Distillery Workers Local 186 (E & J Gallo Winery)

DISTILLERY WORKERS LOCAL 186 (E & J GALLO WINERY) 519 Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine and Allied Workers International Union, AFL-CIO (E & J Gallo Winery, Inc.) and June A. Anderson. Case 32-CB-2516 September 13, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGGINS On June 29, 1988, Administrative Law Judge William L. Schmidt issued the attached decision. The General Counsel filed exceptions and a sup- porting brief and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CHAIRMAN STEPHENS, concurring. I reluctantly concur in the conclusion that the Respondent Union did not violate Section 8(b)(1)(A) of the Act in fining June Anderson for her preresignation statements concerning her inten- tions with respect to the strike. I note that in construing and applying the Act, we properly also take account of policies manifest- ed in other Federal labor laws including what is generally known as the union members' bill of rights, Section 101 of the Labor Management Re- porting and Disclosure of 1959, 29 U.S.C. § 411. Carpenters Local 22 (Graziano Construction), 195 NLRB 1, 1-2 (1972). In that provision Congress sought to assure the right of union members, inter alia, "to express any view, arguments, or opinions" without thereby subjecting themselves to union dis- ciplinary sanctions. 29 U.S.C. § 411(a)(2). The lan- guage originally proposed, however, was modified by an amendment adding a proviso 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 . . . ." See Semancik v. Mine Workers, 466 F.2d 144, 152- 153 (3d Cir. 1972) (discussing legislative history of Sec. 101 of the LMRDA). In accord with that history, the Board has, as the judge pointed out, drawn the line between, on the one hand, urging members to vote a certain way on strike issues that are to come before the mem- bership for a vote or convening meetings to discuss alternative proposals that might be presented to the union leadership and, on the other hand, undermin- ing or refusing to support policies of the union when they are in effect. Compare Teamsters Local 610 (Browning-Ferris Industries), 264 NLRB 886, 905 (1982) (union could not discipline member for seeking to persuade other employees to vote to accept employer's last offer), and Operating Engi- neers Local 400 Wilde Construction), 225 NLRB 5901, 600-605 (1976) (union could not discipline members for holding meeting to discuss current ne- gotiating positions of union amd employer with a view to seeking to persuade union leaders to change strategy or call a second strike vote) with Teamsters Local 610, supra (union may impose dis- cipline on members for attempting to persuade em- ployees to abandon -the picket line), and Meat Cut- ters Local 593 (S & M Grocers), 237 NLRB 1159 (1978) (union may discipline members for refusal to support organizing campaign).' The courts have similarly made clear that the Section 101(a)(2) pro- viso does not permit unions to discipline members for criticizing union officers, expressing dissatisfac- tion with union policies, or participating in meet- ings called to discuss such dissatisfaction, but the unions do remain free to impose sanctions on mem- bers for speech that is "inimical to the union as an entity and collective-bargaining mechanism." Se- mancik v. Mine Workers, supra, 466 F.2d at 153. Accord: Kuebler v. Cleveland Lithographers Local 24-P, 473 F.2d 359, 361-363 (6th Cir. 1983); Ma- chinists v. Nix, 415 F.2d 212, 218-219 (5th Cir. 1969). In the present case, when a possible econom- ic strike in support of the Union's bargaining posi- ' In adopting the judge's dismissal of the complaint, we note that Charging Party Anderson's statements amounted to a wholesale repudi- ation of the Union 's lawful recourse to economic action and did not amount to an attempt within the Union merely to express a dissenting point of view or to advocate alternatives to economic action In these circumstances, we agree with the judge that the Union 's legitimate inter- est in promoting membership solidarity in an impending strike situation permitted it to impose discipline on Anderson for having announced un- equivocally, while a union member subject to its rules, an absolute inten- tion to defy any union call for lawful strike action ' I am not entirely comfortable with the Board 's decision in S & M Grocers, but I note that, in asserting that the union discipline there was unlawful, the dissenters relied on the fact that the union was seeking to compel members' continuing affirmative support in an organizing cam- paign leading to a Board representation election in which those members would be voters. Id , 237 NLRB at 1161-1162 The dissenters feared that allowing such discipline would interfere with the unfettered discussion of views that is essential to