Booster Lodge No. 405, IAM

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 380 (N.L.R.B. 1970)

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Booster Lodge No. 405 , International Association
of Machinists and Aerospace Workers , AFL-CIO,
and The Boeing Company . Case 15-CB-779
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, BROWN, AND
JENKINS
On December 30, 1968, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in certain unfair labor practices and recommending
that it cease and desist therefrom, and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel,
the Charging Party, and the Respondent each filed
exceptions to the Decision, together with supporting
briefs. The Charging Party filed a reply brief. Subse-
quently, in response to an invitation of the Board,
the Charging Party and the Respondent filed supple-
mental briefs. In response to the same invitation,
statements of position were filed by the National
Association of Manufacturers, and by the American
Federation of Labor and Congress of Industrial Organ-
izations, joined by the International Brotherhood of
Teamsters and the International Union, UAW, as
amici curiae.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has con-
sidered the Trial Examiner's Decision, the exceptions
and briefs, the reply brief, the supplemental briefs,
the statements of position amici curiae, and the entire
record in the case. The Board adopts the Trial Examin-
er's findings of fact, but adopts his conclusions and
recommendations only to the extent that they are
consistent with the decision herein.
The essential facts of this case are not in dispute.
Booster Lodge No. 405, International Association
of Machinists and Aerospace Workers, AFL-CIO,
hereinafter call IAM or the Union, and Boeing were
parties to a collective-bargaining agreement effective
from May 16, 1963, through September 15, 1965.1
i At the time of the execution of the 1963 agreement, Booster Lodge
405 was not in existence . Boeing 's Michoud, Louisiana, plant was consid-
ered a "Remote Location" unit, identified with the "Primary Location"
unit at Seattle-Renton, Washington . Production and maintenance employ-
ees in the Michoud unit were represented by Aeronautical Industrial
District Lodge No. 751, IAM, AFL-CIO, Seattle, a signatory to the
contract with Boeing. Booster Lodge No. 405 came into existence some-
time later in 1963, but the contract was not modified to reflect this
event.
Upon the expiration of the contract, the Union cont-
menced a lawful strike against Boeing at its Michoud
plant in New Orleans, Louisiana, and at various
other locations. The strike lasted 18 days. On October
2, 1965, a new contract was signed. The strikers
returned to work on the following day. Both contracts
contained maintenance-of-membership clauses, which
required new employees to notify both the Union
and the Employer of their desire not to join the
Union within 40 days of accepting employment.
During the strike period, some 143 employees of
a unit of approximately 1900 production and mainte-
nance workers crossed the picket line and reported
for work. All had been members of the Union during
the contract ^ period. One group of strikebreaking
employees, numbering some 24, made no attempt
to resign from the Union. The remaining 119 strike-
breaking employees submitted their voluntary resigna-
tions, in writing, to both the Union and the Employer.2
Many resigned from membership prior to reporting
for work during the strike. Others resigned during
the course of the strike but returned to work before
submitting their resignations.' All resignations were
submitted after the expiration of the original contract
and before the signing of the new one. All were
submitted prior to the imposition of discipline by
the Union.
In late October or early November 1965, the Union
notified all strikebreaking employees that charges had
been preferred against them under the International
constitution for "Improper Conduct of a Member"
in "accepting employment . . . in an establishment
where a strike . . . exists." Employees were advised
of the dates of their trials, which were to be held
even in their absence, and of the availability of union-
member counsel. Prior to the strike, the Union had
not warned members about the possible imposition
of disciplinary measures . However, the IAM constitu-
tion provides that members found guilty of misconduct
after notice and a hearing are subject to "reprimand,
fine, suspension , or expulsion from membership, or
any lesser penalty or combination." The constitution
sets no maximum dollar limitation on fines.
Fines were imposed on all strikebreaking employees,
regardless of whether, or when, they had resigned
' The Union objects to the fact that notices of resignation were sent
to District Lodge 751 rather than to Booster Lodge 405 However,
since Booster Lodge 405 was not a party to the original contract, as
explained in In 1, supra, it would appear that employees who notified
District Lodge 751 were attempting to comply with contractual require-
ments Moreover, District Lodge 751 notified Booster Lodge 405 of
all resignations
' Fines of $450 were imposed on 108 employees Of these, 61 had
resigned their union membership prior to reporting for work during
the strike, and others resigned during the course of the strike Reduced
fines were imposed on 35 employees The record as to the timing of
their resignations is not clear.
185 NLRB No. 23
BOOSTER LODGE NO. 405, IAM
from the Union. Employees who did not appear for
trial were fined $450, as were those who appeared
and were found guilty. The fines of employees who
appeared for trial, apologized, and pledged loyalty
to the Union were reduced to 50 percent of strikebreak-
ing earnings. The level of fines was set by the union
membership. There is no indication of the method
of computation. Strikebreaking employees earned
between $2.38 and $3.68 per hour, or between $95
and $145 per 40-hour week. In some instances, earn-
ings during the strike were supplemented by the inclu-
sion of bonus or premium rates for weekends and
overtime.
Reduced fines have been paid in some instances.
Payments have averaged $40. None of the $450 fines
has been paid. The Union has sent out written notices
that the matter has been referred to an attorney
for collection, that suit will be filed upon nonpayment
of fines, and that reduced fines will be increased
to $450 in the event of nonpayment. The Union
has filed suit against nine individual employees to
collect the fines (plus attorney's fees and interest).
The outcome of the suits has not been determined.
A principal issue in this case is the legality of
the Respondent's imposition of disciplinary fines on
individuals who had resigned from the Union before
engaging in the conduct for which the discipline
was imposed. The complaint alleges, and the Trial
Examiner found, that the Respondent's action in fining
employees in this category violated Section 8(b)(1)(A)
of the Act. We agree with the Trial Examiner's
conclusion.4 However, as the Trial Examiner has not
fully spelled out his reasoning in this regard, and,
in light of the views of our dissenting colleague,
we believe that further explication of our reasoning
is appropriate here.
Under Section 8(b)(1)(A) of the Act, it is an unfair
labor practice for a labor organization to "restrain
or coerce employees in the exercise of rights guaran-
teed in Section 7." Included among those rights is
the right to refrain from engaging in any of the
protected concerted activities enumerated at the begin-
ning of Section 7.
The levy of a fine is calculated to force an individual
both to pay money and to engage in particular conduct
against his will. This is true regardless of the ultimate
collectibility of the fine. A man who is held up
at gunpoint is coerced whether or not the gun is
loaded. As with the levy of a fine, the coercion
lies in the calculated threat and, as has been held,
' The Trial Examiner's reference to a "compounded " violation of
Sec 8 (b)(1)(A) perhaps implies that the violation is merely derivative
On the contrary, we find, as spelled out more fully herein, that the
very imposition of a fine on nonmembers violates the Act, regardless
of the amount of the,fine.
381
the "argument that the fines imposed were not collecti-
ble in a court of law , even if accepted is beside
the point ."5 The imposition of a fine has immediate
coercive consequences . Faced with the possibility of
action against him, the employee may well be, for
practical purposes , impelled to forego his statutory
right not to honor the Union 's picket line rather
than risk involvement 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 services he ordinarily would not require.
The Board has long recognized that a fine is inher-
ently coercive .' Yet in situations where a union impos-
es disciplinary fines on its members the Board has
held that the union does not violate Section
8(b)(1)(A).8 The basis of the Board ' s holdings in
these early fine cases was the proviso to Section
8(b)(1)(A), which exempts "the right of a labor organi-
zation to prescribe its own rules with respect to
the acquisition or retention of membership" from
the coverage of that section . Although a union's
membership rules may well be coercive , their enact-
ment is specifically protected by the Act. In Minneapo-
lis, supra, the Board construed the levy of the fine
as the prescription of a rule with respect to the
retention of union membership and held that the
union 's conduct , which was protected by the proviso,
therefore did not violate Section 8 (b)(1)(A).
In affirming the Board 's conclusions in Allis-Chal-
mers, 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
a fine upon its members for crossing an authorized
picket line .' Thus, the Court found it unnecessary
to pass on the Board 's holding that the proviso protect-
ed the union 's conduct . Nevertheless , the basis of
the Court's holding was the underlying relationship
between the union and its members . Throughout the
opinion , the Court emphasized the right of unions
to regulate their own internal affairs . Reference was
made to the "contract theory" of union membership.
And, finally, the Court cited the proviso to Section
8(b)(1)(A) as offering "cogent support for an interpre-
Sie N L R B v American Bakery and Confectioners' Workers
Loca, Un m300, 411 F 2d 1122, 1126, (C A 7), enft 167 NLRB 596
We do not share the confidence of our dissenting colleague in
the ability of the ordinary employee to evaluate the ultimate legal conse-
quences of the union 's act Nor would we require him to attempt to
do so
' See, e g , Minneapolis Star & Tribune Co., 109 NLRB 727, 738.
' /bid. See also Local;283,Vnited Automobile, Aircraft & Agricultural
Implement Workers of America, UAW-AFL-CIO (Wisconsin Motor
Corp ), 145 NLRB 1097, Local 248 et a! , United Automobile, Aerospace &
Agricultural Implement Workers of America, AFI -CIO (Allis-Chalmers
Mfg Co), 149 NLRB 67
N.L.R.B. v Allis-Chalmers Mfg. Co., 388 U S 175
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tation of the body of Section 8(b)(1)(A) as not reaching
the imposition of fines and attempts at court enforce-
ment."
The significance of the membership relationship
is that it establishes the union's authority over its
members. In joining a union , the individual member
becomes a party to a contract-constitution. 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 between the member and the union
becomes a nullity upon his resignation. Both the
member's duty of fidelity to the union and the union's
corresponding right to discipline him for breach of
that duty are extinguished.
In the case at bar, the Union's right to discipline
employees terminated upon the employees' submission
of their letters of resignation." The attempted imposi-
tion of discipline for subsequent conduct was beyond
the powers of the Union.12 It was not consented
to by the employees. Nor, in our view, was it protected
by the proviso to the Act.
The holding in Allis-Chalmers was carefully restrict-
ed to the facts of that case. The Court expressly
refused to pass on the legality of the imposition
of a fine on "limited members" of the union." It
appears to us that in this reservation there was the
implication that such a fine when levied against non-
members constitutes a form of restraint and coercion
proscribed by Section 8(b)(1)(A). The decisions in
two subsequent fine cases reinforce that implication.
In its recent Scofield opinion," the Supreme Court
summarized its construction of Section 8(b)(1)(A)
as follows:
[The section] leaves a union free to enforce a
properly-adopted rule which reflects a legitimate
union interest, impairs no policy Congress has
imbedded in the labor laws, and is reasonably
10 The power to discipline recalcitrant members is essential to the
union's self-preservation This coercive power is protected by the proviso
to Sec 8 (b)(1)(A)
11 The Union takes the position that voluntary resignation from its
ranks is impossible of achievement because its constitution and bylaws
set forth no procedure for such resignations As this argument is contrary
to long-standing Board precedent , we reject it here See Communications
Workers of America, CIO (\e" Jeriet Bell Tel to ) 106 NLRB 1322,
enfd 215 F 2d 835 (C A 2), Local Union No 621 , United Rubber,
( o,3 / n,„!ru ' l' ,'!d- I ,,Ar,, , , lme,au I/ L ( 10 1 1,1,,,,,,,
Re,ear,I, (o,p , 7 NI RB 610 Di,trv,t Lodr;, 75/ lnte,na ,nla/
4cio lot, i, of Ila, nnn,, & ler spa(e Ilorder, Ifl-00 (Bw','' (o )
171 NLRB No 71 \I(.'• oier .i, Ind,,,ted u,/,a the',upreme Court in the
Su,/it'll L,i, e\pre„ % ,an,uoned the ,tr.ueen 01 Ie.o im_ Ili union to a,oid
dt,uphne
" The Union' s disciplinary authority was, as we hold , limited to
conduct engaged in during the period of membership
" While the Court did not specifically refer to the fining of nonmembers,
the cited reservation indicates the relevance of the membership issue
14 Scofield, etal v NL R B., 394 U S 423
enforced against union members who are free
to leave the union and escape the rule. [Emphasis
supplied.]
This suggests that the prohibitions of Section
8(b)(1)(A) encompass union rules which do not con-
form with the enumerated qualifications. Included
in this latter category is a rule enforced against nonun-
ion members. By observing that members could "leave
the union and escape the rule," the Court seems
to have envisaged the possibility that union members
could, indeed, resign membership and avoid discipline.
