Local 12419, Mine Workers

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 628 (N.L.R.B. 1969)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 12419, International Union of District 50,
United Mine Workers of America ( National
Grinding Wheel Company, Inc.) and Sarah
Schmidt. Case 3-CB-1068
THE WITNESSES% I make the following:
Findings of Fact
1. THE BUSINESS OF THE EMPLOYER
June 13, 1969
DECISION AND ORDER
On July 30, 1968, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner' s Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner 's Decision , and a brief in
support of its exceptions , and Respondent filed
exceptions to the Trial Examiner' s Decision, and a
supporting brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The
Board has considered the Trial Examiner' s Decision,
the exceptions and briefs, and the entire record in
the case , and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
ORDER
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 Respondent , Local 12419, International
Union of District 50, United Mine Workers of
America, North Tonawanda, New York, its officers,
agents , and representatives , shall take the action set
forth in the Trial Examiner 's Recommended Order.
r'In his exceptions, the General Counsel urges the Board to find
Respondent 's conduct unlawful for reasons beyond , and in addition to,
those relied on by the Trial Examiner . However , like the Trial Examiner,
we find it unnecessary to pass on these additional grounds in this case.
TRIAL EXAMINER'S DECISION
A. NORMAN SOMERS, Trial Examiner : This case was
heard before me in Buffalo, New York, on April 17, 1968,
on complaint of the General Counsel issued March 27,
1968, on a charge filed by Sarah Schmidt, an employee,
on September 12, 1967.
The complaint alleges that Respondent Local violated
Section 8 (b)(1)(6) of the Act in imposing a fine on Sarah
Schmidt and other members of Respondent Local for
crossing the picket line of a sister - local. Respondent Local
and the General Counsel presented oral argument and
filed briefs. On the entire record' and my observation of
The Employer or Company here involved, National
Grinding Wheel Company, Inc., is a New York
corporation engaged at its plant in North Tonawanda,
New York, in making and selling abrasives , grinding
wheels and related products . At least $50,000 of its
products are shipped by it across the State annually, and
as is not disputed , the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The following are labor organizations within the
meaning of the Act: Local 12419 of District 50 (hereafter
the Respondent or Respondent Local), Local 15148 of
District 50 (hereafter the "sister- local"), and International
Union of District 50, United Mine Workers of America
(hereafter District 50).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent Local and the Company have a contract (in
effect during the time here involved) covering the
production and maintenance employees . Included in the
contract is a union shop clause . The contract also has a
no-strike clause (art. XVIII) which reads:
During the term of this agreement, the Company will
not conduct a lockout at its plant, and the Union or
Local Union will not cause or permit its members to
cause any strike or slowdown, total or partial, of work
at the Company' s plant.
The sister-local, whose membership consists of the
Company's clerical or office workers, struck and picketed
for a contract from June 12 through 16, 1967 (with what
result does not appear in the record , nor is it material).
On June 9, the Friday before the sister-local's strike,
Respondent Local held a regular meeting. At that meeting
Sarah Schmidt , a member of Respondent Local, asked
John Urban , International Representative of District 50,
whether "if there would be a picket line Monday, June 12,
when we got to work, should we cross it?" Schmidt
testified:
He said that he could not tell us what to do, it would be
up to each individual to make their selection. And he
said that he himself would not cross the picket line.'
The morning of Monday, June 12, the pickets of the
sister-local were on the sidewalk in front of the plant,
while the factory workers , numbering about 300 , were on
the opposite sidewalk, carrying no picket sign but
refraining from crossing the picket line.
The only exceptions (apart from a handful of
temporary employees who are not members of
Respondent and are in no way here involved) were
'This includes a copy of District 50 's constitution which , on consent, was
added to the record some time after the hearing closed.
'On cross-examination , Schmidt testified that Urban further suggested
she talk to him in private after the meeting, which she did . Schmidt did
not recall what was said between them except that she told Urban that
"according to the contract I felt as though I would have to go into work,"
and, "If it was my own decision that I would go into work Monday."
