The adjudication by the National Labor Relations Board (NLRB)
under § 8(b)(1)(A) of the National Labor Relations Act of an unfair
labor practice allegedly committed by a union does not include
authority to determine whether the amount of a disciplinary fine
levied by the union against a member is reasonable, the issue being
one of internal union affairs over which the NLRB exercises no
jurisdiction. Pp.
412 U. S.
71-78.
148 U.S.App.D.C. 119, 459 F.2d 1143, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER,
C.J., filed a dissenting opinion,
post, p.
412 U. S. 78.
DOUGLAS, J., filed a dissenting opinion, in which BURGER, C.J., and
BLACKMUN, J., joined,
post, p.
412 U. S.
79.
Page 412 U. S. 68
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented in this case is whether the National
Labor Relations Board is required by § 8(b)(1)(A) of the National
Labor Relations Act [
Footnote
1] to inquire into the reasonableness of a disciplinary fine
imposed by a union upon a member when the Board exercises its
admitted authority under that section to determine whether the fine
otherwise constitutes an unfair labor practice. The Board held that
the validity of union fines under the Act does not depend on their
being reasonable in amount.
Booster Lodge No. 405, 185
N.L.R.B. 380, 383 n. 16, 75 L.R.R.M. 1004, 1007 n. 16 (1970). On
petition for judicial review of this determination, the Court of
Appeals held that an unreasonably large fine is coercive and
restraining within the meaning of § 8(b)(1)(A), and remanded the
case to the Board with directions to consider "questions relating
to the reasonableness of the fines imposed by the Union."
Booster Lodge No. 405, International Association of Machinists
v. NLRB, 148 U.S.App.D.C. 119, 137, 459 F.2d 1143, 1161
(1972). We granted certiorari, 409 U.S. 1074 (1972), and now
reverse the judgment below.
From May 16, 1963, through September 15, 1965, Booster Lodge No.
405, International Association of Machinists; Aerospace Workers,
AFL-CIO (the Union), and the Boeing Co. (the Company) were parties
to a collective bargaining agreement. Upon expiration of this
agreement, the Union called a lawful economic strike at the
Company's
Page 412 U. S. 69
Michoud plant in New Orleans and at other locations. As of
October 2, 1965, the parties signed a new collective bargaining
agreement, and the strikers thereafter returned to work. Both
agreements contained "maintenance of membership" clauses that
required Union members to retain their membership during the
contract term. New employees were required to notify the Union and
the Company within 40 days of accepting employment if they elected
not to join the Union.
During the 18-day strike, some 143 employees out of 1,900
production and maintenance employees in the bargaining unit at the
Michoud plant crossed the picket lines and returned to work. All of
these employees were Union members at the time the strike began,
although some of them tendered their resignations either before or
after crossing the picket lines. [
Footnote 2] In late October or early November, 1965, the
Union notified these employees that charges had been preferred
against them for violating the International Union's constitution.
The constitution provides penalties for the "improper conduct of a
member," which term includes "[a]ccepting employment . . . in an
establishment where a strike . . . exists." In accordance with
appropriate union procedures, including notice and opportunity for
a hearing, all strikebreakers were found guilty, fined $450, and
barred from holding Union office for a period of five years.
[
Footnote 3] While
Page 412 U. S. 70
some of the fines were reduced and some partial payments were
received by the Union, no member paid the full $450. [
Footnote 4] After warning members to pay
their fines or face the consequences, the Union filed suits in
state court against nine individual employees to collect the fines.
None of these suits has been finally adjudicated.
In February, 1966, the Company filed a charge with the Labor
Board alleging that the attempted court enforcement of the fines
violated § 8(b)(1)(A) of the National Labor Relations Act. The
allegations were basically twofold: first, that the Union committed
an unfair labor practice by fining employees who had resigned from
the Union, an issue that we consider in the companion case,
Machinists Aerospace Workers v. NLRB, post, p.
