement of Respondent's own demands or in advancement of the demands of another union, even if the other union's picket line be a lawful one. To remedy the effect of said conduct, it will be directed that Respondent Local rescind the fine assessed on members found by Respondent to have crossed the sister-local's picket line. Respondent shall so notify the 16 employees by letter and post notices to that effect at its meeting hall. Copies of said notice may also be provided to the Employer for posting if willing. Upon the foregoing findings and conclusions and the whole record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER Respondent, Local 12419, International Union of District 50, United Mine Workers of America, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Assessing fines against or otherwise disciplining members for not engaging in or participating in a work stoppage during the existence of a no-strike clause between Respondent and the Employer, whether said work stoppage be in advancement of direct demands of Respondent or its members or in advancement of demands of any other union (including Local 15148 of said District 50). (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Rescind the fines assessed upon the following members for having crossed the picket line of Local 15148 of District 50 during the period of such picket line on June 12, 14, 15, and 16, 1967, and inform each of them by letter that said fine has been rescinded. Vernon Pankow Robert Mills Arthur Krull William Loeschke Norman Harder Martin DeVantier Joseph Kulikowski George Heuer Albert Prill Harold Strassburg Roman Wasieczko John Waciezko Sarah Schmidt Elizabeth Hughes "In view of the findings and conclusions here made , we do not reach the issue of whether the fine as assessed was excessive. Norman DeVentier Alice Higgins (b) Post at its offices, in conspicuous places, and at all other places where notices to members are customarily posted, copies of the notice attached marked "Appendix." i ° Copies of the said notice, on forms to be provided by the Regional Director of Region 3, shall, after being duly signed by Respondent's authorized representatives, be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by other material. (c) Mail or deliver to the Regional Director of Region 3 copies of the said Appendix for posting by National Grinding Wheel Company, Inc., if said employer is willing, at all places where notices to its employees are customarily posted. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." "In t e event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of the Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." ' n the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby rescind the fines assessed upon the following members for having crossed the picket line of Local 15148 of District 50 during the period of such picketing on June 12, 14, 15, and 16, 1967: Vernon Pankow Robert Mills Arthur Krull Albert Prill William Loeschke Harold Strassburg Norman Harder Roman Wasieczko Martin DeVantier John Waciezko Joseph Kulikowski Sarah Schmidt George Heuer Elizabeth Hughes Norman DeVentier Alice Higgins WE WILL NOT assess fines or otherwise discipline members for not engaging or participating in a work stoppage in violation of the no-strike clause between the undersigned union, Local 12419 of District 50, and National Grinding Wheel Company, Inc., whether the work stoppage is in furtherance of direct demands of the undersigned local and its members or in furtherance of demands of any other union or local. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights under Section 7 of the National Labor Relations Act. LOCAL 12419, INTERNATIONAL UNION OF DISTRICT 50 UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days compliance with its provisions, they may communicate from the date of posting and must not be altered, defaced, directly with the Board's Regional Office, Fourth Floor, or covered by any other material . The 120 Building, 120 Delaware Avenue, Buffalo, New If employees have any question concerning this notice York 14202. Telephone 842-3100.