Carpenters Local Union 101

National Labor Relations Board - Board Decisions

Nov 23, 1970

186 N.L.R.B. 708 (N.L.R.B. 1970)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local Union 101 , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, and
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO (Edward M. Swallow & Sons,
Inc.) and Local Union No. 132, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO
and Andrew D. Lewis. Cases 5-CB-908 and
5-CB-984
November 23, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 30, 1970, Trial Examiner William Kapell
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in this proceeding, and, contrary to the Trial
Examiner's Decision, concludes that Respondents did
not violate the Act as alleged.
The Trial Examiner found, on the facts as stipulated
by the parties, that the fine of $300 which Respondent
Local 101 imposed upon Andrew and Henry Lewis,
members of Respondent Local 132, for working for
about 4 hours behind a picket line established by
Local 101 at the Lewises' place of work, was
unreasonably excessive in amount. The Trial Examin-
er accordingly concluded that Respondent Local 101
violated Section 8(b)(1)(A) of the Act by imposing the
fine, and that Respondent International and Respon-
dent Local 132 also violated Section 8(b)(l)(A) of the
Act by requiring that the Lewises pay the fine as a
condition of retaining membership and by then
expelling the Lewises for nonpayment of the fine. As
noted above, we do not agree with the Trial
Examiner's conclusion.
In Arrow Development Co.,1 a case decided after the
Trial Examiner's Decision herein, the Board held that
where the union's fine is aimed at implementing a
legitimate union rule which does not conflict with
policies of the Act, the only question of relevance to
the Board is "whether, in enforcing the rule, [a] union
186 NLRB No. 119
goes outside the area of union-membership relation-
ship and enters the area of employee-employer
relationship."2 Since the Respondents have not done
so here, and since the facts also reveal that they did
not seek to vindicate a policy in conflict with the
National Labor Relations Act, "the Act does not
authorize this Board to evaluate the fairness of union
discipline meted out to protect a legitimate union
interest." 3
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' International Association of Machinists and Aerospace Workers,
AFL-CIO, Local No. 504 (Arrow Development Co.), 185 NLRB No. 22.
z Id citing Allis-Chalmers Manufacturing Company, 149 NLRB 67, 70.
:, Id. penultimate paragraph.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM KAPELL, Trial Examiner: Cases 5-CB-908 and
5-CB-984, proceedings under Section 10(b) of the National
Labor Relations Act, as amended, herein called the Act,
were consolidated and an amended complaint was issued
on March 24, 1970.1 The amended complaint in substance
alleges that in violation of Section 8(b)(I)(A) of the Act,
Respondents imposed unreasonable and excessive fines of
$300 each on Andrew David Lewis and Henry W. Lewis,
members of Respondent Local 132, because they continued
to work on a construction project of Edward M. Swallow &
Sons, Inc., hereafter referred to as Swallow, after Respon-
dent Local 101 placed a picket line on said project in a
labor dispute with Swallow, and thereafter suspended
and/or expelled the Lewises from membership in their
Local upon their failure to pay their fines. Respondents in
their answers denied the commission of the alleged
violations or that the fines imposed were unreasonable and
excessive, and, in addition, Respondent United Brother-
hood also moved for dismissal of the complaint on the
ground that it was named as a party respondent for the first
time by an amended charge filed more than 6 months after
the imposition of the fines by Respondent Local 101.
All parties entered into a Stipulation during April 1970,
wherein they waived a hearing before a Trial Examiner and
t In Case 5-CB-908 a complaint was issued on January 21, 1970, based
on an initial charge and an amended charge filed by Andrew D. Lewis on
May 15 and December 22, 1969, respectively , against Carpenters Local
Union 101, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereafter called Respondent Local 101, and United
Brotherhood of Carpenters and Joiners of America . AFL-CIO , hereafter
called Respondent United Brotherhood . Case 5-CB-984 is based on a
charge filed by Andrew D. Lewis on January 28, 1970, against Local Union
No. 132, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO , hereafter called Respondent Local 132.
CARPENTERS LOCAL UNION 101
agreed that the entire record of the cases shall consist of the
Stipulation, the charges, the order of consolidation of the
cases, the pleadings, the notices, and affidavits of service.
The Stipulation also requests that briefs may be submitted
to the Trial Examiner by June 4, 1970. Pursuant to that
request, which was granted, briefs have been submitted by
all parties and have been carefully considered. Upon the
entire record in the cases, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Stipulation sets forth that Swallow is, and at all times
material herein, has been a corporation duly organized
under and existing by virtue of the laws in the State of New
York. It maintains its principal place of business at
Portchester, New York, where it is engaged as a general
contractor in the building and construction industry in the
Stale of New York and other States of the United States,
including the State of Maryland. During the preceding 12
months, a representative period, Swallow, in the course and
conduct of its business operations, derived gross revenues
in excess of $50,000 and received in the State of Maryland
materials and supplies purchased and shipped from points
and places outside that State valued at in excess of $50,000.
