Pattern Makers' Association of Los Angeles

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pattern Makers' Association of Los Angeles and Vicin- ity and Lietzau Pattern Co. and Andre Pattern Inc. Cases 21-CB-3994-2 and 21-CB-3995 September 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, KENNEDY, AND PENELLO On February 22, 1972, Administrative Law Judge 1 Robert L. Piper issued the attached Decision in this proceeding., Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. For the reasons set forth in the dissent in District Lodge No. 99 and Lodge No. 2139, both affiliated with International Association of Machinists & Aerospace Workers, AFL-CIO (General Electric Company), 194 NLRB No. 163, and the court's opinion in N.L.R.B. v. Local 1255, International Association of Machinists and Aerospace Workers, AFL-CIO (Mason & Hanger- Silas Mason Co., Inc.), 456F.2d 1214(C.A. 5), we con- clude that Respondent Union did not violate Section 8(b)(1)(A) of the Act by expelling from membership four employees for crossing its picket line after their effective resignations, as such discipline is privileged by the proviso to Section 8(b)(1)(A). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Pattern Makers' Association of Los Angeles and Vicinity, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. MEMBER FANNING, concurring: I join with my colleagues in dismissing the allega- tion of the complaint alleging that the expulsion from membership in Respondent Union of members who have already resigned is violative of Section 8(b)(1)(A). In my view, such an expulsion is not coer- cive within the meaning of the section and, contrary to the view expressed in the dissenting opinion, is i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. distinguishable from discipline in the form of a sus- pension of the right to participate in union activities as was involved in the General Electric case.2 There is, in myjudgment, a substantial difference in the impact upon an employee's exercise of Section 7 rights between the suspension from union activities of a "resigned" member which the Board found to be an unfair labor practice in the General Electric case, supra, and the expulsion from membership of such an employee. In suspending a "resigned" member, the union continues to claim the existence of a member- ship relationship governing the employee's future ac- tions. As to those actions, the employee is left in doubt as to whether he can act free from those controls a union may legitimately impose upon its members. When a union expels a "resigned" member, however, it, itself, severs the relationship and assures the em- ployee of the independence and freedom from control which he sought to claim for himself by resigning. I think it is reasonably clear that the suspension tends to restrain the employee in his future actions but that the expulsion has no such tendency.' Of course, a fine which is collectible by court enforcement restrains and coerces a "resigned" mem- ber for the same reason, and in the same way, though it also imposes the additional restraint upon him not- ed by the Board in the Boeing case: Faced with the possibility of action against him, the employee may well be, for practical purposes, impelled to forego his statutory right not to hon- or the Union's picket line rather than risk in- volvement in a lawsuit whose outcome he cannot predict. Or should he choose to take that risk, he will find it necessary to hire counsel whose serv- ices he ordinarily would not require.4 For these reasons, I find no violation of Section 8(b)(1)(A) of the Act in Respondent's expulsion from membership of the four employees who resigned their membership and crossed Respondent's picket line. MEMBER PENELLO, dissenting in part: Contrary to my colleagues, I would find that Re- spondent Union violated Section 8(b)(1)(A) of the Act by expelling four employees from membership for crossing its picket line after their effective resigna- tions. In my opinion, there is no cogent reason for reaching an opposite result in the face of Board and court precedent for such a finding in these circum- 2 District Lodge No 99 and Lodge No. 2139 both affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO (General Electric Company), 194 NLRB No. 163. 3 The dissent's reliance on my position in Blackhawk Tanning Co , Inc, 178 NLRB 208, 209, is misplaced. That case dealt with discipline imposed upon a member of the respondent union and is inapposite for that reason Were there no distinction between members and "resigned" members with respect to the legal effect of union discipline under Sec 8 (b)(1)(A), the complaint in this case would be subject to dismissal in its entirety G Booster Lodge No 405, International Association of Machinists & Aero- space Workers, AFL-CIO (The Boeing Company), 185 NLRB 380. 