Independent Shoe Workers of Cincinnati, Ohio

National Labor Relations Board - Board Decisions

Jan 15, 1974

208 N.L.R.B. 411 (N.L.R.B. 1974)

INDEPENDENT SHOE WORKERS
Independent Shoe Workers of Cincinnati . Ohio (The
United States Shoe Corporation ) and Boot and
Shoe Workers Union, AFL-CIO-CLC. Case
9-CB-2287
January 15, 1974
DECISION AND ORDER
BY MLMEERS FANNING, KENNEDY, AND
PENELLO
On July 31, 1973. Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The central issue herein is whether the circum-
stances of the instant case call for the application of
the principles announced in the Board's Blackhawki
and Visinet2 decisions. The Administrative Law
Judge found that they did not apply. We disagree.
As the Administrative Law Judge found, the
Respondent and the Company are parties to a
collective-bargaining agreement which is due to
expire at the end of 1973. Toward the close of August
1972, the Charging Party began to organize the
Company's employees. Thus, on August 30, 1972, the
Charging Party's international representative, James
Fowlkes, met with five company employees. Mary
Margaret Elswick, one of the fined employee
members herein, was in attendance at said meeting.
In the course or' this meeting, Fowlkes told the
employees in attendance that they would have to
have approximately 50 percent of the employees sign
authorization cards in order to petition the National
Labor Relations Board, and, further, that if they
received enough cards and filed such a petition they
would have to file same from 90 days to 60 days
before the expiration of the contract between
Respondent and the Company. Thereafter, employ-
ees Mary Margaret Elswick, James Elswick, and Carl
Ray Hammons, the complainants herein, signed
authorization cards and actively campaigned for the
I
International Molders' and Allred Workers Union, Local No 125,
AFL-CIO (Blackhakk Tanning Co , Inc;, 178 NLRB 208. The principles of
Blackhawk apply equally to conduct directed toward replacing the
incumbent union with another union , such as in the instant case . Tri-Rivers
411
Charging Party, agressively soliciting other employ-
ees to sign authorization cards.
On October 3, 1972, Respondent sent each of the
complainants an identical letter, which in sum
advised the complainants that Respondent's execu-
tive committee was aware that the complainants were
"involved in activities to undermine" Respondent-,
that on September 27, 1972, a majority of said
committee had voted to suspend or fine the com-
plainants because of such activities: and further that
a hearing in the matter would be held on October 20,
1972. Said hearing was held and, as a result thereof,
the complainants were fined as found by the
Administrative Law Judge, because "they had
engaged in rival union activities and not because
they had harassed or had intimidated their co-
workers."
This finding would seem to compel a conclusion
that Respondent violated Section 8(b)(1)(A) when it
fined the complainants for their solicitation of cards
on behalf of a rival union to support a petition to be
filed with the Board for a certification election, as the
Board so held in Visinet, supra.
Yet the Administrative Law Judge concluded to
the contrary for the reason that "the rival union
activities in which the complainants were engaged
were too far removed in time from the period when a
petition under Section 9(c) could have been filed to
call for the application of the principle of the
Blackhawk and the Visinel cases." He rooted his
conclusion in the fact that the complainants' activi-
ties occurred in September 1972, when the existing
collective-bargaining agreement had 1 year to run,
and therefore any petition then filed would have
been untimely. We disagree with this reasoning.
First,' that the purpose of the rival union solicitors
was to invoke the processes of the Board by means of
petition is clear from the facts. The rival union's
representative informed its adherents that a sufficient
number of signed authorization cards were necessary
to support a petition, and it was precisely that
conduct for which the complainants were subse-
quently fined by Respondent. Such activity is, of
course, essential preliminary work attendant to the
filing of a petition.3
Second, whether a petition filed in September 1972
would have been timely is not the dispositive
question. Admittedly, the rival union representative
discovered subsequent to his August 30 meeting with
his supporters that a petition probably could not be
filed for another year "and that it would be useless to
continue at the pace we were going." However, by
Marine Engineers Union (United States Steel Corporation), 189 NLRB 838.
2 Local Union No. 953, Textile Workers Union of America, AFL-CIO
( Visinet Mill, Bemis Company, Inc.), 189 NLRB 598.
