Distillery Workers Local 186 (E & J Gallo Winery)

National Labor Relations Board - Board Decisions

Sep 13, 1989

296 N.L.R.B. 519 (N.L.R.B. 1989)

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