Local 283, United Automobile, Aircraft, Etc.

National Labor Relations Board - Board Decisions

Jan 17, 1964

145 N.L.R.B. 1097 (N.L.R.B. 1964)

LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1097 representative , in violation of Section 8(b) (7) (C ) of the National Labor Relations Act, as amended. RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By---------- --------------------------------- (Representative ) ( Title) RETAIL CLERKS DISTRICT COUNCIL No. 20, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) LOCAL 635, HOME FURNISHINGS EMPLOYEES UNION, R.C.I.A., AFL-CIO, Dated------------------- BY------------------ Labor Organization. -- --------------------(Represenitive ) ( Title) 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. Employees may communicate directly with the Board 's Regional Office, Fifth Floor, Squibb Building , 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with its provisions. Local 283, United Automobile, Aircraft and Agricultural Imple- ment Workers of America , UAW-AFL-CIO [Wisconsin Motor Corporation ] and Russell Scofield , Lawrence Hansen, Emil Stefanec, George Kozbiel . Cases Nos. 13-CB-1059-1, 13-CB- 1059-2, 13-CB-1059-3) and 13-CB-1059-4. January 17, 1964 DECISION AND ORDER On June 7,1962, Trial Examiner A. Norman Somers issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Intermediate Report. Thereafter, the Gen- eral Counsel and the Charging Parties filed exceptions to the Interme- diate Report and briefs in support of their exceptions. The 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions. The facts in this case are fully set forth in the Intermediate Report and will only briefly be touched upon here. The Respondent Union, whose membership is restricted to employees of the Company, has been the bargaining representative of the Com- pany's employees since 1937. Its present contract, like earlier ones, 145 NLRB No. 109. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contains a union-security clause which provides that employees have the option of either joining and maintaining good standing in the Union, or rejecting membership but paying the Union a "service fee." During the past 25 years there has been in effect a union rule, revised from time to time, setting production ceilings on piecework, or, more accurately, limiting the amount of incentive pay a member may earn.' As declared in the union bylaw, the rule is designed to implement the Union's "basic object ... to protect members ... in their employment and to give them as much security as the industry can provide." In operation, the ceilings, in each of the five labor grades, impose a lim- itation on the amount a member may earn over the machine rate, the minimum contract rate for that job classification. At present the ceil- ings are set at between 45 and 50 cents per hour over the machine rate. The Union does not require that the member cease production when he has attained the ceiling rate for the day; he may continue working, but, in order to comply with the rule, he must not report, for credit toward his earnings, any items produced in excess of the amount per- mitted to be earned under the production quotas. He must, by a book- keeping entry, "bank" this production for later payment. An em- ployee may draw onhis "bank" when for one reason or another he fails to earn the basic machine rate or even the lower "day rate." This may occur, for example, when he is sick and unable to work, or his machine is out of order. The Company itself, however, places no limitations on an employee's earnings. It will, if he so desires, pay him immedi- ately for all production which he reports. Members who violate production ceilings are subject to a fine of $1 for each violation, but persistent violators may be subject to a charge of conduct unbecoming a member, in which event a fine of $100 or a lesser amount may be imposed and a member suspended. A member who pays a fine may also be expelled. It is undisputed, however, that the Union's sanctions to enforce the rule may not be extended to impair a member's status as an employee. The rule, of course, has no ap- plication to nonmembers who may be employees of the Company. The rule limiting incentive pay is not incorporated in the contract as a term of employment. Although the Company does not consider itself bound by the rule, and at various times during negotiations has unsuccessfully sought to induce the Union to drop the ceilings, the Company nevertheless as a practical matter has accepted the ceilings as an integral part of the 9nodus operandi and has recognized the ceilings as forming an important element of its negotiated wage structure. So far as appears, the Company has never sought to discipline any of its employees for adherence to the Union's ceiling restrictions. The Company uses the ceilings in computing wages and evaluating jobs. 1 Approximately hall of the Company's '800 or more employees work under an incentive pay plan. LOCAL 283 , UNITED AUTOMOBILE , AIRCRAFT , ETC. 1099 Ceilings have also played an important role in the negotiation of collective-bargaining agreements between the Company and the Union. Thus, in 1953 , one of the Company's proposals was that the ceilings be increased at least 10 percent. The contract that year made provi- sion for a 13-cent-per -hour increase in ceilings . The 1956 strike settle- ment agreement provided for another increase in ceilings . In 1959, the Company made no request for the elimination of ceilings , but only requested that they be increased 10 cents. Moreover, while abstaining itself from enforcing the ceiling rule, the Company voluntarily aids and cooperates with the Union in the administration of the rule . Thus, the Company joins in the "banking" procedures by making the necessary bookkeeping entries. The Com- pany also allows the ceilings to be posted on its bulletin boards. And it assists the Union in policing enforcement of the' rule by making available to the Union the members' production records and allowing the union stewards to inspect such records on company time without loss of pay. At such an inspection , conducted in February 1961, the Respondent Union found that the Charging Parties had violated the rule by exceed- ing thier production quotas. The Charging Parties are all members of the Union, who, by their decision to join, have elected to subject themselves commonly with other union members to union regulation and discipline. Following a hearing before the Union's trial board, each of the Charging Parties was found guilty of conduct unbecoming a member. Penalties were assessed against them , consisting of up to a year's suspension from membership and fines ranging from $50 to $100. In October 1961, the Charging Parties having failed to pay the fines, the Union brought suit in a State court to recover the amount of the fines. No evidence as to the outcome of the suit is before us. No action has been taken, or threatened, to impair the job status of the individuals involved. The complaint alleges, and the answer denies, that the Union's action in imposing fines for breach of its production rule constituted a viola- tion of Section 8 (b) (1) (A) of the Act. That section provides : (b) It shall be an unfair labor practice for a labor organization or its agents- (1) 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 or retention of member- ship therein . . . . In his full discussion of the issues , the Trial Examiner concluded, we believe correctly, that neither the legislative history of the section nor the body of the law dealing with and interpreting the section since its 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enactment in 1947 as part of the Labor-Management Relations Act (the Taft-Hartley law) supports the view that Section 8(b) (1) (A) was intended to interdict the conduct under examination. The General Counsel argues for a different reading of the legislative history, one that would give a broader interpretation to the language of the section; he urges that the imposition of a fine constitutes re- straint and coercion within the meaning of Section 8 (b) (1) (A). Es- sentially, it is the General Counsel's position that the legislative pur- pose in enacting Section 8(b) (1) (A) was to protect the freedom of the individual workman from duress by the union as well as by the employer, and that it was the intent of Congress "to impose upon unions the same restrictions which the Wagner Act imposes upon em- ployers with respect to violations of employee rights." 2 While there may have been such a general legislative purpose, this is not to say that Congress did not place certain limitations on that purpose. For one thing, the legislative history of Section 8(b) (1) (A) points to a con- gressional intent to reach only certain limited conduct on the part of labor organizations. Thus, the Supreme Court in Curtis Brothers,` in commenting on the tenor of the expressions which preceded the Senate debate as to the section's purpose, observed that "the note re- peatedly sounded there is as to the necessity for protecting individual workers from union organizational tactics tinged with violence, duress or reprisal." The conference report makes it evident that the section was so understood by the House. The House accepted the Senate bill as covering the same ground as its own proposed section 12(a) (1),4 a section which would have made unlawful the use of force, violence, physical obstruction, or threats thereof to accomplish certain purposes associated with organizational activity and strikes." If, as the General Counsel contends, the decision in Bernhard- Altmann 6 suggests a broader reach of Section 8 (b) (1) (A ), it is none- theless evident that internal union disciplines were not among the restraints intended to be encompassed by the section. Thus, as the Trial Examiner points out, when the introduction of Section 8 (b) (1) (A) touched off expressions of apprehension that its language could be construed as interfering with the internal affairs of unions, 2 International Ladies' Garment Workers' Union , AFL-CIO (Bernhard-Altmann Texas Corp ) v. N.L.R B., 366 U.S. 731, 738. 8 N.L.R.B. v. Drivers, Chau f eurs and Helpers Local Union No. 639 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ( Curtis Brothers ), 362 U.S. 274. 4I Legislative History, 546. 5 I Legislative History, 204-205. 6122 NLRB 1289, affd International Ladies' Garment Workers' Union, AFI-CIO Y. N.L.R B., 366 U.S 731. In that case the Court upheld the Board's finding that the execu- tion of a collective-bargaining agreement with a minority union whereby that union is recognized as the exclusive bargaining representative of all employees in the unit, re- strained and coerced employees in that unit, and that this restraint and coercion was practiced both by the company and the union. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1101 Senator Taft, even before the proviso to the section was introduced, affirmed that the sponsors had no intention to interfere with a union's internal affairs. The same opinion was voiced by Senator Ball on the introduction of the proviso. On that occasion he stated, "I merely wish to state to the Senate that the amendment offered by the Senator from Florida is perfectly agreeable to me. It was never the intent of the sponsors of the amendment to interfere with the internal affairs or organization of unions. The amendment of the Senator from Flor- ida makes that perfectly clear." At a later point in the Senate con- sideration of the bill Senator Ball stressed the limited scope of the prohibitory part of the section when he explained that the proviso : ... is designed to make it clear that we are not trying to inter- fere with the internal affairs of a union which is already orga- nized. All we are trying to cover is the coercive and restrain- ing acts of the union in its efforts to organize unorganized employees. The expressed disavowals of the sponsors, and other legislative facts marshalled by the Trial Examiner, make clear that Section 8 (b) (1) (A) was not intended to reach the conduct here involved, even without regard to the purpose of the proviso, because, as is pointed out, it was not the kind of activity with which Section 8(b) (1) (A) was concerned.' Proceeding from the premise that the prohibitory part of 8(b) (1) (A) was applicable to the type of conduct here involved, the General Counsel contends further that such conduct is not protected by the proviso to the section. He concedes, however, that even though a fine be deemed coercive, it nevertheless would not violate Section 8(b) (1) (A) if the fine were merely an incident to "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership." But because in this instance the fine was collectible as a debt and not by threat of expulsion only, the General Counsel argues that the fine had more than the incidental relationship which would exempt it from the reach of the section. We do not read the language of the proviso so narrowly. There is nothing in the legislative history which suggests that Congress in- tended to permit a union to expel a member for violation of a union bylaw, but not to fine him for the same infraction without expelling him; or that it could enforce the fine by expulsion from the union but not by suing for its collection. On the contrary, as the Trial Examiner has shown, Congress was more concerned with placing restrictions on a union's right to expel than to fine members. Thus Section 8(c) (6) of the House bill more severely limited the right of expulsion from a union than did 8(c) (5) 7 See International Association of Machinists , et al. v. Marcos Gonzales, 356 U.S. 617 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the same bill which dealt with limitations on a union's right to fine its members. The latter merely enjoined the use of fines as a penalty for members exercising certain basic civil rights of the kind now pro- tected in the "Bill of Rights" portion of the Labor-Management Re- porting and Disclosure Act of 1959. Neither of these provisions pro- hibited a union from disciplining a member for the infraction of a union rule of the type here involved. As the Trial Examiner has so aptly observed, to accept the General Counsel's attempted distinction is to conclude that, despite, the express disavowals by the sponsors of Section 8(b) (1) (A) of any intent to interfere in the internal affairs of unions and despite the rejection of House attempts to do so, the result of the enactment of present Section 8('b) (1) (A) was to impose more stringent restrictions on union discipline than even those pro- hibited in the rejected House measures. In other words, it is most unlikely that with knowledge of the long- existing union practice of enforcing internal union policies by fine as well as by suspension and expulsion, and disavowing any intent to interfere in the internal affairs of unions, Congress intended to leave a union with no power to deal with offending union members except, as the General Counsel asserts, either by tolerating them or by expelling them from membership, a procedure that could well prove self-defeating. In support of his construction of the proviso to Section 8 (b) (1) (A), the General Counsel relies on a certain dictum of the court in the Allen Bradley case," which, reversing the Board, held that it was not a violation of Section 8 (a) (5) and (1) of the Act for an employer to insist as a condition precedent to entering into a collective-bargaining contract that the union agree to the employer's proposal limiting the right of the union to discipline union members for refraining from participating in strikes called by the union. The Board does not acquiesce in this decision or in the dictum upon which the dissent relies. Not only is the decision contrary to the Board holding in this as well as in other cases,' but it is also inconsistent with holdings of other courts; 10 and with the same court's holding in the American 8 Allen Bradley Company v . N.L.R.B. , 286 F. 2d 442 (C.A . 7), setting aside 127 NLRB 44. n Minneapolis Star and Tribune Company , 109 NLRB 727 , 729 (". . . the imposition of a $500 fine on Carpenter by the Respondent Union for his failure to engage in certain of 't5 activities is not violative of Section 8(b) (1) (A ) of the Act. It is well established that the proviso to Section 8(b) (1) (A ) precludes any such interference with the internal affairs of a labor organization "). '°Local 248, UAW v Wisconsin Board , 11 Wis. (2d) 292, 105 NW (2d ) 278 (union fine of member for crossing a picket line during strike held arguably protected by the pro- viso to Section 8(b) (1) (A )) ; UAW v Woychik, 5 Wis . ( 2d) 528, 93 N W (2d) 336 (union may recover fine levied against member for failure to picket during strike) ; Retail Clerks v. Christiansen , Washington Justice Court , Grays Harbor County, 54 LRRM 2558 (union may recover fines imposed against members who continued working during strike. "It is the court 's opinion that inasmuch as there has been no interference affecting the right of defendants in their employment and that the action involves only the em- LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1103 Newspaper Publishers' case," where the court agreed with the Board that a union did not violate Section 8(b) (1) (A) by threatening to expel any member who worked in a composing room where all the employees were not members of the union. It is also significant that while the Board, during the 12 years fol- lowing Taft-Hartley, has interpreted Section 8 (b) (1) (A) and its pro- viso so as not to interfere in a union's internal affairs,12 Congress has indicated that a broader interpretation of the section was intended or desired. Moreover, as pointed out by the Trial Examiner, the legisla- tion which Congress did enact in 1959 sheds further light on the prob- lem before us and buttresses the conclusions which we reach. The Landrum-Griffin amendments contain a fairly comprehensive code governing the internal affairs of labor organizations. Jurisdiction over these matters was not, however, given to the Board. Rather it was the Federal courts which were authorized to enforce the new law.ls Furthermore, insofar as is relevant here, these 1959 amendments went no further than to impose certain notice and hearing requirements on the imposition of union discipline 14 and prohibited the use of such discipline to prevent employees from exercising certain fundamental freedoms." These laws show that Congress has not ventured to the outermost limits in regulating internal union affairs. Some subjects still remain unregulated under existing Federal law." Thus, we can- not agree that, 12 years earlier, Congress had enacted the substantial and far-reaching limitations on the powers of unions to prescribe rules governing the conduct of their members, as urged by the General Counsel." Our dissenting colleague argues forcefully that the proviso to Sec- tion 8(b) (1) (A) permits the imposition of union rules on employees as union members, but does not apply to the enforcement of rules ployees and the union , and the charges are based upon specific violations and the fines imposed under the authority of the bylaws, that this is an action which is one involving the internal affairs of the union and Sections 7 and 8 of the Act are inapplicable. . . . [A] union may reasonably discipline its members for infractions of its laws , rules and regula- tions so long as the discipline does not deprive the member of his property right."). It American Newspaper Publishers Association v N L R B., 193 F. 2d 782, 800-801 (CA 7) 1' See Minneapolis Star and Tribune Company, 109 NLRB 727, 729 We do not agree with the General counsel that there is an implication in the Board's decision in that case that the imposition of the fine was collectible only by threat of expulsion. 11 See McCraw v United Association, Local Union No. 43, U.S. District Court, Eastern District of Tennessee , 216 F Supp. 655 (1963 ). See also Labor-Management Reporting and Disclosure Act of 1959, Title I, Section 102 1* Labor-Management Reporting and Disclosure Act of 1959, Title I, Section 101( a) (5). 10 Labor-Management Reporting and Disclosure Act of 1959 , Title I, Section 101 (a) (2). 10 See Aaron , The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. Law Rev. 851. 11 See the Supreme Court's observation in the Curtis case that later statutes may be taken into account in interpreting vague language of an earlier law. N L R B. v Drovers, Chauffeurs and Helpers Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ( Curtis Brothers ), 362 U S. 274, 291-292. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against employees as employees. Proceeding from this premise, the dissenting opinion then finds that the subjects of production and wages are matters "clearly related to employment, and not to member- ship. . . ." But the conclusion does not follow the distinction. Ob- viously, production and wages are related to jobs. Jobs are related to employees and employees may, if they so desire, be union members. A union rule that a member is subject to a fine if he exceeds a pro- duction ceiling does not mean that he is subject to such a fine as an employee. Nor does it mean that his employment status is affected so long as the Union does not attempt to exact payment of the fine by pressure on his employer or discrimination in his job opportunities. It should not need saying that unions exist for the purpose of col- lective bargaining with respect to wages, hours, and conditions of employment. Necessarily, their constitutions and bylaws reflect this basic purpose. In a sense, virtually all union rules affect a member's employment relationship. But the Board has not been empowered by Congress to police a union decision that a member is or is not in good standing or to pass judg- ment on the penalties a union may impose on a member so long as the penalty does not impair the member's status as an employee. Our dis- senting colleague's view would require the Board to sit in judgment on union standards of conduct for its members even though such standards are not enforced by threats affecting the member's job tenure or job opportunities. Whether or not the Union's rule in this case is desirable or equitable is a matter we need not and do not decide. It is sufficient, in our view, that the Union deliberately restricted the enforcement of its rule to an area involving the status of a member as a member rather than as an employee. We find, in agreement with the Trial Examiner, that the Respondent did not violate Section 8 (b) (1) (A) of the Act. [The Board dismissed the complaint.] MEMBER JENKINS, concurring : I concur in the result reached by the majority, but would predicate the result on a more simplified basis which concedes much of the argu- ment advanced by my dissenting colleague. Nothing in the Act seeks to regulate the right of a labor union to place a ceiling on the earn- ings of its members. Therefore the subject matter of the rule, like other union rules pertaining to matters such as meeting attendance requirements, cannot be said of itself to offend the Act even if it were an unreasonable rule. The only issue presented by the charge is whether in some manner the enforcement of the rule has restrained or coerced the Charging Parties in their exercise of Section 7 rights. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1105 In the context of this case, it cannot be said that enforcement of the rule is coercive since the Charging Parties were free either to join the Union and be subject to the rule, or refrain from joining and not be subject to the rule. The Charging Parties would have it both ways. It is axiomatic that the rights guaranteed under Section 7 are not absolute rights and that alternative choices must often be made by those who would exercise those rights. Had the Union here sought a benefit for its members which was denied to nonmembers, the action would clearly have been coercive. Cf. The Radio Off'icers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. IV.L.R.B., 347 U.S. 17. Certain it is, however, that where, as here, the union imposes restrictions upon its own members which are not imposed upon nonmember employees, the action may not logically be described as coercive. The fact that some members of the union dislike and refuse to abide by the rule no more causes it to violate the Act than did the top seniority accorded to employees of the larger of two merged employers in Trailmobile Co. v. Whirls, 331 U.S. 40, or to shop stewards in Aeronautical Lodge v. Campbell, 337 U.S. 521. MEMBER LEEDOMI, dissenting : This case presents the question of whether a union that has unilater- ally promulgated a restrictive scheme of work production quotas may, with legal impunity, enforce that scheme against employees, members of the union, through the imposition of severe retaliatory penalties, including monetary fines. Since 1938, Respondent Union has had an established scheme of production ceilings or work quotas. The production ceilings, first formulated pursuant to a "gentleman's agreement" between union members, were later formalized by a union resolution, and finally became the subject of a union bylaw. The bylaw, inter alia, provides that members who fail to abide by the work quotas shall be subject to a fine, and, in the case of habitual offenders, discipline by the Union on the charge of conduct unbecoming a union member.18 At present 18 The bylaw, in pertinent part, reads as follows A. The basic object of the Union is to protect members of the Union in their em- ployment and to give them as much security as the industry can provide. The Local Union in its judgment and reasoning has established a production ceiling which it feels will bring more protection to the members. It follows that a member who is found in violation of the [sic] this rule is guilty of conduct unbecoming a union member. B. Any member who violates these ceilings shall be subject to a fine of one dollar ($1.00) for each violation. The violators shall be processed by not less than 3, nor more that [sic] than 5 members of the Executive Board. In case of persistent ceiling violations, the member will be charged with conduct unbecoming a Union Member. 734-070-64-vol. 145-71 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the production ceilings limit an employee's earnings to 45 to 50 cents per hour over the machine rate, which is based on niininiuni employee production requirements. The contract between the Employer and the Union contains a union- security provision. By its terms all employees are required to become members of the Union after the 30th day of employment or pay a service fee which shall not exceed the amount of the Union's monthly dues.19 The Employer has placed no limits on the employees' production or earnings and has vigorously opposed such a limitation, but without success. The Company is in a highly competitive market, and the in- creased costs resulting from the Union's production ceilings have caused a decline in its competitive position. The record shows that the Union's production ceilings have reduced and slowed down pro- duction, that an employee can reach the production ceiling in 5 hours, and that the employees have 'read books, played cards, and talked in the remaining time." In February 1961, the Union discovered that the Charging Parties had been violating the work quota rule. Subsequently, a hearing was held before the Union's trial board, and each of the Charging Parties was found guilty of "conduct unbecoming a Union member," was fined $50 to $100, and was suspended from union membership. In October 1961, the Union brought suit against the Charging Parties in a State court to collect the fines. On these facts, the General Counsel issued,a complaint against the Union, charging that the fines that were imposed restrained and co- erced employees in the exercise of their Section 7 rights and therefore violated Section 8('b) (1) (A) of the Act.21 My colleagues are validat- ing the Union's actions. I disagree. In my opinion, my colleagues' holding misconstrues a very basic section of the Act, misinterprets congressional intent, undermines congressional policy, and disregards established precedent. 30 While, in light of the presence of the service fee provision in the contract, it cannot be said as a matter of law that all employees were required to join the Union, it is obvi- ous that the contract provisions left so little to choice that, as a practical matter, the employees were compelled to join the Union in order to obtain the most value for the money they were required to expend 20 In spite of this, the employees produce more than the production ceilings allow The excess is "banked" for payment in the future when an employee is unable, for any reason, to produce the maximum allowable under the production ceilings. 2i Section 8(b) (1) (A) provides as follows: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) 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 or retention of membership therein ; .. . . LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1107 In refusing to abide by the union rule, the employees were exercis- ing their Section 7 22 right to refrain from union activity.23 In fining the employees, the Union was attempting to force these employees to cease exercising that Section 7 right. The question is whether the fine employed by the Union as a sanction to compel the Charging Parties to comply with the union rule constitutes restraint or coercion within the meaning of Section 8(b) (1) (A), and, if so, whether the Union's action is nevertheless protected by the proviso to that section. I think it is clear that the fines imposed do constitute such restraint and co- ercion, and that the proviso does not afford any protection to the Union. The Supreme Court has left little, if any, room for argument over the meaning of the words "restrain or coerce" used in Section 8(b) (1) (A). In N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, International Brotherhood of Teamsters, etc. (Curtis Broth- ers), 362 U.S. 274, which involved the question of whether recogni- tional picketing by a minority union constituted a violation of Section 8(b) (1) (A), the Court, after a thorough analysis, concluded that Section 8(b) (1) (A) was "a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimi- dation, and reprisal or threats thereof-conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes." A careful reading of the Court's opinion shows that the word "re- prisal," as used by the Court, means economic as well as physical reprisal, and specifically includes financial exactions.24 Thus, the 22 Section 7 of the Act reads: RIGHTS OF EMPLOYEES Sac 7. Employees shall have the right to self-organization , to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a) (3). 23 Printz Leather Company, Inc ., 94 NLRB 1312. My colleagues apparently concede that the Charging Parties were exercising their Section 7 right in refusing to limit their production pursuant to the Union' s rule tfor, absent such right, it would have been un- necessary to reach the issues discussed in the majority opinion 241n this connection , I point out that the economic pressure Inherent in a fine is not unlike the pressure caused by the threat of loss of employment which has always been recognized as economic " intimidation" or "reprisal" constituting a violation of Section 8(b) (1) (A ). (See, for example, International Association of Bridge , Structural & Orna- mental Iron Workers, Local 600 (Bay City Erection Company, Inc.), 112 NLRB 1059; Marlin Rockwell Corporation, 114 NLRB 553 , 562; Local Union No. 4J0 , International Union of Operating Engineers , AFL-CIO, etc. ( Tellepsen Construction Company), 122 NLRB 564, 568; Local 138, International Union of Operating Engineers , AFL-CIO, etc. (Nassau and Suffolk Contractors Association , Inc., etc. ), 123 NLRB 1393 , 1396 ) In my opinion, there Is little difference between a union's causing the discharge of an employee for refraining from engaging in concerted activity, and a union's fining an employee the partial, or total, equivalent of his salary for refraining from engaging in concerted activity. Each is an equally potent form of economic restraint and coercion , and the net effect of each on the employees involved could be Identical. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court referred some of the examples mentioned by Senator Ball in the legislative debates involving threats of "violence, job reprisals and such repressive assertions as that double initiation fees would be charged those who delayed joining the union,",as the type of conduct against which Section 8(b) (1) (A) was directed; and the Court summed up the "central theme" of the legislative debates on the sec- tion as seeking "the elimination of the use of repressive tactics border- ing on violence or involving particularized threats of economic reprisal." 25 In the later International Ladies' Garment Workers' Union AFL- CIO (Bernhard-Altmann Texas Corp.) v. N.L.R.B. case, 366 U.S. 731, the Court set forth the proposition that Section 8(b) (1) (A) pro- hibited "unions from invading the rights of employees under Section 7 in a fashion comparable to the activities of employers prohibited under Section 8(a) (1)," pointing out that it was the "intent of Congress to impose upon unions the same restrictions which the Wag- ner Act imposed on employers with respect to violations of employee rights." 26 The Board itself in the past has read "restrain or coerce" in Sec- tion 8(b) (1) (A) in a manner consistent with the ordinary meaning of the term. Thus the Board has held that compulsion by sanctions, such as fines and expulsion from membership, "are in fact coercive," 27 and has also found that other forms of pressure directed against em- ployees, including threats not to process grievances,"' threats of union disciplinary action and expulsion'29 and causing a reduction in seniority,30 likewise constitute restraint and coercion within the mean- ing of Section 8(b) (1) (A). Accordingly, consistent with the foregoing authoritative case law, I am of the opinion that the fines levied by the Union against the Charging Parties in the instant case constitute restraint and coercion under Section 8(b) (1) (A) of the Act.3i 25 Curtis Brothers , supra, at 286-287. The Court cited the remarks of Senator Taft in which he stated that Section 8(b) (1) (A ) was intended to outlaw threats of "economic reprisal ," and also cited with approval the language of the Board 's decision in United Shoe Workers; Perry-Norvell Shoe Workers Committee ( Perry Norvell Company), 80 NLRB 225, listing economic reprisal as one of the means proscribed by Section 8(b) (1) (A). 2 Bernhard-Altmann Texas Corp , supra, at 738. Peerless Tool and Engineering Co., 111 NLRB 853, 857; see also Minneapolis Star and Tribune Company, 109 NLRB 727, in which the Board adopted the Trial Examiner's conclusion that a fine was a "form of coercion " 21 Ibid. 2OLooal 401 , International Brotherhood of Boilermakers , Iron Ship Builders , Black- smiths, Forgers and Helpers, AFL-CIO; et al. (M. A. Roberts & Company), 126 NLRB 832, 834; United Stone and Allied Products Workers of America , Local No. 24 , AFL-CIO, etc. (Oibsonburg Lime Products Company ), 121 NLRB 914. o°Local 553 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Miranda Fuel Company, Inc .), 140 NLRB 181. n The legislative history of Section 8(b) (1) (A ) fully supports this interpretation that the language , "restrain or coerce," covers the conduct herein . Section 8 ( b)(1)(A) origi- nated in the Senate as an amendment to S. 1126. It was sponsored by a group of LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1109 The proviso to Section 8(b) (1) (A) does not compel a contrary conclusion. That proviso excepts from the ambit of 8(b) (1) (A) only such restraint or coercion that results froln a union's application of its rules relating to "the acquisition or retention of membership." 32 As the Board stated in Marlin Rockwell Corporation, 114 NLRB 553, 562: As we read the 8(b) (1) (A) proviso, its sole purpose is to guarantee to unions the privilege, as a voluntary association, to determine both who shall be a union "member" and what substan- tive conditions a "member" must comply with in order to acquire or retain union membership status. It is for this reason that the Senators who could "see no reason whatever why [unions] should not be subject to the same rules as the employers" and accordingly introduced Section 8(b) (1) (A) as a cor- responding section to 8(a)(1) (S. Rept 105 on S. 1126, Supplementary Views, Leg. Hist. of the LMRA, 1947, vol I, p. 456 ) Senator Ball, who introduced the amendment, explained that its purpose was "to insert an unfair labor practice for unions identical with [,Section 8(a) (1) ] . . ." which was essential "to equalize the rights and responsi- bilities of both employers and unions in this field, to really assure to employees the freedom supposedly guaranteed in Section 7 . . . (Leg Kist of the LMRA, 1947, vol II, pp. 1018, 1021.) During the debates, Senators repeatedly stressed that Section 8(b) (1) (A) was to be read and interpreted as broadly as its Wagner Act counterpart. When Senator Pepper asked what the interpretation of the language "restrain or coerce" would be, Senator Taft answered that "the Board has been defining those words for 12 years . . ." and although the "application to labor organizations may have a slightly different implication . . . from the point of view of the employee the two [sections] are parallel." (Leg Hist. of the LMRA, 1947, vol. II, p. 1028, and to the same effect pp. 1032-1033.) Contrary to my colleagues, it does not appear that Congress intended to limit Section 8(b) (1) (A) to any particular type of restraint or coercion. In the course of the debates, examples of the conduct that would be prohibited by Section 8(b) (1) (A) included threats of higher initiation fees or higher dues, "retaliatory" Internal union disciplinary action, threats to strike, threats to picket, threats of loss of employment, economic pressure, and misrepresentation (Leg. I-list. of the LMRA, 1947, vol. II, pp 1018-1019, 1029, 1030, 1031 1192-1193, 1200, 1205 ) No attempt was made by Congiess either to exhaust or to constrict the scope of the statutory language. Further, I do not agree with my colleagues that the House understood that Section 8(b) (1) (A) covered only that conduct which had been dealt with under Section 12(a) (1) of the House bill (H.R. 3020) Rather, the House conference report shows that Section 8(b) (1) (A) included, but was not limited to, the conduct outlawed by Section 12(a) (1) of the House bill (Leg Hist of LMRA, 1947, vol II, p 546.) ^' The legislative history of the proviso clearly shows that the restrictive terms in which the proviso was written were not chosen by accident, but by design, and that Congress meant just what it said, no more. The proviso originated in the Senate and was offered by Senator Holland as an amendment to Section 8(b) (1) (A). In introducing the amend- ment, Senator Holland stated that the proponents of Section 8(b) (1) (A) had not intended that section "to affect at least that part of the internal administration which has to do with the admission or the expulsion of members, that is with the question of membership," and that his amendment (the proviso) "would make clear that [Section 8(b) (1) (A) ] would have no application to or effect upon the right of a labor organization to prescribe its own rules of membership either with respect to beginning or terminating membership." (Leg. Hist of the LMRA, 1947, vol. II , pp. 1139, 1141 .) Senator Ball , who accepted the proviso as an amendment to Section 8(b) (1) (A), replied that "it was never the intention of the sponsors of [Section 8(b)(1)(A)] to interfere with the internal affairs or organiza- tion of unions ," and he subsequently described the proviso more specifically as covering "the requirements and standards of membership in the union itself." (Leg. fist. of the LMRA, 1947, vol II, pp. 1141, 1200.) In the face of these authoritative statements from the two men in the Senate most intimately acquainted with the proviso, I cannot, as my colleagues do, subscribe to an interpretation based on the more general characterizations of certain legislators. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board cannot and will not judge the fairness or unfairness of internal union determinations which may enable or disable par- ticular individuals to obtain the incidental benefits of union mem- bership as provided by internal union legislation. [Emphasis supplied.] ss And more recently, in Allen Bradley Company v. N.L.R.B., 286 F. 2d 442, the Seventh Circuit shared this view of the scope of the proviso saying : . . . [The] Board strenuously insists that the Company pro- posal was not a subject for bargaining because the Union in its coercive activities was protected under the proviso in Section 8(b) (1) (A), which authorizes the Union to prescribe its own rules "with respect to the acquisition or retention of membership therein." True, the fines which the Union had previously im- posed and about which the Company was concerned were author- ized by Union rule. Even so, there is nothing in the situation before us which indicates that such fines bore any relation to the "acquisition or retention of membership." The Board evidently recognizes this because it argues, "imposition of the fine is merely a step in determining membership status; nonpayment leads to expulsion." We assume that a union has broad powers in pre- scribing rules relative to the acquisition and retention of its mem- bers. However, that power, in our view, is not absolute. It goes beyond any permissible limit when it imposes a sanction upon a member because of his exercise of a right guaranteed by the Act. Coercive action whether by way of fine, discharge or otherwise, which deprives a member of his right to work and his employer of the benefit of his services, cannot be said to relate only to the internal affairs of the union. [Emphasis supplied.] s4 I find the rationale of these cases most persuasive for it comports with the language of the proviso itself as well as its legislative history. This rationale, moreover, achieves the accommodation intended by Congress between the rights Congress guaranteed employees and the right of unions to determine their own qualifications for membership. In my opinion, therefore, it cannot reasonably be said that the Union's conduct here related to its right "to prescribe its own rules with respect 21 See also The Babcock & Wilcox Company, 110 NLRB 2116, 2132-2133 34 My colleagues attempt to distinguish the Allen Bradley case on the ground that the court "was not called upon to find" whether the union had a right under Section 8(b) (1) (A) to fine a member for crossing a picket line and that, accordingly , the above portion of the opinion was obster dictum. However , as the portion of the court's opinion quoted above clearly shows, and as a reading of the Board 's decision and brief in that case will confirm , the Board argued in that case that the union's conduct which the employed wished to subject to bargaining was protected by the proviso to Section 8(b) (1) (A). Therefore, it cannot rightly be said , as my colleagues do, that the court's discussion of this issue "was not essential to a decision in the case." LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1111 to the acquisition or retention of membership. . . ." Accordingly, I conclude that Respondent's conduct is not protected by the proviso. According to my colleagues, the proviso to Section 8(b) (1) (A) protects all internal union affairs or all action taken pursuant to the union's rules and internal processes. They attempt to prove that the proviso does not mean what it says by arguing that Congress did not intend to distinguish between expulsion and any other form of union discipline, such as a fine, in the application of the proviso. However, in view of the special treatment Congress gave expulsion, as opposed to any other form of coercion by union discipline, I think that Congress did intend such a distinction. Employees are specifically protected against coercion in the form of expulsion by the second proviso to Section 8(a) (3), which guarantees employees that expulsion for any reason other than nonpayment of dues and fees will not imperil their job security.35 Thus, Congress preserved the right of unions to deny membership to, or terminate the membership of, whomever they pleased regardless of the reason; but, at the same time, Congress in- sulated employees from coercion by making sure that they would suffer no economic consequences as 'a result of such action as But even assuming that the proviso has a broader reach than I would ascribe to it, I would still disagree that the matter here in- volved is one that is merely a matter of internal union regulation. Employees may occupy a dual status: first, is their status as emn- ployees; second, is their status as union members. Those matters affecting employees as union m umbers may appropriately be referred to as internal union affairs. Those matters which affect employees as employees are not internal union affairs. Of course, it is quite possible that some matters may affect both the employment relationship and the membership relationship, but to the extent they involve the former, I hey are not internal union affairs. Here, I am satisfied that the Union's attempt to control production and wages, which are subjects clearly related to employment, and not to membership, is not merely an internal matter. ^ My colleagues argue that no action had been taken here to impair the employees' job status or job opportunities . Apparently , they are unwilling to recognize that impairment of job status or job opportunities can take the form of restricting an employee in his earnings where , as here , that employee is willing to work and the employer wants the benefit of his services . That the fines were intended to have this restrictive effect cannot be denied. 