Petitioners, union members employed by the Wisconsin Motor Corp.
on a piecework basis, were each fined and suspended by their union
(without endangering their job retention) for violating a union
rule relating to production ceilings. The union and employer had
bargained over the ceiling level, but the collective bargaining
agreement does not foreclose the employer's paying employees for
work performed over the ceiling. Petitioners refused to pay the
fines, the union brought suit in a state court to collect them, and
petitioners then initiated charges before the National Labor
Relations Board (NLRB), arguing that union enforcement of the rule
through collection of fines was an unfair labor practice. The NLRB
found no violation of the National Labor Relations Act (NLRA) and
the Court of Appeals upheld its ruling.
1. Petition for certiorari in this case, filed within 90 days of
the decree but not of the opinion, where no notice of entry of any
judgment at time of the opinion had been given petitioners, was
timely. P. 394 U. S.
2. Section 8(b)(1) of the NLRA permits a union to enforce a
properly adopted rule which reflects a legitimate union interest,
impairs no statutory labor policy, and is reasonably enforced
against union members who are free to leave the union and escape
the rule, while maintaining job security under the union shop
clause by paying dues. NLRB v. Allis-Chalmers Mfg. Co.,
388 U. S. 175
394 U. S.
3. Arguments that the union rule in this case contravened a
statutory labor policy were inadequate here. That rule did not
demonstrably impede the collective bargaining process, cause a
breach of the collective bargaining agreement, establish
featherbedding within the meaning of the statute, induce
discrimination by the employer against any class of employees, or
represent any dereliction by the union of its duty of fair
representation, and, in view of the acceptable manner of its
enforcement by reasonable
Page 394 U. S. 424
fines to vindicate a proper union concern it does not constitute
the restraint or coercion prohibited by § 8(b)(1)(A). Pp.
394 U. S.
393 F.2d 49, affirmed.
MR. JUSTICE WHITE delivered the opinion of the Court.
Half the production employees of the Wisconsin Motor Corporation
are paid on a piecework or incentive basis. They and the other
employees are represented by respondent union, which has had
contractual relations with the company since 1937. [Footnote 1
] In 1938, the union initiated a
ceiling on the production for which its members would accept
immediate piecework pay. This was done at first by gentlemen's
agreement among the members, but, since 1944, by union rule
enforceable by fines and expulsion. As the rule functions now,
members may produce as much as they like each day, but may only
draw pay up to the ceiling rate. The additional production is
"banked" by the company; that is, wages due for it are retained by
the company and paid out to the employee for days on which the
production ceiling has not been
Page 394 U. S. 425
reached because of machine breakdown or for some other reason.
If the member demands to be paid in full each pay period over the
ceiling rate the company will comply, but the union assesses a fine
of $1 for each violation, and in cases of repeated violation may
fine the member up to $100 for "conduct unbecoming a union member."
Failure to pay the fine may lead to expulsion. As the trial
examiner found, the company's complaint is not and cannot be that
"the employee, for the pay he receives, has not given the requisite
quid pro quo
in production." 145 N.L.R.B. 1097, 1120.
Rather, the question is the extent to which the group will forgo
for pay the rest periods it has bargained for, and the discipline
which the union may invoke to achieve unity toward this end which,
the trial examiner found, was
"manifestly a matter affecting the interest of the group and in
which its collective bargaining strength hinges upon the
cooperation of its individual components."
The collective bargaining contract between employer and union
defines a "machine rate" of hourly pay guaranteed to the employees.
The piecework rate, as defined by the contract, is set at such a
"the average competent operator working at a reasonable pace [as
determined by a time study] shall earn not less than the machine
rate of his assigned task. [Footnote 2
Allowances are made in the time study for setting up machinery,
cleaning tools, fatigue, and personal needs. By ignoring these
allowances or by speed and efficiency it is possible for an
industrious employee to produce faster than the machine rate. If he
does so, he is entitled to additional pay. Union members, however,
are subject to the banking procedures imposed by the union
Page 394 U. S. 426
The margin between the "machine" rate set by the contract and
the ceiling rate set by the union was 10� per hour in 1944. As a
result of collective bargaining between company and union over both
the machine and ceiling rates, the margin has been increased to
between 45� and 50�, depending on the skill level of the job. The
company has regularly urged the union to abandon the ceiling, and
has never agreed to refuse employees immediate pay for work done
over the ceiling. However, the parties have bargained over the
ceiling, rate and the company has extracted from the union promises
to increase the ceiling rate. The company opens its work records to
the union to permit it to check compliance with the ceiling; pays
union stewards for time spent in this checking activity as
legitimate union business, and banks money for union members
complying with the rule. The ceiling rate is also used in computing
piece rate increases and in settling grievances.