I find at all times material herein that Swallow has been
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The Stipulation provides, and I find, that at all times
material herein the Respondents have been labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED VIOLATIONS
A. The Stipulated Facts
On or about April 1, 1969,2 Swallow commenced work as
a general contractor in the construction of an addition to
existing facilities for, and pursuant to a contract awarded it
by Central Dodge, Inc., an automobile dealer (herein called
Central project). At all times material herein said work
(located at Baltimore, Maryland) was performed by
Swallow's employees who were not represented by any
labor organization
Al all times material herein, Andrew D. Lewis and Henry
W. Lewis were members in good standing of Respondent
2 All dates hereafter refer to the year 1969 unless otherwise noted
9 A copy of the minutes of the trial committee of said hearings is
attached to the Stipulation as Exhibit A
I xhibit B of the Stipulation
Said section provides as follows
OFFENSES AND PENALTIES
A Section 55 Any officer or member found guilty after being
charged and tried in accordance with Section 56, for any of the
following offenses , may be fined , suspended or expelled only by a
majority vote of the members of the Local Union present at a regular
meeting or of the delegates to the District Council having jurisdiction
of the offense
(10) Working behind a picket line duly authorized by any
709
Local 132, and at all times material herein have not been
members of Respondent Local 101.
Commencing on or about April 7, and at all times
material herein, Respondent Local 101 has had a labor
dispute with Swallow and, in furtherance thereof, on or
about April 15, established an authorized picket line at the
Central project with signs stating that Swallow did not
employ members of, or have a contract with, Respondent
Local 101, said picketing having been begun at approxi-
mately 7:30 a.m. after the Lewises had reported and begun
work for their employer. The Lewises stopped working for
Swallow on the Central project and left the jobsite at
approximately 1:30 p.m. on April 15, and did not thereafter
return and perform work for Swallow. On or about April 18
the Lewises returned to thejobsite and removed their tools.
During the period of the picketing in which the Lewises
performed work, each had gross earnings of $36 for
performing 8 hours of work on April 15.
On or about May 21, after hearings, Respondent Local
101 imposed fines on both of the Lewises in the amount of
$300 because they had worked during the aforedescribed
picketing.3 By letter4 dated May 28 Andrew D. Lewis was
notified by Respondent Local 101 of the memberships'
concurrence in the aforesaid action and his obligation to
pay said fine within 30 days or be suspended from
membership. On or about May 28, 1969, a similar letter was
sent to and received by Henry W. Lewis.
The hearings before a tribunal convoked by Respondent
Local 101, set forth above, were based on allegations that
the Lewises violated the provisions of section 55, A, (10) 5 of
the constitution and bylaws of Respondent United
Brotherhood and were conducted under the provisions of
section 56 of said constitution and bylaws.
On or about November 24 and December 5, respectively,
the General Executive Board of Respondent United
Brotherhood in ruling on the appeals of the Lewises from
the action taken against them by Respondent Local 101, as
described above, dismissed such appeals and sustained the
imposition of the aforedescribed fines.
On or about November 26, 1969, Respondent Local 101
advised Andrew D. Lewis by mail6 of the dismissal of his
appeal, his obligation to pay the fine, and the loss of his
membership in the event of his failure to pay the $250
balance 7 due on his fine within 30 days. An identical letter
was sent to Henry W. Lewis on or about December 8.
On or about January 19, 1970, Respondent Local 132,
acting pursuant to section 45, E8 of the constitution and
bylaws of Respondent United Brotherhood, struck from
membership Andrew D. and Henry W. Lewis because they
subordinate body of the United Brotherhood
6 Exhibit D of the Stipulation
r He had paid $50 of the fine, as required by the constitution, in order
to file an appeal
Said provision reads as follows
All fines imposed and assessments legally levied including strike
assessments shall be charged by the Financial Secretary to the member
from whom due, and must be paid within thirty days to entitle the
member to any privilege, rights, or donations If a member owes a fine
or assessment for a period of thirty days, he shall be notified by the
Financial Secretary that unless the amount owing is paid within thirty
days thereafter, his name shall be stricken from membership, except in
case of a fine where an appeal is pending
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed and refused to pay the fines imposed on them by
Respondent Local 101, which fines had been sustained on
appeal by Respondent United Brotherhood.
B. The Issues
The primary issue is whether the imposition of the $300
fines by Respondent Local 101 was so unreasonably
excessive as to constitute a violation of Section 8(b)(1)(A)
of the Act. If so found, was Respondent United Brother-
hood in violation of said section by sustaining the fines on
appeal,9 and was Respondent Local 132 also in violation by
expelling the Lewises for failure to pay the fines?