412 U. S. 84; and,
second, that, as to the members who were otherwise validly fined,
the fines were unreasonable in amount. Thereafter the Board's
General Counsel issued a complaint, and the case was heard by a
Trial Examiner. With respect to the second issue, the Trial
Examiner determined that the fines were impermissibly excessive,
but the Board refused to adopt his conclusion. It relied on a case
decided the same day,
Machinists, Local Lodge 50 (Arrow
Development Co.), 185 N.L.R.B. 365, 75 L.R.R.M. 1008 (1970),
reversed sub nom. O'Reilly v. NLRB, 472 F.2d 426 (CA9
1972), in which it held that Congress did not intend to give the
Board authority to regulate the size of union fines or to establish
standards with respect to a fine's reasonableness.
Page 412 U. S. 71
Section 8(b)(1)(A) of the Act provide, in pertinent part, that
it shall be an unfair labor practice for a labor organization "to
restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 of this title." [
Footnote 5] Among the § 7 rights guaranteed to
employees is the right to refrain from any of the concerted
activities described in that section. [
Footnote 6] We have previously held that 8(b)(1)(A) was
not intended to give the Board power to regulate internal union
affairs, including the imposition of disciplinary fines, with their
consequent court enforcement, against members who violate the
unions' constitutions and bylaws.
NLRB v. Allis-Chalmers Mfg.
Co., 388 U. S. 175
(1967);
Scofield v.
NLRB, 394
Page 412 U. S. 72
U.S. 423 (1969). In
Allis-Chalmers, we held that court
enforcement of fines ranging from $20 to $100 for crossing picket
lines did not "restrain or coerce" employees within the meaning of
the Act. And, in
Scofield, we held that the union did not
violate the Act in imposing fines of $50 and $100 on members for
violating a union rule relating to production ceilings.
In deciding these cases, the Court several times referred to the
unions' imposition of "reasonable" fines. In particular, the
Scofield Court concluded
"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)."
394 U.S. at
394 U. S. 436
(emphasis added). The Company contends, not illogically, that the
Court's use of the adjective "reasonable" was intended to suggest
to the Board that an unreasonable fine would amount to an unfair
labor practice.
This interpretation, however, permissible as it may be, is only
dicta, since, in both
Allis-Chalmers and in
Scofield, the reasonableness of the fines was assumed. 388
U.S. at
388 U. S.
192-193, n. 30; 394 U.S. at
394 U. S. 430.
[
Footnote 7] Being squarely
presented with the issue in this case, we recede from the
implications of the dicta in these earlier case. While
Page 412 U. S. 73
"unreasonable" fines may be more coercive than "reasonable"
fines, all fines are coercive to a greater or lesser degree. The
underlying basis for the holdings of
Allis-Chalmers and
Scofield was not that reasonable fines were noncoercive
under the language of § 8(b)(1)(A) of the Act, but was instead that
those provisions were not intended by Congress to apply to the
imposition by the union of fines not affecting the employer
employee relationship and not otherwise prohibited by the Act. The
reason for this determination, in turn, was that Congress had not
intended by enacting this section to regulate the internal affairs
of unions to the extent that would be required in order to base
unfair labor practice charges on the levying of such fines.
The Court's examination of the legislative history of this
provision in
Allis-Chalmers led to the conclusion
that:
"What legislative materials there are dealing with § 8(b)(1)(A)
contain not a single word referring to the application of its
prohibitions to traditional internal union discipline in general,
or disciplinary fines in particular. On the contrary, there are a
number of assurances by its sponsors that
the section was not
meant to regulate the internal affairs of unions."
388 U.S. at
388 U. S.
185-186 (emphasis added). [
Footnote 8] In
Scofield, we decided that Congress
intended to distinguish between the external and the internal
enforcement of union rules, and that, therefore, the Board
would
Page 412 U. S. 74
have authority to pass on those rules affecting an individual's
employment status, but not on his union membership status. 394 U.S.
at
394 U. S.
428-430.
