Intl. Molders' and Allied Wkrs., Local 125

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Molders' and Allied Workers Union, Local No. 125, AFL-CIO ( Blackhawk Tanning Co., Inc.) and Dorothy Strzyzewski. Case 30-CB-171 August 25, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On June 21, 1968, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled case, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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, the briefs, and the entire record in this case,' and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. We adopt the Trial Examiner's Decision, finding that Respondent's fining of an employee for filing a petition seeking to decertify Respondent as bargaining representative of the Blackhawk employees is a violation of Section 8(b)(1)(A) of the Act. Some comment is, however, necessary to clarify our position in view of Members Fanning and Jenkins' dissent. The problem involved in this and related cases is one of reconciling the public policy of protecting access to the Board with a union's right to prescribe its own rules respecting "the acquisition or retention of membership." In the Marine & Shipbuilding case,' the Supreme Court approved the Board's rule that the disciplining of employees because they have filed unfair labor practice charges with the Board is a violation of Section 8(b)(1)(A).' The unlawful disciplining covers fining as well as expulsion." But to say this does not resolve our case. The Court in the Price case' commended the discriminating manner in which the Board has been applying the proviso to Section 8(b)(1)(A) in cases in which unions have invoked disciplinary measures against union members for filing unfair labor 'Respondent's request for oral argument is hereby denied as the record, including the exceptions and briefs, adequately sets forth the issues and positions of the parties. N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418. 'Local 138, Operating Engineers (Charles Skura). 148 NLRB 679. 'Idem practice charges or decertification petitions with the Board. Thus, although the Board has found expulsion of a union member for filing unfair labor practice charges unlawful, it has not similarly found unlawful the expulsion of a member who has filed a decertification petition with the Board.' The reason for the different treatment of the two situations lies in the policy considerations involved. In the case of a decertification petition, the employee seeks to attack the very existence of the union as an institution. And unless the union can expel the member who seeks its destruction, "during the pre-election campaign, the member could campaign against the union while remaining a member and therefore privy to the union's strategy and tactics."' In other words, the union needs this power of expulsion in order to defend its status as bargaining representative. Further, the Board noted in Tawas Tube' that an employee who seeks to decertify a union hardly values his union membership and his expulsion from the Union would not be an effective deterrent against resorting to the Board.' In summary then, as noted, the Board and the Courts have held that it is an unfair labor practice for a union to expel or fine a member because he has filed an unfair labor practice charge with the Board.10 The Board has also held, with court approval, that it is not an unfair labor practice for a union to expel a member who has filed a decertification petition with the Board." In a somewhat different context where the member's access to the Board was not involved, the Supreme Court has upheld the right of a union to fine, in lieu of expelling a member who crossed a picket line during a strike.12 Does it follow from the above, that the Board should uphold as lawful the fining as well as the expulsion of a member who has filed or circulated a decertification petition? The answer to this question cannot be found in the routine application of a formula: if expulsion is lawful so is a fine, or if expulsion is unlawful so is a fine. The solution calls for discrimination, the weighing of the public policy in each situation against the union's right to regulate its internal affairs. The rule permitting a union to expel a member seeking its decertification is an exception to the rule prohibiting a union from penalizing a union member because he has sought to invoke the Board's processes. The exception is based on the 'Price v N.L.R.B., 373 F 2d 443 (C.A 9), cert denied 392 U.S. 904 `Tawas Tube Products . Inc., 151 NLRB 46. 'Price v. N.L R B., supra at 447. 'Tawas Tube Products, Inc., 151 NLRB 46, 49. 'That this observation is generally true is exemplified by the Charging Party's remark when notified to appear before a union trial board for having circulated the decertification petition - "Now if you feel you want to suspend me from your union be my guest " "N.L R.B v. Marine & Shipbuilding Workers, supra, Local 138, Operating Engineers (Charles Skura), supra. "Tawas Tube Products , Inc., supra, Price v. N L.R B, supra "N L.R B. v. Allis-Chalmers Mfg Co, 388 U S. 175 178 NLRB No. 25 INTL. MOLDERS' AND ALLIED WKRS ., LOCAL 125 209 necessities of the situation, the right of the union to defend itself. It is buttressed by the fact that the deterrent or punitive effect of expulsion in such circumstances is at most minimal. In short, where the union member is seeking to decertify the union, the Board has said that the public policy against permitting a union to penalize a member because he seeks the aid of the Board should give way to the union's right to self-defense. But when a union only fines a member because he has filed a decertification petition, the effect is not defensive and can only be punitive - to discourage members from seeking such access to the Board's processes; the union is not one whit better able to defend itself against decertification as a result of the fine. The dissident member could still campaign against the union while remaining a member and therefore be privy to its strategy and tactics. Because the two situations - expelling a member for filing a decertification petition and fining him for the same reason - are thus qualitatively different, they call for different legal conclusions. Hence we cannot accept the view expressed in the dissenting opinion. 