199 NLRB No. 14 PATTERN MAKERS ASSOCIATION OF LOS ANGELES 97 stances where the Union's disciplinary action takes the form of a fine I or suspension.6 In the Boeing case, the Board recognized that fines imposed upon employees for strikebreaking ac- tivity occurring after their effective resignations from the union were "inherently coercive," and therefore violative of Section 8(b)(1)(A) unless protected by the proviso. However, the Board concluded that the pro- tection of that proviso is predicated upon the exis- tence of the membership relation and, therefore the union's right to discipline employees terminates upon their effective resignation from membership. The Board pointed out that: The significance of the membership rela- tionship is that it establishes the union's authority over its members. In joining a union, the individ- ual member becomes a party to a contract-con- stitution. Without waiving his Section 7 right to refrain from concerted activities, he consents to the possible imposition of union discipline upon his exercise of that right. But the contract be- tween the member and the union becomes a null- ity upon his resignation. Both the member's duty of fidelity to the union and the union's corre- sponding right to discipline him for breach of that duty are extinguished. In the case at bar, the Union's right to disci- pline employees terminated upon the-employees' submission of their letters of resignation. The at- tempted imposition of discipline for subsequent conduct was beyond the powers of the Union. It was not consented to by the employees. Nor, in our view, was it protected by the proviso to the Act. [Emphasis supplied.]' The Board then went on to quote from the Su- preme Court's opinion in N.L.R.B. v. Marine & Ship- building Workers ofAmerica, 391 U.S. 418, 424 (1968), that Section 8(b)(1)(A) assures a union freedom of self-regulation only "where its legitimate internal af- fairs are concerned," but concluded that "the imposi- tion of discipline upon nonmembers can hardly be deemed an internal affair."' Thus, the Board clearly has held that the union's power to discipline by fining ends upon the employee's withdrawal from the union. It can hardly be gainsaid that the term discipline encompasses expulsion as well as fining. Indeed, in the Allis-Chalmers case,9 the Su- preme Court found that there is little distinction be- 5 Booster Lodge No 405, International Association of Machinists and A ero- space Workers, AFL-CIO (The Boeing Company), 185 NLRB 380, enfd in pertinent part 459 F .2d 1143 (C A.D.C.). 6 District Lodge No 99 and Lodge No. 2139, both affiliated with International Association of Machinists & Aerospace Workers, AFL-CIO (General Electric Company), 194 NLRB No. 163 ' The Boeing Company, supra. s Ibid. 9 NL.R B v. Allis-Chalmers Manufacturing Co, 388 U.S 175 (1967) tween fining and expulsion and that, if anything, ex- pulsion is generally a greater penalty than fining: 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 re- quire expulsion of the member visits a far more severe penalty upon the member than a reason- able fine.10 This lack of significant difference between fining and expulsion was also stressed by Members Fanning and Jenkins in their dissent in Blackhawk Tanning." It therefore follows that the penalty of expulsion, like the fine penalty, is not properly within the Respondent's power. For the employees' effective res- ignations terminated the relationship on which the Union might validly base the imposition of discipli- nary measures. The Boeing distinction between permissible and unlawful disciplining based upon the membership re- lationship was recently given application in the Gener- al Electric case. There, the Board by a panel majority of Members Fanning and Jenkins found that the union's disciplining of individuals by suspending them for 5 years because they crossed its picket line after they had resigned was violative of Section 8(b)(1)(A). Certainly, a suspension for a definite peri- od is in terms of degree of coercion closer to expulsion than fining. For, employees faced with a total ban on union participation over a set period may well feel compelled to forego their guaranteed right under Sec- tion 7 not to honor the union's picket line. Nonetheless, my colleagues in effect conclude in this case that expulsion cannot constitute restraint and coercion within the meaning of Section 8(b)(1)(A) by adopting the Administrative Law Judge's Decision herein in which he states: Patently an employee's right to refrain is not re- strained or coerced by "expulsion" from a nonex- isting membership." 10lbid, p 183. See also the concurring opinion by Justice White in that case 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, ques- tions 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 less coercive [388 U S at 198] [Emphasis supplied ] 11 International Molders' and Allied Workers Union, Local No 125, AFL- CIO (Blackhawk Tanning Co , Inc), 178 NLRB 208, 209. 