Inquiry by the Board into the multiplicity of factors that the
parties and the Court of Appeals correctly thought to have a
bearing on the issue of reasonableness would necessarily lead the
Board to a substantial involvement in strictly internal union
affairs. While the line may not always be clear between those
matters that are internal and those that are external, to the
extent that the Board was required to examine into such questions
as a union's motivation for imposing a fine, it would be delving
into internal union affairs in a manner which we have previously
held Congress did not intend. [
Footnote 9] Given the rationale of
Allis-Chalmers
and
Scofield, the Board's conclusion that § 8(b)(1)(A) of
the Act has nothing to say about union fines of this nature,
whatever their size, is correct. Issues as to the reasonableness or
unreasonableness of such fines must be decided upon the basis of
the law of contracts, voluntary associations, or such other
principles of law as may be applied in a forum competent to
adjudicate the issue. Under our holding, state courts will be
wholly free to apply state law to such issues at the suit of either
the union or the member fined.
Our conclusion is also supported by the Board's longstanding
administrative construction to the same effect. At least since
1954, it has been the Board's consistent position that it has
"not been empowered by Congress . . . to pass judgment on the
penalties a union may impose on a member so long as the penalty
does not
Page 412 U. S. 75
impair the member's status as an employee."
Local 28, UAW, 145 N.L.R.B. 1097, 1104 (1964).
See
also Minneapolis Star & Tribune Co., 109 N.L.R.B. 727, 34
L.R.R.M. 1431 (1954). We have held in analogous situations that
such a consistent and contemporaneous construction of a statute by
the agency charged with its enforcement is entitled to great
deference by the courts.
Griggs v. Duke Power Co.,
401 U. S. 424,
401 U. S.
433-434 (1971);
Udall v. Tallman, 380 U. S.
1,
380 U. S. 16
(1965). [
Footnote 10]
The Court of Appeals and the Company have suggested several
policy reasons why the Board should not leave the determinations of
reasonableness entirely to the state courts. Their basic reasons
are, first, that more uniformity in the determination of what is
reasonable will result if the Board suggests standards and, second,
that more expertise in labor matters will be brought to bear if the
issue is decided by the Board rather than solely by the courts.
Even if we were to concede the relevance of policy factors in
determining congressional intent, we are not persuaded that the
Board is necessarily the better forum for determining the
reasonableness of a fine.
As we noted in
Allis-Chalmers, court enforcement of
union fines is not a recent innovation, but has been known at least
since 1867. 388 U.S. at
388 U. S. 182
n. 9.
See also Summers, The Law of Union Discipline: What
the Courts Do in Fact, 70 Yale L.J. 175 (1960). The relationship
between a member and his union is generally viewed as contractual
in nature,
International Association of Machinists v.
Gonzales, 356 U. S. 617,
356 U. S. 618
(1958);
Scofield v. NLRB, 394 U.S. at
394 U. S. 426
n. 3;
NLRB v. Textile Workers, 409 U.
S. 213,
409 U. S. 217
(1972), and the
Page 412 U. S. 76
local law of contracts or voluntary associations usually governs
the enforcement of this relationship.
NLRB v. Allis-Chalmers
Mfg. Co., 388 U.S. at
388 U. S. 182 and
388 U. S. 193
n. 32;
Scofield v. NLRB, supra, at
394 U. S. 426
n. 3.
We alluded to state court enforcement of unusually harsh union
discipline in
Allis-Chalmers when we stated that "state
courts, in reviewing the imposition of union discipline, find ways
to strike down
discipline [which] involves a severe hardship.'"
388 U.S. at 388 U. S. 193
n. 32, quoting Summers, Legal Limitations on Union Discipline, 64
Harv.L.Rev. 1049, 1078 (1951). The Board assumed that, in view of
this statement, our reference to "reasonable" fines, when
reasonableness was not in issue, in Allis-Chalmers and in
Scofield, was merely adverting to the usual standard
applied by state courts in deciding whether to enforce
union-imposed fines. The Board reads these cases, therefore, as
encouraging state courts to use a reasonableness standard, not as a
directive to the Board. [Footnote 11]
Our review of state court cases decided both before and after
our decisions in
Allis-Chalmers and
Scofield
reveals that state courts applying state law are quite willing to
determine whether disciplinary fines are reasonable in amount.