This case arose in 1961, when a random card check by the union
showed that petitioners, among other union members, had exceeded
the ceiling. The union membership imposed fines of $50 to $100, and
a year's suspension from the union. Petitioners refused to pay the
fines, and the union brought suit in state court to collect the
fines as a matter of local contract law. [Footnote 3
] Petitioners then initiated charges before
the National Labor Relations Board, arguing that union enforcement
of its rule through the collection of fines was an unfair labor
practice. Petitioners asserted that their right to refrain
Page 394 U. S. 427
from "concerted activities," National Labor Relations Act, § 7,
49 Stat. 452, as amended, 29 U.S.C. § 157, was impaired by the
union's effort to "restrain or coerce" them, in violation of NLRA,
§ 8(b)(1)(A). The trial examiner, after extensive findings,
concluded that there was no violation of the Act, and his findings
and recommendations were adopted by the Board, 145 N.L.R.B. 1097
(1964), whose order was enforced by the Court of Appeals for the
Seventh Circuit, 393 F.2d 49 (1968). We affirm.
We are met at the outset with the contention that the petition
for certiorari was untimely filed. In civil suits, certiorari must
be applied for "within ninety days after the entry of [the]
judgment or decree" of which review is sought. 28 U.S.C. § 2101(c).
In this case, an opinion of March 5, 1968, concluded that, "upon
presentation, an appropriate decree will be entered." A decree was,
in fact, entered on April 16, 1968. The petition for certiorari was
docketed here on July 6, 1968, within 90 days of the decree, but
not of the opinion.
In our view, the petition for certiorari was timely filed.
Petitioners here received a copy of the March 5 opinion, but were
given no notice of any entry of judgment on that date, as would be
required by Rule 36 of the new Federal Rules of Appellate
Procedure, effective July 1, 1968. Since no notice was given and it
could not have been clear to petitioners whether there was a March
5 judgment or not, we hold, without abandoning the standard that a
"judgment for our purposes is final when the issues are adjudged"
and settled with finality, Market Street R. Co. v. Railroad
Commission, 324 U. S. 548
324 U. S.
-552 (1945); FTC v. Minneapolis-Honeywell
Regulator Co., 344 U. S. 206
344 U. S. 212
(1952), that, in this case, the relevant date is that of the entry
of the decree. Cf. 73 U. S. v.
6 Wall. 153, 73 U. S. 156
Page 394 U. S. 428
Section 8(b)(1) makes it an unfair labor practice to
"restrain or coerce (A) employees in the exercise of the rights
guaranteed in [§ 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. . . ."
Based on the legislative history of the section, including its
proviso, the Court in NLRB v. Allis-Chalmers Mfg. Co.,
388 U. S. 175
388 U. S. 195
(1967), distinguished between internal and external enforcement of
union rules and held that
"Congress did not propose any limitations with respect to the
internal affairs of unions, aside from barring enforcement of a
union's internal regulations to affect a member's employment
A union rule, duly adopted and not the arbitrary fiat of a union
officer, forbidding the crossing of a picket line during a strike
was therefore enforceable against voluntary union members by
expulsion or a reasonable fine. The Court thus essentially accepted
the position of the National Labor Relations Board dating from
Minneapolis Star & Tribune Co.,
109 N.L.R.B. 727
(1954), where the Board also distinguished internal from external
enforcement [Footnote 4
holding that a union could fine a member for his failure to take
part in picketing during a strike but that the same rule could not
be enforced by causing the employer to exclude him from the
workforce or by affecting his seniority without triggering
violations of §§ 8(b)(1), 8(b)(2), 8(a)(1), 8(a)(2), and 8(a)(3).
Page 394 U. S. 429
form a web, of which § 8(b)(1)(A) is only a strand, preventing
the union from inducing the employer to use the emoluments of the
job to enforce the union's rules. [Footnote 5
This interpretation of § 8(b)(1), as the Court explained in
388 U.S. at 388 U. S.
-195, was reinforced by the Landrum-Griffin Act of
1959 which, although it dealt with the internal affairs of unions,
including the procedures for imposing fines or expulsion, did not
purport to overturn or modify the Board's interpretation of §
8(b)(1). [Footnote 6
] And it
was this interpretation which the Board followed in
and in the case now before us.