In the Shipbuilding Workers case," the Supreme
Court found unlawful a union's attempt to discipline
members for filing charges with this Board before
exhausting their intraunion remedies. The Court con-
strued Section 8(b)(1)(A) as assuring a union freedom
of self-regulation only "where its legitimate internal
affairs are concerned." But the imposition of discipline
on nonmembers can hardly be deemed an internal
affair.
Our dissenting colleague treats Allis-Chalmers as
if it existed in a vacuum, overlooking subsequent
decisions and the statutory provisions themselves. But
to extend the Allis-Chalmers doctrine beyond the
perimeters of the situation there involved is to emascu-
late the provisions of Section 8(b)(l)(A). Such a result
can hardly have been intended by the Supreme Court.
It should not be reached here. In the interplay between
the statutory policy to prevent coercion of employees
for exercising Section 7 rights on the one hand and the
policy to permit unions to guide their internal affairs
and determine their membership qualifications on the
other, the former must prevail where the membership
relation which justifies the latter is terminated.
For the foregoing reasons, we find that the Respond-
ent violated Section 8(b)(1)(A) of the Act by imposing
disciplinary fines on resigners from its ranks for acts
committed after their resignations. We shall order
the Respondent to cease and desist from such conduct,
including attempts to collect the illegal fines through
court proceedings.
Also at issue in this case is the legality of the
Respondent's imposition of disciplinary fines on two
other categories of strikebreaking employees, those
who crossed the picket line without resigning from
the Union and those whose resignations were submit-
ted after the commencement of strikebreaking activi-
ties but prior to the initiation of disciplinary action
against them. The legality of the imposition of disci-
pline on members for conduct engaged in during
" NL.R B v Marine & Shipbuilding Workers, 391 U S 418
BOOSTER LODGE NO 405, IAM
the period of membership is clear.16 Accordingly,
we find that the Respondent did not violate Section
8(b)(1)(A) by fining the nonresignees. Nor, in our
opinion, does the Respondent's failure to exercise
its disciplinary authority with respect to the second
group until after the submission of their resignations
affect the legality of its action. As the source of
the Union's disciplinary authority lies in the contractu-
al relationship between the organization and its mem-
bers, it is to the rules of contract law that we turn
in evaluating the Union's conduct. The provisions
of a contract are enforceable, and a cause of action
can be brought upon them, even after the expiration
or termination of the agreement. The rights and duties
created by an agreement are extinguished only pro-
spectively by the termination thereof. Thus the termi-
nation of some employees' membership here did not
affect the Union's subsequent assertion of rights which
had accrued to the Union during their earlier period
of membership, such as the right to discipline the
employees for prior strikebreaking. The effect of these
employees' resignations was only to extinguish the
Union's future authority over them.
Accordingly, we further find that the Respondent
did not violate Section 8(b)(1)(A) of the Act by
fining former members for misconduct engaged in
prior to their resignations from among its ranks.
However, this conclusion does not legitimize the impo-
sition of discipline for conduct engaged in after the
resignations. We shall order the Respondent to cease
and desist from such action and to remit a prorata
portion of the fine, so that what remains reflects
only preresignation conduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent , Boost-
er Lodge No. 405 , International Association of
Machinists and Aerospace Workers, AFL-CIO, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Restraining or coercing employees who had
resigned from and who were no longer members
16 N.LR B v Allis-Chalmers Mfg Co, supra As a majority of the
Board (Members Fanning, Brown, and Jenkins), would find that the
lee.ihu ut union lines does not depend on their reasonahlsness the Board
does not adopt the Trial hsaminer s lindines LonLlusnins and
reuimmend,tions on that issus Su Irrmi Dei elurynrnt ( rip 1,16 N I R B
No 22 I or the reasons stated in his dissenting opinion in the luun a.u
Member \ILCulloLh uould e\amini the 'mount of the line, to determine
their reasonableness in those situations iihere the union , imposition thereof
and threatened or auw,tl Lourt t.tion to 1011 -1 snl.h lens. iiould in all othsr
respeLts he Liiilul \\here espulsnm Irom membership is ilearh the unit
mailable method tit enlur ement he iiould uuisider the sive ul a line
irreleiant
383
of the Union in the exercise of their rights guaranteed
in Section 7 of the Act by imposing fines against
such employees because of their postresignation con-
duct in working at the Michoud plant during the
September 1965 strike or by threatening to seek or
seeking court enforcement of such fines.
(b) In any like or related manner, restraining, or
coercing employees in the exercise of rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Reimburse or refund to any employees, described
in paragraph 1(a) of this Order, who have paid fines
under the circumstances described in that paragraph,
the amount of said fines imposed because of postresig-
nation conduct in working at the plant, plus interest
at the rate of 6 percent per annum.''
(b) Post at its office and meeting hall and at
the Michoud, Louisiana, plant of the Boeing Company,
if the Company is willing, copies of the attached
notice, marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region
15, shall, after being signed by an authorized represent-
ative, be posted at the aforementioned locations, in
conspicuous places, including all places where notices
to employees are customarily posted, and reasonable
steps shall be taken to insure that said notices are
not altered, defaced, or covered by other material.
(c) Notify said Regional Director, in writing, within
10 Days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of
the complaint as to which no violation has been
found be, and they hereby are, dismissed.
MEMBER BROWN, concurring in part and dissenting
in part:
I join with my colleagues in dismissing the allega-
tions of the complaint with respect to the imposition
of discipline on members for conduct engaged in
during their period of membership. However, I would
also dismiss the remaining allegations concerning the
imposition of fines upon purported resigners from
the Union.
My colleagues' disposition of this question is predi-
cated on the premise that an employee, faced with
the threat of a union fine, "may well be impelled
" The Board has long included an award of 6 percent interest on
dues, fees, or other moneys unlawfully withheld from an employee
Se \i•alu,r, i 1wet nnn.„tal I trim -,t N-0, I'.',•r„ a Great Lakes District,
AFL-CIO, 138 NLRB 1142
" In the event this Order is enforced by a Judgment of the United
States Court ul \ppeals the fiords in the nuULi. rs,tdine Posted nt
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 "
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to forego his statutory right not to honor the Union's
picket line rather than risk involvement in a lawsuit
whose outcome he cannot predict." But this is what
Allis-Chalmers was all about. There, a union fine,
or the threat of it, expressly designed to force employ-
ees to "forego [their] statutory right not to honor
the Union's picket line" was nevertheless held not
to violate Section 8(b)(1)(A) even though such a
fine was collectible, or collected, in court. The
Supreme Court reasoned that 8(b)(1)(A) was not
intended to apply to this kind of coercion. If, as
is the case here, a Union does not violate 8(b)(1)(A)
by imposing or threatening to impose a collectible
fine, it is difficult to see how a presumably uncollecti-
ble fine can be violative of that Section. Even if,
as the majority reasons, the employee concerned may
not be sufficiently knowledgeable to evaluate the
Union's fine as "un-collectible," and thus feel com-
pletely free to cross the picket line with impunity,
he is plainly no more coerced than the full-fledged
member.
A further consideration, ignored by my colleagues,
impels me to this view. Each of the employees involved
here, and in all other situations of which I am aware,
was a member of the Union in all senses of the
word before the strike began. Thus, the fealty owed
by a member to his union in effect came into play
when the strike was authorized and began, and a
"resignation" at that point was already a disloyal
action from the standpoint of the Union and his
fellow members. Moreover, I cannot conceive of a
case arising where a union would "fine" someone
who had never been its member at all. It is only
because the employees here were, in the eyes of
the Union, and pursuant to the Union's constitution
and bylaws, still union members, that the fines would
have any impact at all on them. In this respect,
whether employees are still members of the Union
for purposes of imposition of a union fine, the proviso
to Section 8(b)(1)(A), in express terms, applies to
a union's rules for acquisition or retention of member-
ship."
For all these reasons, I would find no violation
of Section 8(b)(1)(A) of the Act in the Union's fining
a nonmember or a purported nonmember.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees
who had resigned from the Union and who,
in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, worked at the Michoud plant
during the September 1965 strike by imposing
fines or by threatening to seek or by seeking
court enforcement of said fines as to such employ-
ees.
WE WILL reimburse nonmembers above men-
tioned for any fines they may have paid to us
for working during the said strike.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
BOOSTER LODGE No. 405
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(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, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
19 The cases cited by my colleagues in fn i i concern a Union's
application of its membership rules to job tenure, and thus are inapposite
to the instant situation, where the rules pertain solely to another internal
union matter
RAMEY DONOVAN, Trial Examiner The charge in this
case was filed on February 18, 1966, by The Boeing Compa-
ny, herein the Employer or Boeing. The General Counsel
of the National Labor Relations Board, herein the General
Counsel, issued a complaint under date of August 9, 1968,
against Booster Lodge No. 405, International Association
BOOSTER LODGE NO 405, IAM
of Machinists and Aerospace Workers, AFL-CIO, herein
Respondent or the Union. The Complaint alleged that,
in the period October-December 1965 and January 1966,
the Union levied fines against named employees and other
employees of Boeing in the sum of $450 each for crossing
the Union's picket lines and working during a union strike
against Boeing from September 16, 1965, to October 4,
1965 It is alleged that the above fines were unreasonable,
excessive, and discriminatory. Further alleged is that, in
the period aforementioned, the Union levied fines against
named and other employees for the same reasons described
above although these employees had resigned from the
Union prior to working during the strike and prior to
being fined. These fines are also alleged to be unreasonable,
excessive, and discriminatory The complaint additionally
alleges that, in connection with all the fines in the situations
hereinabove, Respondent instituted or threatened to institute
legal proceedings against employees who failed or refused
to pay the fines. All the aforementioned conduct is alleged
to have restrained and coerced employees in the exercise
of rights guaranteed in Section 7 of the act and thereby
constituted a violation of Section 8(b)(1)(A) of the Act.
In general terms, Respondent's answer denies the allega-
tions of the complaint aforedescribed although admitting
that Respondent "did institute legal proceedings against
certain employees who failed or refused to pay fines imposed
upon them."
The case was tried before Trial Examiner Ramey Donovan
in New Orleans, Louisiana on October 2-3, 1968 All
parties were represented by counsel.
I. JURISDICTION
Boeing is a Delaware corporation with its principal office
in Seattle, Washington, and it is engaged in the manufacture
of aircraft and aircraft parts at Wichita, Kansas, and at
Seattle and Renton, Washington. Boeing also operates a
plant at New Orleans, Lousiana, known as the Michoud
plant, which is the only plant directly involved in this
proceeding. The Michoud plant is performing work for
the National Aeronautics and Space Administration. It
is estimated that in September 1965 approximately 6000
employees were employed at Michoud, of which approxi-
mately 1,500-1,900 were in the unit represented by Respond-
ent Union.
Boeing is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
Ii. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
A contract between Boeing "and The International Asso-
ciation of Machinists, AFL-CIO and those of its lodges
now and hereafter representing employees of the Company
" was in effect from May 16, 1963, to September
15, 1965. Various units of production and maintenance
employees were covered by the contract, such as the Seattle-
Renton unit, the Atlantic Missile Test Section unit, the
385
Wichita unit. The Seattle- Renton unit included company
employees in the unit in the state of Washington and
company employees in the unit "at Remote Locations identi-
fied with the Seattle-Renton Primary Location .11
Following a description of the Seattle-Renton unit the con-
tract states that "Such unit is primarily identified with
the Primary Location known as Seattle-Renton and with
Aeronautical Industrial District Lodge No. 751 (IAM,
AFL-CIO).` A "Remote Location" is defined as "a compa-
ny operation located in an area away from a Primary
Location and designated by the Company as a Remote
Location, such as Michoud Plant . . ." The signatories
to the contract were the IAM and " Boeing and District
Lodge 751, District Lodge 70, and Banana River Lodge
2061.
Booster Lodge 405, herein Lodge 405, which embraces
the unit employees at Michoud, was not in existence at
the time of the execution of the above contract. At that
time, Michoud was a "Remote Location" under the contract,
the primary location being Seattle-Renton. The unit was
identified with the primary location and with District Lodge
751, Seattle Lodge 405 came into existence sometime later
in 1963. Lodge 405 is not mentioned in any contract
until the contract that was executed in October, 1965.
The contract provides that unit employees who are mem-
bers of the Union or who become members are required
to maintain their membership as a condition of employment.
