Communications Workers of America

National Labor Relations Board - Board Decisions

Nov 27, 1970

186 N.L.R.B. 873 (N.L.R.B. 1970)

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