C. Conclusions
Section 8(b) of the Act provides in pertinent part:
It shall be an unfair labor practice for a labor
organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of
the rights guaranteed in section 7: Provided That this
paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to
the acquisition or retention of membership therein. . .
For a clearer understanding of the issues in the within case
with respect to the application of the foregoing section it is
desirable to distinguish it from those cases where the Board
and the courts have held that it is an unfair labor practice
for a union to fine or expel a member because he has filed
an unfair labor practice charge with the Board; 10 or where
the Board has held, with court approval, that it is not an
unfair labor practice for a union to expel or fine a member
who has filed a decertification petition with the Board.ii
The General Counsel does not challenge the right of a
union to impose a fine on a member for working behind an
authorized picket line. He does, however, contend that such
fine must conform to some limitations so as not to be
unreasonably excessive. Any doubts as to the authority of a
union to impose a fine under such circumstances have been
dispelled by the Supreme Court in Allis-Chalmers Mfg. Co.
v. N.L.R.B.12 There the Court held that it was permissive
for a union, under the proviso to Section 8(b)(l)(A) of the
Act, to impose and collect through civil process fines levied
against members for crossing economic picket lines. Thus,
the Court held:
At the very least it can be said that the proviso [to
8(b)(1)(A)] preserves the rights of unions to impose
fines, as a lesser penalty than expulsion, and to impose
fines which carry the explicit or implicit threat of
expulsion for nonpayment. Therefore, under the
proviso the rule in the UAW constitution governing
9 1 find no merit in said Respondent's contention in its answer that
inasmuch as it was first named as a respondent in the amended charge filed
more than 6 months after the levying of the fines by Respondent Local
101, Section 10(b) of the Act precludes the instant recourse against it On
November 24 and December 5, respectively, well within the statutory 6-
month period, Respondent United Brotherhood affirmed the imposition of
the fines on appeal Cf International Association of Machinists (Union
Carbide Corporation), 180 NLRB No 135
10 See N L R B v. Industrial Union of Marine & Shipbuilding Workers,
391 U.S 418, Local 138, Operating Engineers (Charles Skura), 148 NLRB
679
11 See Tawas Tube Products, Inc, 151 NLRB 46, Richard C Price v
NLRB , 373 F 2d 443 (C A 9), cert denied 392 U S. 904
fines is valid and the fines themselves and expulsion for
nonpayment would not be an unfair labor practice.
In the more recent case of Scofield v. N.L.R.B.,13 the
Supreme Court in citing the Allis-Chalmers case reaffirmed
its position that a union could enforce a union rule by
imposing a fine or expelling the member. The Court,
however, qualified the fine as follows: "In the case at hand,
there is no showing in the record that the fines were
unreasonable or the mere fiat of a union leader . ,..." (Id. at
p. 430.) (Emphasis supplied.) There are also scattered
specific references to the reasonableness of a fine in the
Allis-Chalmers case. The Court there appeared to be
deciding a case involving reasonable fines. Thus, in the
concurring opinion of Mr. Justice White, which was
essential to the five-member majority, he states:
My Brother BRENNAN, for the Court, takes a
different view, reasoning that since expulsion would in
many cases-certainly in this one involving a strong
union-be a far more coercive technique for enforcing a
rule and for collecting a reasonable fine than the threat of
court enforcement, there is no basis for thinking that
Congress, having accepted expulsion as a permissible
technique to enforce a rule in derogation of § 7 rights,
nevertheless intended to bar enforcement of another
method which may be far less coercive. " ( Id. p. 198,
emphasis supplied.)
It appears further that Mr. Justice Black writing for the
dissenting justices, also interpreted the decision of the
Court as dealing with reasonable fines for he observes:
"With no reliance on the proviso to § 8(b)(1)(A) or on the
meaning of § 7, the Court's holding boils down to this: a
court-enforced reasonable fine for nonparticipation in a
strike does not `restrain or coerce' an employee in the
exercise of his right not to participate in the strike." (Id. at
p. 200-201, emphasis supplied.) There are also other
references to the " reasonableness" of fines in the majority
opinion with respect to Court enforcement. Thus at pp.