9 Visinet, supra, at 604
208 NLRB No. 64
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then the complainants had already begun their drive
to replace the incumbent Respondent with the rival
union, for which Respondent fined them. Further-
more, while it may have been early in the day to
prepare to file, a petition, the cards then secured, and
those acquired later in the course of the organizing
effort, would be examined by the Board at the time
of the filing of the petition, and found valid or not at
that time under the Board's standards. Finally, there
is no question but that the complainants intended
their efforts to eventually result in the timely filing of
a petition during the 90-to-60-day period prior to the
expiration of the contract.
Therefore, we find that by their organizing and
soliciting efforts herein the complainants were
engaging in preliminary work essential to the timely
filing of a petition with the Board for a certification
election. Visinet, supra. The mere fact that the
complainants' exercise of their Section 7 rights may
have been tactically premature is not a sufficient
reason, in our view, to permit the Respondent Union
to deny them their Section 7 right to invoke the
Board's processes, by means of punitive fines. We
therefore hold that Respondent violated Section
8(b)(1)(A) of the Act by fining the complainants
herein for signing bargaining authorizations, and for
soliciting fellow employees to sign bargaining author-
izations, for a rival union to support the filing of a
petition with the Board for a certification election.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above,
occurring in connection with the operations of the
Employer, have a close, intimate, and substantial
relation 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.
CONCLUSIONS OF LAW
1. By imposing fines against Mary Margaret
Elswick, James Elswick, and Carl Ray Hammons
because they had signed collective-bargaining au-
thorizations and solicited fellow employees to sign
collective-bargaining authorizations for a rival union
to support a filing of a certification election petition
with the Board, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) of the Act.
2. The aforesaid unfair labor practices are unfair
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union has engaged
in certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action which will effectuate the policies of the
Act.
To remedy the coercive effect of the fines assessed
by Respondent, we shall order that Respondent
Union rescind the fines assessed against the Elswicks
and Hammons.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Inde-
pendent Shoe Workers of Cincinnati, Ohio, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Assessing fines against its members for signing
bargaining authorizations or for soliciting fellow
employees to sign bargaining authorizations for a
rival union to support the filing of a certification
election petition with the Board.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind the fines assessed against Mary
Margaret Elswick, James Elswick, and Carl Ray
Hammons for signing bargaining authorizations for,
and for soliciting fellow employees to sign bargaining
authorizations for, a rival union to support the filing
of a certification election petition with the Board.
(b) Post at Respondent's business offices and
meeting halls copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees and members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Sign and mail to the Regional Director for
Region 9 sufficient copies of said notice, to be
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
INDEPENDENT SHOE WORKERS 413
furnished by him for posting by the Company , if it is
willing at places where it customarily posts notices to
its employees.
(d) Notify the Regional Director for Region 9, in
writing , within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
ance with its provisions may be directed to the
Board 's Office , Federal Office Building , Room 3003,
550 Main Street , Cincinnati , Ohio 45202 , Telephone
513-684-3686.
DECISION
STATEMENT OF THE CASE
MEMBER FANNING , dissenting:
I would dismiss the complaint for the reasons set
forth in the dissent to International Molders' and
Allied Workers Union, Local No. 125, AFL-CIO
(Blackhawk Tanning Co., Inc.), 178 NLRB 208.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assess a fine against any
members of our Union for signing collective-
bargaining authorizations or soliciting employees
to sign bargaining authorizations to support a
petition to the National Labor Relations Board
for a certification election petition for a rival
union to be filed with the National Labor
Relations Board.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the
exercise of your rights guaranteed in Section 7 of
the Act.
WE WILL rescind the fines assessed against
Mary Margaret Elswick , James Elswick , and Carl
Ray Hammons for signing collective-bargaining
authorizations or for soliciting fellow employees
to sign bargaining authorizations for a rival union
to support a petition for certification election
petition to be filed with the Board.
INDEPENDENT SHOE
WORKERS OF
CINCINNATI, OHIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
HERBERT SILBERMAN , Administrative Law Judge: A
hearing was held in this proceeding on January 22, 1973, at
which Respondent withdrew its answer subject to stated
conditions . A decision thereafter was issued by the
Administrative Law Judge on January 31, 1973 . General
Counsel filed exceptions to the Decision which the Board
sustained and the Board issued a Decision and Order
Remanding Proceeding to Regional Director , reported at
203 NLRB No. 128 , directing that the record be reopened
and that a plenary hearing on the merits be conducted. A
further hearing in the matter was held on June 26, 1973.