176 NLRB No. 89
LOCAL 12419, MINE WORKERS 629
Schmidt and 15 other members . These 16 crossed the
picket line and worked during all of the week of the
picketing . Beginning some time after the picketing ceased,
Respondent instituted charges against these 16 members
under the provision of the constitution concerning
"conduct unbecoming a union member" in that they
crossed the picket line of the sister -local "who were in the
process of negotiating their first contract with the
Company." This culminated in a fine of $25 for each day
they crossed the picket line - June 12, 14, 15, and 16.
(The $25 reflected the average earnings per day for each
member , which "took into consideration the high rate and
the low rate.")
The fine has not been paid . Respondent has not sought
the assistance of the Company to collect the fine , nor has
it tried to collect it by court suit.
B. Conclusionary Discussion
The General Counsel ' s claim that Respondent violated
Section 8 (b)(1)(A) is based first, on the premise that the
honoring of the sister - local's picket line by the many
members of Respondent Local constituted a breach by
Respondent Local of its no-strike clause . From this the
General Counsel concludes that Respondent Local ' s fining
of the members that crossed the picket line was not
immune under the proviso of Section 8(b)(1)(A) despite
the fact that the fine was an internal discipline in
enforcement of Respondent 's "own rules in respect to the
acquisition and retention of membership."'
A union is generally not in violation of Section
8(b)(1)(A) if its sanctions are internal in character (in the
form of fine , suspension or expulsion) and are not directed
against the member ' s employment status or tinged with
violence . That standard has been applied from the earliest
interpretation of the provision by the Board (in ITU as
affirmed in ANPA) 4 to its application in Allis-Chalmers,
149 NLRB 67, affd. 388 U.S. 173. The Allis-Chalmers
case involved a fine on members for working during a
lawful and authorized strike by the union . The Wisconsin
Motors case (supra , fn. 4) involved a fine on members for
exceeding the ceiling on piecework or incentive plan
earnings of members as prescribed by the union's rules.
The ANPA case (supra , fn. 4) involved a threat to expel
members who , contrary to the union ' s constitution and
bylaws, worked with nonmembers.'
The principle that the union is immune as long as it
limits its sanction to internal discipline was departed from
under the "Skura" doctrine .' There the member filed a
charge with the Board of unfair labor practices against the
union without exhausting the remedies provided by the
'Sec. 8(b) provides:
It shall be an unfair labor practice for a labor organization or its
agents -
(I) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 : Provided , that this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect
to the acquisition and retention of membership therein
4International Typographical Union (hereafter ITU), 86 NLRB 951,
955-957, aft as to this sub nom. American Newspaper Publishers Assn.
(hereafter ANPA) v. N.L.R. B. 193 F .2d 782, 800, 806 (C.A. 7), cert.
denied as to this 344 U.S. 812. See also Local 283 UAW /Wisconsin
Motor Corp./, 145 NLRB 1098, affd . sub nom . Scofield v. N.L R.B.. 393
F.2d 49 (C.A. 7).
'See also Federation of Musicians /Don Glasser(, 165 NLRB No. 110,
affd. sub nom . Glasser v. N.L.R.B., 395 F.2d 401, (C.A. 2). There the
union was found not to have violated Sec. 8 (bXIXA) by maintaining and
"enforcing" a rule forbidding members to work with nonmembers.
union ' s procedures . Though the discipline was a purely
internal one (a fine ), the Board held the union violated
Section 8(b)(1)(A) because the immunity was held to be
superseded by the public policy against a private person or
organization barring or hindering access to the Board's
processes. That doctrine was recently upheld by the
Supreme Court in the Marine & Shipbuilding Workers
case,' where the discipline was expulsion (instead of a fine
as in Skura and Roberts, supra, fn. 6).
The General Counsel contends that if the immunity
ordinarily accorded to internal union discipline can be
overcome by the public policy inhering in the situation
exemplified by Skura and the kindred cases (supra, fn. 6
and 7), so too can it be overcome by the policy involved in
the instant case , where the union ' s discipline, though
internal , was used to penalize members for refusing to
honor a picket line whose observance by the bulk of the
members of Respondent Local was a breach by
Respondent of the no -strike clause of its contract.