12 Administrative Law Judge's Decision, sec I, C 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Logically, I see no meaningful difference between a suspension for 5 years from a "nonexisting member- ship" and an expulsion for an indefinite period from a "nonexisting membership." Indeed, if anything, the latter is more coercive as it has no time limitation and conceivably could be for a lifetime. More importantly, my colleagues' view callously ignores the grave social and economic consequences which flow from an expulsion from union member- ship. There is' an obvious difference between being expelled from a union and voluntarily resigning there- from. The social opprobrium and economic ostracism which these four employees could suffer in their em- ployment as "expelled" members can only be termed coercive. In addition, the expulsions cannot be viewed in isolation from the fines that my colleagues have no trouble in finding coercive within the meaning of Sec- tion 8(b)(1)(A). Both the fines and the expulsions were inextricably intertwined and levied simultaneously as Respondent's total punishment of the employees for having crossed its picket line and were thus both cal- culated to restrain and coerce the employees in the exercise of their Section 7 right to refrain from union activities. In conclusion, as I see it, the decision herein places the law with regard to imposition of discipline by unions for purposes of Section 8(b)(1)(A) and its proviso in the odd posture of making it lawful for a union to expel a member who has previously resigned, but unlawful to fine or suspend him. The logic or rationale for this result escapes me. In fact, it has the anomalous effect of making the union's implementa- tion of its harshest form of discipline the only legal one. In view of the foregoing, I cannot accept the position expressed in the majority and concurring opinions and would find the aforesaid conduct to be a violation of Section 8(b)(1)(A). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner: This proceeding un- der Section 10(b) of the National Labor Relations Act, as amended, was heard at Los Angeles, California, on Septem- ber 30, 1971,1 pursuant to due notice. The consolidated complaint, which was issued on July 16, on charges both filed May 20, alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(b)(1)(A) and (B) of the Act. Respondent's answer denied the unfair labor practices. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: 1 All dates hereinafter refer to 1971 unless otherwise indicated. FINDINGS OF FACT I JURISDICTIONAL FINDINGS Lietzau Pattern Co. (hereinafter called Lietzau), is a sole proprietorship owned by Harold Lietzau engaged in the manufacture and sale of industrial patterns with its princi- pal place of business located in Santa Fe Springs, Califor- nia. Andre Pattern Inc. (hereinafter called Andre), is a California corporation engaged in the manufacture and sale of industrial tools and patterns with its principal place of business located in Norwalk, California. During the past calendar year and the past 12 months respectively, Lietzau and Andre each sold goods, products, and services valued in excess of $50,000 to customers locat- ed within the State of California, each of whom during the same period of time sold and shipped goods, products, and services valued in excess of $50,000 directly to customers located outside the State of California. Respondent admits, and I find, that Lietzau and Andre are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent, Pattern Makers' Association of Los An- geles and Vicinity, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues Respondent, Lietzau and Andre were parties to a col- lective-bargaining agreement which by its terms expired March 31. On that date, having failed to reach agreement with respect to a new contract, Respondent's membership authorized subsequent strike action. On April 1, Respon- dent began an economic strike of Andre and in furtherance thereof on April 6 established a picket line at Andre. There- after four employees of Andre and members of Respondent resigned from membership. Two of them crossed Respondent's picket line and accepted employment with Andre before resigning, two after resigning, and all four continued to do so after resigning at least through April 26. On April 27, subsequent to all four resignations, Respon- dent filed intraunion charges against them, three for accept- ing employment with Andre after the beginning of the strike and continuing to do so through April 26, and one for conduct unbecoming a member of Respondent. On April 27, Respondent began an economic strike of Lietzau and in furtherance thereof on April 28 established a picket line at Lietzau. From April 28 through April 30, Henry Terhorst, Lietzau's shop foreman and a member of Respondent, crossed Respondent's picket line and contin- ued his employment with Lietzau. On May 3, Respondent filed intraunion charges against Terhorst for having accept- ed employment with Lietzau during the course of Respondent's strike at Lietzau. On May 12, Respondent informed the four employees of Andre in writing that they