Communications Workers of AmericaDownload PDFNational Labor Relations Board - Board DecisionsNov 27, 1970186 N.L.R.B. 873 (N.L.R.B. 1970) Copy Citation COMMUNICATIONS WORKERS OF AMERICA 873 Communications Workers of America, Local 2100, AFL-CIO (The Chesapeake and Potomac Tele- phone Company of Maryland , Inc.) and Joseph W. Lee. Case 5-CB-890 Accordingly, we shall dismiss the complaint in its entirety. ORDER November 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 13, 1970, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a memorandum in support thereof. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connec- tion with this case to a three-member panel. The Board has considered the Trial Examiner's Decision, the exceptions and memorandum, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. The Trial Examiner found that, on the facts as stipulated to by the parties, the General Counsel has failed to establish that the fine of $242.64, which the Respondent imposed on its member, Joseph W. Lee, for crossing a picket line established by a sister local at Lee's place of work, was excessive in amount and unreasonable. He concluded, therefore, that a viola- tion of Section 8(b)(l)(A) has not been established and recommended dismissal of the complaint. While we agree with the Trial Examiner's ultimate conclusion and recommendation, we do not adopt his underlying rationale. For, in Arrow Development Co., I which issued after the Trial Examiner's Decision herein, we 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, the Union goes outside the area of union- membership relationship and enters the area of employee-employer relationship."2 Since the Union has not done so here, and since the facts here reveal that it did not seek to vindicate a policy in conflict with the National Labor Relations Act, "the Act does not authorize the Board to evaluate the fairness of union discipline meted out to protect a legitimate union interest." Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the complaint herein be, and it hereby is, dismissed in its entirety. International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No . 504 (Arrow Development Co.), 185 NLRB No. 22. 2 Id. citing Allis-Chalmers Manufacturing Company, 149 NLRB 67, 70. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner: In this proceeding the parties entered into a Stipulation in which they agreed on the operative facts, and further agreed that the case shall be submitted to a Trial Examiner for decision without a hearing and that the record in the case shall consist of the Stipulation and pleadings. The parties were granted time until December 8, 1969, within which to submit briefs to the Trial Examiner. Briefs were received from the General Counsel and the Respondent. Herbert Silberman was duly designated as the Trial Examiner in the case. The Stipulation provides that the parties reserve the right to object to any portion thereof on the grounds of "irrelevance or immateriality." General Counsel, in his brief, objects to the admission into evidence of paragraphs numbered 12 and 14 of the Stipulation. Said objection is hereby overruled. Accordingly, I find that the Stipulation in its entirety shall be included in the record in this case. As the Stipulation sets forth all the operative facts, I adopt the facts therein set forth as my findings of fact. Attached hereto as an Appendix is a copy of the Stipulation. The only substantial issue in this case is whether the Respondent violated Section 8(b)(l)(A) of the National Labor Relations Act, as amended, by imposing a fine of $242.64 upon its member, Joseph W. Lee, for crossing a picket line, during the period between April 20 and 25, 1968, established by a sister local at Lee's place of work. Lee's gross earnings from his employment during said period of time was $189.95. In his brief General Counsel sets forth as the sole issue in this proceeding the question of whether the fine was "so unreasonably large as to be a violation of Section 8(b)(l)(A) of the Act." I General Counsel contends that because the fine was approximately 130 percent of the gross earnings that Lee derived from his employment during the period involved it was unreasonably large and therefore its imposition and the Union's threat to bring a civil action to In his brief General Counsel states : "There is little doubt that a fine constitutes restraint and coercion of an employee in the exercise of his (Continued) 186 NLRB No. 132 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collect the fine constituted a violation of Section 8(b)(1)(A). General Counsel 's argument is as follows : "There was nothing remedial about a fine so greatly in excess of earnings ; its nature is plainly punitive . For a union to claim the right to exact such a punitive levy, it would have to contend, in effect, that Congress had conferred upon it a privilege normally reserved to an agency of the sovereign, and withheld even from this Board . We submit that there is nothing in the Act, or the judicial gloss upon it, that goes so far." I cannot accept the basic premise of General Counsel's argument that it was unlawful for the Union in this case to impose upon Lee a fine which was "punitive." In making this argument the General Counsel overlooks the definition of the word fine . As used herein , it means "a certain payment of money imposed as punishment for an offense ." The very definition of the word contemplates that a fine is "punitive" in nature . Furthermore , General Counsel gratuitously advances a completely unsupportable proposition by asserting that a union has no common law contractual right to impose a "punitive levy" upon its members and that it would require an act of Congress to confer such right upon a union . General Counsel need have gone no further than the Allis -Chalmers case to discern the error of this statement .2 Finally, I reject the suggestion that