Respondent in its answer admits the allegations of the
complaint relating to the jurisdiction of the Board and
relating to its status and the status of the Charging Party as
labor organizations . Following the close of the hearing
briefs were filed by General Counsel and the Respondent.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE ISSUES
The complaint alleges, in substance , that the Respon-
dent , which has a collective -bargaining agreement with
The United States Shoe Corporation , on October 20, 1972,
imposed a $50 fine on three of its members who are also
employees of the Company , namely , Carl Ray Hammons,
Mary Margaret Elswick , and James Elswick , because they
had solicited support for the Charging Party with the
object of displacing Respondent and substituting the
Charging Party as their collective-bargaining representa-
tive. The answer , in addition to denying the allegations of
the complaint , alleges that the three persons named were
fined because of harassment and intimidation of their
fellow member -employees and because of their attempt to
undermine the authority of the Respondent in its relation-
ship with The United States Shoe Corporation.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent and the Company have had contractual
relations for many years covering a unit of approximately
350 employees . Their most recent agreement is for a term
of 3 years expiring at the end of 1973.
Towards the close of August 1972 the Charging Party
began to organize the Company's employees . On August
30, Charging Party's international representative, James
Fowlkes, met with five company employees.' Authoriza-
tion cards were distributed and the employees were asked
to solicit their coworkers to sign such cards. On September
' The August 30, 1972, meeting appears to have been the only meeting of
company employees held by the Charging Party
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, Fowlkes distributed handbills to the Company's
employees at one of its Cincinnati plants. During the next 2
weeks, in particular, employees Mary Margaret Elswick,
James Elswick and Carl Ray Hammons (the three are
sometimes referred to below as the "complainants"), who
are members of Respondent, actively campaigned for
Charging Party and aggressively solicited other employees
to sign authorization cards. At the end of September 1972,
when Fowlkes obtained a copy of the agreement between
the Respondent and the Company and realized that "we
couldn't intervene until the latter part of '73," he advised
the in-plant organizing committee to reduce the level of
their activities pending "a full drive" at the end of 1973.
On October 3, 1972, Respondent sent each of the
complainants an identical letter which, in pertinent part,
reads as follows:
This letter is written to you as a member of the
Independent Shoe Workers Union of Cincinnati, Ohio,
at the request of its Executive Committee. It has come
to the attention of union representatives that you are
involved in activities to undermine the Independent
Shoe Workers Union by reason of your using your
place of employment and association with fellow union
workers to encourage other members of the Independ-
ent Shoe Workers Union to have the Independent Shoe
Workers Union of Cincinnati, Ohio, decertified as the
union representing the employees at the U. S. Shoe
factory on Herald Avenue and/or the U. S. Shoe
warehouse on Mosteller Road.
The Constitution of the Independent Shoe Workers
Union states that the Executive Committee may, upon
a majority vote , suspend and/or fine members of the
union for cause if they become "undesirable". On
Wednesday, September 27, 1972, a majority of the
Executive Committee voted to suspend or fine you
because of the above alleged activities . Consequently,
in conformance with the provisions of the Constitution
and with due process of law , the Secretary has
requested the undersigned , as General Counsel and in
behalf of the Secretary , to notify you of the vote for
suspension and/or fine , and state that pursuant to the
Constitution , you will be afforded a hearing on the
suspension and/or fine which hearing shall take place
at 4:30 P.M. on Friday, October 20, 1972, at the
basement meeting room of the First National Bank of
Cincinnati building located at 4525 Montgomery Road,
Norwood , Ohio. You are invited and urged to appear
in your own behalf and with such other witnesses or
counsel as you may deem necessary to aid in your
defense . The hearing will be conducted by the
Executive Committee.
The hearing referred to in the October 3 letters was held
as scheduled although none of the complainants appeared.
Testimony was taken from two witnesses who are employ-
ees of the Company, Flo Davis and Richard Bens. A
transcript of their testimony was made. Insofar as is
pertinent, Flo Davis testified as follows:
Mr. Clark-Has Margaret Elswick ever been in
contact with you?
Flo Davis-She asked if I sign my card and said she
would mail it for me. I said I would take care of my
own signing and mailing.
Mr. Clark-How often did James Elswick contact
you?
Flo Davis-About the first week. Every day he
mentioned it.
Mr. Clark-How about Carl Hammons?
Flo Davis-How many times? I would say 10 times.
Mr. Clark-Was this done while you were work-
ing?