Employees hired after the effective date of the contract,
who are not members of the Union, have a specified period
in which to give notice that they do not desire to become
union members. Such notice, in writing, is to be sent
to District Lodge 751 in Seattle, with a copy to the Boeing
Corporate Labor Relations Office in Seattle.
Upon the expiration of the contract on September 15,
1965, the Union struck and picketed Boeing at Michoud
and other locations. The strike was over economic issues
between the parties The strike ended on October 3, 1965,
and a new contract was entered into.
During the strike, certain employees who were in the
contract unit at Michoud crossed the picket line and worked
At one time during the period of the contract all these
employees were members of the Union. Some of these
employees had allegedly resigned from the Union prior
to returning to work and all of these alleged resignees
had taken their steps of alleged resignation prior to any
action by the Union against them because of their return
to work during the strike. Another group of the returners-
to-work during the strike, who were union members, made
no attempt to resign from the Union. The Union made
no distinction between the two foregoing groups and, after
the strike, it proceeded to try and to fine these employees
and to institute legal action to collect unsatisfied fines.
There is no evidence that before or during the strike the
Union warned employees that fines or any other action
would be taken against those who worked during the strike.
Article L, article XXIV, section 3, of the constitution
of the International Association of Machinists, provides,
under the caption, "Improper Conduct of a Member" that.
Aeronautical Industrial District Lodge No 751 will be referred to
as District Lodge 751
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following actions or omissions shall constitute
misconduct by a member which shall warrant a repri-
mand , fine, suspension and/or expulsion from member-
ship , or any lesser penalty or any combination of
these penalties as the evidence may warrant after written
and specific charges and a full hearing as hereinafter
provided-
Refusal or failure to perform any duty or obligation
imposed by this constitution ; the established policies
of the I A M.A.W.; the valid decisions and directives
of any officer or officers thereof. .
Accepting employment in any capacity in an establish-
ment where a strike or lockout exists as recognized
under the constitution , without permission.
Although the internal due process of the steps taken
by the Union with respect to the employees aforedescribed,
who had worked during the strike, is not in issue , a brief
description of the various steps is appropriate . The record
indicates that these steps were initiated in November 1965,
or possibly the latter part of October, 1965.
By mail , an employee was notified that he had been
charged with violating the constitution of the Union , specifi-
cally article XXIV, article L, section 3, "Accepting employ-
ment . in an establishment where a strike . . exists
. . . " He was advised of the time and place of his
trial before the trial committee and the fact that the charges
would be read to him and that he could have an attorney
who was "a member of the I .A.M.A.W " to defend him.
The trial, it was stated , would proceed if he did not appear.
According to Higgins, business representative of Lodge
405 during the strike and immediately thereafter and
subsequently president of Lodge 405, those employees who
did not appear at their trial were fined $450; those who
appeared and were found guilty were fined $450;' those who
appeared before the trial committee and said that they were
sincerely sorry about what they did and said t at t ey wished
to be good union members had their $450 fines reduced to
50 percent of what they earned by working during the
strike 3 By letter or otherwise, there was no notification to
employees by the Union that it had reduced or would reduce
the fines to 50 percent of earnings under some
circumstances Higgins states, however, that the foregoing
reduction was "general conversation " This appears to be a
dubious basis for a factual finding of general knowledge and
at best would indicate that some employees, other than
those who had actually received such reductions, may have
heard of some reductions. Regarding the implementation of
the reduction in those cases where it was granted, Higgins
states that the Union did not know the earnings of the
' There is no evidence that anyone was found not guilty In addition
to the fine the employee, depending on his years of employment, was
barred from holding union office for periods of 1 to 5 years Employee
Thomas, a witness called by Respondent , whose fine had been reduced
from $450 to 50 percent of earnings during the strike at Boeing , testified
that in September 1968, about 2 weeks before the instant hearing, as
a result of his plea of personal hardship to the union membership and
to a new administration in Lodge 405 , his fine was reduced to $20
' This 50 percent policy , according to Higgins , was initiated in the
"first part" of 1966
particular individuals and took their word as to earnings in
arriving at the 50 percent balance 4
Some "fleshing out" of Higgins' testimony is to be found
in typical letters in the record that were sent by the Union to
the employees who were fined A November 3, 1965, letter
to employees who had been fined 50 percent of earnings
noted nonpayment in full and requested that the employee
contact the business representative of the Union regarding
payment "since we are now in the process of turning all
fines over to our attorney for collection Failure to do so
could cause your fine to be increased to $450 as was noted
at your trial " A letter of February I. 1966, sent to an
employee who had been fined $450, and signed by the
Union's attorney, states that the matter has been referred to
the attorney for collection 5 The letter then sets forth a
demand for the $450 and advises that failure to respond
promptly "will require our filing suit against you, with the
additional cost to you of attorney fees and court costs
incurred by the Union in the process. plus legal interest "
The record also discloses that the Union cited employees
on a petition for money judgment in the City Court of
New Orleans . For instance , a citation , dated April 11,
1966, shows the amount as $630 "with legal interest."
The figure of $630 was based on $450 for the fine, plus
$180 attorney 's fees. Boeing undertook to defend the suits
against individual employees but made no general communi-
cation of this policy to employees. Thus, the employee
cited in the April 11 action, above, contacted Boeing's
Labor Relations Manager, Nau, about the citation. Nau
referred the employee to the Company's attorney although
Nau advised the employee that he could retain his own
attorney if he wished.
The Resignations
At an earlier point, one of the categories of employees
involved in the instant case was described as alleged resignees
from the Union . It is now appropriate to describe and
determine the facts regarding the alleged resignations.
Nau testified that , in 1962, in a period when there
was a hiatus in the contractual relationship between the
Union and Boeing , the practice was for the union members
who wished to resign from the Union to send a registered
letter to the Union and to the Company, stating that
they wished to resign their membership and to have their
dues deduction authorization cancelled . Nau states that
in past years, including 1962, this practice was recognized
by both parties . Higgins testified that there was no provision
in the constitution allowing resignation by sending a letter
to the Union and no by-laws or practices of Lodge 405
permitting members to resign their membership. Higgins
was then asked by Respondent 's counsel about "testimony
here by Mr. Nau with respect to an employee who dropped
' In letters notifying employees of the fines imposed, the right of
appeal to the president of the International Union , pursuant to the
constitution, was mentioned There is no evidence that any appeals
were taken
' The particular letter was sent to Katz who had allegedly resigned
from the Union prior to working during the strike
BOOSTER LODGE NO 405, IAM
out of membership in Local 405 during a period of time
when there was no contract in effect, in 1963."6 Higgins
testified that no employee "dropped" from the Local but
Higgins went on to describe some employee who had never
been a member in the first place and from whom, in
any even, the Union had never received a letter
It is the Examiner's opinion that in the past, in 1962,
when the Michoud plant was represented by District Lodge
751, the Michoud plant management, the Labor Relations
Manager, believed, and so advised personnel when such
matters arose, that in a no-contract period an employee
who wished to resign from the Union and to discontinue
authorization for checkoff of dues could do so by writing
to the Company and to District Lodge 751, both in Seattle.
The extent to which employees availed themselves of this
procedure is unclear but apparently no issue arose between
the Company and District Lodge 751' on the matter and
the Company had no reason to believe that its understanding
of the procedure was disputed
The evidence reveals in many respects a general orienta-
tion toward Seattle of company and union relations at
the Michoud plant. This situation arose from the fact
that Boeing 's corporate labor relations office was in Seattle
and that city was also the situs of, and the area embraced
by, District Lodge 751 When the 1963-1965 contract was
entered into, District Lodge 751 was the union organization
representing the Michoud employees The contract provided
in its union-security clause that those employees who were
not union members and who did not wish to join the
Union were obliged to write to the Company in Seattle
and to District Lodge 751 in Seattle stating that fact.
The Company, in the past, in notices to newly hired employ-
ees, set forth the above provisions , including the Seattle
addresses of the Company and District Lodge 751. There
is no evidence that the contract or the company notices
were amended in the above respects after Lodge 405 came
into existence at Michoud. Nor is there evidence that,
when a new Michoud employee wrote such letters to the
Company and to District Lodge 751 in Seattle, Lodge
405 contended that such letters by a Michoud employee
were ineffective under the contract because the letters had
not been addressed to Lodge 405.
This Seattle orientation was also present in the 1965
period when the events herein involved occurred Thus,
the contract negotiations for the various units, including
Michoud, were conducted on the basis of one contract
embracing various units and locations .' These negotiations
were held in Seattle Also, in 1965, before the strike Nau
advised his labor relations staff people of the Company's
position if confronted with inquiries regarding withdrawals
from the Union when, by lapse of the contract, there
might be no contractual obligation to maintain union mem-
bership . This intramanagement communication read.
1 The Company does not encourage or discourage
anyone from withdrawing his membership from the
Union ....
` Nau's testimony was as described above
Lodge 405 was not yet in existence
The subsequent strike occurred at all locations
387
2. The Company cannot assure the employees that
sending a letter will terminate his membership in the
Union. However, in the past, the procedure has been
to send a registered or certified letter to the Union
and to the Company in Seattle stating he wishes to
terminate his membership in the Union and to cancel
his payroll authorization for Union dues deductions.
[There are then listed the full name and Seattle address
of District Lodge 751 and the name and Seattle address
of the Company, to wit, "Corporate Labor Relations
Office " Neither the Company's Labor Relations office
at the Michoud plant nor Lodge 405 at Michoud
were mentioned ]
Around September 1965, various individual employees
at Michoud spoke to their supervisors or other management
people about how they could resign from the Union. The
evidence reveals that, in substance, they were told that
it was necessary to write a registered or certified letter
of resignation to the Company and to District Lodge 751
in Seattle There is no evidence that the Company solicited
or initiated withdrawal inquiries or withdrawal action by
the employees but the Company did respond to inquiries
as aforedescribed.
Beginning about September 16, 1965, and on various
succeeding dates in September, over 100 employees wrote
to the Company and to the Union (District Lodge 751)
in Seattle certified or registered letters of resignation In
substance , the writer said that he no longer wished to
be a union member or that he was resigning from the
Union. By letter of November 4, 1965, Lodge 405 stated
to Nau:
Attached is a list of Boeing employees who wrote
certified letters, either to District 751 or Local 405,
terminating their membership in the International Asso-
ciation of Machinists and Aerospace Workers [The
list of names attached numbered 235]
Although we have not yet described Respondent's princi-
pal contention regarding the resignations , Respondent does
make, in its brief, a subsidiary contention that is, in effect,
assuming arguendo, that employees could resign from the
Union, the resignations should have been addressed to
Local 405. In support of this position Respondent states
that the Michoud employees "signed Local 405 membership
application cards and payroll deductions are made locally."'
To further present the contention in its full strength, the
Examiner will also state that there is no doubt that the
Michoud employees were members of Lodge 405 in Septem-
ber 1965, and not members of District Lodge 751.
While it is probably true that, from the standpoint of
legal precision, Lodge 405 should have been an addressee
for the resignations , the evidence which we have described
Before Lodge 405 came into being, the Michoud employees signed
District Lodge 751 union application cards Those who had so signed
were not thereafter required to sign Lodge 405 cards when that Lodge
came into existence For a time , after Lodge 405 came into existence,
District Lodge 751 cards were used at Michoud but this ceased when
Lodge 405 became fully functional and had its own cards The evidence
indicates that at one time dues checked off at Michoud were remitted
to Seattle but, when Lodge 405 came into being, it received the checked-
off dues directly from the Company
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above in detail leaves no doubt in our mind of the substantial
history of Seattle orientation of union and management
matters at Michoud. The contract that was in effect until
September 15, 1965, specifically mentioned only the Seattle
offices of the Company and the Union, District Lodge
751 in Seattle, as the bodies to be notified if an employee
did not wish to join the Union. This and the other factors
we have previously mentioned would not unnaturally lead
to the belief that the Seattle formula was also applicable
to resignations. Also, there can be little doubt of the fact
that the Seattle labor relations office of the Company
informed its Michoud counterpart of Michoud communica-
tions that it received and that a similarly close liaison
existed between District Lodge 751, in some respects the
ancestor or parent of Lodge 405, and the latter The letter
of November 4, 1965, from Lodge 405 to Nau fully supports
the conclusion that Lodge 405 was fully aware of the
resignations. 10
Respondent's basic position is that the resignations were
an exercise of futility and that regardless of where or
when they were sent or received Respondent regarded and
regards them as having no effect. Charges were filed and
trials conducted against those employees who worked during
the strike irrespective of resignations."