Although the Board's construction of the section emphasizes the
sanction imposed, rather than the rule itself, and does not involve
the Board in judging the fairness or wisdom of particular union
rules, it has become clear that, if the rule invades or frustrates
an overriding policy of the labor laws, the rule may not be
enforced, even by fine or expulsion, without violating § 8(b)(1).
Page 394 U. S. 430
and Marine Workers,
] the Board was concerned with union rules
requiring a member to exhaust union remedies before filing an
unfair labor practice charge with the Board. That rule, in the
Board's view, frustrated the enforcement scheme established by the
statute and the union would commit an unfair labor practice by
fining or expelling members who violated the rule.
The Marine Workers
case came here [Footnote 9
] and the result reached by the Board
was sustained, the Court agreeing that the rule in question was
contrary to the plain policy of the Act to keep employees
completely free from coercion against making complaints to the
Board. Frustrating this policy was beyond the legitimate interest
of the labor organization, at least where the member's complaint
concerned conduct of the employer as well as the union.
Under this dual approach, § 8(b)(1) leaves a union free to
enforce a properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union members who are free
to leave the union and escape the rule. This view of the statute
must be applied here.
In the case at hand, there is no showing in the record that the
fines were unreasonable or the mere fiat of a union leader, or that
the membership of petitioners in the union was involuntary.
Moreover, the enforcement of the rule was not carried out through
means unacceptable in themselves, such as violence or employer
Page 394 U. S. 431
It was enforced solely through the internal technique of union
fines, collected by threat of expulsion or judicial action. The
inquiry must therefore focus on the legitimacy of the union
interest vindicated by the rule and the extent to which any policy
of the Act may be violated by the union-imposed production
As both the trial examiner and the Court of Appeals noted, union
opposition to unlimited piecework pay systems is historic. Union
apprehension, not without foundation, is that such systems will
drive up employee productivity and in turn create pressures to
lower the piecework rate so that, at the new, higher level of
output employees are earning little more than they did before. The
fear is that the competitive pressure generated will endanger
workers' health, foment jealousies, and reduce the workforce. In
addition, the findings of the trial examiner were that the ceiling
served as a yardstick for the settlement of job allowance
grievances, that it has played an important role in negotiating the
minimum hourly rate and that it is the standard for "factoring" the
hourly rate raises into the piecework rate. The view of the trial
examiner was that
"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."
145 N.L.R.B. at 1135.
It is doubtless true that the union rule in question here
affects the interests of all three participants in the
labor-management relation: employer, employee, and union. [Footnote 10
Page 394 U. S. 432
Although the enforcement of the rule is handled as an internal
union matter, the rule has and was intended to have an impact
beyond the confines of the union organization. But as
and Marine Workers
made clear, it
does not follow from this that the enforcement of the rule violates
§ 8(b)(1)(A), unless some impairment of a statutory labor policy
can be shown.
The principal contention of the petitioners is that the rule
impedes collective bargaining, a process nurtured in many ways by
the Act. But surely this is not the case here. The union has never
denied that the ceiling is a bargainable issue. It has never
refused to bargain about it as far as this record shows. Indeed,
the union has at various times agreed to raise its ceiling in
return for an increase in the piece rate, and the ceiling has been
regularly used to compute the new piece rate. In light of this
bargaining history, it can hardly be said that the union rule has
removed this issue from the bargaining table. The company has
repeatedly sought an agreement eliminating the piecework ceiling,
an agreement which, had it been obtained, unquestionably would have
been violated by the union rule. But the company could not attain
this. Although, like the union, it could have pressed the point to
impasse, Fibreboard Paper Products Corp. v. National Labor
Relations Board, 379 U. S. 203
379 U. S.
-215 (1964), followed by strike or lockout, it has
never done so. Instead, it has signed contracts recognizing the
Page 394 U. S. 433
ceiling, has tolerated it, and has cooperated in its
administration by honoring requests by employees to bank their pay
for over-ceiling work. We discern no basis in the statutory policy
encouraging collective bargaining for giving the employer a better
bargain than he has been able to strike at the bargaining table.