employee free choice in such an election Those considerations are not present in this case 296 NLRB No. 72 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion appeared imminent, Anderson did not merely express arguments against calling a strike or meet with others to rally opposition to a proposal that the Union call a strike. According to evidence pre- sented at the hearing on the internal union charges against her, the Union could reasonably believe that Anderson had announced a fixed intent to dis- obey any union strike decision that the membership might make, and that she implicitly urged others to follow her lead because the Employer would, during any such strike, have "work for anyone who wants it" and because "we don't need the Union." Under applicable precedent, I believe that this falls within the line defining conduct for which a union may discipline its own members. Finally, I note, as did the judge, that Anderson was free to leave the Union at any time and to engage in whatever conduct she pleased with re- spect to the strike after she had , by resigning, given up the benefits and obligations of union member- ship. Kenneth Ko, Esq., for the General Counsel. Victor C. Thuesen, Esq., of Petaluma, California, for the Union. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. June Anderson filed an unfair labor practice charge against her former union, Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine and Allied Workers International Union, AFL- CIO (Union) on December 30, 1986. Anderson alleged that the Union "harassed, restrained and coerced her in the exercise of her Section 7 rights, i.e., the right to work during a strike." The charge further alleged that the Union threatened her with sanctions for opinions she expressed "along with other employees in violation of her rights of free speech" and the amnesty agreement concluded between the Union and E & J Gallo Winery (Gallo), Anderson's employer, at the conclusion of a strike by union-represented employees in October 1987. Over a year later, on January 21, 1988, Anderson amend- ed her charge to allege that the Union threatened disci- plinary action against her on August 7, 1986, and then fined her on January 14, 1987, both because of her pro- tected intraunion activities. Based on Anderson's amended charge the Director for the National Labor Relations Board (NLRB or Board), Region 32, thereafter issued a complaint and notice of hearing before an administrative law judge . The com- plaint alleges that the Union violated Section 8(b)(1)(A) of the National Labor Relations Act (Act), by the action of its agent's advice to Anderson on August 7, 1986 that he had filed internal union charges against her; by con- ducting a hearing on those charges on January 10, 1986; and by sustaining those charges and imposing a fine against her on January 14, 1986. The complaint alleges that the internal union charge against Anderson "related to Anderson's orally expressing, to her fellow employees, her opposition to and/or lack of support for, an antici- pated strike against Gallo by the Union." The Union filed a timely answer to the complaint wherein it admitted that it charged, tried, and fined An- derson as alleged but denied that the charge related to Anderson's oral opposition to or lack of support for an anticipated strike, or that it violated Section 8(b)(1)(A) by the conduct alleged in the complaint. I heard this matter on March 30, 1988 , at Modesto, California. Thereafter, General Counsel and the Union filed posthearing briefs. Having now carefully considered the hearing record, the demeanor of the witnesses who testified before me, and the posthearing argument of counsel, I have concluded that the Union did not violate the Act by disciplining Anderson. That conclusion is based on the following FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICE A. Background As noted, Anderson is employed by Gallo. ' Until her resignation on August 13, 1986, Anderson-whose hus- band is a Gallo supervisor-had been a member of the Union.2 For a number of years the Union has represent- ed the Gallo production and maintenance employees. The terms and conditions of employment for the Gallo unit employees are contained in an agreement bargained between the Union and the Winery Employers' Associa- tion (WEA) to which Gallo belongs. The agreement rel- evant to this case expired on July 31 , 1986. Anticipating that expiration, the Union and the WEA began negotiat- ing a successor agreement in May 1986. On August 9, 1986, Robert Fogg, the Union's presi- dent presented the latest management proposal to the union membership for approval or rejection.2 Apparent- ly, the referendum was conducted in a manner to permit the Union to construe the proposal's rejection as an au- thorization for the Union to call a strike at the