DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machine Stone Workers, Rubbers, Sawyers and
Helpers Local 89, a/w Tile, Marble and Terraz-
zo Finishers and Shopmen International Union,
AFL-CIO (Bybee Stone Company, Inc.) and
Edward W. Najam, Jr. Case 25-CB-4143
November 24, 1982
DECISION AND ORDER
On March 16, 1981, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Machine Stone
Workers, Rubbers, Sawyers and Helpers Local 89,
a/w Tile, Marble and Terrazzo Finishers and
Shopmen International Union, AFL-CIO, its offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order.
MEMBERS FANNING and JENKINS, concurring in
part and dissenting in part:
We agree with our colleagues that Respondent
lawfully expelled four members because they voted
against it in a representation election. However,
contrary to our colleagues and for the reasons set
forth in our dissent in Blackhawk Tanning Co.,' we
would find that Respondent did not violate Section
8(b)(1)(A) by fining the four members because of
their votes. Indeed, the precise example we used
there2 to illustrate that the majority's "qualitative"
difference between fines and expulsion was illusory
and could not be effectively applied has come to
life in the instant case, for here, the expulsion re-
sults in the loss for each member of death benefits
totaling $1,700,3 while the fine amounts to $100,
which Respondent has not even made an attempt
to collect. Accordingly, we would dismiss the
complaint in its entirety.
I International Molders' and Allied Workers Union, Local No. 125. AFL-
CIO (Blackhawk Tanning Ca. Inc), 178 NLRB 208, 209 (1969).
' Blackhawk Tanning Ca, 178 NLRB at 211.
a The record shows that after his expulsion from Respondent Wallace
Prather died, and the parties stipulated that if Prather had not been ex-
pelled his estate would have received 51,700 in death benefits.
265 NLRB No. 69
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge:
This proceeding' under the National Labor Relations
Act, as amended, 29 U.S.C. § 151, et seq. (Act), was liti-
gated before me in Bloomington, Indiana, on January 28,
1981, with all parties participating throughout by coun-
sel, who were afforded full opportunity to present evi-
dence and argument, and thereafter to file briefs. A brief
was received from the General Counsel on March 2 and
from Respondent on March 9, 1981. Those, as well as
the record, have been carefully considered.
The basic issue is whether Respondent Union violated
Section 8(b)(l)(A) of the Act by fining and expelling
four of its members for voting against union representa-
tion in a Board-conducted election.
Upon the entire record' I make the following:
FINDINGS AND CONCLUSIONS
I. PARTIES; JURISDICTION
At all material times, Respondent has been and is a
labor organization as defined by Section 2(5) of the Act.
At all of those times, Bybee Stone Company, Inc., has
been and is engaged in the manufacture, sale, and distri-
bution of Indiana limestone and related products at and
from its stone quarry and mill, its principal place of busi-
ness and office in Ellettsville, Indiana. In the course and
conduct of that business in that place in the 12-month
period ending April 28, 1980, said Company sold and
shipped therefrom, directly in interstate commerce to
places outside of Indiana, merchandise valued at over
$50,000. I find that at all material times said Company
has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Facts and testimony have been stipulated, leaving only
questions of law. The case is said to be unprecedented.
Monroe County, Indiana, in which the Bybee stone
quarry as well as six others are located, covers an area of
approximately 20 by 20 miles. The Bybee quarry is locat-
ed in Ellettsville, another quarry some 7 miles distant in
Bloomington, and the others elsewhere in the county. It
is stipulated that of these seven quarries only Bybee is
ununionized and does not operate under a collective
agreement with the Union.3
On October 12, 1979, a Board-conducted election was
held in the Bybee unit to determine the employees' de-
sires for representation by the Union. At that time, four
of the seven voting unit employees were voluntary mem-
' Upon complaint of the Board's Regional Director for Region 25
issued June 30 as amended December 12, growing out of charge iled on
April 28, 1980.
2 No issue of demeanor is presented, the facts being stipulated.
I.e., Respondent Local 89, whose parent International is not a party
to this proceeding.