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 hereby orders that Respondent, International Molders' and Allied Workers Union , Local No. 125, AFL-CIO, its officers, agents, and representatives shall. take the action set forth in the Trial Examiner's Recommended Order. MEMBER BROWN, concurring: I agree with the majority that a labor organization violates Section 8(b)(l)(A) by fining a member for filing a decertification petition. The Board, with court approval, has held that unions may not use coercive means to restrict access to the statutory unfair labor practice remedies. "Any coercion used to discourage , retard, or defeat that access is beyond the legitimate interests of a labor organization." N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418, 424. This policy applies with equal force to representation procedures. In Tawas Tube Products , Inc., 151 NLRB 46, we held that it was not unlawful for a union to expel a member for filing a decertification petition. However, that decision should not be construed as an abdication of our duty to protect the representation procedures from interference through coercive conduct on the part of unions . Rather, Tawas involved a limited exception based upon the fact that the deterrent punitive or coercive effect of expulsion is nonexistent as applied to a member who through a decertification petition attacks the very existence of the Union as an institution. On the other hand, a fine collectible through court action, as is here involved, does impose a meaningful restraint upon a member's willingness to invoke the Board's representation procedures. MEMBERS FANNING AND JENKINS, dissenting: In two prior cases" a unanimous Board has held that the suspension or expulsion of a union member from membership for filing a decertification petition was not violative of Section 8(b)(1)(A) of the Act. Today, our colleagues affirm a Trial Examiner's decision that the "fining" of a union member for identical conduct is violative of the Act. We cannot agree. Our disagreement with the majority view stems basically from the following: there is no meaningful distinction between fining and expulsion and this Board and the Supreme Court have so held; this decision is not only inconsistent with our decisions in the Tawas Tube and Pittsburgh Des-Moines Steel cases but it is a direct repudiation of the carefully drawn distinction between permissible and unlawful disciplining of union members as set forth in our decision in Van Camp Sea Food case;16 lastly, the proviso to Section 8(b)(1)(A) explicitly protects such conduct. In finding the violation the Trial Examiner found fines distinguishable from expulsion and relied principally on views expressed by the Supreme Court in N.L.R.B. v. Marine & Shipbuilding Workers to the effect that "overriding public interests make unimpeded access to the Board the only healthy alternative, except and unless plainly internal union affairs of the Union are involved."" For reasons noted hereafter, there is no valid distinction between fines and expulsion and her reliance on the Shipbuilding Workers case is misplaced. Distinction Between Fining and Expulsion Both the Supreme Court and this Board have accepted the view that there is little or no distinction between fining and expulsion and that generally fining is a lesser penalty and usually precedes expulsion. In the Allis-Chalmers case,16 the issue presented was whether a court-enforced fine of a union member for crossing the Union's picket line during an authorized strike against their employer violated Section 8(b)(l)(A) of the Act. The Supreme Court rejected the view of the Circuit Court that the proviso to that section must be read literally in that it sanctioned no form of discipline other than expulsion. In rejecting the distinction that the proviso only made expulsion lawful, the Supreme Court stated: "Pittsburgh-Des Moines Steel Co., 154 NLRB 692, petn. for review denied in Price v. N.L.R.B., 373 F.2d 443 (C.A. 9),.cert. denied 392 U.S. 904; Tawas Tube Products, Inc., supra. "Van Camp Sea Food Co., Inc., 159 NLRB 843 at 849-850. N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418 at 424. "N.L.R.B. v. Allis- Chalmers Mfg. Co., 388 U.S. 175. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is no answer that the proviso to Section 8(b)(1)(A) preserves to the Union the power to expel the offending member. Where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine. (388 U.S. 175, 183) In the Van Camp Sea Food case in which a Board panel concluded that expelling an individual from a union because he filed unfair labor practice charges was violative of Section 8(b)(1)(A), the Board accorded no distinction between fines and expulsions," stating: We are unable to conclude that a reasonable reading of the proviso to Section 8(b)(1)(A) permits a valid distinction to be drawn between fines and expulsions meted out by a union to punish one of its members for filing charges with the Board. (159 NLRB 843, at 846) Thus, it is clear that for purposes of Section 8(b)(1)(A) and its proviso, neither the Supreme Court1B nor this Board . . . prior to this decision .. . saw any meaningful difference between fining and expulsion. The Shipbuilding Workers Case Is Not Dispositive Reliance on the Supreme Court decision in the Shipbuilding Workers case is misplaced since that case dealt solely with expulsion of a union member for filing unfair labor practice charges with the Board. There is no basis for extending views expressed there to the facts of this case because like the Board in the Skura case," the Supreme Court carefully limited the issue, consistently referred to unfair labor practice charges and went on to discuss Section 10 of the Act which is entitled "Prevention "See Wisconsin Motor Corp, 145 NLRB 1097, 1101, where this Boar, in referring to the scope of the proviso to Sec. 8(b)(1)(A) stated. We do not read the language of the proviso so narrowly. There is nothing in the legislative history which suggests that Congress intended to permit a union to expel a member for violation of a union bylaw, but not to fine him for the same infraction without expelling him, or that it could enforce the fine by expulsion from the union but not by suing for its collection. "See also the concurring opinion by Justice White in the Allis-Chalmers case, supra, in which he interpreted the Court' s view as between fines and expulsions as follows The dissenting opinion in this case , although not questioning the enforceability of coercive rules by expulsion from membership, questions whether fines for violating such rules are enforceable at all, by expulsion or otherwise. The dissent would at least hold court collection of fines to be an unfair labor practice, apparently for the reason that fines collectible in court may be more coercive than fines enforceable by expulsion 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 union rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of Sec. 7 rights, nevertheless intended to bar enforcement by another method which may be far less coercive (388 U S . at 198) (Emphasis supplied.) "Local 138, Intl. Union of Operating Engineers (Charles S Skura). 148 NLRB 679 of Unfair Labor Practices." The Court cited with approval the Board's decision in the Skura case in which the Board noted that the "right of access" to the Board derived from Section 10 of the Act. The Board has not applied the Skura rule to cases involving expulsion or suspensions from union membership for filing decertification petitions and in its decision in the Van Camp Sea Food case, the Board stated: In Tawas Tube, the Board held that a decertification petition filed by union members was a matter of "legitimate union concern" that the filing of the petition constituted an attack upon "the very existence of the union as an institution" and that the union was acting in a "defensive" manner in disciplining the members for filing the petition. In those circumstances, the Board held that the policy grounds underlying the Skura decision were inapplicable and that a union could lawfully expel a member for filing such petition.' (159 NLRB 843, at 848, 849) 'See also Pittsburgh-Des Moines Steel Company (United Steelworkers of America. Local No 4028), 154 NLRB 692, wherein the Tawas Tube doctrine was applied It is clear that the Supreme Court was aware of the Board's subsequent selective application of Skura and the distinction in its treatment of union disciplining for filing unfair labor practice charges and filing decertification petitions because petitions for certiorari were pending at the same time in the Shipbuilding Workers case and the Price case.20 Secondly, in the Board's petition for certiorari and in its brief" in the Shipbuilding Workers case it pointed out the Board's position with respect to union discipline for engaging in decertification activities citing Tawas Tube and the Price case. The petition for certiorari in Price squarely raised the question of whether the Union could suspend a member for filing a decertification petition. The Ninth Circuit Court, in upholding the Board's decision that Price's suspension was not a violation of Section 8(b)(1)(A), stated: "Originally cited as Pittsburgh-Des Moines Steel Co., 154 NLRB 692 "in its brief to the Supreme Court in the Shipbuilding Workers case, Counsel for the Board noted the distinction the Board has made in union discipline cases and at p. 27, fn 29, stated in part The question whether a union rule or policy is within or without the area of legitimate union concern, although relatively easy to answer in the situation presented in Allis-Chalmers, supra, and in the situation here, becomes more difficult in other situations Thus, in United Steel Workers of America (Richard C Price), 154 NLRB 692, and Tawas Tube Products. Inc. 151 NLRB 46, the Board held that a union does not violate Sec. 8(b)(1)(A) by disciplining a member for filing with the Board a petition to decertify his union as bargaining representative, under Section 9(c)(1)(A)(ii) of the Act In Cannery Workers Union (Van Camp Sea Food Co ). 