most ad- vantageous time.4 The members rejected management's offer. I Gallo, a California corporation , is engaged in the production and nonretail sale and distribution of wine and related products . In the 12 months preceding issuance of the complaint , its direct outflow exceeded $50,000 Accordingly, I find that Gallo is an employer engaged in com- merce within the meaning of Sec 2 (2), (6), and (7) of the Act and that it would effectuate the purposes of the Act for the Board to exercise its Jurisdiction in this labor dispute 2 The Union is a labor organization within the meaning of Sec. 2(5) of the Act 8 Fogg testified that this referendum occurred in mid -July but his testi- mony is vague and uncertain Anderson testified that the vote occurred on August 9 Her recollection is supported by comments of a member of the Union's trial committee convened in January 1987 to try Anderson on intraunion charges as reflected in the record of that proceeding 4 The Union's constitution and bylaws do not require membership au- thorization for strike activity Apparently, however, it has been the Union's custom to do so DISTILLERY WORKERS LOCAL 186 (E & J GALLO WINERY) B. The Union Charge Against Anderson By letter dated August 7, 1986 , Fogg notified Ander- son that he was charging her with conduct unbecoming a member of the Union . In that letter Fogg advised that statements by Anderson of an antiunion nature had been brought to his attention by several members who were willing to testify before a union trial committee . Specifi- cally, the letter states that Anderson's accusers charged her with stating that she would not carry a picket sign, that she had crossed the last picket line and that she would cross the picket line again. The letter advises that unless Anderson provided "information that would negate [the] charges" a hearing would be set before the Union's executive board which would serve as a trial committee. At such time, the letter concludes , all written statements regarding the charge and a list of witnesses who would testify against Anderson would be made available to her. Upon receiving Fogg's letter, Anderson protested her innocence in a telephone conversation with Fogg. Al- though the substance of this exchange is not known, Fogg obviously did not withdraw his charge. It is undis- puted that Anderson subsequently resigned from mem- bership in the Union effective August 13, 1986. Thereaf- ter, the Union struck Gallo until employees ratified a new agreement on October 4, 1986. By letter dated December 19, 1986, Fogg notified An- derson that a union trial committee would hear his August 1986 charge against her on January 10. Fogg en- closed copies of the statements provided to him by "wit- nesses who have been notified to testify and who will be present." The letter concludes by informing Anderson that the charges were as stated in his August 7 letter and suggesting that she appear to present her case or have someone (other than an attorney as provided in the Union's constitution and bylaws) represent her.5 The statements enclosed in the December 19 letter were those of Donna Heddon, dated August 12, 1986; Darlene Christian, undated; Linda Hendon, undated but referring only to a statement purportedly made by An- derson on August 12, 1986; Linda Behrens, dated August 12, 1986; Jeanie Henderson and Rebecca Scott, undated; Loretta Park, undated; and Kim Mogelberg, undated. Collectively the statements ascribe a variety of remarks to Anderson at different times in different work loca- tions. In effect, Anderson was accused by saying: (1) that she crossed the picket line during the last strike and would do so again; (2) that she would not carry a picket sign; (3) that employees should get rid of the Union; (4) that employees should form their own union; (5) and that no one had to go on strike as Gallo would provide work for anyone who wanted it. 6 S The Union's constitution and bylaws provide that a charged member may be represented before the trial committee by "a brother member in good standing with the International Union , other counsel only with the consent of the Trial Committee before which he appears" 6 At this hearing Anderson denied making the statements attributed to her which led to Fogg's charge Although the General Counsel urges that Anderson 's denial should be credited , she nonetheless concedes that whether or not Anderson made the statements "should not make any dif- ference " In the General Counsel 's view the coercive impact of the Union's discipline remains whether or not the Union was correct in its 521 The trial committee was convened on January 10, 1987, to hear the evidence against Anderson. Anderson appeared with a union member to represent her but with- drew in the preliminary stages after the trial committee refused permission for her to