The reason advanced by Respondent for disregarding
the resignations is, in substance , that there is no provision
for voluntary resignations under the constitution or by-
laws. The constitution provides that membership may be
cancelled where a member is delinquent for 3 months
in the payment of dues or special levies. There is also
a constitutional provision for honorary withdrawal cards
to a member who ceases working at the trade or who
becomes a supervisor. Higgins testified that the union posi-
tion at the time of the purported resignations was that
the employees did not have the right to resign from the
Union. 'I This continues to be the union position
The Allis-Chalmers Decision" and Reasonable Fines
The applicability of the Allis-Chalmers decision to the
present case is apparent, but preliminarily, it is appropriate
to describe and to understand the holding in that case
since the doctrine of unreasonable fines, which is advanced
by the General Counsel in the instant case, is distilled
from the Allis-Chalmers decision
The majority of the Supreme Court held, in substance,
that "the body of Section 8(b)(1) [(A)] [which prohibits
restraint or coercion by a union of the rights of employees
to engage in or to refrain from engaging in union activities
as guaranteed in Section 7 of the Act]" does not proscribe
" ° The resignation letters addressed to Seattle were sent to Lodge
405 and received by the latter about October 15, 1965
" Higgins testified that if an employee had sent in a resignation
he was not charged and tried if he had not worked during the strike
The converse was also true , that is , the employee who had resigned
was charged and tried if he had worked during the strike
" Higgins referred to the constitutional provisions above and the
absence of any provision for resignation Higgins did, however, testify
that a member could resign "by death "
" NL R B v Allis-Chalmers Manufacturing Company, 388 U S 175
"the imposition of fines and attempts at court enforcement
. ."10 The Court stated "Our conclusion that Section
8(b)(1)(A) does not prohibit the locals' action [of imposition
of fines and court action to collect the fines] makes it
unnecessary to pass on the Board holding that the proviso
protected such action "15 The critical role of court enforce-
ment of fines as a significant factor in appraising the
union conduct, and a further indication of the nondetermina-
tive role of the proviso in the majority's decision is found
in the comment regarding the fact that one of the local
unions in Allis-Chalmers had notified strikebreaking employ-
ees that they might be subject to a $100 fine for each
day they worked The Court said that " .. no inference
can be drawn from that notification that court enforcement
would be the means of collection. Therefore, at least under
the proviso, if not the body of Section 8(b)(1), such notifica-
tion would not be an unfair labor practice." At another
point, it is said that "Assuming that the proviso cannot
also be read to authorize court enforcement of fines, a
question we need not reach . "I6
In upholding the imposition of fines and the court enforce-
ment thereof, the Court, in the course of its opinion,
at several points used the term "reasonable fine " Thus,
at page 183. "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"; at page 192• "There may be concern
that court enforcement may permit the collection of unrea-
sonably large fines However, even where there is evidence
that Congress shared this concern, this would not justify
reading the Act also to bar court enforcement of reasonable
fines." In a footnote on the same page it is stated that
"It is not argued that the fines for which court enforcement
was actually sought were unreasonably large "
Accordingly, we find an implied requirement that the
court enforceable fine must be "reasonable" or not "unrea-
sonably large." Having rejected the position that the high
water mark of internal union discipline of members regard-
ing fines or other strictures was the right of expulsion
from membership, what remained was the conclusion that
a union could fine its members and enforce the fines in
court without violating Section 8(b)(1)(A). Since the Act,
under the foregoing construction , supplied no standard
or limitation on the amount of the fines, the standard
of reasonableness , often invoked in legal construction, was
apparently invoked as appears from the above excerpts
in the Allis-Chalmers decision.
" In reaching this conclusion , the majority had perceived " inherent
imprecision" in the words "restrain or coerce" in Sec 8(b)(1)(A) and,
in its view of the legislative history, Congress did not intend to interdict,
as "restraint or coercion" , the imposition of fines and court enforcement
thereof The majority also stated that "weak" unions would be disadvan-
taged if court enforcement of fines were encompassed in the prohibition
of Sec 8(b)(1)(A) and that therefore it had not been intended to interdict
such conduct
" Immediately following the body of Sec 8(b)(1)(A), described above,
is the proviso , "That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein "
1' Elsewhere the Court did perceive "cogent support" for its interpreta-
tion of the body of Sec 8(b)(1)(A) in the proviso
BOOSTER LODGE NO 405, 1AM 389
We proceed, therefore, on the basis, as indicated by
the Court, that under the body of Section 8(b)(1)(A) the
fine imposed and enforced or sought to be enforced must
be "reasonable."
The principal or sole point of references in Allis-Chalmers
to determine what is a reasonable fine or one that is
not "unreasonably large" is the actual amount and circum-
stance of the fines in that case The factual circumstances
are most fully described in the Trial Examiner's Decision,
adopted by the Board, and not disputed in the Court
of Appeals or in the Supreme Court."
In Allis-Chalmers, Local 248 struck the Company from
February 2 through April 20, 1959 On February 24, 1959,
248 notified employees who had crossed the picket line
to work that they were subject to a fine of up to $100
per day for each day's activity Between February 2 and
June 30, 1959, charges were filed with 248 against the
strikebreakers. By September 1959, 172 members had been
fined $20 to $100. On September 18, 1959, 248 demanded
payment of the fines On October 16, 1940, 248 again
asked for payment, citing a Wisconsin case holding that
fines were enforceable. On April 21, 1961, 248 notified
each fined member of the action of the US Supreme
Court in the Wisconsin case and warned that a continued
failure to pay the fines would result in the case being
turned over to counsel "for civil suit " Local 401 struck
at another installation of the Company from February
2 to April 19, 1959. After teal, it fined strikebreakers
$100 each on July 11, 1959. On August 29, 1961, 248
took a pilot case to court against a strikebreaker who
had been fined $100 Plaintiff was successful on April
26, 1963 Appeal was pending A suit by 401 against
one of its strikebreakers was pending. In 1962, both 248
and 401 had a similar situation as described in earlier
years In 1962, the actions of the Unions were similar
to their earlier actions and strikebreakers were fined $35
to $100 by 248 and 401 fined its strikebreakers $100.
In 1962, however, there were no threats of court enforcement
nor warnings of court action. A high percentage of 248
strikebreakers paid fines in 1962 and all 401 strikebreakers
paid
Aside from initial general descriptions of the factual
situation in the case, the Allis-Chalmers decision devotes
little space to factual details but is principally concerned
with the broad legal issues of the case Perhaps the most
specific comment made by the Court about the actual
fines in Allis-Chalmers is as follows:"
The notification by Local 248 to its strikebreaking
employees that each day they continued to work might
constitute a separate offense punishable by a fine of
$100 was sent only to members of Local 248, not
those of Local 401, and only during one of the two
strikes called by Local 248 The notification was sent
I` Local 248. United Autontobde 4erospateand 4,griuthuralImplement
Won,erv of America, 4 FL-CIO( 411n-Chalniers Manufacturing (onipani)
149 NLRB 67. 75-76 4llis-Chabnerc Manu/aituringCompani v 'V L R B
258 F 2d 656, 657 (C A 7) N L R B v Alhs-Chalmers Manufacturing
Conipant, 388 U S 175 192 In 30
" P 192,fn 30
only to those employees who had already decided
to work during the strike. Most important, no inference
can be drawn from that notification that court enforce-
ment would be the means of collection. Therefore,
at least under the proviso, if not the body of Section
8(b)(1), such notification would not be an unfair labor
practice. It is not argued that the fines for which
court enforcement was actually sought were unreason-
ably large.
An appraisal of the factual situation in Allis-Chalmers
sheds little light on what standards the conclusion was
reached, as it quite apparently was, that the fines were
reasonable or not unreasonably large. All we know is that,
in that case, fines of $20 and $100 on strikebreakers who
worked during two stnkes that lasted over 2 months each
were reasonable. We do not know if the Court would
regard the actual imposition, as threatened in Allis-Chalmers,
of a fine of $100 per day for each strikebreaker as reasonable
It is this lack of a standard or guideline in determining
reasonableness that presents a problem. And this is a prob-
lem that may apse in every case involving fines and threat-
ened or actual court enforcement of the fines. We can
conclude that, in those cases that arise where the strike
lasts more than 2 but less than 3 months and the fine
is $20 or $100, the fine is reasonable." But suppose the
fine is $150, $200, $300, $400 or some other figure for
a strike of similar duration What is the standard in a
1-month strike, a 6-month strike, or a strike of some
other duration? In this connection, the basic nature of
the problem was recognized by the dissenting justices in
Allis-Chalmers in the following observations (p. 204)
In this case, each strikebreaking employee was fined
from $20 to $100, and the Union initiated a `test
case' in state court to collect the fines. In notifying
the employees of the charges against them, however,
the Union warned them that each day they crossed
the picket line . . . might be considered a separate
offense punishable by a fine of $100. In several of
the cases, the stnkes lasted for many months Thus,
although the Union here imposed minimal fines for
the purpose of its `test case', it is not too difficult
to imagine a case where the fines will be so large
that the threat of their imposition will absolutely
restrain employees from going to work during a strike
. . . of course, as the Court suggests , he [the fined
employee] might be able to defeat the union's attempt
at judicial enforcement of the fine by showing it was
`unreasonable' . . . . but few employees would have
the courage or the financial means to be willing to
take that risk [citation omitted 1.20
" To be on all fours with Allis-Chalmers, the comparative strike situation
must also include a warning of fines to individual strikebreakers during
the course of the strike and not deferment of threats of, or imposition
of, fines until after the strike
30 Aside from these observations, the contests of whether particular
fines in particular strikes of various types and duration are unreasonable
or not, could find their way individually to the Board Without a standard
by which to determine reasonableness, this task could be formidable
Conceivably, the administrative task could be lessened by deciding that
(cont'd)
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, the General Counsel, recognizing, at least
in some degree, the decisional task of determining what
is a reasonable fine, states that "Since neither the Board
nor Courts have established any criteria in this type case
for determining what constitutes a reasonable fine, all rele-
vant factors should be considered " We would agree with
this observation although the "relevant factors" are almost
as recondite as what is "reasonable" since the Court has
not informed us what are the hallmarks of reasonableness
If we knew even one standard of reasonableness as to
the Allis-Chalmers fines, the relevant factors therein could
be determined. All that can be said is that in that case,
where strikebreakers worked abour 2 1 /2 months and
earned possibly between $2.50 and $3 per hour or possibly
$1,000 overall, whereas if they had not worked as required
by the union rules they would have earned nothing or would
have received possibly appreciably less in strike benefits, a
fine of $100 or $20 and court action thereon is reasonable
But, again , at the risk of belaboring the point, what is
reasonable if the fine was some other amount or if the
strike was of different duration?21
The various factors, submitted by the General Counsel
as relevant in assessing the reasonableness of the fines
in the instant case and as supporting his contention that
the fines were unreasonable and excessive, are as follows.
The General Counsel cites Section 8(b)(5) of the Act.
This section provides that it is an unfair labor practice
for a union , in situations where a contract requires union
membership as a condition of employment, to require pay-
ment of a membership initiation fee in an amount "which
the Board finds excessive or discriminatory under all the
circumstances. In making such a finding, the Board shall
consider, among other relevant factors, the practices and
customs of labor organizations in the particular industry,
and the wages currently paid to the employees affected."
It is therefore argued, in effect, that the wages of the
strikebreakers and other economic factors pertaining to
them should, by analogy to the factors deemed relevant
in Section 8(b)(5), be considered in the instant case.
While we do not have an 8(b)(5) situation before us"
and cannot say that the standards set forth in that section
govern the instant case, the considerations in that section,
and in the decisions applying it, do manifest, in some
almost any duly enacted fine short of outright confiscation was reasonable,
but leaving to a patchwork of state court decisions the determination
of whether the particular court would actually enforce a fine that it
might consider unreasonable or excessive Surely this approach cannot
be recommended as the lot of individual employees covered by Sec
7 of the Act and by Sec 8(b)(1)(A) even as the latter has been interpreted
in Allis-Chalmers
" We mention amount of the fine and duration of the strike because
these were the only factual elements that appear in Allis-Chalmers The
Court evinced no interest in any other factors and did not comment
specifically on either factor that was present other than to observe that
no one had argued that the fines were unreasonably large As we shall
see, there are other considerations that have at least potential relevance
on the qustion of what is a reasonable fine
" Fairly typical 8(b)(5) cases are Television and Radio Broadcast
and Studio Employees, Local 804 (Triangle Publications, Inc.), 135 NLRB
632, enfd 315 F 2d 398 (CA 3), Local 839, Motion Picture Screen
Cartoonists (1A TS.E), 121 NLRB 1196
degree, congressional, Board, and court thinking on the
matter of unreasonable or excessive union fees. An initiation
fee and a fine are of course distinguishable but both represent
an exercise of union power as to membership obligations
of employees, and, regarding the initiation fees, at least,
we have some guidelines by which a fee is judged reasonable
or excessive.