Flo Davis-Yes. It was always while I was working.
• s r s
Mr. Clark-Did they ever make any statements to
you regarding the company's relationship with the
union?
Flo Davis-He said, "I don't know whether you and
Mary know how dirty companies can be. They will just
do anything to you anyway. You were moved out
here." I said, "We may be new here but not in the
union." So he said, "If we would do that, sign the card,
he would have the company unload the line for us."
s s a s
Mr. Clark-What was he indicating to you when
he said he would unload the line?"
Flo Davis-He would take them off the line and we
girls would not have to do the work.
Mr. Clark-Did they use forceful language to get
you to sign the cards?
Flo Davis-He kept asking me and I would not say
whether or not I would sign. I felt if Ijust played along,
things would be better. Carl came by on Monday
morning two weeks ago and said he checked the cards
and i hate to inform you your name was not on the list.
I said, "Don't you think that is my business?" I did not
want to tell him I had not signed because there might
be trouble.
Mr. Clark-You said you did not want to tell him
you would not sign the cards because of some trouble?
Flo Davis-We work close together and James
Elswick didn't like it when I wouldn't sign the card so
he does not speak to me.
Mr. Clark-Is that how he showed it?
Flo Davis-Yes.
• i n i •
Mr. Clark-Do you feel James Elswick and Carl
Hammons were trying to intimidate and embarrass you
into signing one of these cards?
Flo Davis-I feel they were.
Mr. Gantzger-When he indicated he would take
the boxes off the conveyor, was he saying he would do
this if you signed the card?
Flo Davis-He said the men would do the unloading
INDEPENDENT SHOE WORKERS 415
of the line more if we had another union in. We
wouldn 't have to do the hard work . The first week he
really did ride me and Mary Mosey about signing the
cards until we got a little bit smart with him and then
he left us alone.
Bobbie Harmon-What brought all this up in the
first place? Did someone step on your toes?
Flo Davis-No , it was the way things were going
that I don 't like and a lot more don 't like . I asked that
they leave me alone . They haven 't bothered me since.
Bens, to the extent pertinent here, testified:
Mr. Clark-Can you tell us if any of these three
people ever contacted you concerning joining some
other union?
Richard Bens-James Elswick and Margaret Els-
wick.
Mr. Clark-How many times did they contact
you?
Richard Bens-Quite a few.
Mr. Clark-Every day?
Richard Bens-Every day and more than twice a
day.
Mr. Clark-Did they do this while working?
Richard Bens-Yes.
Mr. Clark-Were they supposed to be working
too?
Richard Bens-Yes.
Mr. Clark-Did they become a nuisance to you?
Richard Bens-Yes.
Mr. Clark-Did they try to intimidate or embar-
rass you?
Richard Bens-Yes.
Following the hearing on October 25 , each of the
complainants was sent a letter which, in relevant part,
reads:
For reasons known only to you, you or a representative
in your behalf failed to appear at this hearing . Your not
attending did not stop the hearing from taking place,
and the Executive Committee of the Independent Shoe
Workers Union heard evidence concerning your
alleged harassment and intimidation of fellow union
members and your attempt to undermine the authority
and the influence of the union in its relationship with
the company . Testimony concerning these allegations
was presented and, as a result , I have been requested by
the Executive Committee to inform you they have
found you guilty as alleged , guilty of harassment and
intimidation of fellow union members and guilty of
trying to undermine the authority and influence of the
union in its relationship with the company . As a result
of this hearing , the Executive Committee has unani-
mously fined you the sum of $50 .00 which must be paid
immediately.
Despite the language of its two letters to the complain-
ants , Respondent contends that the fines were levied only
because they had harassed and intimidated fellow union
members . However , the transcript of the October 20
hearing shows that the accusations relate to nothing more
than persistence on the complainants ' part in soliciting
authorization cards for the Charging Party . Further,
George Gantzer , who is president of Respondent and
Chairman of its executive committee , testified:
Q. Were there any discussions as to what constitut-
ed the so-called harassment when the-the executive
committee when they voted on this thing?
A. Yes, sir.
Q. What was that?
A. Repeatedly going back to these people time and
time again , and, like I say, making them some false
promises and-That's all I have to say on that.
Employees Flossie Davis, Mary Mosey , Clara Minton,
Mary June Glass , Richard Bens , and Bobby Hammond,
who were called as witnesses by Respondent , testified as to
the alleged misconduct of the complainants . Their testimo-
ny, in sum , amounts to no more than that the complainants
may have been overly aggressive and persistent in soliciting
on behalf of the Charging Party.