had been found guilty of the charges levied against them and "expelled" from membership and fined $500 by PATTERN MAKERS ASSOCIATION OF LOS ANGELES Respondent's executive committee. On the same date, Re- spondent informed Terhorst that he had been fined $150 by its executive committee for continuing to work at Lietzau on April 28, 29, and 30 during Respondent's strike, and that $100 of such fine was suspended pending his giving no further aid and assistance to a shop on strike in violation of his oath of membership. The issues as framed by the pleadings are (1) alleged restraint and coercion of employees in the exercise of rights guaranteed in Section 7 of the Act by fining them and expelling them from membership for conduct engaged in, i.e., crossing the picket line and accepting employment with Andre, after they had effectively resigned from membership in Respondent, and (2) alleged restraint and coercion of Lietzau in the selection of its representatives for the pur- poses of collective bargaining or the adjustment of griev- ances by fining Terhorst , Lietzau's shop supervisor, for continuing to work for Lietzau during the course of Respondent's strike. B. Chronology of Events The facts are substantially undisputed, the parties hav- ing entered into a joint stipulation, which was received in evidence, covering most of the pertinent facts. Lietzau and Andre were employers engaged in the manufacture of in- dustrial patterns and together with other members of the Pattern Manufacturers' Association of Southern California were parties to a 2-year collective-bargaining contract with Respondent which by its terms expired March 31. On March 31 , because the parties were unable to reach agree- ment during negotiations , the membership of Respondent authorized subsequent strike action , which was unanimous- ly supported by the employee-members of Lietzau and An- dre present at the meeting. Of the four Andre employees here involved only Eugene Peppard was present at the meet- ing. Henry Terhorst, Lietzau's shop foreman , was not pre- sent. On April 1, Respondent commenced an economic strike of Andre and in furtherance thereof on April 6 estab- lished a picket line at Andre. At the time of the strike, all of Andre's patternmakers were members of Respondent. On April 5 , Heinz Imhof and Eno Katterfeld, employees of Andre and members of Respondent, submitted letters of resignation to Respondent which were received by it on April 6. On April 8, both Imhof and Katterfeld crossed Respondent's picket line at Andre and accepted employ- ment with Andre, which they continued to do through at least April 26 . Eugene Peppard, another employee of Andre and member of Respondent, supported Respondent's strike at the outset. Because of personal financial difficulties, he entered into an arrangement with John Franklin, Andre's president, to perform certain gardening work at Franklin's home during the week following the commencement of the strike, i.e., April 2 to April 9. Because this yard work necessi- tated the use of certain gardening tools and a truck kept at Andre's plant, on April 2, 5, 6, and 7 Peppard entered Andre's plant to pick up such materials. This necessitated crossing Respondent 's picket line on April 6 and 7 . On April 9, Peppard also crossed the picket line to enter the plant to pick up his pay for the gardening work. Peppard did not 99 perform any struck work or work in Andre's plant during that week. On April 9, Peppard mailed a letter of resignation to Respondent, which it received at 11 a.m., April 12 . At 7 a.m. on the morning of April 12, Peppard crossed the picket line and returned to work as a patternmaker at Andre and con- tinued to work through at least April 26. On April 13, Ernest Allen, another employee of Andre and member of Respon- dent, crossed Respondent's picket line at Andre to accept employment with Andre which he continued to do through at least April 26. On April 18, Allen mailed a letter of resignation to Respondent which it received on April 19. On April 27, Respondent wrote all four employees, refusing to accept their resignations from membership and notifying all but Peppard that intraunion charges had been preferred against them for accepting employment by Andre, subsequent to the beginning of Respondent's sanctioned strike and continuing to accept employment through April 26. In the letter to Peppard, Respondent refused to accept his resignation and advised him that intraunion charges had been filed against him for "conduct unbecoming a mem- ber of the Pattern Makers' Association." However Re- spondent's subsequent letter of May 31 referring its action to its International Union for approval revealed that Peppard's subsequent fine was for the same basic reason as the others-crossing and working behind the Pattern Mak- ers' picket line. On May 10, Respondent 's executive com- mittee found all four employees guilty as charged, levied a $500 fine against each , and expelled each from membership in