[
Footnote 12] Indeed, the
expertise required for a determination
Page 412 U. S. 77
of reasonableness may well be more evident in a judicial forum
that is called upon to assess reasonableness in varying factual
contexts than it is in a specialized agency. In assessing the
reasonableness of disciplinary fines, for example, state courts are
often able to draw on their experience in areas of the law apart
from labor relations. [
Footnote
13]
Nor is it clear, as contended by the Court of Appeals, that the
Board's setting of standards of reasonableness will necessarily
result in greater uniformity in this area even if uniformity is
thought to be a desirable goal. Since state courts will have
jurisdiction to determine reasonableness in the enforcement context
in any event, the Board's independent determination of
reasonableness in an unfair labor practice context might well yield
a
Page 412 U. S. 78
conflict when the two forums are called upon to review the same
fine.
For all of the foregoing reasons, we conclude that the Board was
warranted in determining that, when the union discipline does not
interfere with the employee-employer relationship or otherwise
violate a policy of the National Labor Relations Act, [
Footnote 14] the Congress did not
authorize it "to evaluate the fairness of union discipline meted
out to protect a legitimate union interest." [
Footnote 15] The judgment of the Court of
Appeals is, therefore,
Reversed.
[
Footnote 1]
"(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. . . ."
61 Stat. 141, 29 U.S.C. § 158(b)(1)(A).
[
Footnote 2]
Of the 143 employees who crossed the picket lines, 24 made no
attempt to resign from the Union, 61 resigned before crossing the
picket lines, and 58 resigned after crossing the picket lines and
reporting for work. The validity of the fines imposed against those
who resigned from the Union is considered in a companion case,
Machinists & Aerospace Workers v. NLRB, post, p.
412 U. S. 84.
See also NLRB v. Textile Workers, 409 U.
S. 213 (1972).
[
Footnote 3]
The Union constitution provides that members found guilty of
misconduct after notice and a hearing are subject to "reprimand,
fine, suspension, or expulsion from membership or any lesser
penalty or combination." The constitution sets no maximum dollar
limitation on fines.
[
Footnote 4]
The base income of the employees fined ranges from $95 to $145
for a 40-hour workweek.
Fines were reduced to 50% of wages earned during the strike for
35 members who appeared for the Union trial, apologized for their
actions, and pledged loyalty to the Union. Eighteen of these
reduced fines have been paid in full.
[
Footnote 5]
The proviso to this section states:
"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."
It has been the Board's position that this proviso authorizes
the unions to impose disciplinary fines on union members.
Minneapolis Star & Tribune Co., 109 N.L.R.B. 727, 34
L.R.R.M. 1431 (1954);
Wisconsin Motor Corp., 145 N.L.R.B.
1097, 55 L.R.R.M. 1085 (1964);
Allis-Chalmers Mfg. Co.,
149 N.L.R.B. 67, 57 L.R.R.M. 1242 (1964). This Court, however, in
holding that court enforcement of union fines was not an unfair
labor practice in
NLRB v. Allis-Chalmers Mfg. Co.,
388 U. S. 175
(1967), relied on congressional intent only with respect to the
first part of this section. The parties' principal contentions in
this case do not depend on the scope of the proviso and we do not
consider its interpretation necessary to our conclusion.
[
Footnote 6]
In its entirety § 7 provides:
"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 condition of employment as
authorized in section 8(a)(3)."
61 Stat. 140, 29 U.S.C. § 157.
[
Footnote 7]
Moreover, since the Board has consistently over a long period of
time interpreted the Act as not giving it authority to examine the
reasonableness of disciplinary fines,
infra at
412 U. S. 74-75,
it is not likely that the Court specifically intended, by the use
of a single adjective, and without mentioning the Labor Board cases
to the contrary, to overturn the Board's interpretation of the Act.
Nor can it be argued that the Court was unaware of the Board's
interpretation, for the
Scofield Court stated that, in
Allis-Chalmers, it
"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 in holding that a
union could fine a member for his failure to take part in picketing
during a strike. . . ."