496
MACHINE STONE WORKERS, LOCAL 89
bers of the Union.4 The tally of ballots disclosed that all
seven voters, including the four union members, had
voted against representation by the Union. Thereafter, on
December 17, 1979, based upon charges duly preferred
under the Union's constitution and bylaws, and trial
before the Union's executive board sitting as a duly con-
stituted trial board, the four union members-Wylie L.
Lawhead, James McCammon, Wallace H. Prather, and
Russell T. Fulford-were each fined $100 and expelled
from the Union. These actions were subsequently, on
January 18, 1980, sustained and confirmed by the Union's
membership. It is conceded that none of the employees
pursued any appeal or any further avenues of correction
or redress afforded under the Union's constitution and
bylaws.
It is conceded by Respondent Union that these disci-
plinary actions were imposed solely for the reason that
the four union members had voted against union repre-
sentation in the Board-conducted election. It is also con-
ceded that the Union's acquisition of knowledge as to
how its members had voted in the election was derived
solely from the publicly disclosed official tally of ballots
(which, as indicated above, were unanimous against
union representation), and not through interrogation, in-
timidation, trickery, deceit, or any improper means-in
the Charging Party's words, "it was entirely fortuitous."
It is stipulated that the jobs of all four expelled union
members have remained unaffected by their expulsion
from the Union. It is further stipulated that the Union
has made no effort or threat to enforce the fines.
B. Determination and Rationale
There are presented here the legal questions of (1)
whether the Union's fining and expulsion of members
who voted, in a Board-conducted representation election,
against representation by the Union, where knowledge of
how they voted has been acquired by the Union through
no improper means, is violative of the Act; and (2)
whether such actions violate the Act where the affected
union members have failed to exhaust the Union's inter-
nal appellate procedures available to them.
Addressing the second question first, it would appear
that the right of union members to seek redress under the
Act from their allegedly improper discipline by the
Union may not be subordinated to internal union require-
ments. Cf. Section 10(a); N.LR.B. v. Industrial Union of
Marine & Shipbuilding Workers of America [US. Lines
Co.], 391 U.S. 418 (1968); International Union of Operat-
ing Engineers Local 400, AFL-CIO (Hilde Construction
Company), 225 NLRB 596 (1976); Operative Plasterers'
and Cement Masons' International Association of the
United States and Canada, Local No. 521 (Arthur G.
McKee & Company), 189 NLRB 553 (1971).
As to the first and basic question of whether the fines
and expulsions here were violative of the Act, counsel
indicate the point is of novel impression.
Section 8(bX)(XA), which is claimed to have been vio-
lated here, provides that:
4 None was a member under any maintenance of membership provi-
sion. Indeed, one (Lawhead) had formerly been general president of Re-
spondent Union's parent International Union, as well as business agent of
Respondent Local for many years.
(b) It shall be an unfair labor practice for a labor
organization or its agents-
(1) to restrain or coerce (A) employees in the ex-
ercise of the rights guaranteed in section 7:5 Pro-
vided, That this paragraph shall not impair the right of
a labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership
therein .... [Emphasis supplied.]
The basic legislative purpose of the Act, as set forth in
its preamble, is to attempt to reduce the imbalance in the
economic power of employees and employers by encour-
aging free association of employees to bargain collective-
ly through labor organizations of their choice. Such
labor organizations were viewed and function as poten-
tially patent collective-bargaining instrumentalities,
rather than as social clubs or burial societies, although,
to be sure, they are not precluded from fulfilling such
purposes as well. To compel, as here suggested, labor or-
ganizations to continue in their ranks as members persons
who are opposed to collective bargaining by a union
which they have designated for that purpose and to
which they have pledged their allegiance and support, is
not only inconsistent with the most fundamental tenet
and principle of trade unionism or, indeed, any kind of
organizational maintenance and integrity, but thwarts
.rather than supports the basic underlying purpose of the
Act; i.e., to foster collective bargaining.