Respondent. This action was confirmed by the member- ship of Respondent on May 17. On April 27, Respondent commenced an economic strike at Lietzau and in furtherance thereof on April 28 established a picket line at Lietzau. Terhorst had been em- ployed by Lietzau as shop foreman since 1957. Terhorst continued to work and crossed the picket line from April 28 through April 30 to accept employment with Lietzau. Ter- horst was at all times a member of Respondent. On May 3, Respondent notified Terhorst that intraunion charges had been filed against him for accepting employment with Liet- zau after the beginning of Respondent 's strike. On May 10, Respondent's executive committee fined Terhorst $ 150 for continuing to work at Lietzau on April 28, 29, and 30 during Respondent's strike, and suspended $ 100 of said fine pend- ing Terhorst giving no further aid and assistance to a shop on strike in violation of his oath of membership. During the 3 days involved, none of Lietzau's patternmakers worked and Terhorst did not perform any production or struck work, but engaged in his customary additional functions of shipping and estimating. The parties stipulated that at the time of the hearing herein no attempts had been made by Respondent to collect any of the above fines. C. Restraint and Coercion in Violation of Section 8(b)(1)(A) The complaint alleged that Respondent's fines and ex- pulsion of Allen, Imhof, Katterfeld, and Peppard, for hav- ing crossed Respondent's picket line and accepted employment with Andre after they had effectively resigned from membership in Respondent , restrained and coerced 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said employees in violation of Section 8(b)(1)(A) of the Act. Section 8(b)(1)(A) provides that "it shall be an unfair labor practice for a labor organization or its agents to restrain or coerce 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 there- in." It has long been settled that fines constitute restraint and coercion? However, in Allis-Chalmers the Supreme Court held that the body of Section 8(b)(1)(A) was not intended to reach the conduct of a labor organization in imposing and enforcing fines upon its members for crossing an authorized picket line .3 In that and its subsequent Ship- building Workers 4 and Scofield 5 decisions, the Court point- ed out that such permissible coercion was limited to union members and their regulation involving matters of legit- imate union interest or legitimate internal affairs. The Board has subsequently held that fining employees for crossing validly authorized picket lines after they have effectively resigned from membership constitutes restraint and coercion in violation of Section 8(b)(1)(A),6 noting that the Supreme Court in Scofield, supra, held that Section 8(b)(1)(A) "leaves a union free to enforce a properly adopt- ed rule which reflects a legitimate union interest ... and is reasonably enforced against union members who are free to leave the union and escape the rule." Thus the Board has concluded that a labor organization may fine former mem- bers for such misconduct engaged in prior to their resigna- tion but may not fine them for such conduct engaged in subsequent to their resignation, and has ordered the re- scission and/or refunding of that portion of such fines at- tributable to the postresignation conduct Respondent's constitution and bylaws contained no provisions for voluntary resignation. Contrary to Respondent's contention, under such circumstances it has long been established that union members are free to resign at will at any time .8 It is also settled law that a member's resignation becomes effective at the time of receipt thereof by the labor organization.9 The resignations of Imhof and Katterfeld were received by Respondent on April 6. Neither crossed the picket line and returned to work until April 8. Thus, I conclude and find that Respondent's fining of them for conduct engaged in after their effective resignations from membership constituted restraint and coercion in vio- lation of Section 8(b)(1)(A). 2 Eg, Booster Lodge No 405, IAM (The Boeing Company), 185 NLRB 380 3 N LR B v Allis-Chalmers Mfg Co, 388 U S. 175 4 N L R B. v. Marine & Shipbuilding Workers, 391 U S 418. 5 Scofield ( Wisconsin Motors Corp) v. N L.R B, 394 U S 423 6 Booster Lodge No 405, 1AM (The Boeing Company), 185 NLRB 380. 7 Fn. 6, supra. 