The employees involved in the instant case normally
earned approximately $2.38 to $3.63 per hour which would
mean about $95 and $145 per 40-hour week, respectively.
The fines were $450, although under certain conditions
described earlier in this decision individual strikebreakers
had obtained a reduction from the $450 fine to a fine
in the amount of 50 percent of the strikebreaker' s earnings
at Boeing during the strike 21
It is pointed out by the General Counsel that the $450
fine alone, even without the $180 attorney's fee for a
total of $630, is more than 4 1/2 times the weekly earnings
of the lowest paid strikebreakers.24 We ourselves likewise
observe that $450 is more than double the weekly earnings
of the highest paid strikebreaker. The General Counsel
also characterizes $450 as "exorbitant" when compared
with the union 's initiation fee of $10 and the monthly
dues of $5 50 or $66 per year.
Another factor that the General Counsel urges as support-
ing the contention that the fines were unreasonable is
the fact that Hurricane Betsy had struck the New Orleans
area a week before the strike. The hurricane caused extensive
damage in the area, affecting, among others, the employees,
their homes, families, possessions, and transportation. The
record does not show how much each individual strikebreak-
er, over 160 in number, was affected by the hurricane
nor how the more than 10 times as many employees who
did not work during the strike were affected. There is
testimony from a few strikebreakers as to how they were
affected by the hurricane. 2' In some degree the testimony
may be regarded as illustrative of the type of problems
that beset people in the area, including strikebreakers and
nonstrikebreakers. Undoubtedly some people suffered more
and some less, but unless an individual survey was made
of some 1,500-1,900 employees in the unit , we can do
little more than conclude that the hurricane adversely affect-
ed the area and its people from the economic standpoint.
In the same connection, the record shows that the
Michoud plant was severly damaged by the hurricane and
was closed for 3 or 4 days, reopening just a matter of
a few days before the strike Nau had spoken to Higgins
" Atypical and not properly part of the general picture of the amount
of the fines is the case of a strikebreaker who, in 1968, 2 weeks before
the instant hearing, secured a reduction in his fine to $20 , supra.
" In using the term "strikebreakers" to describe employees who worked
during the strike, no value judgment is intended We use the term
simply as a convenient one word description rather than the longer
phrase of "employees who worked during the strike " Both the majority
and the dissenting opinions of the Supreme Court in Allis-Chalmers used
the term "strikebreaking employees" in referring to those who worked
during the strike
" For instance, 30 inches of floodwater in the home , destruction
of lifetime possessions and property , large family in stringent financial
straits for basic necessities
BOOSTER LODGE NO 405, iAM
with regard to the impending multiunit strike by the Union
against Boeing . Nau urged that, in view of the effect of
the hurricane on the Michoud plant and its employees,
Higgins should request the International Union to exclude
the Michoud plant from the coming strike against various
Boeing installations . Higgins responded negatively
Higgins testified that the Union did take the hurricane
situation into consideration regarding the fines He states
that he personally had thought that the fines should be
more than $450 because he believed some strikebreakers
had earned more than $450 by working during the strike
The reduction of the $450 fines to 50 percent of earnings
during the strike was attributed by Higgins to consideration
of the effects of the hurricane on employees We believe
that this may be partially true but the reduction was
due to other factors also and the reduction did not apply
ipso facto simply on the basis that all strikebreakers had
been affected by the hurricane Thus, as earlier described,
the reduction of the $450 fine to the 50 percent of earnings
basis was not accorded to all strikebreakers but only to
those who appeared at their trial, confessed their wrongdo-
ing, and affirmed a desire to be good union members
in the future. No notice was issued that the above formula
was being followed or would be followed."
We have before us, therefore, a variety of factors that,
the General Counsel asserts, demonstrate that the fines
in the instant case were unreasonable. These factors include
the amount of the normal earnings of the employees and
the normal dues and initiation fees, as well as the severe
economic consequences of a hurricane that struck the area
shortly before the strike.
It is our opinion that normal earnings and the amount
of the regular dues and initiation fees are relevant consider-
ations. The normal earnings are particularly important in
a situation, such as here, where the charges and fines
did not occur until after the strike and where there were
no prior warning of a specific fine for working during
the Michoud strike or of the possible amount of the fine.27
It is apparent that such fines will probably have to be
paid from normal earnings and that whatever earnings
there were during the strike were probably spent as normal
living expenses, without saving part thereof for an expected
future fine of $450
From the standpoint of the Union, however, a more
important consideration would be that the strikebreakers
received earnings during the strike. These earnings were
received as a result of violating membership obligations
not to work during the strike and the strikebreakers' earnings
are in contrast to the lack of earnings of the loyal union
'a Both the Union and the Company had taken steps to relieve suffering
caused by the hurricane Upon application by an individual and after
mvetittgation a special fund set up by the international Union was
the source of payments of $124 to employees who were seriously affected
by the hurricane Thomas, a witness called by the Union, who was
a strikebreaker , testified about there being 30 inches of water in his
house as a result of the hurricane and about he and his wife and
eight children then sleeping on the floor of his uncle's apartment , occupied
by his uncle's own large family Thomas applied to the Union for the
$124 relief and his uncontroverted testimony is that Higgins told him
he was not eligible since he worked during the strike
ii Respondent , moreover, had never before fined any of its members
391
members. 28 It is thus apparent that both normal earnings
and earnings secured during the strike are relevant consider-
ations in evaluating the reasonableness of the fines.
As to normal dues and initiation fees of the Union,
they, like normal earnings, have relevance because they
are indicative of the amount of the economic obligations
that normally exist between the Union and its members.
For dues of $5 50 per month or $66 00 per year, the
normal financial obligation of a member to the Union
is discharged. From such a standpoint, a fine of $450
is a major escalation in financial obligation.
Then we come to the economic consequences of the
hurricane and the attendant economic and personal pressures
therefrom that had been placed on individuals who worked
during the strike The difficulty of assessment in this area
as to relevance on the amount of the fines is apparent
In promulgating or administering a penalty where a large
number of individuals is involved there are two somewhat
conflicting considerations. One consideration is a desire
for uniformity in order to avoid contentions of partiality
but another consideration is the desire to assess guilt on
an individual rather than on a group basis. Uniformity
also makes for ease of administration as contrasted with
the time and difficulty entailed in arriving at varying individ-
ual penalties Does a reasonable fine in the instant case
necessitate a differentiation between two strikebreakers, one
with three children and one with eight? Suppose one strike-
breaker had a dependent mother- in-law and a spastic child
requiring special medical attention Should the fine be differ-
ent for a man who had 30 inches of water in his house
whereas another had only 2 inches? All sorts of differentia-
tions are possible, including values of destroyed or damaged
cars, furniture, and so forth that varied in individual case;
children or no children; working wives or nonworking
wives; and many types and degrees of individual financial
obligations. How is the adjudication in any of the foregoing
types of situations of strikebreakers to be affected if the
nonstrikebreakers had equivalent or greater numbers of
children, personal problems, and damage to property'?
Perhaps a conclusionary and determinative assessment
of the various factors of normal earnings, initiation fees,
dues, strike earnings, hurricane, and individual situations
of strikebreakers as guidelines to what is a reasonable
fine is not necessary. None of these elements were presented
to the Court in Allis-Chalmers and as far as appears the
Court evinced no interest in such real or potential factors
in arriving implicitly at its conclusion that the fines in
that case were reasonable or not unreasonably large. It
can be said that, since the fines in Allis-Chalmers were
$20 and $100 for working during a 2 1/2-month strike,
the instant fines of $450 for working during an 18-day
strike were unreasonable. It can also be said that in the
i" The strike occurred through 18 calendar days, including 3 Saturdays
and 3 Sundays Different strikebreakers, of course, had different rates
of pay and worked either a few days or many days during the strike
As provided in the expired contract, bonus or premium rates were earned
by some employees for weekend work or for work properly classed
as overtime Varying pay rates, lesser or greater days worked, plus
the existence or nonexistence of premium pay in individual cases, would
give a wide range of earnings
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cited case there was ample advance warning not only that
strikebreakers would be fined but also that the fines could
be severe . 29 In the instant case there was no warning before
or during the strike that fines would be imposed and,
of course , no indication of the amount or severity of the
fines
While the foregoing approach is temptingly available,
the Examiner believes that the parties, as well as other
employees , unions, and employers , are entitled to some
explication of what are the elements that make one fine
in one strike reasonable and which factors in another strike
might make certain fines unreasonable . It is scarcely helpful
or enlightening to conclude that only a $20 or $ 100 fine
is reasonable regardless of the length of the strike and
regardless of other factors that we have touched on above.
A fine of $ 100 in a 1-day strike and a fine in the same
amount for working during an 8-month strike are surely
not the same as to reasonableness even if we disregard
every other variable factor.
A determination of whether the instant fines are reason-
able or unreasonable should itself be based on a formula
that has a reasonable basis. The reasonableness of the
basis or standard will be more evident if it is reasonable
not only with respect to the instant case but has general
applicability to other strikes and to other strikebreakers.
A measure of predictability in such situations would certain-
ly be of help to employees , unions, employers, to the
General Counsel of the Board , and to those charged with
adjudicatory responsibilities While Allis-Chalmers may have
decided reasonableness in that case , the lack of explication
of any basis for conclusion limits its general applicability
as a guideline.
A fine by its nature and definition is a punishment.
Punishment has the elements of retribution, deterrence,
prevention , and reformation . The latter three elements are
generally accorded greater weight in our contemporary
society than is retribution in dealing with nonconformity
or wrongdoing in the various facets of human conduct.
In a regulatory and remedial statute such as the Act the
sanctions are not punitive or retributive in nature. We
therefore are of the opinion that , while the Supreme Court
found that the Act vested in a labor organization the
protected right under the Act to impose reasonable fines
and to seek court enforcement thereof, it was not intended,
we believe , that such fines should be punitive or retributive.
This conclusion , in some degree, finds confirmation in
the fact that the Court used the term "reasonable" in
connection with fines.70
Since we believe that the fines with which we are con-
cerned should be essentially deterrent in nature , the question
is, how much deterrence A deterrent can be total or
virtually total or it can be partial or less than total Without
reference to larger fines , it would appear that a fine of
$100 per day and court enforcement thereof on a strikebreak-
" At one point the Allis-Chalmers strikebreakers had been notified
that their activities could subject them to a fine of $100 per day worked
" It is probably true that a punishment such as a fine may have
an inherent punitive element The deterrent factor , however, is properly
predominant as contrasted with a situation where far and beyond any
reasonable deterrent it is evident that a punitive result is being imposed
er, earning average industrial wages, is a total deterrent
to any union member working during the strike. We also
believe that a fine in the total amount of what the strike-
breaker earned by working during the strike is a total
deterrent " There can be a variety of fines that are less,
in effect , than total deterrents but are nevertheless deterrents
in varying degrees . Probably fines in amounts of more
than 50 percent of earnings during a strike but less than
100 percent are also total deterrents for all practical purpos-
es. This is most evident if the percentages exacted are
80 or 90 percent The more difficult question arises when
the percentage is 50 percent or some percentage above
or below that figure.