In N.LR.B. v. Allis-Chalmers Manufacturing Co., 388
U.S. 175, 180-181 (1967), the Supreme Court pointed out
that, under the Act, collective bargaining is a corner-
stone of national labor policy, and that unions in fulfill-
ing their role in that process must be free to make their
own rules and impose discipline on members accordingly
within a "wide range of reasonableness" (388 U.S. at
180). Two years later, in Scofield v. N.LR.B., 394 U.S.
423, 430 (1969), the Court added that:
§8(bXl) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union inter-
est, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and
escape the rule.
In International Molders' and Allied Workers Union,
Local No. 125 (Blackhawk Tanning Co., Inc.), 178 NLRB
208 (1969), enfd. 442 F.2d 92 (7th Cir. 1971), it was held
not violative of Section 8(bX)(1A) for a union to expel a
member for filing a decertification petition. To the same
effect, see Tawas Tube Products, Inc., 151 NLRB 46, 47-
49 (1965). The Board has also held that it is not violative
of Section 8(b)(1)(A) for a union to expel members for
attempting to replace the union with another union (Los
Angeles County District Council of Carpenters; et at
(Hughes Helicopters, Division of Summa Corporation), 224
' Sec. 7 assures employees:
. . the right to self-organization, to form, join, or assist labor orga-
nizations, 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 ... the nght to refrain from any or all such activities....
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 350 (1976)) or for failing to assist the union in its
additional outside organizing efforts (Amalgamated Meat
Cutters and Allied Workers of North America, Local 593
(S & M Grocers, Inc.), 237 NLRB 1159 (1978)). A fortiori
it must be regarded as not violative of Section 8(b)(1)(A)
for a union to expel members who, as here, have taken
actions directly derogatory to and inconsistent with
maintenance or promotion of its representational status in
the very unit involved.
It is contended that to permit the Union to expel mem-
bers for the way they voted in a Board-conducted elec-
tion would impair the secrecy of their ballot, infringe
upon the right to vote against union representation, and
interfere with the Board's election processes. Under the
conceded circumstances of this case, I do not agree. In
no way was the secrecy of the ballot here impaired. The
voters cast secret ballots. The fortuitous coincidence that
they all voted the same way, the result being apparent
from the officially published tally, does not detract from
the secret manner in which their ballots were cast. It
could not be seriously argued that such a fortuitous out-
come requires the election to be set aside because its "se-
crecy" has been compromised. The election processes of
the Board are not cognizably flawed when it opens a
single determinative challenged ballot, or multiple deter-
minative challenged ballots of given individuals and
those ballots all turn out to have been cast the same way.
Nor was there any infringement of the right of any
voter, or restraint of the same right of any future voter,
to vote as he pleased or may hereafter please. Union
members could and may hereafter vote against represen-
tation by their own Union-but they may not, if their
vote is self-disclosed or otherwise becomes known
through means neither unlawful nor improper, insist on
their right to remain members of the Union. Nor has the
Board's election process in any way been interfered with
through the expulsions here. Respondent Union conced-
edly having in no way been involved in wrongdoing or
impropriety in discovering how its members cast their
votes, the case presented is essentially no different from
that of a union member who is expelled for campaigning
against union representation while insisting he has the
right to continue to belong to the union. If persons op-
posed to representation by their own union have the
right to insist on continued membership in the union, it
would render meaningless the proviso to Section
8(b)(1)(A) explicitly preserving to unions the right to
prescribe the qualifications of their own membership.6
Although the Board has held expulsion from union
membership under the proviso to Section 8(b)(1)(A) not
violative of the Act, it has nevertheless held imposition
6 Clearly distinguishable are cases, cited by the General Counsel,
where a union disciplines a member for filing an unfair labor practice
charge (N.LR.B. v. Industrial Union of Marine A Shipbuilding Workers,
391 U.S. 418 (1968)) or encouraging others to do so. (Philadelphia Moving
Picture Machine Operators' Union, Local 307. .A. TSE. (Velio lacobucci),
159 NLRB 1614 (1966), enfd. 382 F.2d 598 (3d Cir. 1967)), or for refus-
ing to participate in an unprotected strike (Local No. 18 International
Unions of Operating Engineers (B. D. Morgan d Company, Inc.), 205
NLRB 487 (1973), modified 503 F.2d 780 (6th Cir. 1974); Glaziers Local
Na 1162, affiliated with the Brotherhood of Painters etc. (Tusco Glass,
Inc), 177 NLRB 393 (1969)), since such disciplinary actions unlawfully
impede access to the Board's processes or seek to compel union members
to engage in illegal activity.
of a fine to be violative. International Molders' and Allied
Workers Union, Local No. 125 (Blackhawk Tanning Co.,
Inc.), 178 NLRB 208 (1969), enfd. 442 F.2d 92 (7th Cir.