8 International Chemical Workers Union, Local 143, AFL-CIO (Lederle Laboratories), 188 NLRB No. 100, Local 767, International Union of Electrical Workers, AFL-CIO-CLC (General Electric Company), 186 NLRB 682, Booster Lodge No 405, International Association of Machinists, AFL-CIO (The Boeing Company), 185 NLRB 380, Local 621, Untied Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (Atlantic Research Corp.), 167 NLRB 610, and New Jersey Bell Telephone Company, 106 NLRB 1322, enfd 215 F 2d 835 (C A 2, 1954) 9 Local 1012, United Electrical Workers (General Electric Company), 187 NLRB 375; and Communications Workers of America, Local 6135 (Southwest- ern Bell Telephone Company), 188 NLRB No 144. Allen crossed Respondent's picket line and returned to work at Andre on April 13. His letter of resignation was not received by Respondent until April 19. Accordingly, that portion of Respondent's $500 fine of Allen for that conduct engaged in pnor to his resignation is not in violation of the Act, but that portion of his fine attributable to his crossing the picket line to work after his effective resignation is in violation of Section 8(b)(1)(A). Respondent's written charges and finding of violation against Allen, like Imhof and Katterfeld, clearly establish that the fines were for crossing Respondent's picket line and continuing to work through April 26. Peppard crossed Respondent's picket line and returned to work at Andre at 7 a.m., April 12. Respondent received Peppard's letter of resignation at 11 a.m., April 12. Thus Peppard crossed the picket line and accepted employment with Andre prior to the receipt of his resignation by Respon- dent. As in the case of Allen, that portion of Respondent's fine attributable to Peppard's conduct in crossing the picket line to work prior to the receipt of his resignation is not in violation of the Act, whereas that portion attributable to his crossing the picket line to work thereafter is in violation of the Act. Respondent's charges to Peppard on April 27, un- like those of the same date to the other three Andre employ- ees, accused him of conduct unbecoming a member of Respondent, rather than accepting employment by Andre subsequent to the beginning of the strike and continuing to accept employment through April 26 as did the charges against the other three, but it is clear from Respondent's subsequent letter to its International seeking approval of Peppard's fine and expulsion that Respondent's charge of conduct unbecoming a member referred to the same con- duct, i.e., crossing Respondent's picket line and accepting employment through April 26 during the strike. While, as found above, Peppard crossed Respondent's picket line on April 6, 7, and 9, it was not for the purpose of performing struck work or working for Andre behind the picket line, but merely to secure tools and equipment need- ed for other employment. It is clear from the Supreme Court's decision in Allis-Chalmers, supra, that the Court authorized a labor labor organization to fine its members for crossing a picket line to perform struck work, i.e., to engage in strikebreaking, in order to protect the union's legitimate interest in the maintenance of membership strike solidarity. Thus the Court stated: Integral to this federal labor policy has been the power in the chosen union to protect against erosion of its status under that policy through reasonable disci- pline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms, and `the power to fine or expel strikebreakers is essen- tial if the union is to be an effective bargaining agent ....' To say that Congress meant in 1947 by the Section 7 amendments and Section 8(b)(1)(A) to strip union of the power to fine members for strikebreaking, however lawful the strike vote, and however fair the disciplinary procedures and penalty, is to say that Congress preced- ed the Landrum-Griffin amendments with an even PATTERN MAKERS ASSOCIATION OF LOS ANGELES more pervasive regulation of the internal affairs of un- ions. [Emphasis supplied.] I conclude and find that Respondent's fining of Imhof, Katterfeld, Allen, and Peppard for crossing Respondent's picket line and accepting employment at Andre through April 26 after their effective resignations from membership constituted restraint and coercion in violation of Section 8(b)(1)(A) and, in the case of Allen and Peppard, that por- tion of Respondent's fines attributable to their crossing the picket line and accepting employment at Andre prior to Respondent's receipt of their resignations was not in viola- tion of the Act. The General Counsel also contends that Respondent's expelling of said employees from member- ship, as well as fining them, for conduct engaged in after their effective resignations, restrained and coerced them in violation of Section 8(b)(1)(A). Inasmuch as the employees had effectively resigned (a prerequisite to the finding of restraint and coercion herein), it can hardly be concluded that Respondent's "expelling" them from a membership which had ceased to exist could have restrained or coerced them in the exercise of any of the rights guaranteed by Section 7 of the Act, including the right to refrain from joining or assisting a labor organization. It is that right to refrain which makes the fining of nonmembers restraint and coercion. Patently an employee's right to refrain is not re- strained or coerced by "expulsion" from a nonexisting membership. D. Restraint and Coercion in Violation of Section 8(b)(1)(B) The complaint alleged that Terhorst was a shop super- visor of Lietzau and a member of Respondent at all times material, and