I find , therefore , contrary to Respondent, that the
complainants were fined because they had engaged in rival
union activities and not because they had harassed or had
intimidated their coworkers.
The fines were not paid by the complainants and
ultimately were rescinded by Respondent. Complainants
were notified of the recision by letter , dated June 20, 1973,
which , in relevant part, reads:
On October 20, 1972 , a $50.00 fine was imposed upon
you by the Independent Shoe Workers of Cincinnati,
Ohio , a union of which you were then and are presently
a member . The fine was imposed because of alleged
harassment and intimidation of fellow union members
and because of your alleged attempt to undermine the
authority of the union in its relationship with your
employer, United States Shoe Corporation . The pur-
pose of the fine was not the collecting of money but
only to alleviate the alleged problem of harassment and
intimidation.
The Executive Committee of your union, which
originally levied the fine , met yesterday and felt that
the harassment and intimidation has ceased after the
January 22 NLRB hearing ; consequently, the Execu-
tive Committee unanimously voted to rescind the fine
imposed upon you on October 20 , 1972. As attorney for
the union , I have been instructed to inform you of your
union 's actions.
A copy of this letter will be posted on the union
bulletin boards of the various plants of United States
Shoe Corporation located in Cincinnati, Ohio.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
"Section 8(b)(1)(A) was not intended to give the Board
power to regulate internal union affairs."2 An employee
who joins a unior submits himself to the obligations of
union membership, enters into a binding agreement to
obey the union's rules and, unless prohibited by public
policy, impliedly consents to the imposition of discipline if
he disobeys those rules, despite the literal "restraint" or
"coercion" such discipline entails.3 "Congress did not
propose any limitations with respect to the internal affairs
of unions, aside from barring enforcement of a union's
internal regulations to affect a member's employment
status."4 Thus, Section 8(b)(l)(A) does not preclude the
"imposition of disciplinary fines, with their consequent
court enforcement, against members who violate the
unions' constitutions and bylaws." 5
"The underlying basis for the holdings of Allis-Chalmers
and Scofield was not that reasonable fines were noncoer-
cive under the language of Section 8(b)(1)(A) of the Act,
but was instead that those provisions were not intended by
Congress to apply to the imposition by the union of fines
not affecting the employer-employee relationship and not
otherwise prohibited by the Act. The reason for this
determination, in turn, was that Congress had not intended
by enacting this section to regulate the internal affairs of
unions to the extent that would he required in order to base
unfair labor practice charges on the levying of such fines
... In Scofield we decided that Congress intended to
distinguish between the external and the internal enforce-
ment of union rules, and that therefore the Board would
have authority to pass on those rules affecting an
individual's employment status but not on his union
membership status. 394 U.S. at 428-230."6 The Supreme
Court, therefore, has drawn the line "between permissible
and impermissib)e union action against members as
follows:
.. . Section 8(b)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in
the labor laws, and is reasonably enforced against
2 NLRB v Boeing Co et a!, 412 U.S 67 (1973)
3 N LR B v Boeing Co el al, supra. N LR B v Allis-Chalmers Co. 388
U S. 175, 182, 195 (1967)
* Scofield, et al v. N 1_ R B, 394 U S 423, 428 (1969)
5 NLRB v Boeing Co et al, supra
6 NLRB v Boeing Co et al, supra
r N L R. B v Granite Stale Joint Board fertile Workers Union of
America, Local 1029, AFL-CIO, 409 U.S 213, 216 (1972)
" N LR B v Granite State Joint Board, supra at 217 Accord - Booster
Lodge No 405, International Association of Machinists and Aerospace
Workers, AFL-CIO v NLRB , 412 U S. 84 (1973)