Respondent , on the other hand , contends its conduct
was not in violation of the no -strike clause , and so its
situation is legally on all fours with the union in the
Allis-Chalmers case. It starts with the uncontested
premise , that the sister-local's picketing was lawful, and,
Respondent argues , it follows that in requiring its
members to honor the picket line , it was as immune under
the proviso of Section 8(b)(1)(A) as the union ' s conduct in
Allis-Chalmers Respondent points out that if there had
not been a no -strike clause , Respondent ' s members would
have been as protected by Section 7 of the Act in
refraining from working during the sister - local's lawful
strike as the members of the sister -local themselves were
in striking . The rub, however, is in the fact that
Respondent's contract included a no-strike clause.
Respondent contends that the no-strike clause is irrelevant
to this situation . It states (br. pp. 4-5):
(1) Local Union 12419 (Respondent Local) did not
engage in a strike violation of the "no-strike" clause;
and,
(2) The picket line of Local 15419 (the sister local) was
lawful and as such should have been honored.
[Emphasis supplied.]
Thus Respondent's position is that since the
sister-local's picket line was lawful , Respondent members'
refusal to work in deference to that picket line was
legitimate regardless of the no-strike obligation. In
substance, then , Respondent ' s contention is that the
no-strike clause , while it forbids a strike in furtherance of
Respondent's own demands , nevertheless leaves untouched
work stoppages by Respondent in furtherance of the strike
or picket line of another union (in this instance a
sister-local ), provided that the other union ' s activity is
itself lawful.
The language of the no-strike clause makes no such
distinction . The clause forbids Respondent to "cause or
permit its members to cause any strike or slowdown, total
or partial, of work at the Company's plant." The bulk of
Respondent ' s members that stayed off the job were
engaging in a work stoppage, which , pro tanto, was a
partial strike . Whether they did so in furtherance of their
own demands or of a cause of the sister-local, their work
'Local 138 Operating Engineers (Charles S. Skura ). 148 NLRB 679; H.
B. Roberts , Bus. Mgr. Local 923 Operating Engineers ( Wellman-Lord
Engineering Inc.!. 148 NLRB 674, affd . 350 F.2d. 427 (C.A.D.C.).
'N.L.R.B v. Industrial Union of Marine d Shipbuilding Workers of
America , AFL-CIO and its Local 22, 391 U.S. 418, 159 NLRB 1065.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stoppage suspended the continuity of their operations in
either instance. This stoppage of work on their part was in
the face of the language forbidding Respondent to
"cause" it or even "permit" it. Whatever might be said
for the reply of International Representative Urban to
Sarah Schmidt, that it was up to each member to decide
whether or not to cross the sister-local's picket line but
that "he himself would not cross the picket line,"
Respondent's action in fining the members who crossed
the picket line was a ratification of the work stoppage of
the members that honored the picket line. Further, it was
predicated upon an interpretation of the "conduct
unbecoming a union member" clause as requiring
members to abstain from work during the sister local's
picket line in the teeth of Respondent's own no-strike
obligation.
Respondent does not dispute that had this work
stoppage been in furtherance of its own or the members'
interest, it would have been in violation of the no-strike
clause. As to why it is different if this was in furtherance
of the sister-local's cause, we return to Respondent's
underlying premise - that the lawful character of the
sister-local's picket line rendered legitimate Respondent's
own conduct in requiring its members to stop work in
deference to that picket line, even if the no-strike clause in
Respondent's contract with the Company calls for
continuity of the production workers' operations. The
essence of Respondent's position is thus that its members
and itself enjoy a higher status in striking in advancement
of another union's cause than it would be in striking in
advancement of a direct cause of its own.
However, an employee who ceases work in deference to
another's picket line, though he enjoys the same
protection as if he engages in a strike of his own, enjoys
no higher protection either. Illustrative is the Board's
judicially approved doctrine in Redwing Carriers.' There
employees working as truckers refused to cross the picket
line of a union of which they were not members at a
strike before another employer than their own. The Board,
with court approval, held that in refusing to cross the
picket line, these truckers were not subject to outright
discharge but were protected by Section 7 of the Act in
that they retained their jobs subject to the employer's
replacing them with other employees. However, the Board
further held, likewise with court approval, that the
employer did replace these truckers in order to insure the
continuity of its operations (but not in reprisal for
supporting a union), and so the employer was held not to
have violated the Act.