that Respondent restrained and coerced Liet- zau in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances by fining Terhorst for continuing to accept employment with Lietzau during the course of Respondent's strike. As herein- above found, Respondent's strike of Lietzau commenced April 27, its picketing commenced April 28, and Terhorst continued to accept employment with Lietzau from April 28 through April 30, for which Respondent fined Terhorst. It is now well established that fining or otherwise penalizing a supervisor-union member for performing work for his employer during a strike restrains and coerces such employ- er in the selection of his representatives in violation of Sec- tion 8(b)(1)(B) of the Act. ?10 Respondent contends that Terhorst was not a supervi- sor and thus the fining of him as a member for continuing to work during the strike was not a violation of Section 8(b)(1)(B). This contention is based primarily upon the fact that section 4 of the terminated contract between Respon- dent and Lietzau provided, inter alia: "Supervisory employ- ees are defined as persons designated by management as supervisors who do not work with tools of the trade .... . The record establishes that Terhorst spent approximately 40 percent of his time working at his bench as a patternmaker. 10 Local 2150, International Brotherhood of Electrical Workers ( Wisconsin Electric Power Company), 192 NLRB No. 16; and Local 134, International Brotherhood of Electrical Workers (Illinois Bell Telephone Company), 192 NLRB No 17. 101 However, the record unquestionably establishes that Ter- horst was a supervisor within the meaning of Section 2(11) of the Act. Lietzau employed only six patternmakers and Terhorst, the shop foreman. In Lietzau's absence, more than 50 percent of the time, Terhorst ran the entire operation. In addition thereto he scheduled all of the work of the pattern- makers, assigned each job to a specific employee evaluated and selected by him, reassigned jobs among the employees in accordance with the exercise of his judgment, instructed employees in how specific patterns should be made, exam- ined their completed work and rejected or returned it for corrections when necessary, hired employees through Re- spondent, determined which employees should be laid off in the event of need therefor, granted employees time off from work, criticized employees for misconduct, determined the necessity for overtime work and which employees were to perform it, fired employees for misconduct or inefficiency, and in general responsibly directed all of the operations of the shop and the work of the employees. Thus the record establishes that Terhorst, in the words of Section 2(11) of the Act, had authority on behalf of his employer to hire, transfer, suspend, lay off, discharge, as- sign, and discipline employees, and responsibly to direct them, the exercise of which authority was not of a merely routine or clerical nature. I conclude and find that Terhorst was a supervisor within the meaning of the Act, and that the definition of a supervisor in the contract between Respon- dent and Lietzau could not and did not take precedence over the provisions of the Act. In addition, the contract between Respondent and Lietzau had terminated prior to Terhorst's crossing the picket line to continue his employ- ment and his fining by Respondent for doing so. Moreover, and perhaps more significantly, the record also establishes that Terhorst was Lietzau's designated rep- resentative for the adjustment of grievances, the specific category set forth in Section 8(b)(1)(B), at the first step of the grievance procedure utilized by Respondent and Liet- zau. The first step of the grievance procedure set forth in section 13 of the contract between Respondent and Lietzau provided: "An Employee or [sic] a representative of man- agement having a grievance shall attempt to solve the prob- lem by free discussion, one with the other." Both Terhorst and Lietzau testified that Terhorst regularly handled such employee complaints and grievances as provided in such first step. Thus it follows, and I find, that Respondent's fining of Terhorst for continuing to work for Lietzau during the strike constituted restraint and coercion of Lietzau, an employer, in the selection of its representative for the ad- justment of grievances, in violation of Section 8(b)(1)(B) of the Act, even if Terhorst were not a supervisor within the meaning of the Act. It is of course well settled that the proviso to Section 8(b)(1)(A), permitting a union to pre- scribe its own rules with respect to the acquisition or reten- tion of membership, is inapplicable to Section 8(b)(l)(B).11 Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: 11 San Francisco-Oakland Mailers' Union No 18, ITU (Northwest Publica- tions, Inc ), 172 NLRB 2173, and Toledo Locals Nos 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc), 175 NLRB 1072 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Andre and