Scofield v. NLRB, 394 U. S. 423,
394 U. S. 428
(1969).
[
Footnote 8]
As we also noted in
Allis-Chalmers, this interpretation
is supported by the Landrum-Griffin Act, where
"Congress expressly recognized that a union member may be
'fined, suspended, expelled, or otherwise disciplined,' and enacted
only procedural requirements to be observed. 73 Stat. 523, 29
U.S.C. § 411(a)(5)."
NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. at
388 U. S.
194.
[
Footnote 9]
Cf. Motor Coach Employees v. Lockridge, 403 U.
S. 274,
403 U. S. 296
(1971);
U. O. P. Norplex v. NLRB, 445 F.2d 155, 158 (CA7
1971) ("The reasonableness of the fines is a matter for the state
court to determine should the Union seek judicial enforcement of
the fines").
[
Footnote 10]
It is also noteworthy that, when Congress has intended the Board
to examine a fee for being excessive or unreasonable, it has
specifically so stated. and has provided statutory standards for
the Board to follow in making such a determination.
See,
e.g., 29 U.S.C. § 158(b)(5) (union initiation fees).
[
Footnote 11]
The Board's interpretation of our decisions is basically the
following:
"Thus, the Court's findings that the fines in those cases were
reasonable seems directed to enforcing courts, encouraging those
courts to make an independent determination of the reasonableness
of the fine in each case presented, in the same fashion as courts
limit other union discipline which imposes a severe hardship. Such
considerations are of an equitable nature, rather than of the
character of restraint and coercion with which the National Labor
Relations Act treats."
Machinists, Local Lodge 504 (Arrow Development Co.),
185 N.L.R.B. 365, 368, 75 L.R.R.M. 1008, 1010 (1970).
[
Footnote 12]
Auto Workers Local 28 v. Scofield, 76 L.R.R.M. 2433
(Wis.Sup.Ct.1971) ($100 fine deemed reasonable);
Farnum v.
Kurtz, 70 L.R.R.M. 2035 (Los Angeles Mun.Ct.1968) ($592 fine
deemed unreasonable and reduced to $100);
McCauley v.
Federation of Musicians, 26 L.R.R.M. 2304 (Pa.Ct. of Common
Pleas 1950) ($300 fine deemed excessive and reduced to 100);
North Jersey Newspaper Guild Local No. 17 v. Rakos, 110
N.J.Super. 77,
264 A.2d 453 (1970) ($750 fine reduced to $500, which was
deemed reasonable);
Walsh v. Communications Workers of America,
Local 26, 259 Md. 608, 271 A.2d 148 (1970) ($500 fine deemed
reasonable);
Local 248, United Auto Workers v. Natzke, 36
Wis.2d 237, 153 N.W.2d 602 (1967) ($100 fine upheld);
Jost v.
Communications Workers of America, Local 908, 13 Cal. App.
3d Supp. 7,
91 Cal. Rptr.
722 (1970) ($299 fine upheld, the court stating that "it is the
settled law in this country that such a fine becomes a debt
enforceable by the courts in an amount that is not unreasonably
large."
Id. at 12, 91 Cal.Rptr. at 725).
[
Footnote 13]
See, e.g., Farnum v. Kurtz, supra, at 2041, where a
municipal court judge, in reducing a union-imposed fine of $592 to
$100, revealed that the kind of expertise required by this type of
case is not that of a technical knowledge of labor law:
"Based upon the facts herein and the Court's experiences [in
passing judgment in thousands of misdemeanor cases], the fine
assessed is much too large and unreasonable. The Court finds that a
fine of $100.00 serves the ends of justice, and is more in keeping
with the circumstances herein, and reasonable."
[
Footnote 14]
Scofield v. NLRB, 394 U.S. at
394 U. S. 429;
NLRB v. Marine Workers, 391 U. S. 418
(1968).
[
Footnote 15]
Machinists, Local Lodge 504 (Arrow Development Co.),
185 N.L.R.B. 365, 638, 75 L.R.R.M. 1008, 1011 (1970). The Board has
long held that the Act proscribes certain unacceptable methods of
union coercion, such as physical violence to force an employee to
join a union or to participate in a strike.