Before endeavoring to discern whether the Supreme Court
was speaking of a reasonable fine in terms of total or
partial deterrence , it should be made clear that the Examiner
believes that the Allis-Chalmers doctrine of reasonable fine
is most appropriately interpreted in terms of the relationship
of the amount of the fine to the earnings of the strikebreakers
during the strike . We believe that such a standard, given
the Allis- Chalmers decision regarding the right to impose
and to collect fines in court, is basically equitable. The
elements of normal earnings in nonstrike periods, the amount
of initiation fees and dues, and other factors are taken
into consideration in determining what percentage of strike
earnings may be assessed by fine If the percentage of
earnings during a strike that can be properly extracted
by a fine can be determined by some equitable standard,
then we are prepared to submit such a fine as being the
reasonable fine contemplated by the Court in Allis-
Chalmers Further, if such a standard or formula can be
evolved it would be readily understandable by employees,
unions, employers and all other concerned parties
interested in their respective rights and obligations in this
matter of fines
Having previously narrowed the nature of the fines that
concern us to fines that are deterrents , we return to our
consideration of whether the deterrence envisaged by the
Court was total deterrence from any work during the
strike or less than total deterrence . The resolution of this
matter is initially essential since if the court was sanctioning
total deterrence then a fine of 100 percent of total strike
earnings might be the reasonable fine envisaged, with any
greater amount of fine being unreasonable Conversely,
if the Court did not contemplate total deterrence, our
problem is to ascertain the percentage of earnings extracted
by fine that equates with the degree of partial deterrence
that the Court would consider reasonable
An important portion of the reasoning of the majority
of the Court in reaching its basic decision in Allis-Chalmers
was the strong and weak union analogy. Thus,
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
" Employees warned before or during the strike of fines of the two
aforementioned types would normally not work, etipeually if there had
been a few test cases with such court awards staring them in the face
Such fines , if imposed after the strike , without prior warning, would
deter working in any future strikes
BOOSTER LODGE NO 405, 1AM
visits a far more severe penalty upon the member
than a reasonable fine Where the Union is weak,
and membership therefore of little value , the Union
faced with further depletion of its ranks may have
no choice except to condone the member 's disobedience
[unless it can impose fines and enforce them in court]
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 .
. to interpret the body of Section 8 (b)(1) [as applying
to the imposition and collection of fines but not to
expulsion would be making] a distinction between court
enforcement and expulsion [which] would have been
anomalous . . . such a distinction would visit upon
a member of a strong union a potentially more severe
punishment than court enforcement of fines, while
impairing the bargaining facility of a weak union by
requiring it either to condone misconduct or deplete
its ranks
The concurring opinion of Mr Justice White who constitut-
ed the fifth member of the court majority is based almost
exclusively on the strong and weak union reasoning , above,
in Mr. Justice Brennan 's majority opinion . The same reason-
ing was also the subject of critical comment in the dissenting
opinion written by Mr. Justice Black and concurred in
by three other justices.
Our attention to the strong and weak union comments
of the Court is based on our interest in the question
of whether they tell us anything about the Court's views
on deterrence . Evidently the Court views a "strong" union
as one that possesses a deterrent power over its members
that a "weak" union does not possess . A strong union,
according to the Court, is one whose membership the
members view as "valuable" and therefore expulsion is
a more severe penalty than court enforcement of fines.
A weak union is one where membership is of "little value"
to the members and therefore expulsion is no deterrent
If, as the Court states, expulsion from a strong union
is a more severe penalty than a court-enforced fine, then
such expulsion or power to expel by a strong union is
probably equivalent to total deterrence In other words,
when the strong union, of which the Court speaks, strikes
an employer , the union members will not work because
the union cannot only fine strikebreakers and enforce the
fine in court but can , if it chooses , impose the greater
penalty of expulsion from membership . If expulsion is a
greater penalty than the court -enforced fines then the loss
of membership can probably be presumed to be a greater
economic loss to the member than would a court enforced
fine It is doubtful that in the majority of cases unadulterated
loyalty to the Union or sentimental attachment to the
concept of membership is the element that makes loss
of membership a greater penalty than a court enforced
fine. Moreover , the Court in describing a strong union
as one where the membership was "valuable " was using
a term not generally used to describe pure loyalty or
sentiment . The Court, in the same sense, described a weak
union as one whose membership was of " little value."
Nothing was said about comparative loyalty of members
in different unions but the comparative description was
solely in terms of the value of the memberships . Perhaps
393
it may be said that the aforementioned strong union
in a plant , since it would have secured better contract
terms than would a weak union , was in that sense the
union whose membership was more valuable . This is true
to some degree but the same beneficial contract terms
would continue to accrue to the member expelled for strike-
breaking so that expulsion , realistically , in such a situation,
would not be a penalty that was greater than a court-
enforced fine.
It is reasonably apparent , in our opinion , that the strong
union , membership in which is so valuable that explusion
therefrom is a greater penalty than court-enforced fines,
is most likely a craft union in an industry where membership
in that union is essential to secure or to retain employment."
Expulsion from membership is therefore a severe penalty
and greater than court enforced fines. In such situations
a high degree of discipline is possible and there is little
or no strikebreaking activity by members . We therefore
conclude that expulsion from a strong union , which the
Court described as a greater penalty than court -enforced
fines, if, for all practical purposes , equivalent to total deter-
rence to strikebreaking activity by members . The question
then is, did the Court, while in effect recognizing that
expulsion from a strong union was an exercise of total
deterrence , intend or contemplate that a reasonable fine
was one the amount of which would totally deter strikebreak-
ing-for instance, a fine of $ 100 per day? Or was a reasonable
fine to be a fine that would deter strikebreaking but not
totally eliminate any possibility that any member could,
as a practical matter, work during a strike?
For several reasons, it is our opinion that the Court
contemplated that a reasonable fine was one that would
be less than a total deterrent to working during a strike.
As we have seen , the expulsion of a member from a
strong union is, in effect, total deterrence to strikebreaking
or any other internal rule violation . But the Court , recogniz-
ing the aforementioned power of the strong union, said
that the strong union could impose a lesser penalty than
expulsion , to wit , fines and court enforcement therof. By
the same token , it was concluded that the weak union
could seek court enforcement of fines because this was
a lesser penalty than expulsion . Since expulsion by a strong
union is equivalent to total deterrence and since the Court
referred to court enforcement of fines, as a lesser penalty
than expulsion , then a reasonable fine, enforceable in court,
should not be so large in amount that it is equal to
" The efforts of minority groups to secure membership in certain
unions is explainable on the ground that employment in certain trades
is not a practical possibility without union membership in specific unions
There are two aspects of the foregoing One is the problem of the
untrained and inexperienced to gain admission to the union apprenticeship
program and then to become full-fledged journeymen The other is that
of a trained and experienced worker to gain union membership since
membership is as essential to him as to the untrained Under the Act,
of course , membership in a union cannot be required as a condition
of securing employment and in a union -security contract retention of
employment may not be dependent on union membership if that member-
ship was denied or terminated on some ground other than the nonpayment
of initiation fees and dues Legally, therefore, expulsion from union
membership for anything except nonpayment of dues is difficult to describe
as a penalty more severe than court enforced fines
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
total deterrence If this is not so, court-enforced fines are
not lesser penalties than expulsion by a strong union.
Another reason for believing that a reasonable fine is
one that is less than a total deterrent to any union member
working during a strike is the fact that, under the Act,
the right to strike and to shut down the employer's operation
is not unlimited. The Supreme Court has held that during
an economic strike an employer has a right to protect
and carry on his business by hiring permanent replacements
for the strikers."
In a less developed period of industry where a relatively
high proportion of work was unskilled, the employer might
effectively exercise his right to try to carry on his business
by hiring people off the street, who had no particular
skill or experience in the employer's operation The employer
could, of course, also employ striking employees who
returned to work during the strike but, even if all strikers
remained on strike, the employer still could resort to hiring
replacements off the street. Today, to a great extent, many
employers, including probably Boeing at the Michoud plant,
could not operate in any degree, in a strike, as allowed
by the Mackay decision, if all the regular experienced
employees were subject to court enforced fines so large
in amount that total deterrence would exist as to any
union employee who might, for his own reasons, wish
to work. It is one thing for a union and its members,
through loyalty, dedication, conviction, and solidarity, to
strike and to remain voluntarily on strike and thereby exert
maximum economic pressure by closing down a plant com-
pletely, but it is another thing to obliterate all aspects
of individual freedom by court-enforced fines of a private
organization when the fines are so large in amount that
no member could work. Section 7 and Section 8(b)(I)(A)
of the Act underwent some attenuation in Allis-Chalmers
but it is doubtful that they disappeared completely. If
there is one thing reasonably clear regarding the enactment
of Section 8(b) of the Act in 1947, it is that the section
was intended to prevent a union from affecting the employ-
ment of employees except in the narrow area of nonpayment
of dues under a union-shop contract A fine that is so
great that it is an absolute deterrent to working prevents
an employee from working and deprives him of employment
Again, if the fine is per se a total deterrent, then we
have total deterrence and this result is inconsistent with
the Court's definition of a reasonable fine as a lesser penalty
than expulsion by a strong union, the expulsion being,
as previously described, equivalent to total deterrence
A further consideration in reaching the conclusion that
a reasonable fine is less than a total deterrent is the nature
of a union and its relationship to employee members The
union's strength, except in a nonfree society, ultimately
and in the long run, depends on the voluntary support
and loyalty of its members. The objective of fines or other
discipline would seem to properly be the rehabilitation
" NLRB v Mackay Radio & Telephone Co, 304 U S 333 In
effect, this principle rejects the contention that the employer , by hiring
strikebreakers and thereby carrying on his business during a strike is
interfering with the right to strike paruwlarh since replaced strikers ma\
lose their jobs
of recalcitrant members into loyal members rather than
further or complete alienation of the recalcitrants. The
good and the bad members of the union will continue
to be employees in the plant represented by the union
A reasonable fine, imposed on strikebreakers, that deters
such activity, would appear more consonant with the term
reasonable fine as used by the Supreme Court than would
a fine so large in amount, accompanied by court enforcement
and costs, that it is a total deterrent which quite possibly
could completely alienate the member from any voluntary
cooperation with, or support of, the Union thereafter.
As previously stated, it is our opinion, that a reasonable
fine, in the context in which we are considering the term,
should be based on a relationship of the fine to the strike-
breaker's earnings during the strike. We have rejected,
for reasons stated, total deterrence as compatible with a
reasonable fine This would eliminate a fine that if equivalent
to 100 percent of earnings during a strike and it would
eliminate any fine in a greater amount than such total
earnings. The reasonable fine is, we believe, equitably and
conveniently defined as a percentage of the strikebreaker's
earnings, where the percentage of the earnings encompassed
by the fine is large enough to deter the normal employee
from violating his obligation as a union member to refrain
from working during a duly authorized strike, but not
so large that it completely eliminates, as'a practical matter,
all freedom of choice on the part of the employee to
exercise some measure of individual freedom as guaranteed
under Section 7 and 8(b)(1)(A) of the Act
Governed as we are by the Allis-Chalmers decision, it
is apparent from the decision that a reasonable fine in
the Court's contemplation was to be more than a token
demonstration that the Union could impose some court-
enforced fine. The Court's focus on the situation of a
"weak" union makes it clear that the court-enforced fine
was to be a genuine deterrence to strikebreaking although,
as we have previously stated, less than an absolute deter-
rence.
It is apparent that the choice of some specific percentage
of earnings as being the reasonable fine contemplated by
the Court will appear to be an arbitrary choice and, in
a sense, the charge will be correct. But this is true of
all line-drawing The Board requires a 30 percent showing
of interest by a petitioning union before it will process
a petition for certification as collective-bargaining agent.
The percentage is 30, not 29, 25, 31, 35, or some other
figure. Individuals attain majority at 21, not 20 years and
6 months or at some other age. Voters must reside in
a jurisdiction for 30 days, 3 months, 6 months or some
other period before they may exercise their franchise
It is the Examiner's opinion that a fine of 35 percent
or less of a strikebreaker's earnings at his regular straight-
time rate is, presumptively, a reasonable fine. We also
believe that a fine of 80 percent or less of overtime or
premium pay, earned by a strikebreaker, which he would
not normally have earned but for the fact that his fellow
union members were engaged in an authorized strike, pre-
sumptively, is a reasonable fine. We believe that a total
fine embracing some earnings at the 35 percent or less
rate and some earnings at the 80 percent or less rate
is, presumptively, a reasonable fine.
BOOSTER LODGE NO 405, 1AM 395
The 35 percent or less rate on regular earnings is, in
our opinion, an effective deterrence but not a total deter-
rence. If a strikebreaker's rate is $3 per hour and he
works 5 days, 8 hours a day for 40 hours, his gross
earnings are $120. Assume his normal deductions leave
him $100 net pay. A fine of 35 percent on $120 in earnings
is $42 His net take home pay is therefore $58. Taxes
and other deductions will have been paid on the entire
$120 he earned His take home pay of $58 is equivalent
to $1 45 per hour or less than half his normal rate and
less than the Federal minimum wage. His normal working
expenses of transportation to and from the job, lunch,
and work clothes would continue, of course, and would
have to be paid out of his $58 take home pay It is
one thing to bear the foregoing expenses when the take
home pay is $100 but it is something else when the same
expenses are borne by $58 in take home pay 34 It is also
to be observed that the reality of all the foregoing factors
would be evident whether there is specific warning of
the fine before the commencement of the strike or whether
the fine is imposed during the strike or after the strike
The financial impact might well be greatest where, without
prior specific warning, the fine is imposed after the strike.