mechanically record the proceedings. Fogg appeared to prosecute the case against Anderson. Five witnesses, Linda Behrens, Loretta Park, Jeanie Henderson, Linda Hendon, and Donna Heddon, ap- peared before the trial committee . In addition, Fogg in- troduced and read written statements of Kim Mogelberg and Darlene Christian as well as his correspondence with Anderson, Anderson's August 13 membership resignation and dues-checkoff revocation, Anderson's charge to the NLRB in this case, and a document dealing with a labor organization's right to discipline members. The Union's record of the trial proceedings reflect witnesses Park, Henderson, and Heddon testified that Anderson had made preresignation remarks about her in- tention to cross the Union's picket line and her desire to get rid of the Union. Behrens testified only about Ander- son's alleged remarks concerning her intention to get rid of the Union. Hendon, a self-described shop steward, tes- tified only about Anderson's alleged remarks concerning her desire to get rid of the Union. All specifically asserted that Anderson made these re- marks prior to August 13, 1986, the effective date of her resignation. Park, the first witness to testify concerning Anderson's purported remark about getting rid of the Union, was questioned by a trial committee member only about that substantive aspect of her testimony. The two written statements proffered at the trial each reflect that Anderson made remarks about getting rid of the Union. Thereafter the committee engaged in deliberation which is not recorded and voted to find Anderson guilty of "conduct unbecoming .a member" by a 12 to 1 vote. Subsequently, the committee adopted a motion to fine Anderson $500 and suspend her from membership for 1 year in the event she ever reapplied. By letter dated January 14, 1987, Fogg informed An- derson that the trial committee had found her guilty and of the penalty imposed. Fogg's letter explained the basis of the finding as follows: Was June Anderson Guilty of "Conduct unbe- coming a member?" Yes-12; No-1. The hearing body interpreted the charges of "conduct unbecoming a member" to be violations of the following: Article XIV, Section 4 (b) item #6; (d) (h) and (i) of the International Constitution and By-Laws and Article V, Section 2 of the Constitution and By- Laws of Local 186. The Trial Committee imposed the following pen- alties: A $500.00 fine and suspension from Union belief that Anderson made the statements attributed to her. In effect, the General Counsel concedes that the Union's discipline is based on a good- faith belief that Anderson made the statements attributed to her. For that reason, I find it unnecessary to resolve the question as to whether Ander- son actually did or did not make the statements attributed to her 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD membership for a period of one year from the date you reapply for Union membership. Article XIV, Section 4 of the International's con- stitution provides: The basis for charges for disciplinary action shall include, but not be limited to, the following: (a) Violation of infraction of any provision of the International Union or Local Union Constitution, By-Laws, resolution , rule, regulation or order, or failure to perform any of the duties specified there- under. (b) Disruption of Union solidarity by: (1) calling unauthorized wildcat strikes. (2) crossing any lawful picket line. (3) interfering with the conduct of a lawful strike called by the International Union or any af- filiated Union. (4) engaging in dual unionism. (5) informing management or any other outsid- ers of proceedings or deliberations of the Union relative to Union meetings, negotiation discus- sions, and similar confidential communications. (6) engaging in any similar anti-union activities. (c) Embezzlement or dishonesty. (d) Secession , or fostering the same. (e) Assault or threats upon International or Local Union officers or members. (f) Disruptive conduct at Union meetings so as to prevent the transaction of Union business thereat. (g) Filing charges in bad faith or out of malice. (h) Any action which is disruptive of or inter- feres with the performance or obligations of other members or Local Unions or the International Union under collective bargaining agreements. (i) Any action which would interfere with the International Union or Local Union in performance of its legal or contractual obligations. (j) Any conduct which interferes with an Interna- tional Union or Local Union officer in the carrying out of the duties of his office. (k) Destroying, mutilating or unlawfully possess- ing or converting to himself any property or thing of value of the International Union or Local Union. (1) False or fraudulent statements submitted to the International Union or Local Union, including but