In re Maritime
Union, 78 N.L.R.B. 971,
enforced, 175 F.2d 686 (CA2
1949), cited in
Scofield v. NLRB, supra, at
394 U. S. 428
n. 4.
MR. CHIEF JUSTICE BURGER, dissenting.
It is odd, to say the least, to find a union urging on us severe
limitations on NLRB authority, and telling us that state courts are
the proper forum to resolve questions regarding the reasonableness
of fines imposed on workers for violation of union rules. For
years, there has been unrelenting union opposition to state court
"intervention" into industrial disputes and union activities. We
have been told countless times that the "expertise" of the Labor
Board, based on its overview and intimate familiarity with labor
problems, is essential in this area.
A union must, of course, have some disciplinary powers, or it
would disintegrate. However, the power to discipline can easily
turn from a means of enforcing valid
Page 412 U. S. 79
rules to an oppressive and coercive device of retribution, a
weapon which, when used to extremes, may deprive a working man of
his very means of sustenance. Whether a particular fine is required
in a particular situation involves a weighing of the delicate
balance of relations between the employers, employees, and the
union involved. Such an intimate knowledge of labor relations has
consistently been ascribed to the Board, often by the unions. It is
the Board that deals with such matters on a daily basis. It is the
Board that has the jurisdiction and experience to devise and employ
national standards to govern union conduct; there are valid reasons
for essential uniformity and consistency in the matters of fines.
To isolate this sensitive subject and thrust it on the state courts
is contrary to the entire history of the federal labor statutes and
opens the door to a wide disparity of fines for the same conduct in
different States.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN concur, dissenting.
I dissent from the holding of the Court that the Board has no
jurisdiction to determine the "reasonableness" of the fines placed
by the Union on its dissident members.
The Union and Boeing had an effective collective bargaining
agreement from May 16, 1963 through September 15, 1965. On the
expiration of that contract, the Union struck against Boeing,
causing a work stoppage that lasted 18 days. On October 2, 1965, a
new collective agreement was reached, and work was resumed.
During the strike, about 143 employees at the Michoud plant
crossed the picket line and reported for work. All of these had
been Union members during the 1963-1965 contract period. Some of
the 143 who worked during the strike did not resign from the Union;
119 did resign -- 61 before they crossed the picket line and
returned
Page 412 U. S. 80
to work; 58 resigned during the course of the strike but after
they had crossed the picket line. All of these resignations were
submitted after the expiration of the 1963-1965 collective
agreement. The Union never warned members, on this or on earlier
occasions, that disciplinary measures could or would be taken
against members who crossed the picket line.
After the new collective agreement was reached, the Union
notified all members who had crossed the picket line to work during
the strike that charges had been laid against them and that they
would be tried by the Union for "improper" conduct, the Union's
constitution permitting disciplinary measures, including
"reprimand, fine, suspension and/or expulsion from membership, or
any lesser penalty or any combination."
Those who appeared for trial and those who did not appear were
found guilty and fined $450 each and barred from holding a Union
office for five years. The fines of some 35 who appeared and
apologized and took a loyalty oath were reduced to 50% of their
earnings during the strike, and the prohibition against holding
Union office was reduced in those cases.
The Union sent out a written notice saying that the unpaid fines
had been referred to an attorney for collection and that the
reduced fines would be restored to $450 if not paid. Suits against
nine employees were filed in a state court to collect the fines
plus attorneys' fees and interest, and they are unresolved.
Boeing filed a charge of an unfair labor practice against the
Union under § 8(b)(1)(A) of the Act.
* The General
Page 412 U. S. 81
Counsel issued a complaint and the Board decided that the Union
had violated § 8(b)(1)(A) except for the fines on members for
crossing the picket line to wok and for the fines on those who
resigned after returning to work during the strike, for work
performed during the strike prior to their resignations. But the
Board, one member dissenting, refused to pass on the reasonableness
of the fines, holding it lacked the power to do so.