Nor does the union ceiling itself or compliance with it by union
members violate the collective contract. The company and the union
have agreed to an incentive pay scale, but they have also
established a guaranteed minimum or machine rate considerably below
the union ceiling and defined in the contract as the rate of
production of an average, efficient worker. The contract therefore
leaves in the hands of the employee the option of taking full
advantage of his allowances, performing only as an average employee
and not reaching even the ceiling rate. At least there is nothing
before us to indicate that the company disciplines individuals who
work at only the machine rate or individuals who produce more but
who choose not to exceed the union ceiling. The same decision can
be made collectively by the union. Although it has agreed in the
contract to a pay scale for production in excess of ceiling, that
fact, in the context of this case, does not support an inference
that the union has agreed not to impose the ceiling or that its
action in announcing one is somehow contrary to the contract. And
if neither union nor member is in breach of contract for
establishing and adhering to the ceiling, it is equally clear that
the rule neither causes nor invites a contract violation by the
employer who stands ready to pay an employee for his over-ceiling
production or to bank it at his request.
Page 394 U. S. 434
Petitioners purport to characterize the union rule as
featherbedding, but it is hard to square this with the collective
agreement that an average, efficient employee produces at a
"machine" rate substantially below the ceiling. Beyond that,
however, Congress has addressed itself specifically to the problem
of featherbedding in § 8(b)(6), making it an unfair labor
"to cause or attempt to cause an employer to pay or deliver or
agree to pay or deliver any money or other thing of value, in the
nature of an exaction, for services which are not performed or not
to be performed. . . ."
61 Stat. 142, 29 U.S.C. § 158(b)(6). This narrow prohibition was
enacted partly because the Congress found it difficult to define
with more particularity just where the area between shiftlessness
and overwork should lie. [Footnote 12
] Since Congress has addressed itself to the
problem specifically and left a broad area for private negotiation,
there is no present occasion for the courts to interfere with
private decision. Indeed, there is no claim before us that the rule
violates § 8(b)(6). If the company wants to require more work of
its employees, let it strike a better bargain. The labor laws as
presently drawn will not do so for it.
This leaves the possible argument that, because the union has
not successfully bargained for a contractual ceiling, it may not
impose one on its own members, for doing so will discriminate
between members and those
Page 394 U. S. 435
others who are free to earn as much as the contract permits. All
members of the bargaining unit, however, have the same contractual
rights. In dealing with the employer as bargaining agent, the union
has accorded all employees uniform treatment. If members are
prevented from taking advantage of their contractual rights
bargained for all employees, it is because they have chosen to
become and remain union members. In Allis-Chalmers,
union members were subject to the discipline of an internal rule
which strengthened the union's hand in bargaining, and, in this
respect, benefited both the members who obeyed the rule and the
nonmembers who did not. The same is true here, and the price of
obeying the rule is not as high as in Allis-Chalmers.
There, the member could be replaced for his refusal to report to
work during a strike; here, he need simply limit his production and
suffer whatever consequences that conduct may entail. If a member
chooses not to engage in this concerted activity and is unable to
prevail on the other members to change the rule, then he may leave
the union and obtain whatever benefits in job advancement and extra
pay may result from extra work, at the same time enjoying the
protection from competition, the high piece rate, and the job
security which compliance with the union rule by union members
tends to promote.
That the choice to remain a member results in differences
between union members and other employees raises no serious issue
under § 8(b)(2) and § 8(a)(3) of the Act, because the union has not
induced the employer to discriminate against the member, but has
merely forbidden the member to take advantage of benefits which the
employer stands willing to confer. Those sections are not aimed at
completely internal union discipline of union members, even though
Page 394 U. S. 436
may result in the member's refusal to accept work offered by the
makes this quite clear.
The union rule here left the collective bargaining process
unimpaired, breached no collective contract, required no pay for
unperformed services, induced no discrimination by the employer
against any class of employees, and represents no dereliction by
the union of its duty of fair representation. In light of this, and
the acceptable manner in which the rule was enforced, vindicating a
legitimate union interest, it is impossible to say that it
contravened any policy of the Act.
We affirm, holding that the union rule is valid and that its
enforcement by reasonable fines does not constitute the restraint
or coercion proscribed by § 8(b)(1)(A).
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
There is a union security clause in the current contract, giving
each employee, after a 30-day waiting period, the option of
becoming and remaining a member in good standing of the union of
declining membership but paying the union a "service fee."