not limited to membership applications. Article V, Section 2 of the Union's constitution provides: All members shall be required to take, and upon acceptance to membership shall be deemed to have taken, the following obligation: I do solemnly promise that I will observe and abide by all duties and obligations required of me as a member provided by the Constitution and By-Laws of the Distillery, Wine and Allied Workers' International Union and any Local Union, and all laws, rules, orders and regulations duly adopted by the International Union and Local Union governing bodies and officers and I do further promise that I will purchase nothing but Union Label goods wherever possible to obtain. I do further promise that I will do all in my power to advance the interests and welfare of the Distillery, Wine and Allied Workers' Interna- tional Union, my Local Union and the AFL-CIO, and CLC. No evidence was adduced which permits any finding or inference that any particular portion of Anderson's penalty applied to any particular offense. C. Argument As perceived by the General Counsel, the problem presented by this case is one of balancing the Union's "legitimate interest in fostering solidarity among its mem- bers during the course of an organizing drive or strike" against the "statutory right [of union members] to criti- cize their union representatives , to question the wisdom of the policies and practices of their representatives, and to take `such steps as they deem necessary to align their union with their position."' The General Counsel notes that the balance was struck in favor of members' rights in Operating Engineers Local 400 (Hilde Construction), 225 NLRB 596 (1976), and Teamsters Local 610 (Browning- Ferris Industries), 264 NLRB 886 (1982), but in favor fos- tering solidarity in Food & Commercial Workers Local 593 (S & M Grocers), 237 NLRB 1159 (1978). The General Counsel argues that this case should be resolved in favor of Anderson because "there is simply no evidence that the Union's disciplining of Anderson ... served any sort of legitimate Union interest." Ac- cording to the General Counsel "all Anderson allegedly did was express her views concerning a possible strike against Gallo to a number of other employees in a casual, lunchroom setting." Absent evidence not present here that Anderson expressed her "views" in a disrup- tive, abusive or violent manner ; that her conduct im- pinged upon or threatened the Union 's negotiating posi- tion or strategy; or that Anderson's sentiments were communicated to Gallo, its managers or supervisors, in- cluding her husband,' the General Counsel claims that the Union lacks any cognizable interest to justify the dis- cipline imposed against Anderson. Rather, the General Counsel argues that if, as held in Browning-Ferris and Hilde, "to hold and express views which are contrary to those of his or her union even during . . . a lawful union strike . . . a member would clearly be entitled to hold and express such views contrary to his or her union in anticipation of a strike." The General Counsel's brief also correctly surmises that "Respondent may rely upon S & M Grocers . . . in defense of its discipline imposed on Anderson." As for that case, the General Counsel argues that the manner in which the Board balanced the competing interests (em- 7 Early in the hearing the General Counsel asserted that Anderson's marital status colored the Union's decision to charge and discipline her The General Counsel subsequently abandoned this theory after I ex- pressed concern that the complaint failed to articulate that theory with sufficient clarity to put the Union on notice that it should prepare a de- fense to that theory and that I would entertain a motion for recess by the Union for that purpose if the General Counsel desired to pursue the theory DISTILLERY WORKERS LOCAL 186 (E & J GALLO WINERY) ployee-members' right to refrain from assisting a union organizing drive versus the union's interest in insisting on their help during that drive) would not work here. This is so, the General Counsel argues, because employees in S & M Grocers had two available options to exercise their right to refrain from Section 7 activities , i.e., resign from the union or vote against the union in a Board elec- tion. Since the General Counsel believes Anderson was engaged in dissident activities within the Union and her only available option to avoid Union discipline was to resign from the Union, the resignation option is at cross purposes with the object of her conduct. Finally, the General Counsel argues that as S & M Grocers issued between the Board's decisions in Hilde and Browning-Ferris and makes no attempt to reconcile the balance struck in those cases , S & M Grocers is really "of limited precedential value." The Union makes two principal contentions . First, even assuming the complaint as drafted charges conduct which is unlawful , Respondent believes the General Counsel has not met the burden of proving that Ander- son was injured in the manner alleged in the complaint, i.e., that Anderson was disciplined for "orally expressing, to her fellow employees, her opposition to and/or lack of support for, an anticipated strike . . . by [the union.]" Instead, the Union argues , that Anderson was fined for conduct while a union member which "went far beyond simply expressing her opinion with respect to 'an antici- pated strike' against her employer." Citing the written statements provided by Fogg and the testimony of em- ployee-members before the trial committee to the effect that Anderson had stated that employees should get rid of the Union, the Union argues that "the General Coun- sel introduced no evidence whatever to support or sug- gest that Anderson was tried and found guilty for merely expressing an opinion as the complaint alleges." The Union also argues that the activity for which An- derson was disciplined is unprotected and subject to lawful discipline under the 8(b)(1)(A) proviso. In this connection, the Union, in agreement with the General Counsel, acknowledges that its members have the legal right to meet or to question decisions made by the Union, Roadway Express, 108 NLRB 874, 875 (1954), enfd. 227 F.2d 439 ( 10th Cir. 1955), and that they can take such steps as they deem necessary to align the Union with their position, Nu-Car Carriers, 88 NLRB 75, 76 (1950), enfd. 189 F.2d 756, 760 (3d Cir. 1951), cert. denied 342 U.S. 919 (1951 ). The Union also concedes that a fine is deemed in law to be "inherently coercive." NLRB v. Molders Local 125 (Blackhawk Tanning), 442 F.2d 92, 94 (7th Cir. 1971). Nevertheless, the Union argues that under Scofield v. NLRB, 394 U.S. 423 (1969), it has the right to promulgate rules or regulations limit- ing the actions of minorities where such policies "reflect a legitimate union interest , impair no policy Congress has imbedded in the labor laws, and are reasonably enforced against union-members who are free to leave the union and escape the rule." Thus, the Union calls attention to cases holding that a union may lawfully threaten to disci- pline employee-members who refuse to assist or actively oppose an organizing drive, S & M Grocers, supra, or who fail or refuse to assist in solidifying its collective- 523 bargaining status, Minneapolis Star & Tribune, 109 NLRB 727 (1954); Fox Midwest Amusement Corp., 98 NLRB 699 (1952). As for this case, the Union argues that both the International and the Union had promulgated reasonable rules regulating the general conduct of its members and their prestrike obligations which focused upon legitimate Union interests without interfering with its members' right of "free speech." In effect, the Union argues that so long as Anderson was a union member she was not at liberty to advocate the outright breach of strike disci- pline or encourage employees to depose the Union as the employee representative. D. Conclusions I find that the Union imposed a fine and suspension penalty against Anderson for a series of statements made either shortly after or shortly before the Union conduct- ed a strike vote related to Gallo and in the midst of ne- gotiations the Union was conducting on behalf of Gallo employees. At the time the statements were made, An- derson was a full union member subject to its rules and regulations . The essence of the statements attributed to Anderson before the Union 's trial committee, read col- lectively, were that she intended to cross the Union's picket line if a strike occurred, that Gallo would make work available to employees willing to cross the picket line and that employees should get rid of the Union or supplant the Union with an employee organization of their own. The General Counsel's reliance on Hilde and Brown- ing-Ferris in this case is misplaced as those cases are fac- tually distinguishable. In Hilde, the object of the meeting called by the disciplined employee-members was to rally support for a change in their union's bargaining stance. By disciplining employee-members for calling a meeting, the union there was obviously infringing on the mem- bers' rights to voice a dissenting view of union policy. And contrary to the General Counsel 's analysis, Hilde was applied without discussion in Browning-Ferris insofar as the union discipline against employee Trost is con- cerned. In that case Trost expressed fears concerning his pension to a respected bargaining committeeman and for this reason implored that individual to urge other mem- bers to accept the employer's last contract offer. Trost was tried and found guilty of this attempt to induce the committeeman to urge acceptance of the employer's offer. However, the administrative law judge rejected the General Counsel's position that the union violated Section 8(b)(1)(A) by merely preferring charges against other employee-members explaining: At least on their face, the written charges arguably encompassed a description of conduct for which a member could at least under some circumstances be lawfully fined; namely, abusing other members; trying to talk other members into crossing the picket line; and, in management's presence, alleging that the strikers would return to work without an increase and that a union representative was dishon- est. 