159 NLRB 843, 849-850, the Board has recently given a full explanation of why it regards these cases as materially different from Skura -type cases like the present one Currently pending before the Court in No 399, Price v. N.L R B, 373 F.2d 443, is a petition for a writ of certiorari to review the decision of the Ninth Circuit, sustaining the Board's analysis distinguishing the lawfulness of union discipline in these two types of situations INTL. MOLDERS' AND ALLIED WKRS ., LOCAL 125 211 The Board distinguishes them [cases involving unfair labor practice charges] and we think properly. Price did not accuse the union of violating any provision of law. He sought to attack the union's position as bargaining agent, which is, as the Board says, in a very real sense an attack on the very existence of the union. We think that, at the least, the proviso was intended to permit the union to suspend or expel a member who takes such a position. Otherwise, during the pre-election campaign, the member could campaign against the union while remaining a member and therefore privy to the union's strategy and tactics. We can see no policy reason for requiring the union to retain a member who takes such a position . See Tawas Tube Products, Inc. and Harold Lohr and United Steelworkers, 151 NLRB 46 (1965). (373 F.2d 443 at 447) A further indication that the Supreme Court was aware of the Board's distinction between unfair labor practice charges and decertification activities is that the Shipbuilding Workers decision issued on May 27, 1968 and on June 10, 1968 the Supreme Court denied certiorari in the Price case. While as a normal rule the denial of certiorari does not indicate any judgment on the merits of a case, it would seem incomprehensible that the Supreme Court would have denied review in the Price case if it thought the Circuit Court decision in Price was in conflict with its decision in the Shipbuilding Workers case. For all these reasons, therefore, the holding in the Shipbuilding Workers case should be limited, as the Court carefully did, to the disciplining of a union member for filing unfair labor practice charges. The Proviso to Section 8(b)(1)(A) Apart from the inconsistency in holding that a union may expel or suspend a union member for filing or engaging in decertification activities but may not fine him, if the proviso does not permit a union to levy a reasonable fine against a member who is engaged in conduct disloyal to and in derogation of the union's bargaining status, then the proviso is effectively written out of the statute. As the Supreme Court stated in Allis-Chalmers: At the very least it can be said that the proviso preserves the rights of unions to impose fines, as a lesser penalty then 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 fines is valid and the fines themselves and explusion for nonpayment would not be an unfair labor practice. (388 U.S. at 191, 192) Does a reasonable fine limit "Access" to the Board? The short answer to this is . . that it doesn't limit access to the Board' s decertification processes any more than does suspension or expulsion from the union and this is particularly so where fining is usually a lesser penalty than and a prelude to expulsion. There is nothing to prevent a union member from resigning from the union (he may be required to pay dues as a condition of continued employment if the contract contains a union-security agreement) if he prefers to do that instead of waiting for expulsion or possible court enforcement of the fine. However, since the majority apparently concedes that the proviso does permit suspension or expulsion in derogation of a member's Section 7 rights, we fail to see how a reasonable fine22 which we would find less coercive, is nevertheless violative of Section 8(b)(1)(A). The majority's view that policy considerations require "discriminatory" application and that "qualitatively," there is a distinction between fining and expulsion is unpersuasive and illusory logic at best. It does not answer the oft-repeated theme voiced by both this Board and the Supreme Court that there is no meaningful distinction between fining and expulsion . Nor is it likely that the majority's qualitative standards can be effectively applied if, for example, future cases present such problems as: the coerciveness of a $5 union fine as contrasted to a 5-year suspension from the union; or a reasonable union fine against suspension or expulsion from a union which may result in loss of such union benefits as insurance and/or death benefits, and medical and pension benefits. In the recently decided Scofield case,23 the Supreme Court concluded that union imposed fines of $50 to $100 (including court action to collect such fines) on certain members who exceeded union imposed production quotas was not violative of Section 8(b)(1)(A). In so doing, it reaffirmed the views it expressed in Allis-Chalmers, in which it distinguished between internal and external enforcement of union rules and restated that "Congress did not propose any limitation with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a man's employment."" Secondly, the "Allis-Chalmers, supra , where the Supreme Court concluded that a $100 fine, identical to the amount of the fine here , was reasonable "Scofield v N L R.B, 394 U S 423. "in Scofield, supra, fn 6, the Court also noted As part of the bill of rights of union members, the Landrum-Griffin Act guaranteed freedom of speech and assembly "Provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations." [Emphasis supplied.] Under the majority view, therefore , Congress' action in preserving such union right was a useless act because fining of a union member for engaging in decertification activities (certainly conduct which would interfere with a union's performance of its legal or contractual obligations) is already a violation of Sec 8(b)(1)(A) of the Act. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court again equated 'fines with expulsion when it stated . . . "It has become clear that if the [Union] rule invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion without violating Section 8(b)(1)(A)." Thus the majority's distinction between fines and expulsion and its relation to policy considerations has been implicitly rejected by the Supreme Court. Lastly, the Court noted that s union member who did not wish to be subject to union discipline could resign. In the present case, the record establishes that the individual fined here was a full union member as distinguished from a financial core member. Since imposition of a fine is based on a member's contract of membership, the individual here involved could have limited her liability by resigning her membership before beginning her activities or at least resigned thereafter to inhibit the collectability of, future fines.2s In the final analysis, this case represents an apparent conflict between two sections of the Act, Section 7 and the proviso to Section 8(b)(1)(A). In such circumstances the Supreme Court has admonished that the Act should be interpreted as a whole, seeking to accomodate those sections and to avoid a literal reading that might create a direct conflict. In our view the Board's past decisions which carefully accomodate the provisions of Section 7 and the proviso to Section 8(b)(1)(A) should not now be discarded but should be reaffirmed. By holding that disciplining of union members for resorting to filing unfair labor practices with the Board is violative of Section 8(b)(1)(A), the Board has given proper weight to the necessity of providing "unimpeded access" to the Board where a violation of statutory rights is alleged. On the other hand, by permitting a union to suspend, expel or assess a reasonable fine on union members for decertification activities antithetical to the very existence of the Union, we would be giving proper weight and recognition to the Union's right to discipline its members where its very existence is threatened, a right clearly granted to it by Congress when it added the proviso to Section 8(b)(1)(A). For all the reasons previously ennunciated, we would dismiss the complaint. "Member Fanning deems it unnecessary to decide whether the facts relating to Strzyzewski's entry into membership in the Union gave rise to a contract between her and the Union on which the latter could successfully sue in court for the collection of the fine imposed on her. He is satisfied, however, that the Union accorded her full membership status upon her execution of the voluntary authorization of the dues checkoff card in accordance with its internal policies and procedures adopted to give full effect to the provision of the union -security clause which required employees to become and remain members in good standing , and, by necessary implication, required the Union to afford employees such membership . In these circumstances and in the absence of affirmative action by Strzyzewski limiting her membership after execution of the dues checkoff authorization, Member Fanning finds that the Union's imposition of the fine served the legitimate interest of protecting its very existence from the attack made on it by Strzyzewski's decertification activities undertaken while she was privy to the Union's strategy and tactics in opposition thereto. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case was tried before me at Milwaukee, Wisconsin, on April 22, 1968, upon a complaint and amended complaint issued respectively on March 7 and 8, 1968, and based upon a charge filed by Dorothy Strzyzewski, herein called the Charging Party, on October 11, 1967. The complaint as amended alleged that Respondent, International Molders' and Allied Workers Union, Local 125, AFL-CIO, herein called the Union, had violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended, by levying a fine against the Charging Party for circulating a petition among employees of her employer, Blackhawk Tanning Co., Inc., to decertify the Union as the employees' bargaining representative. The Union filed an answer admitting the levying of the fine against the Charging Party but denying that such action constituted an unfair labor practice. Subsequent to the trial the General Counsel and counsel for the Union filed excellent briefs, which have been carefully considered. Upon the entire record in this case, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FACTS The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act. It has contractual relations with Blackhawk Tanning Co., Inc. (herein called Blackhawk), the employer at whose plant the alleged unfair labor practice occurred. Blackhawk is a Wisconsin corporation, engaged at Milwaukee in the tanning and processing of leather and leather products. During the year preceding the issuance of the complaint, which is a representative period, it purchased and received from outside the State of Wisconsin goods valued in excess of $50,000 and, during the same period, it sold and shipped to points outside the State goods and services valued in excess of $50,000. Respondent's answer admits and I find that Blackhawk is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICE A. Issue Presented The General Counsel states the issue