General Counsel advances in his brief that any fine which exceeds by 25 percent the earnings of the member during the time he was engaged in the offense charged by the union automatically is deemed unreasonable regardless of the circumstances . Contrary to General Counsel , I find that the fine imposed upon Joseph W. Lee has not been proved to have been unreasonable in amount . For the reasons explicated in Local 205, Lithographers and Photoengravers International Union, AFL-CIO, Case 22-CB-1273, I find that upon the facts herein General Counsel has not proved by a preponderance of the evidence that the Respondent violated Section 8(b)(1)(A) of the Act. Accordingly, I shall recommend that the complaint herein be dismissed in its entirety. Communications Workers of America , Local 2100, AFL-CIO (herein called Respondent), and Joseph W. Lee, an individual (herein called Charging Party), and the General Counsel of the National Labor Relations Board, that: I Upon a charge filed by the Charging Party on February 27, 1969, and served upon Respondent on or about February 27, 1969, and upon a charge filed by Edward Smith, an individual, in Case 5-CB-889, receipt of which is hereby acknowledged by Respondent, the General Counsel of the National Labor Relations Board (herein called the Board), on behalf of the Board, by the Regional Director for the Fifth Region, acting pursuant to Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 et seq. (herein called the Act), and Sections 102.15 and 102.33(b) of the Board's Rules and Regulations, Series 8, as amended , issued an order consolidating cases , a consolidat- ed complaint, and notice of hearing thereon dated August 13, 1969, against Respondent. True copies of the aforesaid charges, order consolidating cases, consolidated complaint, and notice of hearing were duly served by registered mail upon Respondent and the Charging Parties. Respondent subsequently served an answer to the aforesaid complaint upon the Charging Parties and the General Counsel of the Board. Thereafter, on October 17, 1969, Charging Party Edward Smith in Case 5-CB-889, withdrew the said charge in that case with approval of the Regional Director of the Fifth Region of the Board. Whereupon the Regional Director issued an Order, dated October 23, 1969, severing Case 5-CB-889 from Case 5-CB-890 and withdrawing so much of the consolidated complaint that alleged a violation of the Act by the Respondent in levying a fine against Edward Smith. II CONCLUSIONS OF LAW Respondent has not violated Section 8(b)(1)(A) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case I recommend that the complaint in this case be dismissed in its entirety. Section 7 right not to cross a picket line . The nub of the Allis-Chalmers case is that the proviso to Section 8(b)(1)(A) provides a limited privilege for such restraint and coercion ..." General Counsel seriously misconstrues the Court's decision . See N. L. R. B. v. Allis-Chalmers Manufacturing Co., 338 U.S. 175, 192, fn. 29. Y See N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 182-183, 185-186, and 193, In. 32. APPENDIX STIPULATION IT IS HEREBY STIPULATED AND AGREED by and between The Chesapeake and Potomac Telephone Company of Maryland, Inc. (herein called Telephone Company), is, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Maryland , having its principal place of business at Baltimore, Maryland , where it is engaged as a regulated public utility providing telephone service. III During the preceding 12-month period, a representative period, the Telephone Company, in the course of conduct of its business operations as described in paragraph II, above, derived gross revenues in excess of $250,000 and purchased at the Maryland locations directly from points outside the State of Maryland during the same time goods valued in excess of $50,000. IV The Telephone Company is, and at all times material herein has been, engaged in commerce and its operations affect and have affected commerce within the meaning of Section 2, subsections (6) and (7), of the Act. COMMUNICATIONS WORKERS OF AMERICA 875 V At all times material herein , the Charging Party has been an employee of the Telephone Company. VI Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2, subsection (5), of the Act. At all times material herein, Respondent has been the exclusive collective bargaining representative of certain employees of the Telephone Company in a bargaining unit which includes the Charging Party. VII All parties hereto waive a hearing before a Trial Examiner . Respondent desires to file a brief , and respect- fully requests that November 24, 1969, be set as the date for reception of briefs to the Trial Examiner. VIII at the time he was tried before a tribunal convoked by the Respondent . He was tried for violating provisions of the by- laws and Article XIII , Section 8(g) and Article XIX, Section I(c) and (e) of the Constitution of the Communica- tions Workers of America , AFL-CIO, which provides in pertinent part: The authority , duties , and obligations of chartered locals . . . shall be: (g) To respect picket lines of any Local of the Union engaged in a strike authorized and conducted in accordance with this Constitution. Members may be fined , suspended or expelled by Locals in the manner provided in the Constitution for any of the following acts: (c) Willfully violating the Constitution of the Union, local by- laws or rules; (e) Working without proper Union authorization, during the period of a properly approved strike in or for an establishment which is being struck by the Union or local. Joseph Lee was notified in advance of the trial but did not appear at the trial. The entire record in this case shall consist of this Stipulation , the charges filed herein and affidavits of service of said charges , the order consolidating complaint and consolidated complaint and affidavit of service thereof, the Respondent's answer