3' See the debate between Senator Taft and Senator Pepper, Leg . Hist of LMRA, 1947, vol II, pp 1141-1142, and also pp 1096-1097. As shown by the above rationale, there is nothing inconsistent in the decision of the Court of Appeals for the Seventh Circuit in Allen Bradley and the decision of the same court in American Newspaper Publishers Asso- ciation v. N L R.B., 193 F . 2d 782 The latter case involved a union's threat to expel members, conduct which specifically falls within the proviso . Speaking of the proviso, the court said . . Congress left labor organizations free to adopt any rules they desired governing membership in their organizations Members could be expelled for any reason and In any manner prescribed by the organization 's rules , so far as 8 (b) (1) (A) is concerned. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under my colleagues' reading of the proviso, it would appear that the Union can turn any employment matter or Section 7 right into an internal union affair simply by adopting a union rule or bylaw dealing with the subject and disciplining employees thereunder.37 But there is no evidence that Congress ever intended to permit the subversion of employees' rights by unions under the guise of regulat- ing the conduct of union members.38 In short, I think that when unions use the union membership of employees-membership which may, or may not, be voluntary-as a means of encroaching on their rights as employees, which Congress did regulate, the unions subject themselves to the sanctions of Section 8(b) (1) (A) of the Act. More particularly, by imposing fines on these employees because they ex- ceeded the Respondent Union's unilaterally established work produc- tion quotas the Respondent Union took action which went beyond any permissible limit, that is, the action taken did not relate only to the internal affairs of the Respondent Union but imposed a sanction on its members because they exercised their right, guaranteed by the Act, not to go along with the Union-imposed production quotas. Accordingly, for all] the foregoing reasons, I would find that the Respondent violated Section 8(b) (1) (A) of the Act, as alleged. 3For example, pursuant to a union rule or bylaw, unions, under my colleagues' decision, could now fine employees for filing charges with the Board against the union, for testifying against the union in Board proceedings, for filing a decertification petition, for refusing to give the union a copy of any statement made to a Board agent, for giving a statement to a Board agent without the union's approval, for refusing to participate in unlawful union activity, for working with nonunion employees, for working with Negro employees, for filing a grievance not approved by the union, for producing more than a certain number of items per day, and for working more than 30 hours per week. 38 See Local 100, United Association of Journeymen and Apprentices v. Borden, 373 U S. 690, in which the Supreme -Court recognized that even though the union's action was based on the employee's failure to comply with internal union rules "it is certainly 'arguable' that the union's conduct violated Section 8(b) (1) (A), by restraining or coercing Borden in the exercise of his protected right to refrain from observing those rules . . The Court went on to distinguish its earlier decision in I.A M v. Gonzales, 356 U S 617, on the ground that Gonzales involved matters relating to expulsion which was an internal union affair, not within the Board's competence by virtue of the proviso to Section 8(b) (1) (A). See also Local 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko, 373 U S. 701. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before Trial Examiner A. Norman Somers in Mil- waukee, Wisconsin, on January 9 to 12, 1962, on complaint of the General Counsel and answer of Respondent.' The issue was whether Respondent Union, in assessing fines upon certain of its members, who work for Wisconsin Motor Corporation, for exceeding certain production ceilings established under a rule of the Union, and in thereafter instituting civil suit in a State court to collect them, violated Section 8(b)(1)(A) of the Act. The parties waived oral argument at the close of the hearing, but there was a good deal of discussion of the issue before then, largely in the course of my efforts to ob- tain definitive statements of the opposing legal positions , and to shorten the hearing i Procedural chronology: The charges were filed May 18, 1961 ; the original order of consolidation and complaint was issued December 1 ; and the amended order of consolida- tion and complaint (hereafter called the complaint) was issued December 11, 1961. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1113 in the light of them. Also, the parties have filed briefs which have been duly con- sidered. Upon the entire record,2 and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Wisconsin Motor Corporation, hereinafter referred to as the Employer or the Company, is a Wisconsin corporation, having its plant and place of business in West Allis, Wisconsin, where it manufactures, sells, and distributes motors. In the course of its operations it ships products directly to points outside the State in excess of $50,000 annually. The Employer is conceded to be in a business affecting commerce and the propriety of the Board's asserting jurisdiction in this case is not in contest. II. THE LABOR ORGANIZATION INVOLVED Respondent Local 283, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, referred to as the Union, is a labor organiza- tion within the meaning of the Act. Its membership consists exclusively of employees of the Employer, with whom it has had contractual relations continuously since 1937, the current contract being in force since May 1, 1959. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The issue (including a synopsis of its aspects at the hearing, and thereafter in the briefs) On April 8, 1961, the Union assessed a fine upon the Charging Parties, as members of its organization, for violating its long-standing rule relating to "production ceil- ings," and on October 2 of the same year, it brought suit in the State court to recover the amounts of the fines. The proponents of the complaint 3 contend that by these actions the Union violated Section 8(b) (1) (A) of the Act, which declares it to be an unfair labor practice for a labor organization "to restrain or coerce employees in the exercise of their rights guaranteed in Section 7 [of the Act]." Contrariwise, the Union contends that its conduct in each instance is immune under the proviso of 8(b)(1) (A), which declares that "this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or reten- tion of membership therein." 4 The legal issue thus presented could well be decided on the basis of the facts pre- sented in the opening sentence above. At least one would have thought so under the body of authoritative Board and court doctrine interpreting 8(b) (1) (A) and its proviso over the 15 years since enactment of the Labor Management Relations Act (the Taft-Hartley Law) of 1947.5 Yet the history of the rule and the manner of its administration at this Company's establishment from its genesis in 1944 con- sumed nearly all of the Government's 4-day presentation of the case. They will also receive substantial treatment in our ensuing factual discussion. The reason is stated below. Throughout the hearing, I had assumed that in claiming that the fine here offended 8(b)(1)(A), the Government was not challenging the cases embodying controlling doctrine, but was merely claiming that this case was distinguishable from them. The nature of controlling doctrine will be amplified in our conclusionary discussion, but for purposes of clarifying the development of the issue, it will be briefly summarized here. The doctrine controlling under Board lore is embodied in such cases as American Newspaper Publishers Association, hereafter foreshortened as the "ITU" or "ANPA" case,6 and Minneapolis Star and Tribune Company? In the ITU case the Board, with the Seventh Circuit affirming it on that point (supra, footnote 6), held that not all union action that restrains or coerces offends 8(b)(1) (A), one "As corrected on notice to the parties, and as supplemented by an exhibit proffered by Respondent after the hearing, which was added to the record without objection. 3 This includes, apart from the General Counsel, also the Charging Parties, on whose charges the complaint was Issued, and who have been ably represented by separate counsel 4 Sections 7 and 8(b) (1) (A) are quoted in Appendix A, attached to this report In- eluded also are other provisions of the Act, which bear upon the issue here to be decided 5 61 Stat 136, hereafter referred to variously as "the Act" or "LMRA " 0 86 NLRB 951, 955-957 (1949), affd as to that point 193 F 2d 782, 800, 806 (1951), cert denied as to that point 344 U S 812 (1952). 109 NLRB 727 (1954) 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exception thereto being unions' internal rules and the exertion of internal disciplinary powers to enforce them . The one involved in ITU was a rule requiring members to work only under illegal closed -shop conditions and it was held that the union's threat to expel members who did not comply was immune under the proviso, and not a violation of 8(b )(1)(A). In Minneapolis Star, the Board held that under the interpretation of the proviso as enunciated in the ITU case, a union's assessment of a fine upon members for violating a rule against working during a strike was likewise not a violation of 8(b ) (1) (A). The essence of these cases is that a union is immune under the proviso as long as the sanctions used to compel conformity with a given rule or policy, whatever its content or character , are confined to its internal powers of discipline over members, and that liability under 8 (b) (1) (A) begins only where these internal sanctions leave off. That is to say. a union loses its immunity under the proviso when the measures used to compel conformity with a given rule or policy reach outside the membership confines, but retains it when it stays within them. On the premise that controlling doctrine as above enunciated was accepted by Government counsel as the point of departure in the consideration of the issue here, I had assumed that the Government 's theory of liability was based, as in such case it would have had to be, solely on the single factual variance of this case from Minneapolis Star, namely that the union here did not assess the fine as an added condition of membership under penalty of expulsion if not paid , but as a debt asserted as collectible without regard to retention of membership , and hence , so I had as- sumed the Government 's position to be, this action took the fine outside the inner compass of the membership relation. Confirming me in that impression was the conclusion of a colloquy initiated toward the end of the third day of hearing . The Government , as part of its own case, was still developing , in some detail, the history of the production rule and its administra- tion at the Employer's establishment Since counsel for the Government and for the Union were anxious to have these matters developed , and I thought it would serve a useful purpose in presenting the living situation out of which the issue arose, Govern- ment counsel were permitted to develop this matter as part of their own case. At the stage where it seemed that that expository purpose had been served, I inquired as to the need for further elaboration of the subject . Government counsel indicated that it was intended as anticipatory refutation of certain assertions in the answer to the effect that the rule was administered with employer knowledge and acquiescence. and that it had beneficial consequences . Since Government counsel disclaimed that the negation of such assertions was a part of the Government 's theory of liability, there ensued the colloquy which confirmed my original assumption concerning the Government's theory as previously described , as follows- TRIAL EXAMINER : . Wouldn't it be in point then to ask you what are you challenging? Are you challenging the fact that the Union in its councils had set a production ceiling9 I would ask you that and what would your answer be? Mr. BLACKBURN : My answer would be no TRIAL EXAMINER : Are you challenging the fact that the Union in its negotia- tions with the Employer seeks to have the employer go along with the produc- tion ceiling Would you challenge that? Mr. BLACKBURN : No I would not challenge that. TRIAL EXAMINER : . . . Suppose the union passes a resolution that an em- ployee, pardon me, any member who doesn 't cooperate in the production ceiling program will lose his eligibility for membership , nothing more. Would you challenge that? Mr. BLACKBURN : No, I would not challenge that. * * * * * * * TRIAL EXAMINER: But isn't it a fact that what you do challenge is that the sanction for the fine goes beyond expulsion from membership and extends to the realm of an absolute obligation on the part of the member to the Union? Mr. BLACKBURN : Yes. [Emphasis supplied.] The briefs indicate that I had perhaps not accurately gauged the position of the proponents . They do not seek to distinguish Minneapolis Star. Rather do they ask that the doctrine of that case be rejected in the light of an opinion in a case decided last year by the Seventh Circuit . That is the court which had earlier sus- tained the Board in the ITU case (supra, footnote 6), which provided the under- lying rationale of the Board 's decision in Minneapolis Star . The case in question is Allen Bradley Company v. N.L.R.B., 286 F . 2d 442. Although the issue there LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1115 concerned not an alleged violation by a union , but by an employer , a portion of the opinion is devoted to a discussion of the same type of issue as in Minneapolis Star, and expresses a different view from the one embodied in that case-in short, that the assessment of a fine on a member for disobeying a rule against strike- breaking is not immune under the proviso of 8(a) (1) (A ) but is a violation of its prohibition. In urging that the doctrine of Minneapolis Star be rejected in favor of the dictum expressed by the court in Allen Bradley, counsel for the Charging Parties indicates outright that this would require a reexamination of controlling doctrine, as em- bodied in Minneapolis Star. While Government counsel suggest that inroads have already been made upon that doctrine by the Board itself in later decisions (which, as later indicated , infra, footnote 52, happens not to be so ), the press release (R-818 ) issued by the General Counsel at the time the complaint was authorized indicates that the purpose thereof was to have the doctrine reexamined in the light of the Allen Bradley dictum. The normal policy in such an instance is for the Trial Examiner to apply con- trolling doctrine , and dispose of the request for reexamination as a matter "appro- priately to be addressed to the Board ." 8 However , in view of the source of the request and the factors presented for de novo consideration , there is warrant for departing from normal policy here. In this kind of situation , it would seem appro- priate that the matter come before the Agency after preliminary consideration thereof at the initial level of the Board 's adjudicative process. And so the various contentions in support of the requested reexamination of controlling doctrine will be considered here. Insofar as both proponents take a common position in urging the rejection of the doctrine of Minneapolis Star in the light of the Allen Bradley dictum, the matter will be treated in parts ( 1) through ( 8) in section III, C , "Conclusionary discussion." And although, so far as appears, proponents do not rely on it, for purposes of com- pleteness of treatment, we will also at the outset of the "Conclusionary discussion" consider the theory of liability as I had originally assumed it to be, based upon the single factual variance here from Minneapolis Star, previously described. It should be said, however, that apart from the position thus taken in common with counsel for the Charging Parties, Government counsel urge upon us a drastic revision of established conceptions concerning the scope of the issue before us and of our attendant powers in respect thereto, which goes beyond anything suggested in the Allen Bradley dictum. Its reach extends not only beyond Minneapolis Star but ITU as well. It envisages a power in us to pass upon whether a union rule is "reasonable," under a test which includes an appraisal of its social desirability. We treat this aspect of the Government's position-from which counsel for the Charging Parties expressly dissociates himself-in part (9) of the "Conclusionary discussion." In view of the broadened front on which Government counsel thus present the issue, the factual exposition of the origin, purpose , and manner of administration of the rule here in question at the Employer 's establishment will be given in a bit more detail than had originally been envisioned as necessary for treating the narrow legal issue here involved. B. Nature, history , and operation of production ceilings plan at the Employer's establishment 1. The union-security provision in the contract The Union , as stated previously , is composed entirely of employees of the Company and has had contractual relations with it since 1937. The current contract, like those for a number of years preceding , provides that as a condition of retention of employment , each employee, after the requisite 30-day period, has the option of either joining and maintaining good standing in the Union , or rejecting membership but paying the Union a "service fee." 2. Scope of the production ceilings rule The "production ceilings" rule applies to those members who are employed by the Company on jobs compensated on the piecework , or "incentive," basis. These comprise little over half of the working force , which currently is about 850.9 The 8 Food Fair Stores, Inc . (Florence Brooks ), 131 NLRB 756 , 773 (1961). g The remainder work on a "flat" time basis The jobs compensated on the incentive basis are those capable of being timed , as distinguished from those not lending themselves to such process , such as cleaning , repairing machinery, etc. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "ceiling" sets a limit not on production as such but on the hourly rate that the piece- workers shall earn in excess of the minimum rate as guaranteed them under the contract. By way of explanation, the pieceworkers, while paid on the basis of the price per piece produced, are, in actual fact, under the contract guaranteed a mini- mum rate per hour for any given job. This is called the "machine" rate. The machine rate varies for each of the five "labor grades" into which a job falls, the highest being for grade 1, which requires the most skill, and so on in descending order of requisite skill and attendant "machine" rate per hour down to grade 5.10 The subject of the contractual negotiations between the Employer and the Union, insofar as they concern the pieceworkers, is the guaranteed "machine" rate per hour for each of the five labor grades. The machine rate as fixed by the contract is translated into the piecework rate under a process called "factoring in." The formula for doing so when a raise in hourly rate has been agreed upon, and the rate that ceiling itself plays in it, will engage our attention in due course, but the govern- ing principle is expressed in the contract as follows: Jobs shall be so priced as a result of a time study that the average competent operator working at a reasonable pace shall earn not less than the machine rate of his assigned task. The machine rate makes allowances for factors such as setting up the job, picking up and loading, cleaning of tools, fatigue, attention to personal needs, etc. An incentive worker who earns the machine rate is regarded as having met the minimal requirements for satisfactory performance. To the extent that he foregoes the allowances previously mentioned and converts them into productive effort, he can, on the basis of the piece rate as established under the "factoring in" process, earn more than the hourly machine rate. The setting of a limit or a "ceiling" upon earn- ings thus made in excess of the machine rate is what the rule here involves. 3. Adoption of the production ceilings rule and its modifications The production ceiling rule was formally adopted by vote of the membership in 1944 It had its forerunner as a "gentlemen's agreement" among them since 1938, when the Union's executive board recommended that "pieceworkers turn in no more than time and half in any one day in order to conserve work and avoid layoffs." The resolution of 1944 was to the effect that "the men turn in no more than 10 cents per hour over and above the new machine rates." In 1946, the membership voted penalties , in the form of fines, for violation of the rule. From time to time the rule has undergone modifications, and has its current embodiment in the following language: A. The basic object of the Union is, to protect members of the Union in their employment and to give them as much security as the industry can provide. The Local Union in its judgment and reasoning has established a production ceiling which it feels will bring more protection to the members. It follows that a member who is found in violation of the [sic] this rule is guilty of con- duct unbecoming a union member. B. Any member who violates these ceilings shall be subject to a fine of one dollar ($1.00) for each violation. The violators shall be processed by not less than 3, nor more than 5 members of the Executive Board. In case of persistent ceiling violations, the member will be charged with con- duct unbecoming a Union Member." The amount of the ceiling has been raised over the years as a result of collective negotiations with the Employer, to be described later. The ceiling currently in effect is between 45 and 50 cents above the machine rate (infra, footnote 12). 4. What compliance with the ceiling rule entails: the process of "banking" The expression "turn in" as used in the resolution does not apply to the pieces produced. These, when made, are turned over to the Company and physically enter the flow of its operations. Nor does it apply directly to the pace at which the worker "There is an even lower rate, called the "day" rate for each grade, which applies to periods when through no fault of the Company the incentive worker is not engaged in actual production or has produced "scrap " This does not concern us here. ""Conduct unbecoming a Union Member" is the generic offense cognizable under article 30 of the constitution of the International under a detailed procedure of charges, trial, and penalty. The penalty includes suspension and a fine ranging from $1 to a maximum of $100. The same article prescribes that failure to pay the fine within a prescribed period can result in expulsion from the Union. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1117 is to produce . It applies solely to what the operator is to enter on his workcard for purpose of payment. If he has produced at a pace yielding him an hourly rate above "ceiling ," he holds back reporting to management the quantity in excess of what will earn him the ceiling rate. This is done under a process called "banking," which is described below. The "bank" is the employee's own record of the production yielding him in excess of the ceiling rate. This he keeps in reserve for a "rainy day," i.e., when he has earned less than ceiling. This last can occur when he has been absent, or when his machine is "down" and he is forced to be idle. For that idle period, he would, under the contract, normally receive his machine rate (and under certain circum- stances not here pertinent, even the lower "day" rate supra, footnote 10: infra, footnote 12). However, by drawing upon his reserve or "bank," he can make the ceiling rate When he does so, the Company pays him for the now reported items previously produced, and is spared any other outlay for the idle period. It should be explained that although, as a member of the Union, a pieceworker is required under the ceiling rule thus to "bank" his excess, as an employee, he is permitted by the Company to exercise his choice either way. The Company does not require that the employee follow the ceiling rule, nor has it ever bound itself contractually to require the employee to do so. If the employee chooses to follow the rule, the Company will honor his choice by permitting him to "bank" his excess (subject to all "banks" being emptied by inventory time). On the other hand, if he chooses to disregard the rule, and to report and be paid for his entire production, the Company will gladly pay him, however much above the ceiling rate this will bring his earnings. But when he has done so as an employee, then so far as the Union is concerned, as a member, he has violated the production ceiling rule, and that is what constitutes the "conduct unbecoming a union member" (supra, footnote 11), which is the subject of the fine. 5. Implementation of the rule: inspection of work records The process of checking upon compliance with the rule, in use from the time that the penalties were first enacted in 1946, is as follows: Twice a year, the Union procures from the Company the workcards, for a given day chosen at random, of every one of its members who are engaged in piecework. The cards are then dis- tributed among the various stewards, who check them to ascertain whether a mem- ber's earnings as reported have exceeded the ceiling for his grade as it appears in a posted schedule.12 He then turns over to the Union the cards of those members showing earnings in excess of ceiling. The Union then procures from the Company copies of the workcards of those persons for the entire preceding quarter year, to ascertain the extent to which, during that period, they exceeded ceiling. They are then called before a trial board and asked if they concede the accuracy of the data on the cards. If they do, they are asked for an explanation and, if the explanation is unsatisfactory, they are served with charges and tried before a trial board. The trial board then determines whether these members have thereby been guilty of "conduct unbecoming a union member" and, based upon the degree of "persisten[cyj," fixes the penalty within the limits previously described (supra, footnote 11). It is then reported to the membership for approval, and when that is given, it takes effect. That was the procedure which was followed in the cases of the Charging Parties. A random card check made on February 14 and 15, 1961, showed that they and two others had exceeded ceiling during the last quarter year. On March 2, 1961, each was served with charges of having engaged in "conduct unbecoming a union mem- ber," supported by a detailed description of violations of the rule, described therein as "deliberate and persistent," and notified that a trial committee would be selected 12 That schedule is prepared by the Union, but for purposes later appearing, management retains copies for its own reference The current schedule of rates is as follows: Day rate Machine rate Ceiling per hour Ceiling for 8 hours Grade 1---------------------------------- $2 24 $2 455 $2 90 $23 20 Grade 2---------------------------------- 2 155 2 37 2 835 22.68 Grade 3---------------------------------- 2 065 2 28 2 755 22.04 Grade 4--------------------------------- 1 985 2.20 2 685 21 48 Grade 5----- ---------------------------- 1 90 2 115 2 62 20 96 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at a meeting of the membership, at which he could appear with counsel. After trial held on notice, they were informed of the verdict and told that it would be presented to the full membership for approval, and on April 11 they were notified of the membership's approval of the verdict and the recommended penalty, which included a year's suspension from membership and a fine payable within 30 days. Charging Parties Scofield and Kozbiel were assessed the maximum fine permissible under the U.A.W.'s constitution, $100, Hansen $75, and Stefanec $50.13 6. The Employer's role in the administration of the ceiling program; and the role of ceiling in the wage structure Much of the Government's brief is devoted to the proposition that the Employer has never "agreed" to the production ceiling rule and that the production ceilings are, as indeed the complaint alleges, "unilaterally" established by the Union. The matter is hardly germane. Every union rule originates with it and is thus unilateral in its very nature, so that if enforcement thereof were vulnerable for that reason, it is difficult to see what function the proviso to 8 (b) (1) (A) could serve. However, for whatever importance Government counsel attach to the matter, it would appear rather clear that the details of the administration of the rule hardly lend themselves to characterization on this all-or-nothing basis. The rule has a unilateral source, but its administration has numerous bilateral aspects. The descrip- tion even as thus far given reveals a role played by the Company which is rather vital to its effectiveness. We may assume, without deciding, that management, if it in- sisted, could reject the "banking" process and require every pieceworker to report and be paid for his full production on a current basis. Yet it leaves the choice either way with the employee, and, with full knowledge of its purpose, it supplies the Union with the workcards used in making the semiannual check on compliance with the rule. Further, it recognizes the time spent by the stewards in making such a check as being on legitimate union business, which under the contract, stewards may engage in without loss of pay. Even more significant would appear to be the mutual recognition of the ceiling rate as an integral part of the wage structure. Among the subjects embraced by the contract negotiations is the setting of the ceiling rate. The purpose of doing so is to bind not the Employer but the Union. The Employer retains its freedom to pay any member who reports production yielding him in excess of ceiling, but the Union binds itself in respect to the limit which it will permit its members to earn above the guaranteed machine rate. The higher the ceiling the greater the productive leeway. And so in the typical negotiations, the Employer begins by asking the Union to agree to eliminate the ceiling, and as the second alternative, proposes a raise in the ceiling. As an inducement therefor, it may offer a concession in the form of a raise in the guaranteed hourly machine rate, and the raise in turn conditions the extent to which the Union will agree to raise the ceiling. Exemplifying this process are docu- ments reflecting the negotiations for specific years of 1953 and 1956-in 1953 during a contract reopening period, and in 1956 in the course of contract renewal discus- sions culminating in a strike over certain unresolved issues. The latter included the extent to which the Company would go in raising the hourly machine rate and the extent to which the Union would go in raising the ceiling. The 1956 strike settle- ment agreement shows a compromise reached in respect to each item, the Em- ployer agreeing to a raise in the guaranteed hourly rate, and the Union, in turn, agreeing to raise the ceiling. The ceiling rate is the common point of reference used by management and the Union in two other vital respects-first in the manner of "factoring" the hourly rate raise into the piece rate, and secondly in passing upon grievances over allowances on specific jobs. As to the first, the raise in the piece rate is determined on the basis of the ratio which the raise in the hourly machine rate bears to the old ceiling rate. 18 The remaining two of the six paid up. The Charging Parties appealed to the Inter- national and were advised that under the constitution the fine must be paid before the appeal could be entertained. They then filed the charges with the Board's Regional Office, which were dismissed by the Regional Director on August 22, 1961. The Union on August 25 , 1961 , then wrote demanding payment under threat of suit, which, as stated previously , was brought on October 2. On November 22, 1961, the office of the General Counsel in Washington directed issuance of the complaint in this proceeding (press release R-818). LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1119 This was spelled out in an elaborate formula prepared and posted by management after the agreement of 1953; and, in the 1956 strike settlement agreement, it was specifically provided that that same method would be used in "factoring in" the hourly rate raise granted that year. As to the second, the record includes writings showing management to have disposed of grievances of employees concerned with allowances on specific jobs, on the basis of whether employees had or had not made "ceiling" on them. 7. The opposing viewpoints toward ceiling as expressed at the bargaining table and repeated at the hearing The status thus achieved by the ceiling program is the product of hard bargain- ing, however diverse the philosophies voiced at the bargaining table by the respective representatives and repeated by them at the hearing. Their differing statements of position exemplify the polarity of management and labor viewpoints on incentive or piecework plans, as described in the host of authori- tative treatises on the subject. (See Appendix B, Van De Water.) It hardly matters whether one accepts all, some, or none of the underlying economic premises of either side, for, as indicated in the "Conclusionary discussion" (part (9)), that is normally left to the parties to work out for themselves in a free society, until the legislature takes cognizance of and acts on a given practice. On the one hand, the Union justifies the ceiling rule on the basis of apprehensions, which, as the literature on the subject would indicate, have their roots in industrial experience with incentive plans of earlier vintage, some of which have been ac- knowledged by management spokesmen as having been reasonably grounded. (See Appendix B, Louden.) These include expressed concern that a stepped up pace could result in: (a) employees working themselves out of jobs, (b) usher in the evil of "stakhanovism," under which a new productive norm is set, whereby the piece rate is lowered and the compensation for actual productive effort correspondingly re- duced, and (c) lower grade employees by excessive dissipation of their allowances, earning more than those in the higher ones, thus dislocating the actual pay scale and bringing about morale-threatening jealousies, as well as undermining the health- protecting purposes of the allowances. The management tune is a different one. Its representatives assert that it is wrong not to let the members " earn as much as they can," and during negotiations, they counter the Union's demand for an increase in hourly pay rate with the suggestion that the employees can earn more by producing more under the rate currently in effect-the very thing which to the Union conjures up the specter of "stakhanovism." They state also that it is only a matter of time before the pieceworkers catch up with a raised ceiling, and when they do so, all except those who choose to defy the rule, shut off their machines during the latter part of the day, well before punching out time; additionally, there is a mass idleness when the "banks" are emptied out before inventory time, or before the vacation period; and finally, if the men produced to their full capacities and were paid accordingly, the fixed overhead being the same, the Company's unit cost would be lessened and its competitive position strengthened. Government counsel present these statements of management, including the con- clusionary assertion "we never agreed to ceilings," as the very distilled essence of management's position. In so doing, they fail to make due allowance for the adage in folklore, given to status also in adjudicative doctrine, that "actions speak louder than words." 14 Management 's assistance in the administration of the plan, while indeed stemming from its realization that it has the overwhelming support of the rank-and-file, may well be due to a greater sympathy with some of its objectives than is reflected in its broadsides at the negotiating table. This may be for reasons of its own self-interest, quite apart from the fact that some people high in its management ranks, such as Plant Superintendent Bohmann and Assistant Super- intendent LaSage, underwent considerable. exposure to the rank-and-file point of view when they were union functionaries during the presupervisory stages of their careers with Wisconsin Motor. One watching Superintendent Bohmann and Presi- dent Todd, as they expressed their pride in the Company's highly superior product and extraordinarily low scrap rate, for which they gave ungrudging credit to the workmanship of the incentive force, rather got the impression that if there were no 14 St. Louis Independent Packing Co., Div. of Swift & Co. v. N.L.R B., 291 F. 2d 700, 705 (C.A. 7) ; N.LR.B. v. The M. H. Ritzwoller Co, 114 F. 2d 432, 436 (C.A. 7). 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production ceiling set by the Union, management would be inclined to devise some equivalent manner of its own to insure the continued high quality of the per- formance. Strongly suggesting it was Plant Superintendent Bohmann's acknowl- edgment that this preeminently low scrap rate could well be imperiled if the piece- workers became obsessively preoccupied with production. Also, other admission made by these officials, as well as their general demeanors, would indicate that they are less worked up about the production ceiling plan than, if one were to take at face value the sweeping diatribes against it in their brief, Gov- ernment counsel would appear to be. Thus Bohmann, apart from acknowledging that there was a saving to the Company when the employee draws on his "bank" for compensation during a "down" period instead of receiving his machine rate, also acknowledged that the ceiling enables the Company to forecast the maximum production of the various departments and that "by such process it assists [the Company] in the integration of the operations and in the final production of the product." On that score, he expressed further pride in the fact that the average hourly earnings of the incentive workers of the Company under the ceiling plan exceed those of employees in comparable industrial establishments in the region. This rather indicates that their productivity compares favorably with that of the work forces in the other establishments. And President Todd, who generally reflected the mellowing influence of his long years, when asked by Government counsel the reason for certain competitive difficulties of the Company, gave as his first answer not added costs under the production ceiling, but salesmanship-the task of educat- ing the market to a due appreciation of the advantages of a superior product of world renown over an ordinary one, which would more than compensate for the higher price paid. He then testified that reduction in unit costs would help too, whatever its source. Union counsel apparently sought to claim as another laurel for the ceiling plan an admission by President Todd that since 1946, which happens to be the year when the Union began to enforce the ceiling rate, the Company, after prior periods in the red, has paid dividends uninterruptedly. In so doing, I would think that counsel waded rather kneedeep into the post hoc fallacy; but human nature being what it is, it may be assumed that management does not hold that coincidence against the program. It is true that management does feel that there is too wide an interval of idleness between the time of day the incentive workers have produced enough to earn the ceiling rate and the end of the shift. But that bears on two basic subjects which are the staples of the bargaining process, namely, (a) the adequacy of the hourly machine rate, as fixed by the contract, and (b) assuming agreement as to the first, the adequacy of the ceiling itself. Each is typically a subject of interest-conditioned viewpoint whose reconciliation is the very purpose of the bargaining process As to (a), we have quoted the clause of the contract, which indicates that the guaranteed hourly rate reflects the minimal productive expectancy of a worker of average competence working at a normal pace. This, as the clause indicates, as based on a time study. The clause itself is the opening section of a comprehensive article of the contract (XI) containing detailed procedures for retiming jobs on the basis of time studies. So far as appears, the Company has not complained that the guaranteed hourly rates have been so set that the employee, for the pay he receives, has not given the requisite quid pro quo in production. As to (b), the Company's objective in seeking agreement from the Union for a higher ceiling is, in the light of (a) above, not based upon any claim that under the ceiling it receives less production than what it is paying for. The subject of negotia- tions in respect to the ceiling is the extent to which the employees should convert their allowances to productive effort for the purpose of earning more. This involves striking the balance between, on the one hand, management's interest in having pieceworkers produce and earn to the maximum of their capacities, and, on the other, the interest of the group as a whole in determining the point at which those compris- ing it can avail themselves of that inducement consistently with preserving the basic purpose of the allowances themselves. In essence, therefore, bargaining over the ceiling rate concerns the extent to which the group as a whole can be induced to forgo these allowances in exchange for compensated productive effort. This is manifestly a matter affecting the interest of the group and in which its collective bargaining strength hinges upon the coopera- tion of its individual components. The measures which the group, in the person of the union, may, consistently with the Act, exert upon the individual, in the person of the member, to conform with the policy adopted by the group, and the kind of measures which it is forbidden to exert for that purpose is the subject at issue . The remainder of this document will be devoted to it. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1121 C. Conclusionary discussion 15 (1) Controlling doctrine has been reexamined in the light of the purpose of the proviso as manifest on the face of the statute and as declared by the sponsors of 8(b ) (1) (A) during its enactment . These are discussed in the ensuing subsections . Upon such reexamination , and for the reasons later stated , I conclude that the scope of the pro- hibition of Section 8(b) (1) (A) as limited by the proviso has been correctly inter- preted by controlling authority , as embodied in the decisions in ITU (ANPA) and Minneapolis Star (supra, footnotes 6 and 7). The result is that the rule here, and the discipline imposed as a sanction for it being part of the internal affairs of unions, are not within the scope of 8(b ) ( 1) (A), as limited by the proviso . Accordingly, the Union did not violate Section 8(b) (1) (A) in assessing the fine for disobedience of its rule. Neither did the Union violate 8(b) (1) (A) by suing in the State court to collect the fine. This last is so for reasons quite apart from , and without regard to whether, the assessment of the fine itself would violate 8 (b)(1)(A). The reason is that in such matters, it is Board policy to "accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exer- cise of such right as an unfair labor practice ." Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103, 109. The presumption in such instance is that the State courts can be relied upon to give due effect to whatever law controls , and hence there would have been no need to enjoin the suit even if it had been based on a claim in conflict with or otherwise preempted by Federal law. See Amalgamated Clothing Workers of America, et al. v. Richman Brothers Co., 348 U.S. 311 (1955). Neither of these is the case. (2) As more fully developed in part ( 8) below, the conclusion, hereafter discussed, that the assessment of the fine was not a violation of 8(b ) ( 1) (A) does not imply that such conduct is affirmatively protected by the Act. It means merely that the conduct has not been subjected to regulation under the Federal statute. The effect of the immunity under the proviso is thus to leave the internal union -member rela- tionship in respect to the matter here at issue subject exclusively to State law. This last bears upon the one element of factual difference here from that in Minneapolis Star which , as I have stated in the introduction , I had assumed had been the basis of the Government 's position , namely, that the Union here has asserted the fine as a debt, without exercising its power under the constitution (supra, footnote 11) of making it payable under pain of expulsion . Although , as I have also noted in the introduction , the proponents do not appear to rely upon this variance from Minneapolis Star, I have considered it preliminarily for purpose of completeness of treatment . After such consideration , I conclude that the same principle controls here as in Minneapolis Star and ITU . This is because, as amplified later , Congress, in declaring the internal affairs of unions immune under the statute , left them where it had found them, outside the Federal policing power and subject to the laws and policies of the individual States. Accordingly , the dispute between the Union and the Charging Parties out of which this proceeding has arisen concerns the rights and obligations of unions and their members in respect to each other . As already stressed and as will be discussed in more detail in part ( 8) below, that field is not reached by our statute , and is governed by State law. The Supreme Court of the State of Wisconsin construes a "union's constitution and bylaws [ to] constitute a contract between the union and its members ." 