In such situations the average strikebreaker would probably
have used all or most of his earnings to meet day-to-
day needs of himself and his family without making provision
for payment of a fine. His normal earnings would therefore
be important
An additional element that is relevant in establishing
what constitutes a reasonable fine is the fact that in addition
to the fine the strikebreaker, during and after the strike,
is usually subjected to considerable pressure by his fellow
employees who remained on strike Scornful epithets and
remarks as well as alienation from friends or acquaintances
both at work and in the community can be some of the
pressures which the strikebreaker may incur These pressures
are not to be underestimated. The combination of such
pressures or the prospect of such pressures when combined
with the warning of, or the actuality of, a court-enforceable
fine of 35 percent or less of strikebreaker earnings,in our
opinion, constitute a genuine deterrence. In the illustration
which we gave previously, the employee might well conclude
that the $58 a week to be garnered by going to work
during the strike was not worth the candle.
We therefore have little doubt that the formula regarding
fines that we have described above and which we propose
to apply herein is a genuine deterrence and that a maximum
in excess of 35 percent of earnings would tip the scale
in the direction of total deterrence, a result not compatible,
as we have explained, with the concept of a reasonable
fine
The next aspect of the formula to be considered is whether
a 35 percent maximum is itself too much of a deterrence
and too close to total deterrence. We would answer in
the negative. Despite the fact that the formula provides
a real deterrence, the individual employee could decide,
in the illustration we gave, that while $58 in pay was
not much for a week's work it was to him and his family
better than being at home or on a picket line with no
earnings Individual circumstances would undoubtedly enter
into the decision If the individual was convinced that
he did not agree with the merits of the issue over which
the strike had been called, this could be a factor in his
decision If the need of a man's family were acute, this
could be a factor. A man with substantial seniority might
be concerned that he might be permanently replaced by
the employer if he remained on strike In some individual
cases, various factors or a combination thereof might be
enough to pursuade the individual that the reasons for
working were greater than the deterrence In other cases,
the deterrence to going back to work would prevail. And
it is this kind of a picture, which we believe is reasonably
accurate, that illustrates the difference between a partial,
though genuine, deterrence and a total deterrence. We
further believe that such a deterrence comports with the
concept of a reasonable fine and that the formula described
for fixing the fine is calculated to result in the aforemen-
tioned reasonable fine.
In stating what we considered to be the standards of
a reasonable fine we used two figures. One figure was
up to 35 percent of earnings of the strikebreaker which
he earned at his regular rate of pay for his normal work
day The other figure was up to 80 percent of earnings
of the strikebreaker earned at premium pay which normally
he would not have earned but for the strike. The differentia-
tion is based on the following considerations There is,
as we have seen, a combination of rights and interests
that are to be balanced as equitably as possible in implement-
ing the Allis-Chalmers doctrine that a union may impose
a court-enforceable reasonable fine. The strikebreaker, being
an employee, has certain rights under the Act as does
the employer and the Union The fine at 35 percent of
earnings for work performed at regular rates for normal
work day35 was, as pointed out, a genuine deterrence but
not a total deterrence. The employee strikebreaker, albeit
deterred from doing so by the 35 percent fine, could,
nevertheless, work the same amount of time, at the same
rate, with the same gross earnings as would have been
the case but for the strike. By the same token, the employer
would receive from the strikebreaker the same amount
of work hours at the same pay as would have been the
case but for the strike. The union's interest in defeating
or minimizing the performance of work by its members
during the strike is reasonably protected by the court-
enforceable fine of up to 35 percent of normal earnings.
As pointed out previously, this fine is a genuine deterrence
but not a total deterrence. As to some individuals the
deterrence will prevail and they will not work. Other individ-
uals may react differently but there is, in our opinion,
an equitable balance of all factors and interests and that
14 Using the same figures as above but assuming a fine of 50 percent " In other words , we are referring to a strikebreaker who before
of earnings instead of 35 percent, we have the following Take home the strike worked 8 hours a day, 5 days a week at, for instance, $3 00
pay of $100 after normal deductions, 50 percent fine on $120 earnings per hour During the strike he works under the same conditions as
or $60, net take home pay is $40, equivalent to $1 per hour to hours, days , and wage rate
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is our definition of the reasonable fine referred to in the
cited case.
However, when the strikebreaker, instead of performing
his normal amount of work at his regular rate, which
would have been his right and custom but for the strike,
performs overtime work in excess of 8 hours per day
and 40 hours a week and works on weekends so that
he earns premium pay, a different situation exists. The
strikebreaker is now profiting by the strike and is the
recipient of what may be termed a windfall He is no
longer earning what he would have earned but for the
strike but is affirmatively profiting by reason of the fact
that his fellow union members are on strike and are obeying
the union rule against strikebreaking a rule which, of course,
he is not obeying He is no longer exercising simply the
normal "right" of an employee to work as he would have
worked but for the strike
For each strikebreaker who is working at his normal
rate and hours, there may be two, three, five, ten, or
more strikers who are not working at all By working
even at his normal rate and hours, the strikebreaker is
affecting, in some degree, the efficacy of the strikers' lawful
strike. But the 35-percent fine, being a genuine deterrence,
is, in our view, a reasonable weapon in such situations
since it will deter some, perhaps many, potential strikebreak-
ers, but, being less than a total deterrence, it is not absolute
However, by working overtime at premium rates, the strike-
breaker is materially going beyond protection of his own
right to work normally and he is affirmatively performing
not only his own normal work but is also performing
the work of one or two strikers. This, of course, infringes
substantially on the union's interest in waging an effective
strike as the representative of the employees and it infringes
on the rights of the strikers whose work is being performed
by the strikebreaker in addition to his own amount of
work but the work of one or two strikers he is, in a
sense, cancelling the effect of the strikers' refusal to work
and nullifying the effectiveness of strikers' exercise of the
right to strike. And the strikebreaker whom we are discuss-
ing is, of course, a member of the Union, who by performing
even his own normal work during the strike has violated
the rules of his union.
The foregoing reasons, therfore, are the basis of our
use of a fine of up to 80 percent of earnings at premium
pay which normally would not have been earned by the
strikebreaker We believe that the higher deterrence inherent
in this aspect of the strikebreaking situation, although even
here less than total deterrence, is equitable and, presumptive-
ly, constitiutes a reasonable fine. Let us illustrate the matter
by using the same hypothetical strikebreaker whom we
used previously.
Assume the strikebreaker normally works 8 hours a
day, 40 hours a week, at $3 per hour. His gross pay
is $120. After normal deductions he would take home
$100. He is fined at the 35 percent of earnings rate or
$42. His net take home pay is, therefore, $58. However,
assume that in addition to his normal amount of work
and pay he worked 20 hours overtime during the week
at a premium rate of $6 (to use a round number) This
increases his earnings by $120. He also works 8 hours
over the weekend at $6 per hour, for an additional $48
His total earnings for work beyond his normal 40 hours
is $168. Assume that after normal deductions he would
have $138 left from the $168 If he was fined at the
35 percent rate on the $168, the fine would be $59. Deduct
$59 from the $138 net, above, and what remains is $79.
His overall take home pay for the week is, therefore,
$58, plus $79, or a total of $137. His normal take home
pay for his normal hours at his normal rate would have
been $100 but for the strike Because of the strike and
despite a fine of 35 percent on both normal and premium
earnings, he now takes home $137 Despite the fact that
he worked 68 hours in order to take home $137, he is
better off financially than he was before the strike and
strikebreaking is clothed with a silver, if not a gold, lining 16
It is therefore reasonably apparent that a fine of 35 percent
of earnings loses any reasonable degree of deterrence when
it is applied to earnings from overtime work at premium
pay which the strikebreaker would not have received but
for the strike.
However, if the fine is 35 percent of normal earnings
and 80 percent of overtime premium earnings, the following
is the situation Assume the same earnings figures as used
previously in our illustration. The strikebreaker is fined
35 percent of his normal gross earnings of $120. The
fine is $42. After normal deductions, take home pay would
have been $100, but this was reduced to $58 because
of the fine. Additional gross overtime pay is $168 which,
after normal deductions, would be reduced to $138 If
the fine is 80 percent of overtime earnings of $168, it
is $134 When this amount is deducted from the $138
take home pay, the actual take home pay from the overtime
work is $4, which, when added to the $58 take home
pay from normal work, results in $62 total take home
pay Since the amount of time worked overtime was 28
hours, it is evident that the 80 percent fine on overtime
earnings is substantially a total deterrence to the strikebreak-
er working more than the normal hours that he would
have worked but for the strike. For reasons previously
stated, we believe that the foregoing degree of deterrence
regarding overtime not normally performed by the strike-
breaker is consistent with the concept of a reasonable
fine.
While the guidelines or formula that we have used as
a standard for determining what is a reasonable fine under
Allis-Chalmers are not meant to be inflexible with regard
to particular factual situations that may arise, we believe
that the formula is sound. The guidelines are in terms
of maximums, beyond which the fine, in our opinion,
would enter the area of an unreasonable or excessive fine
The maximum limit of a fine can, of course, have a tendency
to become the normal fine but not necessarily, since, in
particular situations, the specific circumstances or the objec-
tive may indicate the appropriateness of a lesser fine. In
any event, we believe, that the maximums are sound norms
16 The prevalence of moonlighting (holding two jobs) and the general
interest of most employees in overtime work at premium pay is indicative
of the fact that in our consumer oriented society, particularly in periods
of rising standard of living and inflation and the desire for luxuries
that are often regarded as necessities, the amount of take home pay
is a or the major desideration
BOOSTER LODGE NO 405, 1AM 397
and that deviation therefrom will tip, or begin to tip,
a rather careful balance that must enter into the standard
of a reasonable fine
We therefore use, in the instant case, the standard that
a fine imposed on a member by a union that is the authorized
bargaining representative, and pursuant to due internal
process, because the member has worked during the strike
in violation of a union rule, is presumptively not a reasonable
fine enforceable in court if the fine is. more than 35 percent
of the member's earnings during the strike if the member
in gaining such earnings , was working the same number
of hours at his normal wage rate as before the strike;
or, more than 80 percent of the member's earnings during
the stnke if the member in gaining such earnings was
working overtime hours at premium pay, which he could
not normally have done and which would not have been
available to him, but for the strike.
It is also our opinion that prior to, or in the course
of, strikebreaking activity by union members, the union
should issue a warning to the strikebreakers not only about
the possibility or the reality of a fine but should also
indicate the amount or potential amount of the fine or
the method of computing the fine and the possibility of
court enforcement thereof The requirement of a warning,
in our opinion, is consistent with the deterrent characteristic
of the union's power to impose and collect a fine, whereas,
in the absence of a warning, the fine takes on more of
the coloration of a reprisal. Moreover, it would appear
to be more in the union's interest to deter strikebreaking
from either commencing or continuing rather than to punish
after the strike And it certainly is in the employee's interest
to be reasonably apprised and warned of the definite likeli-
hood of a fine, its potential amount, and its enforceability,
if he engages in or continues stnkebreaking activity dunng
a particular strike.
In Allis-Chalmers, although the Court did not stress
this element, the fact was that the strikebreakers had been
warned during the strike that they would be or might
be fined, and the possible extent of and the size of the
fine was indicated. It is not enough that the union constitu-
tion provides that various types of conduct by members,
including working dunng an authorized strike, are subject
to or shall warrant "reprimand, fine, and/or expulsion
. . 11 The member cannot know from this that his
working during a particular strike will result in punishment
(albeit it warrants punishment), or what kind of punishment,
or, if there should be a punishment and if it should be
a fine, he has no idea whether it might be $20, $500
or what elements would enter into the determination of
the amount of the fine He does not know whether the
union would resort to court proceedings to collect any
fine. Moreover, in the instant case, the Union had never
previously imposed a fine on any of its members
It has been held that:
Among the most important of labor standards imposed
by the Act . is that of fair dealing, which is
demanded of unions in their dealings with employees
[citation omitted] The requirement of fair
dealing . is in a sense fiduciary in nature and
arises out of two factors One is the degree of
dependence of the individual employee on the union
organization. the other, a corollary of the first, is the
comprehensive power in the Union with respect to the
individual (IUE, Frigidaire Local 801 (General
Motors Corp ) v N L R B, 307 F 2d 679
(C.A.D.C.)), cert. denied 371 U S 936.