9 N L R B v Allis-Chalmers Mfg Co, 388 U S 175, In 37 Accord
Union Starch & Refiring Co v N LR.B, 186 F 2d 1008 (C.A 7), cert
denied 342 U.S 815
15 N L R B. v. Allis-Chalmers Mfg Co, 388 U S 175
11 Scofield v. N L R B, 394 U.S. 423
12 Communications Workers of America, APL-CIO, Local 6222 (South-
western Bell Telephone Company), 200 NLRB No 109
13 American Newspaper Publishers Association v N L R B, 193 F.2d 782,
800-801 (C.A. 7), cert domed 344 U S 812. Don Glasser, et al v A 1_R B,
395 F.2d 401 (C A. 2, 1968).
union members who are free to leave the union and
escape the rule.-7
An employee who does not wish to submit himself to the
potential of union discipline should not , in the first
instance , loin the union , or having joined , should take
advantage of an opportunity to resign . As the Supreme
Court has pointed out: "[w]here a member lawfully resigns
from a union and thereafter engages in conduct which the
union rule proscribes , the union commits an unfair labor
practice when it seeks enforcement of fines for that
conduct ."" The presence of a union -security clause in a
subsisting collective-bargaining agreement is not construed
as imposing involuntary union membership upon employ-
ees. "Under Section 8(a)(3) the extent of an employee's
obligation under a union security agreement is `expressly
limited to the payment of initiation fees and monthly dues
. . . `Membership ' as a condition of employment is
whittled down to its financial core .' Labor Board v. General
Motors Corp., 373 U.S. 734, 742."9 It follows , therefore,
that a member who chooses not to resign has no equitable
claim to exemption from lawful union discipline.
As, in normal circumstances , union disciplinary action is
not coercion within the meaning of Section 8(b)(1)(A) even
though taken against a member for exercising a Section 7
right, unions have been exonerated of unfair labor practice
charges by reason of the imposition of fines or other
discipline upon members for crossing picket lines,10 for
violating a union rule relating to production ceilings,11 for
refusing to wear an emblem which they regarded as
"morally repugnant and personally offensive ," 12 and for
working in a shop with nonmembers.13
Turning to the case at hand , as no contention is
advanced that there was any irregularity in the imposition
of the fines against the three complainants , Respondent's
action did not contravene Section 8 (b)(1)(A) of the Act14
unless (1) it was for a reason which does not reflect a
legitimate union interest, or (2) it impairs a policy Congress
has imbedded in the labor laws.15
The first condition is not breached because Respondent
has a legitimate interest in preserving its position as
collective-bargaining representative and therefore has the
1 t There may be a question as to whether the fines constitute a violation
of the so-called free speech provision of the Landrum-Griffin Act, Labor-
Management Reporting and Disclosure Act, Section 101(a)(2), 29 U S C.A
Section 411(a)(2) See Airline Maintenance Lodge 702, International
Association of Machinists and Aerospace Workers v Loudermilk, 444 F 2d 719
(C A. 5), Ballas, etc v. McKiernan, 83 LRRM 2013 (N.Y, App Div., March
19, 1973) However that question was neither pleaded nor litigated in this
proceeding Compare. Carpenters Local Union No 22, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Graziano Construction
Company), 195 NLRB I
15 As was pointed out in Scofield v NLRB, 394 U.S 423, 430-431,
where union discipline of members "was not carried out through means
unacceptable in themselves, such as violence or employer discrimination
was enforced solely through the internal technique of union fines.
collected by threat of expulsion or judicial action . . [t]he inquiry must
focus on the legitimacy of the union interest vindicated . . . and the
extent to which any policy of the Act may be violated .
INDEPENDENT SHOE WORKERS
power " to protect against erosion its status ... through
reasonable discipline of members ..." 16 Thus, the
complained of conduct in this case would be an infringe-
ment of Section 8(b)(l)(A) only if it contravenes some
policy of the Act. The policy purported to have been
violated falls within the principle of the Skura case.17
In Skura the Board held that a union that fines a
member for filing unfair labor practice charges violates
Section 8(b)(1)(A) of the Act. According to the Board, a
fundamental policy of the Act includes unrestricted access
to its processes and no private organization should be
permitted to prevent or regulate access to the Board. The
Skura principle has been affirmed in N.L R B. v. Industrial
Union of Marine and Shipbuilding Workers of America,
AFL-CIO, 391 U.S. 418 (1968 ). The Court reasoned:
"Section 8 (b)(l)(A) assures a union freedom of self-
regulation where its legitimate internal affairs are con-
cerned. But where a union rule penalizes a member for
filing an unfair labor practice charge with the Board, other
considerations of public policy come into play.. . The
policy of keeping people `completely free from coercion,'
id., against making complaints to the Board is . . .