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Plainly the relevant discipline in Hilde and Browning- Ferris barricaded the avenue of membership dissent. The facts in both cases show only dissent from extant union policies; they do not show defiance or disobedience so long as those policies were in effect. The flaw in the General Counsel's logic in this case is her inability to see the import of Anderson's words. Unlike Hilde and Browning-Ferris where the significance of the words used by the penalized members was that they disagreed with union policy and urged a reassess- ment, Anderson's statements amount to a repudiation of union policy, an open statement of intent to disobey the policy and a fundamental assault on the institutional status of the Union. The unmistakable implication of An- derson's remarks were that so long as the majority course preferred strike action , she intended to disobey. Whether the remarks occurred shortly before or after the strike vote is not relevant; the import of her remarks is that it made no difference what course the Union decid- ed upon as she had already made up her mind. This ele- ment is totally lacking in Hilde and Browning-Ferris Its significance is, as S & M Grocers demonstrates, funda- mental in cases of this nature. In S & M Grocers, the General Counsel claimed that the union had restrained and coerced employees by mail- ing a letter to members employed there which threatened discipline, including expulsion, against members em- ployed by S & M who refrained from assisting or active- ly opposed the union's organizing drive at S & M. The problem posed in S & M Grocers, as the Board saw it, was to reconcile a union's right to solidarity during an organizing drive with the public policy of em- ployee freedom from coercion or restraint in choosing their collective-bargaining representative. The Board majority rejected the General Counsel in S & M Grocers that the right of employees to select a bar- gaining representative was overriding and comparable to the right of free access to Board processes found in other cases. See, e.g., Molders Local 125 (Blackhawk Tanning), supra. Although the Board recognized that the union's assist-and-don't-actively-oppose rule restricted its mem- bers' exercise of free speech during an organizational drive, the rule only required members to act consistent with their voluntary membership. Because members were free to resign at any time and actively oppose the union's organizing effort, the Board majority concluded that the rule lacked coercive qualities. And even if employees did not choose the resignation alternative , they still remained free to make their own determination as to how to vote on the issue of representation . For these reasons the Board found that the union's threat of discipline was a valid enforcement of a legitimate internal regulation which did not contravene an overriding policy of labor law. The General Counsel's claim that the result in S & M Grocers is, in effect, inconsistent with Hilde and Brown- ing-Ferris, is just plain wrong. In S & M Grocers the Gen- eral Counsel's position promoted the right of members to disobey a legitimate union rule; it had nothing to do with the right of members to disagree with the adoption of the rule and to seek its change within the Union. The other two cases deal with the right of members to dis- agree with a union position and seek change ; they had nothing to do with the dissenting members' disobedience of the policy they sought to change. Striker Trost's con- duct vividly illustrates the distinction . Even though Trost disagreed with his union's policy of striking to obtain an improved offer, he nonetheless obeyed the lawful strike call. At the relevant time here, the Union plainly had a le- gitimate interest in promoting membership solidarity. The membership approval of strike action coupled with the rejection of the last WEA contract offer was de- signed obviously to strengthen the Union negotiators' po- sition in preparation for further bargaining. In effect, sol- idarity at that critical point in negotiations provides a union with force to back up bargaining demands. It fol- lows that the weaker the membership resolve, the weaker its