192-193, the Court stated:
There may be concern that court enforcement may
permit collection of unreasonably large fines. However,
even were there evidence that Congress shared this
concern, this would not justify reading the Act also to
bar enforcement of reasonable fines .14 To same effect
see Local 248 UA W v. Benjamin Natzhe, 36 Wis.2d 237,
153 N.W.2d 602.
Based on the Allis-Chalmers and Scofield cases, I
conclude that the Union herein was empowered to fine the
Lewises, provided that the fines were not unreasonably
excessive. The Board has not as yet prescribed any
guidelines to determine the reasonableness of fines levied
12 388 U S 175
19 394 U S 423 In this case the union fined a member for failing to
comply with its rules governing production quotas and brought suit in a
state court to collect the fine
14 Respondent Local 101 contends that the aforesaid statement leaves
the question of reasonableness of a fine to the court upon the Union's
attempt to obtain judicial enforcement, and therefore supports its assertion
that the Board has no authority to pass judgment on the reasonableness of
a fine , and that this matter should be left solely to the courts I find no
persuasive ground on which to base Respondent 's asserted construction
Rather , I find that the Court's reference to judicial enforcement of the fine
relates to a proceeding outside of the Act and in no way reflecting upon its
provisions
CARPENTERS LOCAL UNION 101
by unions to prevent or penalize members for conduct
violating their internal rules. There are, however, several
Trial Examiners' Decisions pending exceptions to the
Board involving criteria to be applied in determining the
reasonableness of fines.15 In some of these decisions a fixed
percentage of the amount earned in defiance of union rules
is urged as the criterion to be applied in determining
whether the fine levied is unreasonably excessive. Trial
Examiner Downing declined to apply any mathematical
formula in determining the reasonableness of a fine and
recommended the resolution of each case on an ad hoc basis
until guidelines are established by the Board.16
The term "unreasonably excessive" inherently relates to
the circumstances involved. These would significantly
include the nature of the member's offense, the duration of
the offense, the relationship of the fine to the amount
earned in defiance of the union rule, and any other
attendant circumstances. In the instant case the Lewises
began working before the picket line was established. It
does not appear when they became aware of the picket line.
Conceivably, it could have been immediately prior to their
departure from the job or they may have been involved in
an operation which for safety or economic reasons required
its completion before leaving the job. It appears that they
left the job about 1:30 p.m. and earned $36 each for the
day's work. Denying an employee the retention of the
benefits he received by disregarding an authorized picket
line would appear to be nothing more than depriving him of
what in the view of union policy was an "ill gotten gain."
Thus, a fine to that extent would appear to be not
unreasonably excessive because it would only place him in
the position of fellow-employees who honored the picket
line. Also, one of the purposes of imposing a fine is to serve
as a deterrent to others who might be tempted to challenge
the union's position or power by defying its legitimate
directives. Thus, in an aggravated situation where, for
example, a member publicly attacks the union's action and
seeks to induce others to dishonor the picket line, thereby
discrediting and undermining the union, it could be argued
that the union should have the right to increase the fine by
an amount bearing a direct relationship to such circum-
stances on an ad hoc basis. This principle would have no
application to the instant case because of the mitigating
circumstances. Accordingly, I conclude that the $300 fines
imposed on each of them were unreasonably excessive and
therefore violative of Section 8(b)(1)(A) of the Act.
Inasmuch as their expulsions from membership were
15 E g , see Boston Lodge No 405, International Association of Machine
and Aerospace Workers, AFL-CIO (The Boeing Company), Case
15-CI3-779, TXD 737-68, Local 1012, United Electrical Radio and Machine
Workers of America (General Electric Company), Case 31-CB-511, TXD
S F 87-70
16 See Milwaukee Printing Pressmen & Assistants Union No 7 (North
Shore Publishing Company), Case 30-CB-288, TXD-187-70
711
inextricably tied in with their refusal to pay the excessive
fine , I would also find that to be violative of Section
8(b)(I)(A), regardless of whether their expulsions without
the fine would have constituted permissive action by
Respondents . Since each of the Respondents participated
to some extent in the violations and acted in concert in their
implementation, I find each of them in violation of Section
8(b)(l)(A).17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with Swallow's operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the above findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. At all times material herein the Respondents have
been labor organizations within the meaning of Section 2(5)
of the Act.
2. At all times material herein Swallow has been
engaged in commerce as an employer within the meaning of
Section 2(6) and (7) of the Act.
By levying unreasonably excessive fines upon the Lewises
and expelling them from union membership for failing to
pay said fines, as found herein, Respondents have
restrained and coerced them in the exercise of their
statutory rights within the meaning of and in violation of
Section 8(b)(1)(A) of the Act.
THE REMEDY
It having been found that Respondents have engaged in
unfair labor practices, my Recommended Order will
require that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act. Such affirmative action shall include recision of
the unreasonably excessive fines imposed upon the Lewises
and their expulsion from membership in Respondent Local
132 for failure to pay said fines, giving written notice of
such of said action to them, and refunding the $50
payments made by them in appealing their fines.
[Recommended Order omitted from publication.!
17 In his brief, the Charging Party raises certain asserted irregularities in
the trial procedure followed in levying the fines However, the stipulation
of facts signed by all parties, which constitutes the entire factual record of
the cases, makes no reference to any procedural deficiencies Furthermore,
the disposition of the cases on the merits makes it unnecessary to consider
any procedural objections