Another court has stated:
At the minimum, this duty requires that the Union
inform the employee of his obligations . . (N L R B
v. Hotel, Motel and Club Employees' Union, Local
568, AFL-CIO (Philadelphia Sheraton Corp.), 320 F 2d
254 (C.A. 3).)
This comprehensive power of the Union over the individ-
ual employee, mentioned in the first cited case, would
certainly be an apt characterization of the situation herein,
where the Union has imposed substantial fines on individuals
and court enforcement thereof.
Both the Board and the courts have held that, although
a valid union security contract is found to exist whereby
union membership and the payment of dues is required
as a condition of employment, a union cannot cause the
discharge of an employee under the contract unless the
employee had been informed of his obligation and the
consequences that would follow from failure to fulfill his
obligation. As the Court of Appeals, Second Circuit, phrased
it, ". . . the Board has fleshed out the statute by requiring
the Union to give reasonable notice to an employee that
he will lose his job for nonpayment of dues.""
Since the existence of the contract in the cited cases
set forth the requirement for the payment of union dues
as a condition of employment , it, like the union constitution
in the instant case with its description of improper conduct
by members and the possible consequences, could be said
to have generally informed individuals of their obligation
But this was not enough Where an individual did not
know of or was uncertain about his obligation or the
amount, the Union could not simply cause his discharge
for failure to abide by the contract terms. Yet the contract
was more precise than the instant constitution in defining
the obligation and the consequence. Under the contract
the individual was required to pay dues if he wished to
continue as an employee. The constitution set forth, inter
alia, an obligation not to work but the consequences for
violation were described in terms of a variety of potentialities
which included among others , reprimand, fine, and/or
expulsion . Neither in the constitution nor by other means
were members warned that, for working dunng the strike
at Michoud, they would be fined and, a fortiori, there
was no indication given of the amount of, or the factors
in, the fine. The fines and their amount did not make
an appearance until after the strike.
In the court cases cited above, the action against the
employees was the causing or attempting to cause their
discharge for nonpayment of dues under the contract. Since
the Union had not informed them of their obligation,
including the amount, beforehand , it could not legally
attempt to cause, or cause, the discharge of such employees
under the terms of the union-shop contract. By the same
" N L R B k Local 182 International Brotherhood of Team curs, Chaal-
feurs, Warehousemen and Helpers of America (Associated Transport, Inc),
401 F 2d 509 See also cases cited above
398 DECISIONS OF NATIONAL
token, in the instant case, the action against the employees
was the imposition of fines in the amount of $450. There
was no warning beforehand that fines would be imposed
nor was the amount given . As previously indicated , perhaps
some employee members, who worked during the strike,
would not have done so if warned or they might have
desisted , if they had already commenced work , upon being
warned that they would be fined and told the approximate
amount of the fine.
Accordingly , we include as a constituent element of a
reasonable fine not only the standards and formula as
to the amount of the fine, previously described , but the
necessity of advising members, with regard to the particular
strike, that such a fine will be imposed on those who
work or continue to work during the strike Since we
also believe that the approximate amount of the fine should
be indicated , this aspect would be taken care of, if the
standards or fomula, aforedescribed , to be used in determin-
ing the amount of the fine, were mentioned . Believing
as we do that a fine arrived at by the use of the standards
or formula will be presumptively a reasonable fine, the
use of the formula should insure that the employees have
not been threatened with an excessive or unreasonable
fine and that the fine itself when eventually computed
will not be unreasonable We also believe that the possibility
of court enforcement of the fine if contemplated should
be stated , so that employees may completely understand
the full import of their obligations under the union rules
and the consequences that a violation may entail.
Applying, therefore , the above standards , including the
35-80-percent formula for computing what is a reasonable
fine, we now consider the fines of $450 in the instant
case that were imposed on all strikebreakers 38 Consistent
with our view above, that a reasonable fine entails an
antecedent warning that fines will be imposed for working
during the particular strike , we find the $450 fines unreason-
able since all action regarding fines occurred after the
instant strike . As to the amount of the fines, we regard
this as simply a matter of applying the 35-80 formula
to the earnings of each strikebreaker . There were approxi-
mately 145 strikebreakers From the payroll information
in the record the Examiner is unable to make a precise
determination of what would be a reasonable fine in amount
as to each individual but this can be done at the compliance
stage "
However , as a rough illustration , we have taken, at
random , two names of strikebreakers , Aragon and Bailey,
from the payroll records at hand . On a comparative basis,
Aragon has a relatively low hourly rate, $2.50 in round
numbers Bailey has one of the highest hourly rates , $3.63.
" To the Examiner , the utility and the equity of employing a standard
or formula to determine whether or not a fine is reasonable in now
rather concretely evident Absent such an approach , what workable basis
is there for reaching a conclusion about the reasonableness of a $450
fine in the instant case9 What is reasonable-$20, $50, $500, $125,
$200, $350, $400 , $450, or some other figure , and why is one amount
reasonable and another unreasonable'?
39 For instance , payroll records show regular hours worked , overtime
hours, and a figure under "bonus" which may indicate bonus hours
We are uncertain about the computation of overtime and bonus Total
dollar earnings under regular , overtime , and bonus are not shown
LABOR RELATIONS BOARD
During the strike, Aragon worked 65 regular hours and
the figures 8 and 4 , for overtime and bonus , respectively,
are shown As indicated , we are uncertain as to the distinc-
tion between overtime and bonus or whether time and
one-half or double time are paid under one but not the
other or both In any event , for illustration , we will assume
a total of 12 premium hours which were paid at double
time rate or $60 for Aragon . His 65 regular hours, we
assume, were paid at his regular rate which would mean
$162 His total earnings therefore were $222. The 35-
80 formula , if applied , would mean a fine of $57 on his
$162 regular earnings and a fine of $48 on premium earnings
or a total fine of $105 Adopting the same approach as
to Bailey, we have 75 regular hours and a total of 22
under overtime and bonus . Bailey's regular earnings would
be $272 and his premium hours at double time would
be $159 or total earnings of $431 . Applying the 35-80
formula, the fine on regular earnings would be $95 and
the fine on premium earnings would be $128 or a total
fine of $223. Since other strikebreakers had different hourly
rates and worked varying amounts of regular work and
different or no overtime and bonus work, a varied picture
will eventually appear . The indication is, however, from
the admittedly imprecise data which we used in our two
illustrations , that the fine of $450 on all strikebreakers
was not a reasonable fine in amount in most, and possibly
all, cases But this, as indicated , can be determined precisely
at the compliance stage . The $450 fine of any strikebreaker,
in our opinion , which exceeds the amount of a fine under
the 35-80 formula when applied to the individual 's earnings
is not a reasonable fine
The complaint alleges that the fines "in the sum of
$450 each " are "unreasonable , excessive , and discriminato-
ry." The sole reference , in the complaint , to any fine other
than the $450 fines is with respect to employees who
had resigned from the Union As to that category, the
complaint alleges that the fines "in the sum of $450 each
or lesser amounts" are "unreasonable , excessive, and dis-
criminatory "
The General Counsel 's brief is consistent with the forego-
ing allegations but the brief also reveals why the General
Counsel believes that the $450 fines as to everyone involved
are "discriminatory" in addition to being unreasonable and
excessive. It is argued that, since , in some instances, the
Union reduced the $450 fines to 50 percent of earnings
by the strikebreaker at Boeing during the strike, but did
not do so in all instances , this was discriminatory Thus,
"This action in denying the same right to the discnmmatees
as afforded other employees , even though they did not
appear at their union trials, is clearly discriminatory "
From this , and from the allegations in the complaint,
above, it can be said that, except as to employees who
had resigned , fines less than $450 are not attacked by
the General Counsel . Fines less than $450 are otherwise
referred to only in support of the argument that the $450
fines were discriminatory, in addition to being unreasonable
and excessive.
In the etymological sense the 50 percent of earnings
as distinguished from $450 is discriminatory since there
is a distinction or difference in treatment and amount.
But, in our opinion , in itself it is not an illegal discrimination
BOOSTER LODGE NO 405, IAM
for a union to treat differently those members who appear
at their teal, repent, and pledge future loyalty, as distin-
guished from members who never appeared or never made
a plea All members were duly notified of their trials
and all could have appeared and all would evidently have
received the same treatment under similar conditions. We
therefore do not find that the $450 fines were discriminatory.
For reasons previously stated at length, it is found that
the fines of $450 that were imposed after the strike, without
prior specific warning that they would be imposed at
Michoud, and in amounts that exceeded the 35-80 standard
or formula in relation to earnings, were unreasonable fines
and that, under all the circumstances in this case, including
court enforcement of the fines, there was a violation of
Section 8(b)(1)(A) of the Act. It is our opinion that the
violation was compounded in those cases of members who
had resigned from the union prior to the imposition of
fines. It is our opinion that resignations received by District
Lodge 751 constituted valid resignations in view of the
circumstances descnbed earlier in this decision. In any
event, Lodge 405 was aware of the resignations before
taking action regarding fines 40 Moreover, since the Union
took the position that a member could not resign from
the Union, the resignations and the details thereof, including
receipt, were futile gestures insofar as the Union was con-
cerned, but, in our opinion, effective notwithstanding, since
the intent of the resignees is clear.41
CONCLUSION OF LAW
As set forth heretnabove and for the reasons hereinabove
stated, it is found that, by threatening to seek, or by
seeking, court enforcement of unreasonable fines imposed
on employees, who were union members, or by imposing
fines or by seeking court enforcement of fines upon employ-
'° In some instances, the resignations were received prior to the time
the employee went to work during the strike In more instances, the
resignations were deposited in the mail before the employee returned
to work All or practically all resignations were received by the Union
prior to any action on the subject of fines
"Aeronautical District Lodge 751, International Association of Machinists
& Aerospace Workers, AFL-CIO (The Boeing Company), 173 N LRB No
71 At the conclusion of the body of his decision in the instant case,
the Examiner finds, although it may be of no moment to anyone but
himself, that his effort to apply and to implement the Allis-Chalmers
decision and its rationale in the present case, confirms him in his respectful
disagreement with the Allis-Chalmers decision regarding the meaning of
Section 8(b)(1)(A) and its proviso In our opinion, the above section
of the Act reveals a congressional intent that union fines and their
amount were to be a matter for the union, including the enforcement
of such internal disciplinary measures by internal means The maximum
internal sanctions preserved to the union for enforcement of its disciplinary
measures such as fines were, we believe, denial of membership or expulsion
399
ees, who were former union members who had resigned
from the Union, all because said employees worked dunng
the September 1965 strike at Boeing 's Michoud plant, the
Respondent Union restrained and coerced said employees
in the exercise of their rights guaranteed in Section 7
of the Act and thereby engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, heretnabove described, it will be
recommended that Respondent cease and desist from such
conduct.
It will also be recommended that, with respect to any
employee who had resigned from membership in the Union,
who had formerly been a union member, and who was
fined after his resignation, and who paid any such fines
to Respondent, Respondent refund or reimburse said
employee the amount of such paid fine As to employees
who had remained union members, it will be recommended
that any such employee, who paid an unreasonable fine
after Respondent threatened to institute or instituted steps
for the court enforcement of such unreasonable fines, be
reimbursed or refunded by Respondent the said unreasonable
fine. The determination of whether or not the fine was
reasonable or unreasonable will be on an individual basis
since, as set forth in our decision above, the earnings
and types of earnings, regular or premium earnings, of
the employee member are important elements in determining
whether or not the fine was reasonable pursuant to the
standards or formula that we have adopted.
[Recommended Order omitted from publication.]
The rights and restrictions in the Act are applicable to all unions, the
weak and the strong, the effective and the ineffective If, for instance,
one union because of its economic strength and bargaining power, in
the exercise of the rights under Section 8(a)(5) of the Act, is able
to secure a contract from an employer with substantial wage increases
and other benefits but another union, lacking effective economic bargaining
power, can secure no appreciable benefits in a contract with an employer,
these differences do not alter the meaning or the limitations of Section
8(a)(5) Expulsion from membership or the threat thereof may be an
effective disciplinary tool in some organizations and not in others, or
it may be more effective in one organization than in another and may
vary in different situations In our opinion, these factors do not alter
the meaning of Section 8(b)(1)(A) and its proviso as we read and under-
stand them and their legislative history But Allis-Chalmers is the law
on the subject and it is that decision that has governed the instant
decision and has involved us in the matter of what is a reasonable
union fine for violation of a union rule