negotiators' position at the bargaining table. The question therefore quickly becomes whether or not union discipline or threat of discipline to maintain that solidarity contravenes any public policy embedded in the labor laws. I do not think it does. In NLRB v. Allis-Chalmers Mfg., 388 U.S. 175 (1967), the Supreme Court recognized the right of unions to promulgate their own rules to protect themselves against the erosion of their collective bargaining status and to impose discipline upon members who do not obey such rules. In Allis-Chalmers, the union fined members for working during a lawful strike. Even the "free speech" provisions of the Labor-Management Reporting and Dis- closure Act, 29 U.S.C. § 411(a)(2), recognizes the right of unions to protect their institutional integrity: (2) Freedom of speech and assembly.-Every member of any. labor organization shall have the right to meet and assemble freely with other mem- bers; and to express any views, arguments, or opin- ions; and to express at meetings of the labor organi- zation his views, upon candidates in an election of the labor organization or upon any business proper- ly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings : Provided, that nothing herein shall be construed to impair the right of a labor orga- nization 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 added.] Here Anderson's verbal conduct was not an expression of opinion as the complaint alleges, it was was tanta- mount to an open and notorious repudiation of the Union policy to strike if the employer offer was not sweetened, coupled with an assault on the Union's representative status. Her assertion that Gallo would provide work for those willing to follow the course she planned to take in- vited other members to disobey union policy. Anderson's conduct exceeded the bounds of mere disagreement and entered the zone of disobedience. By doing so, Anderson exposed herself to the liability of lawful discipline. I find this case fundamentally indistinguishable from Allis-Chalmers. The fact that the discipline there was im- DISTILLERY WORKERS LOCAL 186 (E & J GALLO WINERY) posed for actually crossing the union 's picket line while this case involves openly announcing an unqualified in- tention to work during any union strike is not sufficient to vitiate the principles addressed in Allis-Chalmers . An- derson clearly had the right to leave the Union and an- nounce her intentions concerning strike activity as well as her opposition to the Union's status as the bargaining representative. She did not have a right to expect that as a Union member she could publicly repudiate its legiti- mate policies, invite others to follow her lead, and attack its continued representative status free of discipline. Ac- cordingly, I will recommend that the complaint be dis- missed.8 a The General Counsel argues that , as Fogg's August 7 letter makes no mention of Anderson's statements calling for the Union 's ouster, she was not "charged , tried, convicted or fined " for that reason. However, the General Counsel further argues that if Anderson was fined for that reason, the fine is unlawful based on Blackhaw/ Tanning, supra, and its progeny The evidence is insufficient to determine whether the trial com- mittee decided upon a particular type of discipline because of any par- ticular statement . Notwithstanding , I do not agree that Blackhawk Tan- ning reaches even the Union ouster statements attributed to Anderson The underlying basis for Blackhawh Tanning and its progeny is to protect employee access to Board processes For this reason Blackhawk Tanning holds that a union may not coerce employees by means of a fine from seeking to invoke the Board 's processes to get rid of an incumbent union but a union may lawfully expel a member for that reason as a defensive measure The evidence here fails to show that Anderson even content- CONCLUSIONS OF LAW 525 1. Gallo is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Union did not engage in the unfair labor prac- tice alleged in the complaint issued against it by the Gen- eral Counsel on January 27, 1988. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed9 ORDER The complaint is dismissed. plated the use of the Board 's processes or had invoked any preliminary, informal procedures looking toward the eventual use of the Board 's proc- esses. And plainly, it is not necessary for employees to invoke the Board's processes in order to achieve the ouster of their incumbent repre- sentative It, therefore, does not follow that a fine imposed on a member for expressing his or her belief that employees should get rid of an in- cumbent representative is ipso facto unlawful . For these reasons I reject the General Counsel's suggestion that the fine here might be unlawful. 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.