There is also a "day rate," lower than the machine rate, which
applies to periods in which the incentive worker has not been
producing, or has produced scrap, through no fault of the
company's. That rate is of no concern here.
Unless the rule or its enforcement impinges on some policy of
the federal labor law, the regulation of the relationship between
union and employee is a contractual matter governed by local law.
As the trial examiner put it in this case, the Board
"never intended . . . to suggest that the disciplinary action[s]
in enforcement of [union] rules . . . were affirmatively protected
under the Act, as opposed to merely being not violations
It is thus a "federally unentered enclave" open to state law.
145 N.L.R.B. at 1133.
The Board has long held that § 8(b)(1)(A)'s legislative history
requires a narrow construction which nevertheless proscribes
unacceptable methods of union coercion, such as physical violence
to induce employees to join the union or to join in a strike.
In re Maritime Union,
78 N.L.R.B. 971, enforced,
175 F.2d 686 (C.A.2d Cir.1949).
The Court has held that the "policy of the Act is to insulate
employees' jobs from their organizational rights." Radio
Officers' Union v.National Labor Relations Board, 347 U. S.
, 347 U. S. 40
(1954). As an employee, he may be a "good, bad, or indifferent"
member so long as he meets the financial obligations of the union
security contract. Thus, the Board has found an unfair labor
practice by union and employer where an employee was discharged for
violation of a union rule limiting production. Printz Leather
94 N.L.R.B. 1312 (1951). But as a union member, so long
as he chooses to remain one, he is subject to union discipline.
As part of the bill of rights of union members, the
Landrum-Griffin Act guaranteed freedom of speech and assembly
That nothing herein shall be construed to
impair the right of a labor organization to adopt and enforce
reasonable rules as to the responsibility of every member toward
the organization as an institution and to his refraining from
conduct that would interfere with its performance of its legal or
Pub.L. 86-257, Tit. I, § 101(a)(2), 73 Stat. 522, 29 U.S.C. §
Local 188, International Union of Operating Engineers,
148 N.L.R.B. 679 (1964).
Industrial Union of Marine & Shipbuilding Workers of
159 N.L.R.B. 1065 (1966).
National Labor Relations Board v. Industrial Union of Marine
Shipbuilding Workers, 391 U. S. 418
The company prefers to employ the minimum number of the most
energetic men available; a piecework pay scheme without a ceiling
could help it obtain its objective of winnowing the men and
reducing their piecework rate. Each employee, as well, has an
interest in the ceiling. A slow worker would prefer a low ceiling
to protect himself against invidious comparison with faster workers
and a possible reduction of the workforce beginning with him. A
fast worker may prefer to earn as much as possible in a day and so
desire a high ceiling or none at all. But all workers have an
interest in maintaining a ceiling to the extent that it is
necessary to prevent reductions in the piecework rate. The employer
and the union (representing the group) may seek to vindicate their
interests in bargaining. The individual member may express his
interest within the union councils in determining what the group
position shall be -- and here the trial examiner found that the
employees overwhelmingly approved of the ceiling -- or through
exercising the option of withdrawing from the union.
The trial examiner suggests that, if the ceilings did not exist,
the management might well invent them to serve its own purposes:
maintaining careful work standards and a low scrap rate, and
permitting the prediction of production output. 145 N.L.R.B. at
Senator Taft, cosponsor of the bill and Chairman of the Senate
Committee on Labor and Public Welfare, stated on the floor of the
Senate that to do more
"would require a practical application of the law by the courts
in hundreds of different industries, and a determination of facts
which it seemed to me would be almost impossible."
By contrast, he said, "we did accept one provision" which
"seemed to be a fairly clear case, easy to determine" and narrow.
93 Cong.Rec. 6441.
MR. JUSTICE BLACK, dissenting.
Because the union members collected from their employer extra
pay for piecework production in excess of that agreed upon by the
union and the company, the union has tried the members, fined them,
and suspended them from the union for one year. Section 8(b)(1) of
the National Labor Relations Act makes it an unfair labor practice
for a union to "restrain or coerce" employees in the exercise of
their right under § 7 to refrain from any or all concerted
activities. In this case, the National Labor Relations Board held
that the union did not commit an unfair labor practice in coercing
employees through fines and suspensions into refusing to engage in
this concerted activity. I dissent from affirming this order of the
Board for the reasons set out at length in my dissenting opinion in
NLRB v. Allis-Chalmers Mfg. Co., 388 U.
, 388 U. S. 199