In its decision in Redwing Carriers, the Board
reaffirmed its prior holding in Rockaway News Supply
Co., Inc., 95 NLRB 336, that an employee refusing to
cross a stranger picket line is pro tanto a striker and
enjoys the protection of Section 7, and so the employer's
conduct in Rockaway in discharging the employee
outright was held by the Board to have violated the Act.
However, the Board was reversed, and its outcome at the
successive judicial levels in Rockaway, was described by it
in Redwing Carriers (137 NLRB 1545, fn. 5):
A similar question was presented in Rockaway News
Supply Company, Inc., 95 NLRB 336, where the Board
expressly held such activity a protected form of
concerted activity. The Court of Appeals for the
Second Circuit agreed with the Board on this point, but
'Redwing Carriers, 137 NLRB 1545, affd. sub nom . Teamsters Local 79
v. N.L.R 8. 325 F.2d 1011 (C.A.D.C.), union' s petition for cert. denied
377 U .S. 905.
denied enforcement on another theory (197 F.2d 111).
The Supreme Court affirmed the Second Circuit's
conclusion in effect on the grounds that the activity in
question was itself in breach of an operative no-strike
agreement (345 U.S. 71). [Emphasis supplied.]
The Board in its decision in Rockaway News had
considered the no-strike clause to be inoperative, since it
regarded the whole contract to be void because the
compulsory membership clause did not meet the
conditions of the union-shop proviso of Section 8(a)(3).
The Supreme Court, on the other hand, held the
compulsory membership clause to be separable from the
rest of the contract, and therefore that the no-strike clause
was still operative. The result under the Supreme Court's
holding was that under the no-strike clause, the
employee's conduct in interrupting his work in deference
to the stranger picket line was held to be unprotected,
under the doctrine of N.L.R.B. v. Sands Mfg. Co., 306
U.S. 332.'
The employee in Rockaway News acted on his own, but
the principle would be the same if he had done so at his
union 's behest or if he done so along with other members.
The basic point is that the no-strike clause meant what it
said and governed the rights and obligations of the union
and the employees covered by it. The proposition that a
cessation of work conveys no greater rights when it occurs
in furtherance of another union 's cause than when done
directly on one's own behalf would seem aptly phrased by
the Second Circuit in the Rockaway News case (197 F.2d
113):
The right to assist a union of which one is not a
member by refusing to cross its picket line is certainly
of no higher dignity or importance to the individual
than the right to ask his fellow workers in his own plant
to join with him in the union of which he is a member
in concerted activities which will directly protect or aid
in promoting their common interests.
The conclusion is that the work stoppage of the
members, and Respondent's adoption of it, was no less a
breach of the no-strike clause, though done in deference to
the sister-local's picket line and in furtherance of the
latter' s cause , than it would have been had the conduct
been in furtherance of a direct demand of Respondent or
its members.
The fine imposed by Respondent Local on the members
who crossed the picket line was thus a penalty for refusing
to participate in a work stoppage in violation of the
no-strike clause of Respondent's contract. It is the same
in effect as if the fine had been a penalty for refusing to
engage in a strike that Respondent had itself authorized
and called outright in violation of the no-strike clause.
The main thrust of Respondent's position, however, has
been that its own situation is comparable to
Allis-Chalmers in that there the fine enforced conduct on
the part of the members which would have been legitimate
'The clause, in Rockaway News read: "No-strike, lockouts or other
cessation of work or interference therewith shall be ordered or sanctioned
by any party hereto during the term hereof, except as against a party
failing to comply with a decision award or order of Adjustment Board." In
stressing the effective character of the clause, the Court, after quoting the
clause , observed that at the hearing, the employer had made an offer of
proof (which the trial examiner received) that during the negotiations, the
union had unsuccessfully proposed the qualifying clause, "No man shall be
required to cross a picket line." The court did not suggest that the clause's
true purport derived from the union's unsuccessful offer of the qualifying
clause, but merely to answer any suggestion that the clause might in any
way be deemed ambiguous.
LOCAL 12419, MINE WORKERS
if engaged in. However , as indicated , this is not so here.