to be whether a union which has a valid union shop agreement with an employer may lawfully fine a financial core member for circulating among fellow employees a petition to decertify the Union. The term financial core member, as used herein and referred to by the Supreme Court in N.L.R.B. v. Allis-Chalmers Mfg., Co., 388 U.S. 175, is defined as an employee who pays the union dues and initiation fees required under the union security contract but refuses to formally join or assume the obligations of full membership. At the commencement of the hearing the Trial Examiner questioned whether any valid distinction may be drawn between financial core and full members of a union in determining whether the fine imposed is permissible under the proviso to Section 8(b)(1)(A) of the Act. For the reasons hereinafter stated, it is the view of the Trial INTL. MOLDERS' AND ALLIED WKRS., LOCAL 125 213 Examiner that no such valid distinction exists and that it therefore becomes unnecessary to resolve the only disputed factual issue presented, namely, whether the Charging Party is a financial core member or a full member of the Union. B. Findings and Conclusions It is undisputed that following a certification of the Union on July 18, 1966, as the bargaining representative of Blackhawk employees in an appropriate bargaining unit, the Union and Employer on January 9, 1967, entered into an agreement containing a valid union-security provision. The Charging Party thereafter, on January 31, 1967, executed a checkoff authorization and Blackhawk has since that date been checking off and transmitting to the Union her monthly union dues (plus a small assessment upon one occasion). During the months of August, September and October 1967, the Charging Party, together with several other employees in the bargaining unit, circulated a petition among the employees seeking to have the National Labor Relations Board decertify the Union as their bargaining representative. As a result of this activity by the Charging Party, a trial board of the Union on October 3, 1967, fined her $100 for attempting "to undermine or injure the interests" of the Union, as proscribed in Section 225 of the Union's constitution The union membership subsequently ratified the trial board's action. Although afforded an opportunity to appear before the trial board and at the membership meeting, the Charging Party did not appear. Instead, she wrote the Union two letters, explaining that the petition was being circulated in accordance with information obtained from the National Labor Relations Board as to the proper procedure to be followed in seeking decertification of the Union and telling the Union, inter alia, "Now if you feel you want to suspend me from your union -be my guest." By the date of the hearing in this case the Union had taken no steps to attempt to collect the fine. It appears clear, as the Board has in the past recognized, that a union "fine is by nature coercive."' The Union's fine of the Charging Party for circulating the decertification petition clearly restrained and coerced her in her right to engage in concerted activities for the mutual benefit of herself and other employees and in her right to refrain from supporting the Union. It was therefore manifestly proscribed by Section 8(b)(1)(A) of the Act unless such restraint and coercion falls within the exception contemplated by the proviso which permits the Union "to prescribe its own rules with respect to the acquisition or retention of membership." The proviso, of course, has not been so literally construed as to confine permissible coercive action of a union against its members to those acts strictly relating to the employees' acquisition or retention of membership. Such a construction would limit a union's disciplinary action to suspension or expulsion of members in attempting to regulate its legitimate internal affairs, a result often more onerous to both the Union and the disciplined member than would be a fine or other economic sanction. As the Supreme Court pointed out in N.L.R.B. v. Allis-Chalmers Mfg., Co, 388 U.S. 175, 191-192, after reviewing the legislative history of Section 'Local 138 , Operating Engineers (Skura), 148 NLRB 679, 682, H. B Roberts, Business Manager of Local 925, Operating Engineers, 148 NLRB 674, enfd. 350 F 2d 427 (C.A.D.C.) 8(b)(1)(A) and its proviso, "At the very least it can be said that the proviso 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." Accordingly, it was held in that case that a union might lawfully fine a member for going to work through a picket line during an economic strike against his employer. It has also been held that a union may fine its members for exceeding production quotas set by the bargaining contract (Local 283, UAW (Wisconsin Motor Corporation), 145 NLRB 1097, enfd. sub nom Scofield v. N L R.B, 394 U.S. 423 (C.A. 7), and may threaten to deprive members of insurance coverage because of their refusal to pay disciplinary fines and assessments (N.L R B. v. Amalgamated Local 286 (H K Porter Co.), 222 F.2d 95 (C.A. 7)). But neither the right of a union to fine, to suspend, or to expel a member in disciplining him is necessarily protected by the proviso, even where no job discrimination is involved. Public policy considerations other than those of noninterference with regulating the internal affairs of unions may come into play. Thus, the Board held in Local 138, International Union of Operating Engineers (Skura), 148 NLRB 679, that a union violates Section 8(b)(l)(A) of the Act when