16 The Supreme Court of the United States observed in the Gonzalez case 17 that "this contractual conception of the rela- 16 There will be no discussion of the Union's additional defense that the complaint is barred by the 6-month limitation provision of Section 10(b), other than to say that I adhere to my original ruling rejecting it. The fact that the rule for which the fine was assessed originated more than 6 months before the filing of the charges would not bar prosecution for the assessment, which occurred within the 6-month period Local Lodge No. 142 4, International Association of Machinists , AFL-CIO; etc. ( Bryan Manufacturing Co ) v. N L R.B., 362 U S. 411, on which the Union relies for that defense, is not applicable here 16 United Automobile, Aircraft, and Agricultural Implement Workers of America (AFL- C70) Local 756 v Woychik, 5 Wis. 2d 528 ; 93 N.W. 2d 236; 43 LRRM 2741. "International Association of Machinists , et al. v. Marcos Gonzalez, 356 U.S. 617, 618 (1955) 734-070-64-vol. 145-72 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion between a member and his union widely prevails in this country." And so the matter of whether a union is limited to making a fine a mere further condition of membership or may press for its payment as a debt without regard to retention of membership is a subject of State law: it involves the interpretation and effect which the courts of a given jurisdiction will give to the financial obligations arising under the union-member relationship, whether they be dues, special assessments, or dis- ciplinary fines. On that point, it happens also that the Supreme Court of the State of Wisconsin, applying its previously enunciated premise that the "constitution and bylaws . constitute a contract" (Woychik case, supra, footnote 16), has held that the obligations incurred by a member pursuant thereto are collectible as a debt. That is so with respect to ordinary dues,18 and also with respect to a disciplinary obligation, such as a fine, as in the Woychik case-the fine in Woychik having been, in fact, for violation of the same kind of rule as in Minneapolis Star, one requiring observance of a strike. The above considerations, however, hardly conclude the issues in the suit in the State court between the Union and the Charging Parties. The record indicates that the suit involves a miscellany of disputed issues between them concededly out of our concern on any basis-such as the validity of the ceiling rule itself under the Union's constitution and bylaws, as well as of the penalty, and indeed, whether the latter is truly a debt as opposed to being a mere added condition of membership under the terms of the constitution. All of these matters, including the validity of the substantive ground for the imposition of the penalty under State law or policy, are outside our purview and are matters to be resolved by the duly constituted tri- bunals of the State in applying its own law and policy. (3) If we are right in construing the proviso as negating on intention to interfere with the internal affairs of unions, that should dispose of the two grounds advanced by the proponents for overruling the doctrine of Minneapolis Star. The first is that a fine does not fall within the category of "rules with respect to the acquisition or retention of membership," and the second is that even if it does, it still constitutes coercion within the meaning of 8(b)(1) (A), because it is a sanction for a rule which places a restriction on the manner in which members shall work on their jobs. Each proposition is based on the dictum of the Seventh Circuit in Allen Bradley to be treated later, but at this stage it is appropriate to observe that the argument, in each of its facets, misconceives the scope of both clauses of 8(b)(1)(A). It interprets the prohibiting clause too broadly even apart from the proviso; and it interprets the proviso too narrowly. We treat each in that order. As to the first, the proponents construe the prohibiting clause as having the pur- pose of interdicting any union action of any character, which by inference can be said to have a restraining or coercive effect on employees' organizational rights under Section 7. The legislative history, treated later, shows the clause was not intended to have that broad a reach. That was the basis of the Supreme Court's decision rejecting the Board's doctrine in Curtis Brothers relating to the application of 8(b) (1) (A) to picketing by a minority union to compel recognition.19 The Curtis Brothers doctrine was enunciated by the Board before Congress enacted the Labor-Management Reporting and Disclosure Act of 1959,20 which, under the amendments to our Act as embodied in title VI of that law, specifically covered that subject in present Section 8(b)(7) of our Act. In Curtis Brothers, the Board had held that picketing by a minority union for recognition was a violation of 8(b)(1)(A). The ground was that if the union achieved its purpose, it would saddle the employees with a bargaining agent not of their own choosing, contrary to their rights under Section 7, thereby restraining and coercing them in the exercise of those rights. The Court held that the broad "reach" thus given 8(b) (1) (A), even if "the words might permit" it, was negated by the legislative history showing it to have had a more limited purpose. Expressing its agreement with the "Board's own interpretation" of 8(b)(1) (A) in an earlier line of cases beginning with National Maritime Union of America, etc. (The Texas Company),21 the court concluded that IS Local No. 261, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO v Schulze, 3 Wis 2d 562; 89 N W. 2d 191, 42 LRRM 2177 (1953). 19 N L R.B. v Drivers, Chauffeurs and Helpers Local Union No. 633, international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Curtis Brothers), 362 U S. 274 (1960), setting aside 119 NLRB 232 (1957). 20 73 Stat. 519, hereinafter referred to as the LMRDA. 21 78 NLRB 971 (1948), enfd. 175 F. 2d 686 (C A. 2) (1949). LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1123 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." The above undermines the premise that the prohibiting clause of 8(b)(1) (A) has a legal scope as broad as its language even in respect to conduct not involving the proviso. As to the proviso, it may be said that until Allen Bradley, it was uniformly interpreted by Board, courts, and legal commentators as excepting from the prohibiting clause conduct involving the internal relations of unions with their members. On that basis the Board in the ITU case (supra, footnote 6) held that the union there did not violate 8 (b) (1) (A) in requiring its members, under penalty of expulsion, to work only under closed-shop conditions laid down by it on employers. This was so even though the Board held that in laying down these conditions upon employers, the Union had violated Section 8(b)(2) (quoted in Appendix A of this report) which forbids unions to cause or attempt to cause employers to discriminate against employees in violation of Section 8(a)(3) (also quoted in Appendix A). On the same ground, the Seventh Circuit, on review of the Board's ITU decision in the ANPA case (supra, footnote 6), upheld the Board's dismissal of the 8(b) (1) (A) allegation against the Union. The court pointed to the limited scope of the prohibiting clause, stating that "the coercion of employees by a labor organization is illegal only to the extent that it is declared so by Congress" (p. 800), and concluded its discussion of the proviso with the observation that: the proviso in § 8(b)(1)(A) permits unions to enforce their internal policies upon their memberships as they see fit. The above hardly leaves room for a distinction based upon whether the penalty was expulsion, as in ITU, or as in Minneapolis Star and here, a fine; and as appears in the legislative history treated in part (5) below, Congress intended none. The portion of proponents' position which attacks the fine because it is a sanction for a rule prescribing how the members may work embraces a premise which if accepted, would require a result not only contrary to that in Minneapolis Star, but overruling ITU as well. It is difficult to conceive of a rule more offensive on the score advanced by proponents than the one in ITU. The rule there did more than just limit the members' exercise of their rights under Section 7: it required them to abet the Union in conduct illegalized by the Federal statute. Hence the exoneration of the Union under 8(b) (1) (A) could only have rested upon a criterion of liability which disregarded the content of the rule and considered only the measures used to enforce it. The enforcing measure being an internal union discipline, the immunity was complete, even though the rule for which it was as a sanction could not have more clearly, indeed more flagrantly, prescribed the conditions under which the members should work. Proponents' argument on both scores overlooks the distinction between the members' rights as employees and their rights as members. The Act protects the first and not the second. This is manifest from the scheme of the Act as a whole, treated in the ensuing subsection, and is confirmed by the legislative history, treated in the one that follows. (4) As to what is manifest concerning our issue on the fact of the statute: The Act on its face shows that a member's rights as an employee are protected from any consequences which a union can visit upon his tenure on the job by virtue of its control over membership. The protection is given by the previously mentioned limits placed by Section 8(a) (3) and (b) (2) upon the enforcements of union-security contracts. By these provisions, Congress acted to deprive unions of the power they had over employees' jobs under the closed-shop proviso in Section 8(3) of the Wagner Act (49 Stat. 449) through their control over membership. Under the old proviso, a union having a closed-shop contract could deprive an employee of his job by excluding or expelling him from membership, regardless of the cause 22 To overcome this, Congress in 1947 enacted the 8 (a)(3) and 8 (b)(2) restrictions upon union-security contracts. Those relevant here, as earlier mentioned, forbid an employer to discharge or discriminate against an employee when he has reason to believe the employee has been denied or deprived of membership for any reason other than failure to tender periodic dues and initiation fees; and a union is correspondingly forbidden to cause or attempts to cause an employer to discriminate against the employee in such a situation. re Colgate-Palmolive-Peet Co v N L.R.B., 338 U.S. 355 (1950) ; DeMille v. AFRA, 31 Cal. 2d 139, 187 P. 2d 769 (1947 ), cert. denied 333 U.S. 876 ( 1948). 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The result of the above, as the Supreme Court put it in the Radio Officers' case,23 is to "insulate the employee 's job from his organizational rights" by leaving him free as an employee to be a "good, bad, or indifferent" member subject only to his obligations under a union-security contract to tender the requisite dues and initiation fees. These provisions have been interpreted to give the employee even greater leeway. Under the Board's judicially upheld doctrine in Union Starch,24 an employee has met the condition of employment under a union-security contract by tendering the periodic dues and initiation fees, even though he refuses to be a member. In the case before us, the freedom which the Charging Parties enjoy on that score by operation of law is confirmed by the subsisting contract. The pertinent clause, as earlier noted, permits them to pay a "service fee" in lieu of membership. Under the Act, therefore, the Charging Parties, as employees were at all times masters of their fate, and still are. They could have avoided putting themselves under obligation to obey any union rule, by availing themselves of the option of tendering dues in lieu of membership. Under the Act, they still have that choice in respect to any obligations toward the Union in the future. However, under the choice made by them the other way, they assumed such obligations as flowed from the contractual relationship thus voluntarily entered into. Its legal effects, as between them and the Union, are governed by the law of the State in which they made their compact. And yet, even in respect to these obligations, the Act protects them, as employees, from any union efforts to enforce them by consequences on their jobs. Whatever the obligations of the Charging Parties toward the union as members, they are free agents as employees provided they satisfy their dues obligation. As employees, they can flout the production ceilings rule or any other union rule, even one not prescribing how they shall work, such as one requiring regular attendance at meetings They can do so, as already stressed, without fear of any consequences upon their jobs. The Union may not cause the Employer to discriminate against them for violations of the Union' s rule .25 Highlighting this is the Board's decision find- ing an employer and a union to have, violated the Act because an employee was discharged for not conforming with a union rule of the character here involved, one limiting production.26 As employees also, the Charging Parties are free under our statute to refuse to pay the fine, for since it is not a part of "periodic dues," the Union may not cause them to be discharged for such nonpayment,27 or threaten to do so.28 And this is so even if the fine should be upheld by the State court as a valid obligation owing to the Union. (Supra, footnote 28.) But while, as employees, the Charging Parties are free under the Federal statute to disregard every union requirement, except that relating to dues, as members, they are subject to obligations outside of our reach, because our statute does not touch the incidents of that relationship. In the Gonzalez case, previously cited (footnote 17), the Supreme Court saw it that way from the mere terms of the statute. After describing the protection en- joyed by union members as employees under the 8(a)(3) and 8(b)(2) restrictions as previously described, the Court noted (356 U.S. 617, 620): But the protection of union members in their rights as members from arbi- trary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b)(1) of the Act states that [and here the Court quoted the proviso]. [Emphasis supplied.] Also pertinent on this score is that the lone respect in which the Act contains an internal union regulation is covered by a specific restriction in a separate section, 8(b)(5), which limits the initiation fees which may be charged by a union having 23 The Radio Officers' Union of the Commercial Telegraphers Union, AFL-CIO (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 40 (1954). 24 Union Starch it Refining Company, 87 NLRB 779 (1949), enfd. 186 F 2d 1008 (C A 7). 25 The Radio Officers' Union of the Commercial Telegraphers Union, AFL-CIO, supra, footnote 23 ; N.L R B v. Philadelphia Iron Works, Inc, 211 F. 2d 937 (C A 3, 1954), enfg. 103 NLRB 596 (1953) ; N.LRB. v. Local 1423, United Biotherhood of Carpenters and Joiners of America, AFL (Columbus Show Case Co ), 238 F 2d 832 (CA. 5, 1956), enfg 111 NLRB 206 (1955) ; N.L R B. v Brotherhood of Painters, Decorators it Paper- hangers of America, etc (Spoon Tile Co.), 242 F 2d 477 (C.A 10, 957), enfg 114 NLRB 1171 (1955) ='6Printz Leather Company, Inc, 94 NLRB 1312 (1951) n N L R.B v. Electric Auto-Late Company, 196 F. 2d 500 (CA. 6, 1952). 11 Marlin Rockwell Corporation, 114 NLRB 533, 561 (1955). LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1125 a union-security contract. This and the financial reporting provisions of Section 9(f) and (g)-since repealed-were the sole respects in which the House effort to place the internal union-member relation under Federal regulation survived the final enactment. And this bears on the intent as manifested in the legislative history, to which we turn. (5) The intention not to interfere with the internal affairs of unions is rather formidably manifested in the legislative history on three fronts: (a) The nonsurvival, previously mentioned, of the House effort to place internal union affairs under the regulation of the statute; (b) the express declaration of the sponsors of 8(b)(1)(A) concern- ing the limits of its intended prohibition; and (c) the explicit disclaimer of its sponsors that it was intended to interfere with internal union affairs We discuss each of these in terms of the weight given by the Supreme Court to like factors in Curtis Brothers. As to (a), the Supreme Court, in Curtis Brothers, gave weight to the fact that the House bill, unlike the Senate bill, had a specific provision banning the conduct there involved, and that this failed of ultimate enactment. As stated, the same situation exists in respect to the subject matter at issue here. The House bill (H.R. 3020), in Section 8(c), imposed restrictions on the conduct of unions over members in many respects. These included in subsections (5) and (6), restrictions on the disciplinary powers of fining, expelling, or suspending mem- bers. LH 180-1. 29 In contrast with the House bill, the Senate bill (S. 1126), did not impose any such restrictions, and in its report explaining the limitations placed in 8(a )(3) and 8(b)(2) of its bill upon union-security contracts, previously de- scribed, the Senate committee reaffirmed the freedom of unions in respect to their control over the membership 30 In the final enactment, it was the Senate's view that prevailed, for, as mentioned, none of the House provisions survived the final enactment, with the two minor specific exceptions previously noted. Aspects (b) and (c) can be discussed together. In Curtis Brothers, probably the decisive factor to which the Supreme Court gave weight was the one touched upon earlier-the limits of the intended prohibition of 8(b) (1) (A), as expressed by its sponsors In connection with it, the Supreme Court in Curtis quoted at some length from the sponsors' statements of purpose. From them it concluded, as previ- ously stated, that 8(b) (1) (A) was intended to prohibit "violence intimidation and reprisal or threats thereof," and by that token not to extend to the conduct there involved. But the statements of the sponsors of 8(b)(1)(A) afford an even stronger basis for a like conclusion with respect to the conduct involved here. In contrast with their silence concerning the conduct involved in Curtis, the sponsors of 8(b) (1) (A) were quite explicit about the subject here at issue. They repeatedly emphasized the irrelevance of the membership relation to the kind of coercion sought to be pro- hibited by 8(b) (1) (A) and in connection with it, were unequivocal in their assur- ance that 8(b) (1) (A) was not intended "to interfere with the internal affairs of unions." As previously pointed out, the power of unions to enforce their policies upon members through the control this gave them over their jobs was effectively curbed by the provisions of 8(a)(3) and 8(b)(2) of the Senate bill, which drasti- cally limited the grounds on which nonmembership could result in an employee's losing his job under a union-security contract. But the sponsors of 8(b)(1)(A) wanted the employees protected also against coercive tactics other than those which a union can exert through its power over members. These were, as they stated, threats of violence and economic reprisals of the kind unions were known to use upon nonmembers in order to force them to join up. Their object, as they re- peatedly put it, was to balance the protection which the Wagner Act gave employees against coercive tactics by employers to force them to abstain from membership, 21 The reference "LH" is to the pages of "The Legislative History of the Labor 11lanage- ment Relations Act, 1947" (GPO 1948). Where the designation "CR" appears, it refers to the pages of volume 93 of the Congressional Record, which report the debate on the measure, in the 80th Congress All references to the debate will cite the appropriate pages in each of these volumes 30 The report stated (LH 427) . It is to be observed that unions are free to adopt whatever membership provisions they desire, but they may not rely upon action taken pursuant to those provisions in effecting the discharge of, or other job discrimination against an employee except in the two situations described [These were ultimately reduced to the single one of tender of dues and initiation fees ] [Emphasis supplied ] 1126 DECISIONS Or NATIONAL LABOR RELATIONS BOARD with corresponding protection against coercive tactics by unions to force them to become members . The tenor of the sponsors ' statements of purpose was summed up by the Supreme Court in Curtis Brothers , as follows. The note repeatedly sounded is as to the necessity for protecting individual workers from union organizing tactics tinged with violence, duress or reprisal. [Emphasis supplied.] The opinion in Curtis Brothers refers to and quotes from the "Supplemental Views" to the committee report , as filed by five Senators , headed by Senators Taft and Ball. In it they indicated they would introduce 8(b) (1) (A ) and stated their purpose to be to protect employees from union tactics , such as "threats of reprisal against the employees in the course of organizing campaigns ; 31 also direct inter- ference by mass picketing and other violence." The irrelevance of the power of unions over members to the kind of coercion sought to be outlawed by 8(b )( 1)(A) was again stressed by Senators Ball and Taft on April 25, the day the section was introduced without the proviso , and was re- peated by them throughout the week's debate over the measure until its adoption on May 2. In introducing 8(b)(1)(A ), Senator Ball explained that its purpose was "to provide that where unions , in their organizational campaigns, indulge in practices [which were an unfair labor practice if engaged in by employers ] the unions shall be guilty of unfair labor practices" (LH 1018, CR 4176); and Senator Taft stated that "the men who are coerced may not have anything to do with the union at all. . . . Sometimes the union has not even gotten into the plant, when they begin to coerce employees of the plant ." (LH 1030 , CR 4144.) The coercive tactics which they consistently cited as the target of 8(b)(1)(A) were of the kind recited in the "Supplemental Views" previously referred to, and which as they stated there and on the Senate floor, unions were known to use in organizing campaigns . Throughout the week's debate, the instances cited covered the following : ( a) Threats to beat up an employee or his family ; 32 (b) threat of economic reprisal upon nonmembers through the control over jobs they would achieve after becoming organized and getting a contract , such as causing the em- ployee to be discharged by denying him membership 33 or having him pay a steeper initiation fee in order to keep his job; 34 and ( c) mass picketing .35 Added to the sponsor 's omission of any allusions to unions ' internal powers over members in their recital of the kind of coercion sought to be reached by the proposed section were their express declaration that these matters were irrelevant to its pur- pose and explicit disavowals of any intention to have them interfered with there- under. By way of background : as previously indicated, the purpose of the bill to leave untouched the control of unions over their memberships had already been pointed out by the Senate committee in the portion of the report, explaining the 8(a)(3) and 8 (b)(2) strictures on union-security contracts in the bill as it stood (supra, footnote 30). But the introduction of 8(b )( 1) (A) touched off expressions of apprehensions by various Senators that its language could be construed as inter- fering with the internal affairs of unions; and in disputing this last, Senator Taft, even before the proviso was introduced , stressed that under the scheme of the bill as a whole, unions were left free in respect to their internal affairs.36 31 All emphasis is supplied unless otherwise indicated 12 Ball: at LH 1018 (CR 4136) ; LH 1021 (CR 4139). Taft: at LH 1205-1206 (CR 4142). 