Respondent is thus in the situation of defending the fine,
as stated , as a penalty for engaging in a no-strike
violation. Respondent to be sure, falls back on the
doctrine initiated in the American Newspaper Publishing
Co. case (supra, fn. 4) which renders the union immune
for conduct respecting acquisition or retention of
membership provided its discipline is a purely internal
one. The absoluteness of the immunity based on the
internal character of the discipline was restated by the
Board in the Wisconsin Motors case (supra, fn. 4).
However, it was not long afterwards that the Skura case
was decided (supra , fn. 6), in which the internal character
of the discipline ceased to be the final word on the union's
immunity and that liability could also be based on the
reason for the discipline even if the discipline was an
internal one.
This calls into play the manner in which the
interpretation of Section 8(b)(l)(A) evolved in the light of
experience. We consider first the prohibitory clause of
8(b)(l)(A), the part that concerns restraint or coercion of
employees generally without reference to unions'
membership rules as mentioned in the proviso. In its
earliest interpretation of the prohibitory clause , the Board,
in the light of legislative history, had concluded that a
finding of violation of Section 8(b)(1)(A) required an
independent showing that the union made overtures to the
employees relating to their job or personal safety. The
most extensive treatment of the subject in the early line of
case was in National Maritime Union, 78 NLRB 971,
enfd. 175 F.2d 686 (C.A. 2). There the Board had found
that the union violated Section 8(b)(2) by a discriminatory
application of a hiring hall which caused or attempted to
cause employers to discriminate against nonmembers, but
that the union had not thereby violated Section 8(b)(1)(A),
even derivatively, since there had been no independently
coercive overtures on the employees . In the ITU (ANPA)
case (supra , fn.4), the Board , applying that same doctrine,
held that though the employer violated Section 8(b)(2) by
imposing closed shop conditions on employers , thereby
causing or attempting to cause employers to discriminate
unlawfully against nonmembers , it had not thereby
violated Section 8(b)(l)(A), even derivatively, since there
too there had been no independent overreaching of the
employees in respect to their jobs or personal safety. See
86 NLRB at 955 and fn. 15. Yet eventually, in the light of
insights derived from experience , a union's violation of
Section 8(b)(2) in causing or attempting to cause an
employer to discriminate unlawfully against employees
was found also to be derivatively a violation of Section
8(b)(l)(A),10 even if there was no independent showing of
in terrorem overtures upon the employees . The decisions
of the Supreme Court, first in the Curtis Brothers case"
and later in Bernhard-Altmann ," reflect a similar
development in the light of experience . In Curtis Brothers,
the Court held that a minority union that picketed to
compel the employer to recognize it as exclusive
bargaining representative had not thereby violated Section
8(b)(1)(A). The Court noted that the legislative history
showed that "the note repeatedly sounded is as to the
necessity for protecting individual workers from union
organizing tactics tinged with violence, duress or
reprisals ," and concluded that "Sec . 8(b)(1)(A) is a grant
of power to the Board limited to authority to proceed
against union tactics involving violence, 'intimidation, and
reprisal or threats thereof - conduct involving more than
the general pressures upon persons employed by the
affected employers implicit in economic strikes ." 362 U.S.
631
at 290. Yet in the Bernhard-Altmann case, where a
minority union actually received from the employer and
accepted recognition as exclusive bargaining representative
of the employees, the union was found to have thereby
restrained and coercing the employees in violation of
Section 8(b)(1)(A) of the Act, though there too it had
made no in terrorem overtures upon the employees.
A comparable development is reflected in the cases
concerned with the portion of Section 8(b)(1)(A) dealing
with union membership rules mentioned in the proviso. In
its decision in Wisconsin Motor, the Board had observed
that whatever the broader reach of Section 8(b)(l)(A)
under the Supreme Court's Bernhard-Altmann decision,
"it is nonetheless evident that internal union disciplines
were not among the restraints intended to be encompassed
by the section." 145 NLRB 1100. However, despite the
statement in Wisconsin Motors (of this trial examiner as
there upheld by the Board) that the sole test of the union's
immunity was the internal character of the discipline, it
was, as stated earlier, only a short time afterwards,
beginning with Skura, that the immunity based on
enforcement of membership rules underwent a change in
the manner that the prohibitory clause of 8(b)(l)(A) had
itself undergone change. The fact that the discipline
imposed was an internal one no longer served as an
inexorable basis of immunity against liability under
Section 8(b)(1)(A), and where the reason for the discipline
contravened public policy so as to overcome the immunity
based on the internal character of the discipline, the union
was found liable under Section 8(b)(1)(A).