important in the functioning of the Act as an organic
whole . . . A healthy interplay of the forces governed and
protected by the Act means that there should be as great a
freedom to ask the Board for relief as there is to petition
any other department of government for a redress of
grievances . Any coercion used to discourage, retard, or
defeat that access is beyond the legitimate interests of a
labor organization . That was the philosophy of the Board
in the Skura case , Local 138, International Union of
Operating Engineers , 148 NLRB 679 ; and we agree that
the overriding public interests makes unimpeded access to
the Board the only healthy alternative , except and unless
plainly internal affairs of the union are involved." 18
As Skura represents an exception to the general
proposition that "union disciplinary action is not covered
by Section 8(b)(1)(A)," its principle is sparingly and
discriminatingly applied . 19 Thus, a provision in a union
constitution which only potentially may give rise to an
16 NLRB v Allis-Chalmers Mfg Co, 388 U S 175, 181 Accord Tawas
Tube Products, Inc, 151 NLRB 46 (expulsion of a member who has filed a
decertification petition with the Board was held not unlawful) Richard C
Price v N LR B, 373 F 2d 443 (C A 9, 1967), cert denied 392 U.S 904
(suspension of a member for attempting to have union decertified)
17 Local 138, International Union of Operating Engineers, AFL-CIO
(Charles S Skura), 148 NLRB 679 As will be discussed more fully below
the principle of the Skura case is that the public interest in preserving for
employees unimpeded access to the Board outweighs a union's right to
discipline members for infractions of union rules There are other situations,
not applicable here, where infractions of fundamental labor policy also have
been held to override and outweigh the unions' right to discipline their
members See , for instance , N LR B v. Local 751, Carpenters, 285 F 2d 633,
640-641 (C A 9, 1960) ( threat of fine to compel members to refuse to
handle product in violation of Section 8(b)(4) of the Act), Bricklayers and
Masons Local No 2 (Robert L Willis, Masonary Contractor), 166 NLRB 117
(fine to compel refusal to cross picket line whose observance constituted
secondary boycott), Local 12419, International Union of District 50, United
Mine Workers of America (National Grinding Wheel Company, Inc), 176
NLRB 628 (fine to compel violation of no-strike clause), Carpenters, Local
22 (Graziano Const Co), 195 NLRB I (fine imposed because of members
opposition to incumbent union officials in intra-union election) Cf Meat
Cutters Local 81 v N LR B, 458 F.2d 794 (C A.D C, 1972) ( fine against
supervisor-member for complying with employer's new policy, in violation
of Section 8(b)(i)(B) of the Act)
18 See also Cannery Workers Union of the Pacific, affiliated with the
417
impairment of members' access to the Board has been held
not unlawful. On the other hand, a present, effective threat
that members will be subject to union discipline if they
should file charges with the Board has been held to violate
Section 8(b)(1)(A). Operative Plasterers' and Cement Ma-
sons' International Association, etc. (Arthur G. McKee &
Company), 189 NLRB 553.20 Extensions of Skura have
been limited. Applying the Skura principle violations of
Section 8(b)(1)(A) were found where a member was
expelled for inducing a nonmember to file an unfair labor
practice charge against the union,21 where fines were
assessed against members for legal costs incurred in
defending unfair labor practice charges filed by those
members with the Board22 and for giving adverse
testimony in an arbitration proceeding,23 and where the
union refused to process a member's grievance unless she
withdrew unfair labor practice charges against the employ-
er.24
Of greater pertinence to the issues here, the Board has
extended the Skura principle to cover union fines, but not
expulsion,25 levied against members for activities directed
toward filing petitions pursuant to Section 9(c) of the Act.