Lietzau are employers engaged in com- merce, and Respondent is a labor organization, within the meaning of the Act. 2. By restraining and coercing employees in the exer- cise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. Henry Terhorst is a supervisor within the meaning of Section 2(11) of the Act, and Lietzau's representative for the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By fining member Terhorst, Lietzau's supervisor and grievance representative, for continuing to work for Lietzau after the commencement of Respondent's strike, Respon- dent restrained and coerced Lietzau in violation of Section 8(b)(1)(B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as pro- vided in the Order recommended below, which I find neces- sary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:I2 ORDER Respondent Pattern Makers' Association of Los Ange- les and Vicinity, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Fining or threatening to fine employees, former members of Respondent, for crossing Respondent's picket lines or accepting employment with an employer struck by Respondent. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed in Section 7 of the Act. (c) Fining or threatening to fine supervisors or griev- ance adjustment representatives of Lietzau Pattern Co., as members of Respondent, for accepting employment with said employer during the course of a strike by Respondent. (d) In any like or related manner restraining or coerc- ing the aforesaid employer in the selection of its representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Rescind and expunge all records of the fines levied against Heinz Imhof and Eno Katterfeld. (b) Rescind that portion of the fines levied against Ernest Allen and Eugene Peppard because of their postre- signation conduct in working for Andre Pattern Inc. during Respondent's strike. (c) Reimburse or refund to the above-named employ- ees the amount of said fines paid by them, if any, imposed because of their postresignation conduct in working for Andre Pattern Inc. during Respondent's strike, plus interest at the rate of 6 percent per annum. (d) Rescind and expunge all records of the fine levied against Henry Terhorst for working for Lietzau Pattern Co. during Respondent's strike. (e) Notify Terhorst, in writing, that the fine against him has been rescinded and the records thereof have been ex- punged. (f) Reimburse or refund to Terhorst the amount of said fine, if any, paid by him, plus interest at the rate of 6 percent per annum. (g) Post at its business office, meeting halls and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."13 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative shall be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Sign and mail to the Regional Director for Region 21 sufficient copies of said notice, on forms provided by him, for posting by Lietzau Pattern Co. and Andre Pattern Inc., if willing. (i) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.14 12 In the event no exceptions are filed as provided by Sec . 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board" 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read . "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fine or threaten to fine employees, former members of our Union, for crossing our picket lines or accepting employment with an employer struck by our Union. PATTERN MAKERS ASSOCIATION OF LOS ANGELES 103 WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL NOT fine or threaten to fine supervisors or grievance adjustment representatives of Lietzau Pat- tern Co., as members of our Union, for accepting em- ployment with said employer during the course of a strike by our Union. WE WILL NOT in any like or related manner restrain or coerce Lietzau Pattern Co. in the selection of its representatives for the purposes of collective bargain- ing or the adjustment of grievances. WE WILL rescind and expunge all records of the fines levied against Heinz Imhof and Eno Katterfeld. WE WILL rescind that portion of the fines levied against Ernest Allen and Eugene Peppard because of their postresignation conduct in working for Andre Pattern Inc. during our strike. WE WILL reimburse or refund to the above-named employees the amount of said fines paid by them, if any, imposed because of their postresignation conduct in working for Andre Pattern Inc. during our strike, plus interest at the rate of 6 percent per annum. WE WILL rescind and expunge all records of the fine levied against Henry Terhorst for working for Lietzau Pattern Co. during our strike. WE WILL notify Henry Terhorst, in writing, that the fine against him has been rescinded and the records thereof have been expunged. WE WILL reimburse or refund to Henry Terhorst the amount of said fine, if any, paid by him, plus inter- est at the rate of 6 percent per annum. Dated By PATTERN MAKERS' ASSOCIATION OF LOS ANGELES AND VICINITY (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Tele- phone 213-688-5229.