To be sure, in the decisions in Skura and Marine &
Shipbuilding Workers (supra, fn. 6, 7), the union's liability
for the discipline imposed, despite its internal character,
was based on reasons found to have an overriding
character. In essence, the disciplining of a member for
filing an unfair labor practice charge against the union
without exhausting his internal remedies was found to be
beyond a union's power because it purports to prevent or
control access to the Board's processes.
Yet it is apparent from Skura itself that the policy
given overriding effect there did not exhaust the extent to
which the immunity based on internal discipline can be
overcome by other overriding policy. In distinguishing it
from Wisconsin Motor, the Board stressed that the
union 's rule in Wisconsin Motor "did not run counter to
other recognized policies." The Seventh Circuit, in its
decision in Scofield, affirming Wisconsin Motor (supra,
fn. 4), developed in some detail the proposition that the
union's rule (setting a ceiling on pieceworkers' earnings)
was compatible with public policy (393 F.2d at 50-51).
And in reconciling the result in Wisconsin Motor with the
doctrine in Skura the court, after stating the overriding
policy in the Skura doctrine, noted: "No policy
considerations of comparable strength militate against the
Union here at issue." (Id. at 54.)
The policy in this case concerns the adherence to the
terms of a contract between representatives of employers
and employees and the condemnation of their violation.
This is indeed implicit in the preamble of the Act from its
inception (Sec. 1) and in the reports of both houses of
'• B v. Philadelphia Iron Works , 211 F.2d 937, 939 (C.A. 3),
enfg . 103 NLRB 596.
"Drivers . Chauffeurs etc /Curbs Bros / v N L R . B., 362 U .S. 274; affg.
274 F.2d 351 (C.A.D.C.), setting aside 119 NLRB 232.
"International Ladies Garment Workers ' Union /Bernhard-Altmann
Texas Corp /, 366 U .S. 731, enfg. 122 NLRB 1289.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress." The Supreme Court had early in the
administration of the Act, in the Sands case, held that the
violation of a collective-bargaining contract by employees
is not a protected activity and they were validly subject to
discharge for its violation.
To hold that a union, despite the prohibition in Section
8(b)(1)(A) against restraining or coercing of employees in
their rights under Section 7, could nevertheless with
impunity penalize members for failing or refusing to
participate in a violation of a no-strike clause is to provide
an incentive to unions and members to violate contracts.
This too runs counter to a basic policy of the statute.
Though the Supreme Court in Marine & Shipbuilding
Workers distinguished between "internal union matters"
and those which "are part of the public domain," these
are indeed matters of degree. The union rule in Skura and
Marine & Shipbuilding has a tradition of its own based
on the view that members' grievances should be
accommodated intramurally before resort to governmental
tribunals, and so that too is an "internal union matter."
However, on balance, this was held to be outweighed by
the public policy against private organizations barring or
controlling access to Board processes. There is a kindred
element of balance in the case before us. Indeed, the
Supreme Court in Marine & Shipbuilding, in its
explanation of the doctrine in Allis-Chalmers, stated that
Sec. 8(b)(IXA) assures a union freedom of self-regulation
where its legitimate internal affairs are concerned." It is
difficult to conceive of the rule as applied and interpreted
here as being part of a union's legitimate internal affairs,
and in view of the underlying public policy regarding the
end and purpose of the collective bargaining process, a
rule applied to compel the violation of a no-strike
provision, if internal, nevertheless overreaches the bounds
of legitimacy. Further, to require a member to participate
in a violation of a no-strike clause under pain of fine, or
suspension or expulsion is in any event inherently
unreasonable. International Representative Urban, in his
answer to Sarah Schmidt's question concerning what to
do if the sister-local should picket (that the choice lay
with the member but that "he himself would not cross the
picket line") betrayed his own misgivings about the
propriety of compelling members of Respondent to
abstain from working under the circumstances here
discussed. Respondent's brief would itself seem to suggest
that if the strike had been one that Respondent had called
in conceded violation of its no-strike clause, it would have
been unreasonable to compel members to comply with it
under pain of union discipline. The fact, here, however, is
that the work stoppage, however much it might have been
in deference to the sister-local's lawful picket line, was
itself a violation by the Respondent's own no-strike
obligation with the Employer. The immunity normally
vouchsafed to union rules are no more inexorable here
than in Skura.