it fines a member for filing charges against the Union with the Board without exhausting internal union remedies. In Marine and Shipbuilding Workers, Local 22 (United States Lines Co.), 159 NLRB 1065, it similarly found a violation when the Union suspended the member for filing charges without first exhausting internal union remedies and this ruling was upheld by the Supreme Court in N L R.B. v. Marine and Shipbuilding Workers, 391 U.S 418, in a decision issued on May 27, 1968. In that case, the Supreme Court recognized that Section 8(b)(1)(A) "assures a union freedom of self-regulation where its legitimate internal affairs are concerned" but it pointed out that "a proceeding by the Board is not to adjudicate private rights but to effectuate a public policy." It noted that the Board cannot initiate its own proceedings. The Board is dependent "upon the initiative of the individual persons", who must be free from coercion in invoking the Board's processes. The court stated: A healthy interplay of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of Government for a redress of grievances. Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization . . . . We agree that the overriding public interests make unimpeded access to the Board the only healthy alternative, except and unless plainly internal union affairs of the Union are involved The court concluded that the proviso of Section 8(b)(1)(A) "is not so broad as to give the Union power to penalize a member who invokes the protection of the Act for a matter that is in the public domain and beyond the internal affairs of the Union." Much of what has been said by the Supreme Court in the Marine and Shipbuilding Workers case appears to this Trial Examiner as applicable to the situation presented in this case. Section 9 of the Act and the Board's rules and regulations prescribe the means by which employees may seek to have their bargaining representative decertified The Board may not on its own initiate such proceedings. Just as in the case of unfair labor practice charges, it must await the initiative of individual persons to invoke its 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD processes. Proceedings under Section 9 of the Act, as the Board has recognized, "are no less within the public domain" than are unfair labor practice proceedings under Section 8. (Cannery Workers Union (Van Camp Seafood Co.), 159 NLRB 843, 849). To be sure, the Board has held that there are significant differences. The initiation or filing of a decertification petition may be considered by a union as an attack upon its very existence, and the Board, with court approval, has held that the Union may properly defend this attack by suspending or expelling the member for initiating such a petition. As the Court of Appeals for the Ninth Circuit stated in Price v. N.L.R.B.. 373 F.2d 443, 447, cert. denied 392 U.S. 904. "We think that, at the least, the proviso was intended to permit the Union to suspend or expel a member who takes such a position. Otherwise, during the pre-election campaign, a member could campaign against the Union while remaining a member and therefore privy to the Union's strategy and tactics. We can see no policy reason for requiring the Union to retain a member who takes such a position." Furthermore, as the Board said in Tawas Tube Products, Inc., 151 NLRB 46, 49, "The employees' attempt to repudiate the Union by a decertification proceeding demonstrates that loss of membership was of no significance to them; consequently their expulsion from the Union could hardly be an effective deterrent against resorting to the Board."2 So, too, in the instant case, the Charging Party was apparently not restrained or coerced by the prospect of being suspended from union membership. When notified by the Union to appear before a trial board for having circulated the petition, she wrote the Union, "Now_if you feel you want to suspend me from your union be my guest." The imposition of a fine against her for seeking to invoke the processes of the Board in a decertification proceeding, however, stands upon a different footing. Where, as in this case, the Union is operating under the protection of a union shop provision and the employees are not free to resign from or cease supporting the Union, it seems fair to assume that Congress did not intend that the proviso be applied so broadly as to permit financial sanctions against unwilling members for attempting, through procedures set up by the statute itself, to reject representation by the Union. To hold otherwise would mean that the employees, once they are covered by a union-shop contract, might find themselves forever ensconced with the Union as their bargaining agent. Few employees, if any, would dare risk a heavy union fine ($100 in this case) by signing a decertification petition in an attempt to rid themselves of representation by a union they never wanted or which they ceased to want. Even if some were willing to pay such a penalty for seeking a chance to exercise their right of franchise provided in Section 9 of the Act, it is extremely doubtful that 30 percent of the employees in the unit would do so. This is the percentage required under the Board's Statements of Procedure for processing a decertification petition. The incumbent union, moreover, thus shielded from ouster, and perpetually entrenched, would tend to become less and less responsive to the wishes of its members and cease to be their true representative as contemplated by 'Indeed, if relieved of an obligation