The unfair labor practice under § 8(b)(1)(A) is the action of a
union "to restrain or coerce" an employee from the "right to
refrain from" assisting a union as that right is defined in § 7. In
Scofield v. NLRB, 394 U. S. 423, we
upheld a union rule and concluded "that its enforcement by
reasonable fines does not constitute the restraint or
coercion proscribed by § 8(b)(1)(A)."
Id. at
394 U. S. 436
(emphasis added).
See also NLRB v. Allis-Chalmers Mfg.
Co.,
388 U. S. 175. The
imposition of a nominal fine of $1 might suit the circumstances of
a case, where a $1,000 fine would be monstrous. A nominal fine
might be justified where, as here, the employees had no warning
that they would or could be fined for working behind a picket line.
A fine where the only sanction would be temporary suspension from
the union might be "reasonable," yet unreasonable if it was
court-enforceable, meaning, as it does here, that attorneys' fees,
costs,
Page 412 U. S. 82
and interest may be added. A member who must pay the union's
attorney as well as his own if he challenges the reasonableness of
a fine in a state court and loses, may well be suffering an
unconscionable penalty. Moreover, the fine may be imposed by a
union which believed, as did the present Union, that the member had
no "right" to resign, though
NLRB v. Textile Workers,
409 U. S. 213,
held to the contrary. The present fines seem to be swollen by that
predilection of the Union. The present fines also exceed the
earnings of the workers during the strike period. By what standard
can that possibly be justified? As member McCulloch of the Board,
dissenting, said, the excess of the fines over the wages collected
during this period is, in actual effect, an assessment after the
strike is over. If after the strike the Union caused Boeing to
suspend a member without pay after the strike because he had worked
during the strike, there could be no question but that the Union
violated § (b)(1)(A). Yet the assessment of fines greater than the
wages earned during the strike has precisely that effect. Thus, in
assessing an unreasonable fine the Union, in my view, goes beyond
the permissible bounds of regulating its internal affairs.
It is no answer to say that the reasonableness of a fine may be
tested in a state court suit. That envisages a rich and powerful
union suing a rich and powerful employee. Employees, however, are
often at the bottom of the totem pole, without financial resources,
and unworldly when it comes to litigation. Such a suit is likely to
be no contest. The Board procedures, on the other hand, may be
readily available. If an employee files a charge with any merit,
the Regional Director will issue a complaint. Thereafter, the
General Counsel represents the employee, and the agency bears any
cost of prosecuting the claim.
Page 412 U. S. 83
But my difficulty with the Court's decision is even greater.
State judges, though honest and competent, have no expertise in
labor-management relations. The Board does have that expertise, and
can evolve guidelines based on its broad experience. It is said
that Congress has provided the Board with no guidelines for passing
on the "reasonableness" of union-imposed fines. But the Board,
through case-by-case treatment, has been developing an
administrative common law concerning "unfair" practices of
employers and unions alike. We have said on other occasions that
the "experience and common sense" which are facets of the expertise
of the Board,
NLRB v. Radio & Television Broadcast
Engineers, 364 U. S. 573,
364 U. S.
582-583, are adequate for the difficult and delicate
responsibilities which Congress has entrusted to it, subject of
course to judicial review. A fine discretely related to a
legitimate union need and reflecting principled motivations under
the law is one thing. A fine that reflects the raw power exercised
by a union in its hunger for all-pervasive authority over members
is quite another problem. The Labor Board, which knows the nuances
of this problem better than any other tribunal, is the keeper of
the conscience under the Act. It and it alone has primary
responsibility to police unions, as well as employers, in
protection of the rights of workers. In my view, it cannot properly
perform its duties under § 8(b)(1)(A) unless it determines whether
the nature and amount of the fine levied by a union constitute an
unfair labor practice.
* 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 membership therein."
61 Stat. 141, 29 U.S.C. § 158(b)(1)(A). Section 7 provides:
"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 s a condition of employment as
authorized in section 8(a)(3)."
29 U.S.C. § 157.