Nor has that immunity been deemed inexorable in
other contexts. Thus, where union members in compliance
with a union rule requiring members to refrain, under
penalty of internal discipline, from installing doors other
than those made by the union, refused to make these
installations, the union was found to have engaged in a
secondary boycott in violation of Section 8(b)(4),
N.L.R.B. v. Local 75 Carpenters [Mengel Co.], 285 F.2d
"H. ep. No. 1147, 74th Cong., 1st Sess . 20: ("... collective bargaining
[has as its end] the making of collective agreements stabilizing employment
relations for a period of time "). S . Rep. No. 753, id. p. 13 ("The
object of collective bargaining is the making of agreements that will
stabilize business conditions .. ').
633, 640-641 (C.A. 9) See also Elliott v. Amalgamated
Meat Cutters, 91 F.Supp. 690, 697 (W.D. Mo.) In a
recent case, the fining of members for refusal to cross a
picket line whose observance constituted a secondary
boycott was held the basis for a remedy requiring the
union to rescind the discipline and refund the fine to the
members. Bricklayers and Masons Local No. 2 [Robert
L. Willis, Masonry Contractor], 166 NLRB No. 26. The
veil of that immunity had been pierced even earlier in
Newspaper Mail Deliveries Union [Hearst Consolidated
Publications] 93 NLRB 237 (1951). The Board found
that the union had, in violation of Section 8(b)(2) and
(l)(A), caused and attempted to cause employers to
engage in discriminatory action against nonmembers. The
union had engaged in strikes and shutdowns and, in
addition, threatened with discipline and actually fined a
foreman who was a member of the union for declining to
give unlawful preference to union members. The foreman,
to be sure, had a dual relationship in that though he was a
member of the union, as a foreman, he was also part of
management . However, the point here was that neither the
union 's internal rule nor the internal discipline invoked
against him as a union member acted as an insulator
against liability where a basic principle of the statute was
thereby violated. The Skura doctrine breaches the wall of
that immunity in an 8(b)(1)(A) situation where
countervailing policy of the Act is involved. The instant
case , where the fine is a penalty to compel conduct in
violation of a no-strike obligation is also one where the
immunity based on the internal character of the discipline
is overcome by its offense to basic statutory policy.'
I accordingly find that by imposing a fine on the 16
members who crossed the picket line of the sister-local,
Respondent has restrained and coerced them and other
employees in the exercise of their rights guaranteed by
Section 7 of the Act, thereby violating Section 8(b)(1)(A)
of the Act.
On the basis of the foregoing facts and the entire
record, I hereby state the following:
CONCLUSIONS OF LAW
1. The abstention from work on the part of
Respondent's members in deference to the sister-local's
picket line was a work-stoppage in breach of the no-strike
clause of the contract of Respondent with the Employer.
2. Respondent was responsible for that work-stoppage
and Respondent thereby violated the no-strike clause.
3. The fine assessed on the members who crossed the
picket line was a penalty imposed upon them for honoring
the contract and refusing to participate in Respondent's
violation of the no-strike clause.
_"-As earlier described in ANPA and in Glasser (supra , fns. 4 and 5,
respectively), the union was held not to have violated Sec 8 (bXLXA). In
ANPA the union threatened members with expulsion if they disobeyed the
rule forbidding members to work with nonmembers , and in Glasser the
union "enforced" such a rule . However , the court decisions in each case
did not construe the union ' s action as having in fact provoked the action in
contravention of policies of the Act. Compare, however , Local Union No.
2, United Assn of Plumbers lAstrove Plumbing]. 152 NLRB 1093, 1102,
enfd. as modified 360 F.2d 428 (C.A. 2), cited by the court in its Glasser
decision , 395 F.2d 401. That is to say, the member could conform with the
rule and he would not by that token have himself engaged in conduct in
opposition to basic policy of the statute. In the instant case , however, the
very conduct in which the members were required to engage constituted the
violation of the no-strike obligation , and the fine was for refusing to
participate in the violation.