1971); Independent Shoe Workers of Cincinnati, Ohio (The
United States Shoe Corporation), 208 NLRB 411 (1974).
In the instant case, the fines were coupled with the ex-
pulsions, but only the expulsions were carried out and
the fines remain a dead letter. It is stipulated that the
Union has neither enforced nor threatened to enforce the
fines. In Independent Shoe Workers of Cincinnati, Ohio
(The United States Shoe Corporation), supra, the Board
held it to be violative of Section 8(b)(1)(A) for a union
to fine its members for soliciting union representational
cards for a rival union to support the filing of a Board-
conducted certification election. To the same effect, see
Local 6306, Communication Workers, AFL-CIO (Vactec,
Incorporated), 212 NLRB 768 (1974), enfd. 519 F.2d 447
(8th Cir. 1975). Likewise, in Tool and Die Makers Lodge
No. 113, International Association of Machinists and Aero-
space Workers, AFL-CIO (Midwest Dental Division of
American Hospital Supply Corporation), 207 NLRB 795
(1973), the Board held it violative of Section 8(b)(l)(A)
for a union to fine a member who had filed a deauthori-
zation petition. But under Vactec, Meat Cutters (S & M
Grocers), Blackhawk, and other cases cited supra, it
would not have been violative of Section 8(b)(1)(A) for
the union to have expelled those members, rather than to
have fined them.7
In this posture of the decided cases, I am constrained
to conclude that, although Respondent Union's actions in
expelling its members did not violate Section 8(b)(1)(A),
the lesser discipline of fining them did violate that sec-
tion. By way of added justification to support this result
here, it may be observed that although the proviso to Sec-
tion 8(b)(1)(A) permits unions to set their own terms of
membership, since here the four members in question
were unconditionally expelled, the fines simultaneously
imposed may hardly be viewed as conditions "with re-
spect to the . . . retention of membership." (Section
8(b)(1)(A).) Moreover, notwithstanding Respondent's
failure to press for their collection, those fines may still
theoretically be attempted to be pursued to collection, or
to bar the persons against whom imposed from reentry
into the Union, if otherwise deemed appropriate, until
their liquidation. Furthermore, unless erased, their impo-
sition may well be regarded as having a continuingly
hovering coercive or restraintful impact or potential
7 It is to be observed, however, that in Meat Cutters (S d M Grocers),
supra, the Board, by 3-to-2 vote, dismissed the complaint although the re-
spondent union had written its members that it would discipline them,
"including but not limited to expulsion" (237 NLRB at 1159), if they re-
frained from assisting or actively opposed its attempted organizational ac-
tivities. The Board there rationalized that "in the present case, the Re-
spondent's threat of a fine was aimed not at deterring members from in-
voking the Board's procedures, but at requiring its members to support
the organizational effort." 237 NLRB at 1161. CC. also Minneapolis Star
and Tribune Company, et al., 109 NLRB 727 (1954) (500 fine of union
member for failing to picket or attend union meetings during strike held
not violative of Sec. 8(bXIXA)); and N.LR.B. v. Local No. 18 Interna-
tional Union of Operating Engineers AFL-CIO [B. D. Morgan J Co.], 503
F.2d 780 (6th Cir. 1974) (fine, as well as expulsion, held proper by court,
modifying Board decision, holding neither proper).
498
MACHINE STONE WORKERS, LOCAL 89
against those eligible to vote in any future Board-con-
ducted election.