The lead case is Blackhawk Tanning26 where the Board
held that Section 8(b)(1)(A) prohibits "a union from
penalizing a union member because he has sought to
invoke the Board's processes" by filing or circulating a
decertification petition. The respondent in that case was
ordered to cease and desist from assessing fines against
members or attempting to use the processes of the Board in
order to decertify their bargaining representative.27
Relying on the Blackhawk case, in Tri-Rivers Marine
Engineers Union (United States Steel Corporation), 189
NLRB 838, a violation of Section 8(b)(1)(A) was found
where a member was fined for soliciting on behalf of a
rival labor organization authorization cards which were
used less than 3 weeks later to support a petition for a
representation election filed with the Board by the rival
organization. The Board observed that "there is no
significant distinction between conduct directed toward
decertifying a union and conduct directed toward replac-
Seafarers International Union of North America, AFL-CIO (Van Camp Sea
Food Co, Inc), 159 NLRB 843
i9 See Price v. N LR B, supra, and the Board decision, United
Steelworkers of America, Local No 4028, AFL-CIO, 154 N LR B 692, 696
20 Accord Millwrights & Machinery Erectors, Local Union 1510, affiliated
with the United Brotherhood of Carpenters & Joiners of America, AFL-CIO
(Mulberry Construction & Welding Co), 152 NLRB 1374
21 Philadelphia Moving Picture Machine Operators' Union, Local No 307,
I A TS E, 159 NLRB 1614
22 Houston Typographical Union No 87, International Typographical
Union, AFL-CIO, (Houston Chronical Publishing Company), 158 NLRB
1018
23 Cannery Warehousemen, Food Processors, Drivers and Helpers Local
Union No 788, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind, 190 NLRB 24
24 Association of Packers & Drivers Union (Guy's Foods , Inc ), 188 NLRB
608
2" Tawas Tube Products, Inc, 151 NLRB46, Pricey NLR.B, 373 F2d
443 (C A 9). cert denied 392 U S 904
28 International Molders' and Allied Workers Union, Local No 125,
AFL-CIO (Blackhawk Tanning Co, Inc), 178 NLRB 208, enfd 442 F 2d 92
(C A 7, 1971)
27 Accord Automotive Salesmen 's Association (A S A) affiliated with
SIUNA. AFL-CIO (Spitler-Demmer, Inc), 184 NLRB 608, United Lodge
No 66, International Association of Machinists and Aerospace Workers,
AFL-CIO (Smith-Lee Co., Inc), 182 NLRB 849
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the incumbent union with another union." In that case
the Board ordered the respondent to cease and desist from
assessing fines against its members for soliciting authoriza-
tion cards in support of a petition filed with the Board by a
rival union.28
In the cases above cited, which rely on Blackhawk as a
precedent, the activities of the members for which they
were fined were proximately related to petitions filed with
the Board pursuant to 9(c) of the Act. There is one similar
case, Visinet M111,29 where no petition was filed with the
Board. In the Visinet case members were fined for rival
union activities, which included execution and solicitation
of authorization cards, that took place in the month of
February 1970 and were intended to support a representa-
tion petition to be filed with the Board between March 3
and April 3, 1970 (the 90-60 days period prior to the
expiration of the incumbent union's contract). The fines
were held unlawful because the members had been
engaged "in essential preliminary work attendant on the
timely filing of a petition with the Board for a certification
election." The respondent union was ordered to cease and
desist from assessing fines against its members "for
soliciting fellow employees to sign bargaining authoriza-
tions for a rival union to support the timely filing of a
certification election petition with the Board."
The lesson I draw from these cases is that Section
8(b)(1)(A) is not violated when a union disciplines
members for engaging in dual or rival union activities
subject, however, to one general exception. The exception
arises when the members' rival union activities either
resulted in the filing of a petition with the Board under
Section 9(c) of the Act or were "essential preliminary work
attendant on the timely filing" of such petition. In this
case, however, the three complainants were not fined for
28 Accord: Printing Specialties and Paper Products' Union No. 481,
International Printing Pressmen and Assistants' Union of North America,
AFL-CIO (Westvaco Corporation. H & D Container Division), 183 NLRB
1271.
seeking access to the Board or for any activity proximately
related to using the Board's processes. When they were
soliciting authorization cards on behalf of the Charging
Party the existing contract between Respondent and the
-Company had more than a year to run so that any petition
then filed with the Board would have been untimely.
Because of this circumstance the Charging Party deferred
any intentions it may have had to seek recognition as the
collective-bargaining representative of the Company's
employees. Fowlkes testified that toward the end of
September 1972, when he obtained a copy of the contract
between the Respondent and the Company and learned
that it would not expire for another year, he told the
members of the in-plant organizing committee "that it
would be useless to continue at the pace we were going .. .
at the end of '73 when this contract expired [then] we
would start a full drive." In my view, the rival union
activities in which the complainants were engaged were too
far removed in time from the period when a petition under
Section 9(c) could have been filed to call for the
application of the principle of the Blackhawk and the
Visinet cases. Accordingly, I find that Respondent by
fining the three complainants for their activities in support
of the Charging Party has not violated Section 8(b)(l)(A)
of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
[Recommended Order omitted from publication.]
29 Local Union No 953, Textile Workers Union of America, AFL-CIO
( Visinet Mill, Bemis Company, Inc), 189 NLRB 598.