LOCAL 12419, MINE WORKERS 633
4. By this conduct Respondent restrained and coerced
the said members and other members as employees in
their rights under Section 7 of the Act, thereby violating
Section 8(b)(l)(A) of the Act.
5. The said violation affects commerce within the
meaning of Section 2(6) and (7) of the Act."
THE REMEDY
It has been found that Respondent violated Section
8(b)(l)(A) by assessing a fine on members for crossing the
picket line of sister-local thereby penalizing them for
refusing to participate in a violation by Respondent of the
no-strike clause of its contract with the Employer.
It will be recommended that Respondent cease and
desist from fining or otherwise disciplining the said
members or other employees for refusing to engage in a
work stoppage in violation of the no-strike clause, whether
the no-strike violation is in advancement of Respondent's
own demands or in advancement of the demands of
another union, even if the other union's picket line be a
lawful one.
To remedy the effect of said conduct, it will be directed
that Respondent Local rescind the fine assessed on
members found by Respondent to have crossed the
sister-local's picket line. Respondent shall so notify the 16
employees by letter and post notices to that effect at its
meeting hall. Copies of said notice may also be provided
to the Employer for posting if willing.
Upon the foregoing findings and conclusions and the
whole record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER
Respondent, Local 12419, International Union of
District 50, United Mine Workers of America, its officers,
representatives, and agents, shall:
1. Cease and desist from:
(a) Assessing fines against or otherwise disciplining
members for not engaging in or participating in a work
stoppage during the existence of a no-strike clause
between Respondent and the Employer, whether said work
stoppage be in advancement of direct demands of
Respondent or its members or in advancement of
demands of any other union (including Local 15148 of
said District 50).
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Rescind the fines assessed upon the following
members for having crossed the picket line of Local 15148
of District 50 during the period of such picket line on
June 12, 14, 15, and 16, 1967, and inform each of them by
letter that said fine has been rescinded.
Vernon Pankow Robert Mills
Arthur Krull
William Loeschke
Norman Harder
Martin DeVantier
Joseph Kulikowski
George Heuer
Albert Prill
Harold Strassburg
Roman Wasieczko
John Waciezko
Sarah Schmidt
Elizabeth Hughes
"In view of the findings and conclusions here made , we do not reach the
issue of whether the fine as assessed was excessive.
Norman DeVentier Alice Higgins
(b) Post at its offices, in conspicuous places, and at all
other places where notices to members are customarily
posted, copies of the notice attached marked "Appendix." i °
Copies of the said notice, on forms to be provided by
the Regional Director of Region 3, shall, after being duly
signed by Respondent's authorized representatives, be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days. Reasonable
steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by other
material.
(c) Mail or deliver to the Regional Director of Region
3 copies of the said Appendix for posting by National
Grinding Wheel Company, Inc., if said employer is
willing, at all places where notices to its employees are
customarily posted.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
"In t e event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of the Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
' n the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby rescind the fines
assessed upon the following members for having crossed
the picket line of Local 15148 of District 50 during the
period of such picketing on June 12, 14, 15, and 16, 1967:
Vernon Pankow Robert Mills
Arthur Krull Albert Prill
William Loeschke Harold Strassburg
Norman Harder Roman Wasieczko
Martin DeVantier John Waciezko
Joseph Kulikowski Sarah Schmidt
George Heuer Elizabeth Hughes
Norman DeVentier Alice Higgins
WE WILL NOT assess fines or otherwise discipline
members for not engaging or participating in a work
stoppage in violation of the no-strike clause between the
undersigned union, Local 12419 of District 50, and
National Grinding Wheel Company, Inc., whether the
work stoppage is in furtherance of direct demands of
the undersigned local and its members or in furtherance
of demands of any other union or local.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of your rights under
Section 7 of the National Labor Relations Act.
LOCAL 12419,
INTERNATIONAL UNION
OF DISTRICT 50 UNITED
MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days compliance with its provisions, they may communicate
from the date of posting and must not be altered, defaced, directly with the Board 's Regional Office, Fourth Floor,
or covered by any other material . The 120 Building, 120 Delaware Avenue, Buffalo, New
If employees have any question concerning this notice York 14202. Telephone 842-3100.