33 Taft: at LH 1025 (CR 4142) ; LH 1029 (CR 4144) ; LH 1205-1206 (CR 4562) Ball: at LH 1203 (CR 4560). 34 Taft: at LH 1205-1206 (CR 4562) 3 Taft. at LH 1205-1206 (CR 4562). Ball • at LH 1203. 38 On April 25 in the specific context of discussion of 8(b) (1) (A), he stated (LH 1030, CR 4144) : Even in this bill we do not tell the unions how they shall vote or how they shall con- duct their affairs . He repeated it on April 29, this time in the context of a discussion of the strictures of 8(a) (3) and 8(b) (2) on union-security contracts (LH 1097, CR 4318) : The pending measure does not propose any limitation with respect to the internal affairs of unions They still will be able to fire any members they wish to fire, and they still will be able to try any of their members All that they will not be able to do, after the enactment of this bill is this If they fire a member for some reason other than nonpayment of dues they cannot make his employer discharge him from his job and throw him out of work. That is the only result of the provision under discussion. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1127 After the proviso was introduced, Senator Ball twice expressed his approval of it as confirming the intention of the sponsors of 8(b) (1) (A) all along not to have it touch any aspects of the union-member relationship Upon introduction of the proviso by Senator Holland on April 30, Senator Ball stated (LH 1141, CR 4400) : Mr. President . . . I merely wish to state to the Senate that the amendment offered by the Senator from Florida is perfectly agreeable to me. It was never the intention of the sponsors of the amendment to interfere with the internal affairs of organization of unions. The amendment of the Senator from Florida makes that perfectly clear. And, on May 2, the day of the vote on the measure, Senator Ball repeated that dis- claimer at the conclusion of his exposition of the type of union tactics sought to be reached. He said (LH 1200, CR 4559) : That modification [the proviso] is designed to make it clear that we are not try- ing to interfere with the internal affairs of a union which is already organized. All we are trying to cover is the coercive and restraining acts of the union in its effort to organize unorganized employees. With the scope of the contemplated prohibition of 8(b) (1) (A) as thus explained by the sponsors, it would seem clear, as was the case with the conduct involved in Curtis Brothers, that 8 (b) (1) (A) had not been intended to reach the conduct here involved, even without the proviso. This is not because an internal union discipline is not coercive, for that is the purpose of all disciplines, but because, as its sponsors indicated, it was not the kind of coercion with which 8(b)(1)(A) was concerned. With the prohibiting clause so understood, the Charging Parties' contention that the proviso is not a limitation on 8(b) (1) (A) would be correct only in the sense that a nonexistent prohibition needs no proviso to limit it. But if, contrary to the in- tention of its own sponsors, 8(b) (1) (A) were to be interpreted to have the broader reach contended for here, then the proviso is a limitation upon it, for a proviso is by its very nature a limitation upon the prohibition to which it is attached. And it would seem rather clear that the proviso, explained by Senator Ball as confirming the intention not to interfere with the "internal affairs of unions" is a generic ex- pression intended to immunize the prescription of union rules upon members and the use of internal discipline in enforcing them, without regard to the content of the rule and without regard to whether the discipline be fines, suspension, or expulsion. Of course, the coercive tactics which unions are forbidden under 8(b) (1) (A) to use in order to force employees to become members they are also forbidden to use in order to force employees to fall into line with a given union policy, whether upon members or nonmembers Just as they may not coerce employees into membership by threats of violence, or economic reprisal affecting their tenure, or mass picketing, so may they also not use these measures to force employees to follow a union rule or policy. Board lore is replete with instances in which unions have been found guilty of violating 8(b)(1) (A) for resorting to enforcing measures which stepped out of the confines of internal disciplines and into the forbidden area as marked out by its sponsors 37 The forbidden coercive conduct is the use of enforcement measures which go be- yond the unions' power over members as members. It does not lie in the fact that the rule or policy sought to be enforced purports to restrict members' conduct in their role as employees, in the form of rules against strikebreaking or work rules. That kind of rule or policy is the implicit premise of the very existence of a labor organization. The collective withholding of their labors is the resource which em- ployees bring to the negotiating table to match the bargaining power of the employer. The group may not demand of the individual that he join them in this collective activity as a condition of his remaining an employee; but the Act leaves untouched the group's requiring that he do so as a condition of his remaining one of their members, and if as part of the compact, he has submitted to certain internal disciplines in effectuation of this requirement, that too is left untouched by the Act, and is a subject of the contract law of the State. s' Accenting this demarcation is the pair of cases exemplifying a union's immunity under 8(b) (1) (A) in merely demanding of an employee payment of membership obligations in excess of dues and initiation fees as limited by 8(a) (3) and 8(b) (2), without threatening discharge (National Lead Company Titanium Division, 106 NLRB 545), and its liability thereunder in threatening to cause the discharge of the employee for not paying the excess, even though adjudged in a State court as validly owing the Union under its bylaws Ifarlin Rockwell Corporation 114 NLRB 53. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So it is not the rule but the method of enforcing it that controls . The rule ex- presses an end, not a means, and as the Board put it in an early case cited by the Supreme Court in Curtis Brothers to exemplify the correct interpretation-"in that section [8 ( b) (1) (A) ], Congress was aiming at means, not ends." Perry Norvell, 80 NLRB 225, 238-239 (1948). Proponents have pointed to nothing in the legislative history which supports their position that the coercion can inhere in the rule which is sought to be enforced as opposed only to the method of enforcing it, or any other requirement of a union. They have cited an extract from a long statement by Senator Taft, at the conclusion of the debate over the measure , in which he recapitulated the coercive organizational measures sought to be outlawed by 8(b )( 1)(A). The extract as quoted and as isolated from its context , reads: (LH 1206, CR 4562) : The effect of the pending amendment is that the Board may call the union before them , exactly as it has called the employer , and say, "Here are the rules of the game You must cease and desist from coercing and restraining the em- ployees who want to work from going to work and earning the money which they are entitled to earn The Board may say, "You can persuade them, you can put up signs, you can conduct any form of propaganda you want in order to persuade them, but you cannot, by threat of force or threat of economic re- prisal prevent them from exercising their right to work." Omitted by proponents is the portion of the statement immediately preceding the extract, which gives it its meaning. Senator Taft , at the request of Senator Salton- stall, had been citing the kind of coercion sought to be outlawed by 8(b ) (1) (A) He mentioned the tactics previously summarized , and the quoted extract came after he mentioned the tactic of mass picketing , his point being that when a union resorts to that kind of tactic , "the effect of the amendment " is the one set forth in the quoted extract . The Senator's immediately preceding description of that tactic shows that that was what the "right to work" expression had reference to, thus ( LH 1205, CR 4562) Let us take the case of mass picketing , which absolutely prevents all the office force from going into the office of a plant That would be a restraint and co- ercion against those employees, an interference with their rights to work . . . . . . In some small plant in which the labor [sic ] is not organized, a man comes and says, "I represent the employees . . . In any event , they do not reach an agreement , and the man immediately calls a strike , he pickets the plant, he keeps out the employees When the employer goes to the Board, the Board says , ". . We have nothing to do with that under the Act." The effect of the pending amendment is that the Board may call the union before them (etc.). The suggestion of the proponents that although expulsion may be a permissible form of discipline under the proviso, a fine is not , is inherently contradictory. The same literal construction which would exclude a fine from the proviso because Webster's does not include a fine in its definition of "rules with respect to the acquisi- tion or retention of membership" would have to exclude expulsion as well , because it is not embraced within the literal scope of the term "prescribe ." If the right to "prescribe" implicitly embraces the right to enforce , as it does , then there can be no valid distinction based on the kind of internal enforcement measure used . The por- tions of the House bill purporting to regulate unions' disciplinary powers indicate that Congress was well aware , as Professor Clyde Summers has put it in his study of long-existing trade union practices in that field ,38 that "the three common types of penalties for offenses are fines , suspension for a limited period, and expulsion," and "the most common form of penalty is a fine." Indeed, long before the enactment of Taft-Hartley , the Federal judiciary had recognized the disciplines of "fine, suspension , or expulsion for an infraction of union rules" as valid aspects of a "purely voluntary" relation of "membership in the union." 39 Highlighting the anomaly here of any contention that Congress took a more baleful view of a fine than it did of expulsion , is that the nonsurviving provisions of the House bill placed more stringent restrictions on the substantive grounds for the penalty of expulsion than that of a fine . The only restrictions on the substantive grounds for a fine were those set forth in 8(c ) ( 5) of the bill , forbidding its use as a penalty for member's exercising basic civil rights, such as freedom of speech, as- sembly, and exercise of the voting privilege, of the kind embodied in the "Bill of 11 Summers , "Disciplinary Powers of Unions. " 4 Ind & Lab Eel Rev 15, 26 (1950) 39 Barker Painting Co v Bro of Painter& , 23 F. 2d 742 (C.A D.C , 1927). LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1129 Rights" portions of the Labor-Management Reporting and Disclosure Act enacted by Congress 12 years later (supra, footnote 20). The restrictions on the substantive grounds for expulsion, under 8(c)(6) of the House bill were considerably greater. But neither of these provisions made it impermissible for a union to discipline a member for infraction of a work rule of the kind involved here or in Minneapolis Star. To accept the proponents' interpretation of 8(b) (1) (A) is thus to conclude that despite the express disavowals by its Senate sponsors of any intention to inter- fere with the internal affairs of unions, and despite their counsels having prevailed over that of the House so as to strike down all provisions contrary to such disavowals, the result of the ultimate enactment was to impose more stringent restrictions on union disciplines than even those embraced in the rejected House measure. (6) Further significantly bearing upon the subject is the action taken by Congress after the enactment of the Taft-Hartley law. This has two relevant aspects: first is its action, under title I, the "Bill of Rights" portion of the Labor-Management Reporting and Disclosure Act of 1959, in enacting for the first time some Federal protections for the rights of union members as members; second was its action, in the course of amending our Act under title VI of the same law, in leaving untouched the interpre- tation of the proviso under the controlling doctrine which is here challenged. Concerning the first: As stated before, no one had disputed the correctness of the Board's consistent interpretation, upheld by the Seventh Circuit in ANPA, supra, footnote 6, and reaffirmed by the Supreme Court in Gonzalez, that the Act gave no protection to members against union conduct as members. As two noted com- mentators put it, "the statute protects employment rather than union membership." 40 Because of this and the inadequacies of the protection given by some States to union members as members, there was strong agitation that Congress enact protections for members against arbitrary exercise of union power. The abuses were not thought to inhere in the substantive grounds for discipline exemplified by the kind of rule involved here, or in Minneapolis Star, or even ITU. They concerned the use of dis- ciplinary powers to penalize the members for exercising the rights of free speech and assembly, of the kind ultimately protected in the "Bill of Rights" portion of Labor-Management Reporting and Disclosure Act, and the absence of procedural safeguards in imposing any discipline, as ultimately guaranteed in the same measure.41 Yet Congress hesitated to even go that far until its reluctance "to re-enter such a hazardous political mine field" 42 was overcome by the "much publicized exposes of the McClellan Committee"; 43 and, as observed by the incumbent General Counsel in an informative article on the legislative history of the "Bill of Rights" portion of the Labor-Management Reporting and Disclosure Act, "without the investigations by the McClellan committee] it seems extremely doubtful that there could have been compelling pressure in Congress for any type of legislation relating to internal union affairs " 44 Yet even that initial Federal venture into the internal union rela- tionship did not penetrate it with the depth here claimed for 8(b) (1) (A); it enacted due process protections for any member before he "may be fined, suspended or expelled" (§ 101(a)(5)) [emphasis supplied]; and forbade the use of these dis- ciplines to penalize members for exercising the rights of "freedom of speech and assembly" (§ 101(a)(2)). And the remedy given for these rights was not by re- course to the Board, but by private suit in the district courts (§ 102). As the Su- preme Court stated in Curtis Brothers, the later action of Congress in specifically legislating upon the type of subject here at issue is relevant in the consideration of a contention which seeks "to extend the reach of the earlier Act's vague language to the limit, which, read literally, the words might permit." "Aaron and Komaroff, "Statutory Legislation of Internal Union Affairs," 44 Ill L.R. 425, 446-447 (1951) s Sugerman, "The Right of the Individual Employee Under the Taft- Hartley Act," NYU 3d Conf on Lab, 357-358 (1950) 41 Aaron and Komaroff, op. cat, supra, footnote 40; Summers, "Legal Limitations on Union Discipline," 64 Harv L.R. 1049, 1050 (1951). Summers, "The Role of Legislation in Internal Union Affairs," 10 Lab. L J. 155-158 (1959) ; Aaron, "The Labor Management Reporting and Disclosure Act of 1959," 73 Harv L.R. 851-852 (1960). 42Note: "Rights of Union Members: The Developing Law Under the Labor-Management Reporting and Disclosure Act," 48 Va. L R 78, 79 (1962) 43lbid, Holcombe, "Federal Government and Union Democracy," NYU 13th Ann. Conf. on Lab. 247, 248 (1960) Rothman, "Legislative History of the Bill of Rights for Union Members," 45 Minn. L.R 199 (1960). Cox, "Law and the National Labor Policy" (1960), 87 44 Rothman, op. cit., supra, footnote 43, at 204. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of even more decisive significance under traditional canons of interpretation, is the second phase of Congress' action in 1959-that dealing with the amendments to our Act embodied in title VI of the Labor-Management Reporting and Disclosure Act. The purpose of these amendments, as frequently stated on the floors of both Houses and in the reports on the legislation, was to plug up "loopholes" in the Taft- Hartley law, some being thought to result from disputed interpretations of various of its provisions by the Board and the courts. Although the investigation preceding the enactment of the Labor-Management Reporting and Disclosure Act went deeply into the union-member relationship, no one, as stated, questioned the interpretation of the proviso, as embodied in the Board's and the Seventh Circuit's decisions in the ITU and ANPA cases (supra, footnote 6) and the Board's decision in Minneapolis Star (supra, footnote 7). Nor did Congress. While plugging up "loopholes" in other respects, it did not change the interpretation thus authoritatively given to the proviso, that under it, a union did not violate 8(b) (1) (A) by using its internal dis- ciplinary powers to enforce a rule governing how or when a member may work, whether by expulsion, as in ITU, or fine, as in Minneapolis Star. Under well- established doctrine, "it is a fair assumption that by [leaving] without pertinent modification the provision with which we here deal, Congress accepted the con- struction placed thereon by the Board and approved by the Courts." N.L.R.B. v. Gullet Gin Company, Inc., 340 U.S. 361, 366 (1951). (7) We come to Allen Bradley. That case, decided by the Seventh Circuit in 1961, in- volved, as previously stated, not the issue of whether a union had engaged in an unfair labor practice, but whether an employer had done so. The employer had refused to sign any contract with the Union, unless it included an agreement not to fine any member for refusing to participate in a strike. In its own decision 45 the Board, on the ground that the Union's fining power was a part of its internal affairs within the immunity of the 8(b) (1) (A) proviso, held that by insisting upon the clause in question the employer had defaulted in its bargaining obligation under Section 8(a)(5), under the doctrine laid down by the Supreme Court in Borg Warner.46 The court in Allen Bradley thought the Board's conclusion did not follow from its premise: it deemed Borg Warner not to be controlling, because granting the union's fining power to be immune under the proviso, the employer had an interest in the subject, which it could seek to protect by the clause it proposed, the court seeing it as the equivalent of a no-strike proposal, which would have been con- cededly proper. That, as the court observed, was all it needed to decide. It said: This case might well be disposed of on the basis of what we have said. But although it had thus disposed of the issue before it, it nevertheless went on to address itself to the Board's premise in the manner which accounts for this proceed- ing. It said: However, the Board strenuously insists that the Company proposal was not a subject for bargaining because the Union in its coercive activities was protected under the proviso in Sec. 8(b) (1) (A), which authorizes the Union to pre- scribe its own rules "with respect to the acquisition or retention of membership therein." True, the fines which the Union had previously imposed and about which the Company was concerned were authorized by Union rule. Even so, there is nothing in the situation before us which indicates that such fines bore any relation to the "acquisition or retention of membership." The Board evi- dently recognizes this because it argues, "imposition of the fine is merely a step in determining membership status; non-payment leads to expulsion." We assume that a union had broad powers in prescribing rules relative to the acquisition and retention of its members. However, that power, in our view, is not absolute. It goes beyond any permissible limit when it imposes a sanction upon a member because of his exercise of a right guaranteed by the Act. Co- ercive action, whether by way of fine, discharge or otherwise, which deprives a member of his right to work and his employer of the benefit of his services, can- not be said to relate only to the internal affairs of the union. [Emphasis supplied.] 46Allen-Bradley Company, 127 NLRB 44 ( 1960). 