to pay dues while under expulsion or suspension, the employee might welcome this type of "disciplinary" action. In the Price case, supra, the court notes, in fn. 5, that "At oral argument, the Union and the Board seemed to be in agreement that Price was not paying, and was not expected to pay dues while suspended." the statute. It is inconceivable that Congress should have meant to permit unions, in the guise of making rules regarding acquisition or retention of membership, to restrain and coerce employees in this manner in the exercise of their rights guaranteed under Section 7 of the Act. In this connection, it is immaterial whether the coerced member is merely a financial core member or a full member. To afford the Act's protection against union fines for seeking to invoke the Board's processes only to financial core members would discourage full union membership by employees and participation by them in the affairs of their union. This result would not effectuate the policies of the Act; nor would it, I am confident, be consonant with the wishes of most unions. In its brief to the Trial Examiner, the Union suggests that since no legal steps have yet been taken to collect the fine, its assessment against the Charging Party should not be found coercive. I do not agree. As the Supreme Court stated in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 192, "A lawsuit is and has been the ordinary way by which performance of private money obligations is compelled." The Charging Party and those similarly situated, whether financial core or full members of the Union, remain under a feeling of constraint so long as the fine remains unpaid. The outstanding fine presents a constant threat that the disciplined member will have to pay legal fees to protect himself in court, with a possibility, in addition, of having to pay the fine itself if the judgment of the court is against him. Accordingly, whatever may be said about the right of a union operating under the benefit of a union shop contract to suspend or expel a member who attempts to resort to the Board's processes to rid himself and fellow employees of representation by the union, I have no doubt that overriding public policies do not extend this immunity to restraint and coercion by fining members for engaging in this activity. I find that the Union, by assessing a fine against the Charging Party for circulating among her fellow employees a petition to decertify the Union as their bargaining representative, has restrained and coerced her and other employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(b)(1)(A). III. THE REMEDY It having been found that Respondent Union has engaged in an unfair labor practice, my Recommended Order will require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy the coercive effect of the fine assessed against the Charging Party, the Union will be required to rescind the fine and notify the Charging Party and other employees of the rescission and of their right to seek the use of the processes of the National Labor Relations Board in determining any question regarding the continuing representative status of the Union, without being fined for doing so. Since there is evidence in the record that few employees regularly attend union meetings, the Union will be required -if the employer is willing'- to post notices to this effect on the employer's premises. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant INTL. MOLDERS ' AND ALLIED WKRS .,LOCAL 125 215 to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, International Molders and Allied Workers Union, Local No. 125, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Assessing fines against its members for attempting to use the processes of the National Labor Relations Board in having Respondent Union decertified as their bargaining representative. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Rescind the fine assessed against Dorothy Strzyzewski for circulating a petition among employees at Blackhawk Tanning Co., Inc., to decertify Respondent Union as bargaining representative of said employees. (b) Post in conspicuous places in Respondent's business offices, meeting halls, and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."' Copies of said notice on forms to be provided by the Regional Director for Region 30, shall, after being duly signed by Respondent's authorized representatives be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 30 for posting by Blackhawk Tanning Co., Inc., such employer being willing, at all places where notices to its employees are customarily posted. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.' ,in 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 TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF BLACKHAWK TANNING CO., INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL rescind the fine assessed against Dorothy Strzyzewski for circulating a petition among our members at Blackhawk Tanning Co., Inc., to decertify us as your bargaining representative. WE WILL NOT assess a fine against any member of our union for attempting to circulate or file with the National Labor Relations Board a petition to decertify us as your bargaining representative. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights guaranteed under Section 7 of the Act. INTERNATIONAL MOLDERS AND' ALLIED WORKERS UNION, LOCAL No. 125, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Second Floor, Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203, Telephone 272-3879.