thereto, an order rescheduling hearing and affidavit of service thereof , and an order severing cases and withdrawing complaint in Case 5-CB-889; and affidavit of service thereof. All parties agree that the hearing before a Trial Examiner, scheduled for October 27, 1969, shall be cancelled. IX Communications Workers of America, Local 2390 (herein called Local 2390), is a labor organization within the meaning of the Act . It is affiliated with the same International Union with which Respondent is affiliated. Between April 19, 1968, and April 25, 1968, Local 2390 maintained a picket line at the premises of the Telephone Company at 2837 Edmondson Avenue, Baltimore, Mary- land. During this period of time, the Charging Party worked at this location in the course of his employment. X Between April 20, 1968 and April 25, 1968, Charging Party Joseph W. Lee regularly crossed the picket line referred to above in paragraph IX to work, and did in fact work. During that period of time, Joseph W. Lee had gross earnings from his employment with the Telephone Company of $189.95. As more fully set forth below, on August 6, 1968, Respondent conducted a trial of Joseph W. Lee before a union tribunal and imposed upon him a fine of $242.64 because he crossed a picket line of sister Local 2390. XI Joseph W . Lee was a member of Respondent at the time he crossed the Local 2390 picket line , described above, and XI I If summoned to testify before a Trial Examiner of the Board , George Chevaris , president of Respondent's Trial Board , would testify under oath that the amount of the fine levied against Joseph W. Lee was arrived at by an exercise of judgment on the part of the Trial Board that the amount was necessary to serve as a deterrent to similar repeated conduct by Joseph W. Lee and other members , to protect Union principles, to preserve picket line morale, to maintain internal union discipline , and to preclude any possibility of favoritism toward Joseph W. Lee and others by the Telephone Company. XIII On November 20, 1968, Respondent circulated a memorandum to all stewards and members from Respon- dent's President W. G. Forward, which stated: All trials have been completed . One member appealed the verdict to the membership . The membership voted to sustain the Trial Panel's decision . At our last Executive Board meeting, I was given authorization to turn the Local' s files over to the Local's attorney for legal action . I have discussed the matter with our attorney, Mr. Polikoff. I expressed to him after he contacted the fined members and if the member didn't remit his fine , that legal steps in the Civil Court be instituted as soon as possible . I have been given assurances by Mr. Polikoff and his law firm that they will expedite the proceedings as quickly as possible. I fully intend to follow through in this matter and will keep the membership posted of further developments. The fine in question has not been paid by Joseph W. Lee. The collective bargaining agreement covering his employ- ment contains a union security provision which requires persons who have acquired membership to maintain the payment of dues , but does not require that they maintain 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their union membership as a prerequisite of employment. The contract provides: Section 1. Each employee who is a member of the Union: (b) on or after the effective date of this Agreement, October 28, 1966, whichever is the latest, shall, as a condition of employment pay or tender to the Union an amount equal to the periodic Union dues until the final termination of this Agreement, except that each such employee may, within the 10-day period immediately preceding the termination date of this Agreement (as established by the agreement reached under the reopener provided in Article 34, "Cancellation and Duration" of this Agreement) terminate his obligation to tender periodic Union dues to the Union as a condition of employment by notifying both the Union and the Company in writing of his withdrawal from membership in the Union. The Charging Party continues to pay dues, although his membership in the Respondent Local was suspended by the Trial Board. His employment status at the Telephone Company remains unaffected. XIV If summoned to testify before a Trial Examiner of the Board, W. G. Forward, President of Local 2100, would 10/30/69 Date Nov. 3, 1969 Date November 3, 1969 testify under oath that, historically, Local 2390 has been the pattern setter on National items for all Bell Systems Contracts, that Local 2390's Contract expired prior to the Contract expiration of Local 2100, that there were negotiations and then Local 2390 went on strike. When Local 2100 supported 2390 by honoring the picket line of its sister local , it was more than a matter of union or labor solidarity but also a necessary act for each member of Local 2100. The Respondent's Contract was due to expire within a few days and they were then in negotiations and it was important to support Local 2390. Prior to the picketing in question , Local 2100 advised its members through stewards ' instructions , several member- ship meetings, and the Local's Newsletter, of the above matters and that they should honor the Local 2390 picket line. XV This Stipulation contains the entire agreement between the parties, there being no other agreement of any kind, verbal or otherwise, expressed or implied, which varies, alters or adds to this Stipulation. All parties reserve the right to object to any portion of this Stipulation on the grounds of irrelevance or immateriality. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 2100, AFL--CIO /s/ Marvin M. Polikoff Marvin M. Polikoff Counse l for Respondent /s/ Joseph W. Lee Joseph W. Lee Charging Party NATIONAL LABOR RELATIONS BOARD /s/ Walter H. Maloney, Jr. Date Walter H. Maloney, Jr. Counsel for the General Counsel Copy with citationCopy as parenthetical citation