46 N.L R B. v. Wooster Division of Borg Warner Corporation , 356 U S 342 (1958). There an employer had been held to have unlawfully refused to bargain in insisting on an agreement by the union not to strike except upon authorization by the membership at a meeting duly called for that purpose LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1131 The component elements of the foregoing statement have already been treated in our discussion of the proponents' argument, which adopts them. Thus, as we have seen, the discipline of a fine is no less a part of a union's internal affairs than that of expulsion; and, as earlier mentioned, the same court, 10 years earlier in ANPA (supra, footnote 6), had held the discipline of expulsion to be immune on the premise that "the proviso in § 8(b) (1) (A) permits unions to enforce their internal policies upon their membership as they see fit." The statement that a union "goes beyond any permissible limit when it imposes a sanction upon a member because of his exercise of a right guaranteed by the Act" overlooks the distinction, stressed by the Supreme Court in the Gonzalez case, (supra, footnote 17), between a member's rights as an employee, which the Act protects, and his rights as a member, which it does not. Under that distinction, what controls is not the nature of the rule for which the sanction is imposed, but the nature of the sanction. If the sanction reaches into the member's status as employee, as a discharge would do, the Union, for reasons already explicated, has stepped outside the immunized preserve of internal affairs and is liable under the Act; on the other hand, if the sanction is limited to the exercise of the union's dis- ciplinary powers, whether in the form of expulsion, suspension, or fine, it has stayed within it, and is immune under the 8(b) (1) (A) proviso. Also, as previously pointed out, if a sanction were to be held to lose its immunity as an internal affair because of the substantive requirement of the rule which it en- forces, a different result would have had to be reached by the court in ANPA, for there the threatened expulsion was "a sanction upon a member because of his exer- cise of a right guaranteed by the Act" and in enforcement of a rule affecting the members "right to work" in a much more drastic manner. In contrast with Allen Bradley, where the discipline enforced a rule requiring observance of an ordinary, economic strike, the one in ANPA enforced a requirement upon members to abet the union in strikes for closed-shop conditions, for engaging in which the Board held the union itself to have violated Section 8(b)(2) of the Act. One would hardly understand that the Allen Bradley dictum was intended to over- rule the holding in ANPA, since if that had been the intention, the dictum would presumably have said so and mentioned ANPA. The holding in ANPA being thus still controlling, the premise on which the court there held the sanction of expulsion to be immune under the proviso would, were the matter squarely presented for de- cision, call for the same result in respect to a fine. More particularly so in that for the interpretation it gave the proviso in ANPA, the court expressly relied on the legis- lative history, while the dictum in Allen Bradley makes no such claim. Lending added support to this conclusion is the previously mentioned presumption that Congress approved the interpretation given the proviso in the ANPA and Minne- apolis Star cases by leaving that interpretation untouched at the same time that it acted to plug up "loopholes" in the Act under the amendments thereto enacted in 1959. (8) The court's statement that a union's "power [in respect to its own rules] is not absolute" touches upon a previously discussed matter, but in a slightly varying posture. Congress, to the extent already described, has specifically charted out the restrictions it has seen fit to impose upon the power under Federal law. All else remains outside the Federal domain, and subject to State policy, as these matters are until Congress acts to bring them within the Federal purview.47 The point above may well have been blurred in Allen Bradley by the background of State court litigation described by the Seventh Circuit in its opinion, which ex- plains the reference in its dictum to "the fines which the union had previously im- posed." As recited in the opinion, during an earlier strike against the employer in question, the union had assessed fines upon members for disregarding the rule against strikebreaking and sued in the Wisconsin courts to collect them. The penalized members then filed charges with the Regional Office of the Board accusing the union of violating Section 8(b)(1)(A), and the General Counsel in Opinion F-198, dated October 28, 1957, refused to issue a complaint on the ground that the conduct of the union was immune under the proviso of 8(b)(1)(A). They then filed charges with the Wisconsin Employment Relations Board (WERB) charging the union with unfair labor practices under a provision of the Wisconsin Employment Peace Act (ch. 111 Wis. Stats.) comparable to our 8(b)(1)(A) without the proviso The 47Allen Bradley Local 1111 v. TVERB, 315 U.S 740 (1942) ; U 4.W. v WERE, 336 U.S. 454 (1949). 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD story from then on is recited in the decisions of the Wisconsin Supreme Court in Wisconsin Board v. Lodge 78, JAM, 46 LRRM 3062, and the companion case of Local 248 UAW v. Wisconsin Board, 46 LRRM 3058, both decided October 4, 1960. The WERB found that the union 's action in assessing and threatening to assess fines on members for crossing picket lines coerced them under a provision of the Wisconsin Employment Peace Act comparable , as previously stated, to our 8(b) (1) (A) minus the proviso , and issued a cease-and -desist order . After affirmance of the order by a lower Wisconsin court, the matter came up on appeal to its supreme court. That court, although expressly reaffirming its earlier holding in Woychik (supra, fotnote 16) that fines imposed by a union for violation of a rule against strike- breaking are validly collectible as debts under the "contract of membership ," reversed its lower court and the WERB, but not on the merits. It did so only on the ground of Federal preemption. The Supreme Court of Wisconsin based its conclusion of Federal preemption on an interpretation of the Board's decisions in ITU, Minneapolis Star, and also in Allen Bradley (before the Seventh Circuit's review ) as more than a holding that a union's disciplinary powers in enforcement of a rule against strikebreaking were merely immune under the proviso of 8(b) (1) (A) : the court viewed them as declarations by the Board that the disciplinary union action in those cases was affirmatively "pro- tected" thereunder , and hence had the effect excluding the State from any jurisdiction in respect to them. It expressed the opinion that the construction it was thus attribut- ing to the Board's decisions was "certainly a permissible one" because of the "intimate connection ," as the court saw it , between the power of a union "to enforce solidarity among its members [during a strike]" and its being an "effective instrument of collective bargaining ," as protected by Section 7 of the National Act. Hence, the Wisconsin court concluded that the field was federally preempted under the Supreme Court's doctrine in the Garmon case 48 to the effect that there is Federal preemption even where the activity is "arguably within the compass of sec. 7 or 8 of the [National] Act." The manner in which the Board's decision in Allen Bradley influenced the State court toward that conclusion , highlights still another distinction between Allen Bradley and a case such as this, or ITU and Minneapolis Star. Here, as in ITU and Minneapolis Star, the issue of whether a union has violated 8(b)(1)(A) is squarely presented . In contrast with these, in Allen Bradley, the Board merely considered the matter in connection with whether an employer had violated its bargaining obligation by insisting upon a clause which purported to give it control over unons ' internal disciplinary powers. This aspect of Allen Bradley led the Wisconsin court to misinterpret the intent of the Board's decisions in ITU and Minneapolis Star, and, it would appear, led both it and the Seventh Circuit to believe that the Board, in Allen Bradley at least , had equated immunity under the 8 (b) (1) (A) proviso with affirmative protection . The aspect of the Board's action which tended to create that impression was its holding to the effect that the clause proffered by the employer in Allen Bradley was offensive on the same ground as the one in Borg Warner. But in Borg Warner (supra , footnote 46) the offending clause purported to control the manner in which a union could call a strike . This last encroached upon a field excluded from employer invasion under the rights which union members enjoyed as employees under the protections of Section 7. Insofar as the Board found the clause in Allen Bradley offensive on the same basis as in Borg Warner, it conveyed the impression , however, unwittingly , that it deemed the immunity under the 8(b) (1) (A) proviso to be equivalent to an affirmative protection. The Wisconsin court so stated. It first quoted the portion of the Board's opinion in Allen Bradley, which, after stressing the immunity given unions' disciplinary powers under the 8 (b) (1) (A) proviso, the Board said: By thus intruding on rights guaranteed to Unions by the Act, Respondent's proposed clauses fell outside the scope of mandatory bargaining. The Wisconsin court then concluded: The foregoing quotations from decisions of the National Labor Relations Board make it abundantly clear that such Board interprets the proviso as having the effect of making the enforcement by a union of its own constitution and bylaws a protected activity under the Labor Management Relations Act The Seventh Circuit would appear similarly to have construed the Board 's position, since , as can be observed in the opening sentence of the Allen Bradley dictum, it introduced the discussion as one dealing with a contention that the union 's activity was "protected by the proviso of Sec. 8 (b) (1) (A)." 48 San Dieno Council v Garmon, 359 U S. 236 (1959) LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1133 Of course, the Board never intended by its decisions in ITU and Minneapolis Star to suggest that the disciplinary action in enforcement of the rules there involved were affirmatively protected under the Act, as opposed to merely being not violations thereof. Whatever basis the Wisconsin court had for any such impression because of the presumably protected character of the strikes in Minneapolis Star and Allen Bradley, in aid of which the fines were imposed, it is difficult to see how the immunity ascribed under the 8(b) (1) (A) proviso to the discipline invoked by the union in ITU could be construed as a declaration that such activity had the affirmative protection of the very statute they were intended to help flout, and which the Board held to have in fact been flouted by the strike activity itself. The ITU decision could not have been more clearly calculated to exemplify the intention of Congress, under the proviso, to chart out an area not of affirmative protection, but, as the Supreme Court described it in Gonzalez, one over which Congress "expressly denied" the assertion of power. This left a federally unentered enclave, "neither forbidden by the Federal statute, nor . . . legalized and approved thereby" (UAW v. WERB, supra, at 265, footnote 47), and, hence subject to State regulation, since "Congress has not made such . union conduct . subject to regulation by the Federal Board." Allen Bradley Local 1111 v. WERB, supra at 749, footnote 47. The intention of Congress to stay out of that field is too manifest, it would seem to me, to permit of an "arguable" interpretation of the 8(b) (1) (A) proviso as der fining an area of protection rather than one of Federal abstention. Any other conten- tion I would suggest, misconceives the manifest purpose of the 1947 statute. Its purpose was not to enact more protections for labor unions but for the first time in our industrial history, to subject their activities to Federal restriction. The proviso was not the outcome of any effort to declare an affirmative protection but to make "perfectly clear," in Senator Ball's words, the intended limits of a proposed re- striction on union conduct. The limits, as conceived by the managers of the Senate bill, whose counsel prevailed over the House, were embraced in the sharp line of demarcation between the rights of members as employees and those as members, i.e., between union's conduct outside its membership confines, which the Act undertook to regulate, and those within it, which Congress chose to stay out of. This sharp line was drawn from the very outset in the committee report on the bill explaining the restriction upon enforceability of union-security contracts, previously quoted (supra, footnote 30). The same purpose, as also previously indicated, was confirmed by the assurances of the sponsors of 8(b) (1) (A) concerning its intended limits without the proviso, and their agreement to the proviso as confirming those limits. The Senators, in response to whose apprehensions concerning the reach of 8(b) (1) (A) the sponsors gave these assurances, did not base their concern over 8 (b) (1) (A) on the possible impairment of any preexisting Federal protection of union's disciplinary powers. There is no indication that it occurred to anyone that such protection existed. They were concerned about its having the effect of outlawing conduct which was assumed never to have been reached by the Federal statute and which they feared might be interpreted as being placed under Federal regulation by 8(b) (1) (A). The assurances of the sponsors to the contrary were based on the intent of the bill as a whole not to reach into unions' internal disciplinary powers and of the intent of 8(b) (1) (A) to bar coercive tactics to which such powers were irrelevant, a matter which the proviso was intended to make "perfectly clear." And, as stated, the congressional intention not to enter the union-member relationship under our Act is manifested further by the fact, that its later limited entry into that field under the "Bill of Rights" of 1959 was accomplished by legislation specifically directed toward that end, specifically stating its scope, and specifically naming the authority (other than the Board) empowered to police the protections thus enacted. It would seem clear therefore, that those aspects of the union-member relation which had not been specifically placed within the Federal purview remained, as they always had been, subject to State law or policy.49 The Wisconsin court saw in its State board's interpretation of the Wisconsin act the kind of encroachment upon a union's traditional disciplinary powers which would impede its capacity to perform a function of the very kind which the preamble of the Federal Act approvingly envisaged for unions. It is inconceivable, however, that the proviso had any purpose of shielding that power against State encroachment, envisioned by either the sponsors of 8(b)(1)(A) or the sponsors of the proviso. 'B See Cox, "The Role of Law in Preserving Union Democracy," appearing as a chapter in Harrington and Jacobs, "Labor in a Free Society" (U. of Cal. 1959), pp 54-55: note- "Trade Unions ' Members Rights in Connection With Disciplinary Proceedings," 33 Minn L.R 156, 162 (1959). 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The latter manifestly sought to leave unions ' disciplinary powers exactly where they had been assumed to be all along , subject to State authority , where the body of law as developed in that area was one which , shall we say , unions found it not too hard to live with . 50 At any rate, they could hardly have felt the need for Federal "pro- tection" against a body of State law , under which , as Professor Summers describes it, "in upholding discipline for violation of [union work ] rules, the courts imply that the rules are within the permissible limits of union power" (supra, footnote 50, op. cit. at 1064 ). The sponsors of the proviso acted to obviate the peril, as they voiced it , to that kind of freedom which they apprehended in 8(b ) ( 1) (A) as it stood without the proviso , and the sponsors of 8(b )( 1)(A), in approving the proviso, indicated that it merely confirmed their intention from the start not to make any Federal inroads upon it-but hardly to give it Federal protection either. The various factors alluded to by the Wisconsin court in discussing the effects of its board 's decision upon a union 's capacity to perform its traditional function as a labor organization are indeed germane to the second issue before it and which it held it did not reach , namely, whether the State board had correctly interpreted the Wis- consin statute under a provision comparable to our 8 (b) (1) (A) minus the proviso, in the light of State policy , embodied in such decisions as Woychick ( supra, footnote 16), which holds a fine assessed on a member in enforcement of a rule against strike- breaking to be a valid debt under the "contract of membership ." And insofar as the Wisconsin court deems the policy of another jurisdiction affected in some way by the result, whether it be that of the Federal jurisdiction or of a sister State, that would be germane to its own determination of whether to apply its contract law in comity with the affected policy of the other jurisdiction . However, this involves not preemption but comity-the accommodation which the courts of a given juris- diction, in applying their own law, see fit to make to the interest or policy of another jurisdiction thereby affected.51 By way of example , we may assume that in passing upon the validity of the sub- stantive ground , under State policy , for a given union discipline , a court could well take a different view of the kind of rule involved in ITU, from that in Minneapolis Star or Allen Bradley. And to cite a most extreme example for the purpose only of illustrating the point , we may assume that a State court would take one view of a rule forbidding a member to try to bribe a Federal official and another of one re- quiring him to do so . And in striking the latter rule down , the State court could hardly be accused of encroaching upon the Federal domain: it would in such an instance , be applying its own law with due regard for the manner in which the policy of another jurisdiction is affected by the rule in question and the inherent offensiveness of the rule. Like factors would enter into its consideration of a union rule dealing with equivalent activity on the part of any member toward an official of a sister State. In sum, nothing in the proviso of 8(b ) ( 1) (A) is intended to extend to a union's disciplines , which have been immunized thereunder , the protection which the Act accords to the activity which the measure in question is designed to promote, such as a protected strike, as Minneapolis Star; and in like vein, nothing in it is intended to attach to the discipline the illegality of the activity thereby intended to be abetted, such as an illegal strike , as in ITU. The sole test of the immunity is not what the discipline is for, but what it is. If the discipline is internal union discipline, the immunity is complete , regardless of what it is for. If it is external and reaches out to the members ' tenure as employee or to his person , the immunity is lost, again without regard to what it is for . And in granting that immunity , Congress intended to and did chart out an area neither protected by Federal statute nor embraced within its prohibitions . By that token , that area remains subject to State law, until such time as Congress specifically acts to place it or any part thereof under Federal regulation. And, by way of final observation in any event : whether or not the Wisconsin court was right in viewing these disciplines as affirmatively protected by the Federal statute, one can hardly challenge the correctness of its underlying assumption, expressly stated in its opinion that at the very least they were not illegal under a statute, which in that court 's view went so far as even to lend itself to "certainly a permissible" in- terpretation of being protected thereunder. At any rate , whether the discipline here involved is so illegal is the only issue before us, and for the reasons stated , I find it is not. 61 Note: "Trade Unions ' Members Rights in Connection With Disciplinary Proceedings." 33 Minn. L R. 156 (1959 ). Summers, "Legal Limitations Union Discipline ," 64 Harv. L Rev 1049 (1951) 61 See 11 American Jurisprudence ( 1937 ), "Conflict of Laws," ¢ 116, et seq., at p 397, et seq. LOCAL 233, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1135 (9) This concludes the case insofar as it involves the issue raised by both proponents in common, i.e., insofar as they have requested a reexamination, which has here been made, of the doctrine of Minneapolis Star, in the light of the Allen Bradley dictum. The conclusion that the immunity of the proviso, in the light of its manifest intent, applies to all internally exerted sanctions, whether in the form of fines, suspension, or expulsion, without regard to the content of the rule thereby enforced, disposes of the basis on which counsel for the Charging Parties, at least, has urged a result different from that reached in Minneapolis Star. Government counsel go farther. Their position proposes a broader concept of our policing power over union rules than anything suggested in the Allen Bradley dic- tum-one which would mean rejecting not only Minneapolis Star, but ITU as well, and even then on a more expanded basis. Under their concept, the discipline would fail of immunity unless in enforcement of a rule, which is "reasonable." The propo- sition, as stated, is that "a union rule, even if related to the `acquisition' or `retention' of membership, must be `reasonable' to be sanctioned;" and they urge that this test would be no innovation, but one already "indicated" by two court cases of pre- Allen Bradley vintage. Perhaps the cases thus cited had best be left with the observa- tion that they do not so indicate. I have in fact, included them among the cases cited in footnote 25, supra, as illustrative of a forbidden method of enforcing a rule- that of discharge.52 But in point here are the implications of that test in the light of counsel's proposed application of it. Counsel urges that the rule here involved fails to meet their pro- posed standard in that "Respondent has not shown it has that legitimate interest in the area of production ceiling which would balance the restraint and coercion it has inflicted on members." This cuts a wide swath. First of all, the record, as appears in the factual recital, rather plainly indicates that the ceiling rule, as administered at the Employer's establishment, apart from serving as a yardstick in management's passing on griev- ances concerned with job allowances, plays an important role in negotiations con- cerned with setting the minimum hourly rate, and is also the standard employed in management's "factoring" the hourly rate raises into the piece rate. Thus, in terms of a union's traditional function of trying to serve the economic interests of the group as a whole, the Union has a very real, immediate, and direct interest in it. As to the qualifying adjective, "legitimate," I would presume it is not used in the sense of "legal," since concededly Congress has not outlawed the practice of produc- 52 They are Brotherhood of Painters, and Local 1423 Carpenters. The court, in each instance, preceded the condemnation of the discharge there resorted in enforcement of a union's job rotation rule with the expression "although the union may prescribe reason- able rules for membership and its retention . . " It is the adjective preceding "rules" on which counsel build their proposition No such issue was before the court and there is no explanation of the term. In total context, it would seem manifest the court was assuming the reasonableness of the rule to refute the union's attempted reverse applica- tion of the proposition advocated by Government counsel here--a contention that the reasonableness of the rule would justify the measure used to enforce it Apart from the above, Government counsel urge that the Board had already turned its back on the Minneapolis Star doctrine in two subsequent cases. But since these cases preceded the Board's decision in Allen-Bradley, where the Board's reaffirmation of the doctrine is the subject of the very court dictum on which this whole case turns, the doctrine would seem to have had a rapid return to grace Needless to say, the cases cited do not support counsel's view. The first case, Local No. 1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, etc. (Pardee Construction Company), 115 NLRB 120 (1956), involved coercion not upon members, but on nonmembers in the form of money extraction for a needed work card in the area, which members were not required to pay The other, The Columbus Show Case Company, 111 NLRB 206 (1955), was an 5(b) (2) discharge of employees for getting jobs without observing the union's job rotation rule The Board's 8(b) (2 ) order in that case was enforced by the court in Local 11,23, one of the two court cases mentioned at the start of this footnote. The Trial Examiner there had also found the union to have violated 8(b) (1) (A) in threatening the employees with such discharge and with a fine if they did not observe the rule, and the Board dismissed the finding because the complaint alleged no independent 8(b) (1) (A) violations Counsel construe the Board's procedural dismissal of the finding as tacit approval of its content On that theory, the refusal of a tribunal to pass upon an issue because not procedurally before it achieves stature as a decision on the merits, either way, depending on who is making the claim. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion ceilings, as, in a very limited way, it did, under Section 8(b) (6), in respect to featherbedding. If the term is intended to connote a reasonable relation to a union's traditional economic objective, the authorities on the subject, in treatises from which pertinent extracts have been reproduced in Appendix B of this report, inform us that the setting of production limits among pieceworkers is hardly new in our in- dustrial life, and that it has its roots in experience under piecework and incentive plans giving rise to apprehensions, reasonably grounded, with which such a practice is designed to cope. The practice may or may not be based on theories which all economists would endorse as having current validity, but I wonder whether that is our concern, rather than that of the legislature. And that brings us to the con- ception of our power, which is embraced in Government counsel's peroration, as follows: There is another great issue in this case. The waste of machinery and men which results from Respondent's rule prohibiting members from working is staggering. The amount of employee idleness resulting from the ceiling is not something the men themselves can endure, let alone the nation or the Company Certainly the Board is empowered to act against union arbitrariness which can lead to disaster for employees, companies, and a whole economy. The un- favorable effect of a rule limiting production and preventing employees from exercising their right to work does not stop with an individual employee, al- though that would be sufficient to find a violation in this case. It spreads to whole blocs of employees, to industries, and to our nation itself. The adverse economic consequences of Respondent's rule are enormous .8 The Board is not powerless to prevent them. 8It is respectfully requested that the Trial Examiner reconsider his ruling exclud- ing expert testimony concerning the adverse economic effects of production ceilings, and receive General Counsel's offer of proof on this subject Apart from whether the above can be said to embody a balanced appraisal of the record, I must confess to an inability to fathom the basis for the assumption that if the aversion above expressed should rub off on me or the Board, it would acquire the stature of law. I had not thought that "certainly the Board is empowered to act against" union or employer practices on the strength of its particular views concern- ing their economic desirability, or that any agency ever was so empowered, if it constitutionally could be. I had always supposed that the governmental body vested with the function of appraising and acting upon such a matter was Congress. There, if I may suggest, is the proper forum for counsel's expert. The subject of the expert's proffered testimony, as I indicated at the hearing in excluding it, is germane to a legislative inquiry concerned with recommendations for future legislation, not to an adjudicative hearing concerned with whether an existing law has been violated. The acknowledged authority on the general subject has put it in a manner which applies with even greater force to a quasi-judicial agency. He states: The judiciary should not prescribe limitations on the economic policies of unions-such limitations must be debated in the political arena and determined through the legislative process. [Summers, op cit., supra, footnote 50, at 1073.] Underscoring the irrelevance of the social appraisal of a given practice to an adjudicative proceeding is the fact that even after a committee of Congress has heard all viewpoints on a given matter and concluded that a practice is undesirable, be- tween the conclusion and the enactment there is a long and uncertain path. In point is featherbedding, to which I have alluded. In contrast with the practice here in- volved, of which I have found no mention in the record of the extended hearings in 1947 preceding the drafting of the bills, Congress heard a good deal of testimony on featherbedding.53 Yet in contrast with the House bill, which contained a per- vasive prohibition of the practice (LH 205), the ultimate enactment in 8(b) (6), as mentioned, prohibited it on the most limited basis 54 Senator Taft, in a statement which is quoted by the Supreme Court in its opinion in ANPA (supra, footnote 54) upholding the Board's conclusion that 8(b) (6) did not forbid the particular kind of featherbedding there involved, explained that "the Senate conferees . . . while not 53House Hearings , 80th Cong, 1947, vols. 1-6 (GPO 1947). 51 See American Newspaper Publishers Association v. N.L.R.B., 345 U.S. 100; N.L.R B v. Gamble, Enterprises , Inc., 345 U . S. 117. LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1137 approving of featherbedding practices," narrowed the prohibition because of the difficulty in articulating a standard, which would be specific enough in its application. Exemplifying this aspect of legislative caution still further is the limited extent to which Congress acted in 1947 upon a prime target of the legislation, secondary boycotts. Here too, as the Supreme Court noted in Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL (Sand Door & Plywood Co.) v. N.L.R.B., 357 U.S. 93, the legislation was not commensurate with the congressional aversion to the practice. It limited the prohibition solely to a union's inducement of the employees of a neutral employer to strike in order to force him to engage in such a boycott, and it enlarged the prohibition 12 years later after a plenitude of enlightening experience under the earlier legislation, yet still short of doing so to the hilt. We might conclude this aspect of our discussion by noting the applicability to our situation of the Supreme Court's observation concerning the conduct in that case, as follows: . .. The Taft-Hartley Act was to a marked degree the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the nation and the appro- priate balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy against secondary boycotts as such when, from the words of the statute itself, it is clear that those interested in such a condemnation were unable to secure its embodiment in enacted law. Rendering the above all the more pertinent to the situation before us are the explicit disavowals by the sponsors of 8(b)(1)(A), previously discussed, of their being at all "interested in . a condemnation" of the very matter which it is here contended had been outlawed thereunder. (10) Recapitulation (a) The prohibiting clause of 8(a)(1)(A), even without the proviso, was not in- tended and does not apply to the kind of coercion which results from the application of internal discipline of unions upon members in enforcement of their rules. (b) Even if 8(b)(1)(A) without the proviso were to be otherwise construed as applying to that kind of coercion, the proviso of 8(b) (1) (A), in accordance with the explanation of its purpose by the sponsors, precludes such a construction. (c) The immunity of the proviso of 8(b)(1)(A) extends to all internal union affairs. This embraces the prescribing of rules by unions with respect to the acquisi- tion and retention of membership and the employment of their internal disciplinary powers to enforce them, with no distinction as between expulsion, suspension, or fine. (d) The immunity of the disciplinary action under the proviso is not dependent upon the substantive content of the rule which it enforces. (e) The immunity thus conferred by the proviso was not intended to and does not bestow upon the action in question any affirmative protections of the Act; it merely confirms, in accordance with the intended scope of the section without the proviso, that internal union affairs do not fall within its prohibitions. (f) Whether the fines imposed by the Union here are validly collectible as debts is controlled by the law and policy of the State. From all of the above, and the entire record, I derive the following: CONCLUSION OF LAW The Union did not violate Section 8 (b) (1) (A) in assessing the fines in question, or in bringing suit in the State court to collect them. RECOMMENDATION Upon the basis of all the above and the entire record, it is hereby recommended that the complaint herein be dismissed. Nothing herein is intended to control or affect any issue in the State court litiga- tion concerning the validity of either the fine or ceiling rule under the bylaws and constitution of the Union or under such law or policy of the State as its courts might deem applicable thereto. 734-070-64-vol. 145-73 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A The relevant provisions of the National Labor Relations Act of 1935 (49 Stat. 449), as amended by the Labor Management Relations Act of 1947 ( 61 Stat. 136), are as follows: RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in section 8(a) (3). UNFAIR LABOR PRACTICES SEC. 8(a). It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective- bargaining unit covered by such agreement when made . Provided fur- ther, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the em- ployee on the same terms and conditions generally applicable to other members, or (B), if he has reasonable grounds for believing that member- ship was denied or terminated for reasons other than the failure of the em- ployee to tender the periodic dues and the initiation fees uniformly re- quired as a condition of acquiring or retaining membership; * * * * * * * (b) It shall be an unfair labor practice for a labor organization or its agents- (1) 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 or retention of membership therein . . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; [Emphasis supplied.] APPENDIX B Bibliography on Restriction of Output among Piece or Incentive Workers Millis and Montgomery, "Economics of Labor (Organized Labor)" (1945) at p. 399: Naturally, and related to the matter just discussed, piece rates have been closely associated with speeding, to which workers, whether unorganized or organized, object. The objection becomes all the stronger when management points to and uses the earnings of the fastest workers to justify its position that wages or piece rates should not be increased or that they should be reduced. LOCAL 283, UNITED AUTOMOBILE , AIRCRAFT, ETC. 1139 And associated with faster work or speeding is the greater risk of work injury and overstrain , which compositors and others formerly emphasized in their struggles to secure "straight time"; health and earning capacity must be con- served. At p. 462: A considerable part of the restriction of output by American unions has been a product of the fixing and administration of piece rates . The employers, as we have seen , may insist on cutting piece rates when they yield earnings re- garded as too high as tested by a daily wage , even, possibly , when the high earn- ings are due to the unusual application or efficiency of the workers engaged on the process . . . Years ago in the steel industry there were union rules limiting the output of certain piece workers . The chief object was to protect against rate cutting . For the same reason , it was said , the Stovemounters Union of Detroit at one time forbade its members to earn more than $4.50 per day. It was only after the Stove Founders ' National Defense Association agreed that the earnings of a molder should be paid by comparison with the kind of rates paid for other work of like kind , that the Molders ' Union agreed that "the plac- ing of a limit upon the earnings of a member should be discontinued in shops of members of the S.F.N .D.A." For a generation before the arbitration agree- ment was entered into, the molders had limited output primarily to protect piece rates and the practice continued under the agreement until clause 16 was adopted . These are only a few of the many cases that may be cited in which limitation was resorted to in order to prevent rate cutting. . . . Slichter, "Union Policies and Industrial Management" (Brookings Institution, 1941 ), at pp. 166-167: Formal limits upon output . . . are found more frequently among piece- workers than among timeworkers . At their inception the purpose of limits ap- plying to pieceworkers is . . . partly to protect the union from being weakened by jealousies and dissensions arising from the fact that some workers receive better jobs than others , partly to prevent foremen from playing favorites in assigning jobs, and partly to prevent employers from cutting liberal piece rates or from using the high earnings of some workers in an argument against a gen- eral increase in piece rates. Kennedy, "Union Policy and Incentive Wage Methods " (Columbia University Press, 1945 ) , at p. 111: For the most part workers look upon restriction of output as a general pre- ventive measure , the primary motive being to avoid cuts in existing rates or lower future rates which might result if present rates and standards were "spoiled" by high levels of production and earnings. Douty, "Wage Structures" ( Inst. of Ind. Rel., U. Cal ., 1954 ), at p. 32: A study some years ago by the Bureau of Labor Statistics of collective bar- gaining provisions relating to wage incentives points out that: Much of the opposition of workers to incentive plans is due to past experience with rate cutting and the speed -up. The claim has been made that whenever workers became adept at an operation and increased their output , and thereby their earnings , management would re -time the job and cut the rate for the op- eration so that workers turned out more with no corresponding increase in pay. Piece rates were sometimes lowered without clear justification , or on the ground that some adjustment in machinery or process had warranted a re-timing of the work. Even where rate changes were justified by some change in operation, workers often felt that a more than proportionate reduction in rates had been made. Management also would re -time jobs after workers had hit their stride and then set the new, high production level as the normal standard for base pay, resulting in a speed-up. With respect to the nature of specific union agreement provisions on wage incen- tives , this study states: Most of the detailed provisions in the agreement are concerned with estab- lishing safeguards and controls against abuse of the incentive wage principle... . 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. K. Louden (Production Manager, Glass and Closure Div. of Armstrong Cork Co.), "Wage Incentives" (1944), at pp. 29-30: The Element of Fear in the Worker's Resistance to Wage Incentives * * * * * * * This fear and its accompanying resistance to incentives usually take the fol- lowing patterns: 1. Their job will be de-emphasized to the degree that their skill and knowledge are no longer economic assets to them. 2. They will be required to work at a pace they cannot maintain without injury to their health, causing them to age prematurely. 3. There will be a reduction in the force, which will throw them out of work. 4. If they do not meet the standards every day they will either lose their jobs or be demoted. 5. The rate will be cut as production increases so that they will have to turn out more and more work for the same money. Stein, Davis, and O'rs, "Labor Problems in America" ( 1940), at p. 463: . workers have learned through bitter experience that their earnings must not mount sharply when they work on a piece basis. There have been cases where workers on a piece basis increased their production by 200 percent or more, only to discover that the high weekly earnings stimulate the employer to cut the rates. One cut in rates follows another until the workers earn no more for the new production than they did for the old. It does not take many experiences of this sort to make workers feel that it is dangerous to produce too much , even on a piece basis. Leiserson, "The Economics of the Restriction of Output," pp. 63-66, reprinted in Bakke, Kerr, and Anrod, "Unions, Management, and the Public" (2d ed. 1960), at p. 399: From the time the young worker enters on his first industrial experience and meets the mass pressure for restriction to the end of his days in the shop when he is exerting pressure on younger people to protect his earnings and his job, he works in an atmosphere charged with restriction. . . If "incentives" are dangled before him in the form of standard tasks, premiums, bonuses and other devices, he soon notices that the rate per piece goes down as the bonus or premium goes up; and he learns that the inducement is to turn out more product for each dollar of pay. When he is asked to work short-time because the company cannot use the output of the employees, or when he sees fellow workers laid off because a smaller number can turn out the amount of work the company wants, the dangers of "over-production" are forcefully brought home to him. Van De Water, "A Fresh Look at Featherbedding," Baylor Law Rev., spring 1955, pp. 139-151, reprinted in Bakke, etc., op. cit., at 401-402: Arguments in support of work restriction in specific instances include the claim that such practices are necessary to avoid substandard working conditions, technological employment, competition from those not earning their livelihood at the particular trade, unsafe working conditions (particularly in the case of railroad operation), job strain, temporary layoffs, the "speed-up," the "stretch- out" (i.e., requiring an employee to cover too many jobs or machines), rate- cutting (i.e., requiring increased production for the same amount of pay, by raising output standards once increased efficiency is induced by a wage incentive system), routinized job operations, and the anonymity resulting from the modem assembly line. * * * * * * * In opposition to work restrictions it is argued that any substantial and general increase in real wages must arise out of increases in productivity and labor unions generally lack an appreciation of management's need to increase produc- tivity in the individual concern if wages are to be raised and competitive posi- tion is yet to be maintained. It is argued that output restrictions have caused unnecessary expense and have proved a selfish deprivation of the benefits of technological improvement to the public in general, at times destroying small businessmen as competitors where "union stabilization" programs are in- volved, and hindering the opportunity which would otherwise arise for workers as a whole to be financially better off. It is contended that restrictive practices are the principal reason for the poor financial condition of the railroads in this THE BAMA COMPANY 1141 country . It is further argued that work restrictions will not prevent technological unemployment, and may indeed increase such unemployment through raising labor costs to the place where management is induced to install more labor- saving machinery.. . . See also : Lytle, "Wage Incentive Methods " ( 1942 ), ch. 2, at p . 62: "Union Attitude Toward Incentives." Dickinson , "Compensating Industrial Effort" ( 1951 ), ch. 8, "The Standard Task or Time Allowance ; Limitation of Output," pp. 126 , et seq. The Rama Company and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Local No. 103, Peti- tioner and American Bakery and Confectionery Workers Inter- national Union, AFL-CIO, Local No. 163 The Bama Company and Santos Valdez, Bertha Martinez, Vir- ginia Lara, Prudencia Perales. Cases Nos. 23-RC-1982, 23-CA- 1528, 23-CA-1528-2, 23-CA-1518-3, and 13-CA-1528-4. Janu- ary 20, 1964 DECISION AND ORDER On June 18, 1963, Trial Examiner W. Edwin Youngblood issued his Intermediate Report in the above-entitled proceeding, finding that the 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 Inter- mediate Report. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the consoli- dated complaint, and recommended dismissal of such allegations. In addition, the Trial Examiner overruled the challenges to the ballots of six employees, including Charles Loveless, and recommended that these ballots, as well as three other ballots to which challenges had been withdrawn, be opened and counted and a revised tally prepared. He further recommended that in the event the American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 163, does not receive a majority of the votes cast, according to the revised tally, the election be set aside and another election be conducted at such time as may be appropriate. Thereafter, the Intervenor, Re- spondent, and General Counsel filed exceptions to portions of the In- termediate Report, together with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- 145 NLRB No. 112.