Upon the basis of the foregoing findings and the entire
record, I state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By expelling from its membership its members
Wylie L. Lawhead, James McCammon, Wallace H.
Prather, and Russell T. Fulford, under the circumstances
found in section II,A, supra, Respondent did not violate
Section 8(b)(IXA) of the Act.
3. By fining each of said members, under the circum-
stances found in section II,A, supra, Respondent commit-
ted unfair labor practices in violation of Section
8(b)(1)(A) of the Act.
4. Said unfair labor practices have affected and, unless
permanently restrained and enjoined, will continue to
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Respondent, having been found to have engaged in
unfair labor practices in relation to fining, but not in ex-
pelling, its members, should be required to desist from
such fining practices, to expunge from its records the
fines here imposed, to make no effort to enforce them, to
notify the fined individuals, and to post a notice to its
members to that effect. In order to guard against a po-
tentially serious, while reasonable and understandable,
misapprehension or misunderstanding by Respondent's
members of the existing technical legal rule that although
they may not lawfully be fined for conduct inconsistent
with loyalty to the Union they may nevertheless lawfully
suffer the greater penalty of being expelled for it, the
posted notice to members should make that danger clear
to them. And Respondent should report to the Board's
Regional Director its compliance with these require-
ments.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, there is hereby issued the following recom-
mended:
ORDER s
The Respondent, Machine Stone Workers, Rubbers,
Sawyers and Helpers Local 89, a/w Tile, Marble and
Terrazzo Finishers and Shopmen International Union,
AFL-CIO, its officers, representatives, and agents, shall:
1. Cease and desist from fining or imposing fines upon
its members, or threatening to do so, because of the fact
that such members vote or indicate they have voted or
will vote against representation by the Union in any elec-
tion conducted by the National Labor Relations Board;
without prejudice, however, to the Union's right to expel
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
such members from its membership or otherwise to take
action lawful under the proviso to Section 8(b)(IXA) of
the National Labor Relations Act, as amended, based
upon information lawfully obtained by the Union.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Forthwith remit, cancel, and expunge the fines im-
posed by the Union's executive trial board on or about
December 17, 1979, and confirmed by the union mem-
bership on or about January 18, 1980, upon Wylie L.
Lawhead, James McCammon, Wallace H. Prather, and
Russell T. Fulford; make no attempt to enforce or col-
lect any thereof; and notify the foregoing individuals by
registered or certified mail to that effect.
(b) Post at Respondent's business offices, union halls,
and meeting places copies of the attached notice marked
"Appendix." 9 Copies thereof, on forms provided by the
Board's Regional Director for Region 25, shall be duly
signed and posted immediately upon receipt thereof, and
maintained for 60 days thereafter in conspicuous places,
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that, in all respects not
herein expressly found to have constituted a violation of
the Act, and specifically in regard to the expulsion of
Wylie L. Lawhead, James McCammon, Wallace H.
Prather, and Russell T. Fulford from Respondent
Union's membership, the complaint herein, as amended,
be and it is hereby dismissed.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fine or threaten to fine any of our
members for voting against union representation in
any election conducted by the National Labor Rela-
tions Board to determine employees' representation-
al desires; without, however, impairing our right to
expel from our membership (or otherwise to exer-
cise our right, as provided by Section 8(bXIXA) of
the National Labor Relations Act, to prescribe our
own rules with respect to the acquisition or reten-
tion of membership in our Union) any of our mem-
bers voting against representation by our Union,
where our knowledge of such voting has not been
obtained in an unlawful manner.
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL cancel and expunge from our records
the fines we imposed on December 17, 1979, and
January 18, 1980, on our expelled former members
Wylie L. Lawhead, James McCammon, Wallace H.
Prather,/and Russell T. Fulford, for so voting; WE
WILL make no attempt to enforce or collect any of
those fines; and WE WILL notify them by mail to
that effect.
MACHINE STONE WORKERS, RUBBERS,
SAWYERS AND HELPERS LOCAL 89, A/W
TILE, MARBLE AND TERRAZZO FINISHERS
AND SHOPMEN INTERNATIONAL UNION,
AFL-CIO
500
