Russell Scofield, Lawrence Hansen, Emil Stepanec, and George Kozbiel v. National Labor Relations Board
393 F.2d 49
7th Cir.
1968
Check Treatment

*1 appeal shall be borne the costs of That appellee. parties signed stipulation agreement filed will part the record of this court as a

clerk

in this case. Hansen, SCOFIELD,

Russell Lawrence Kozbiel, Stepanec, George Emil Petitioners,

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. Appeals

United States Court of

Seventh Circuit.

March

Knoch, Judge, dis- Senior Circuit

sented. Quarles, Q. Urdan, Kamps, John James Wis., Milwaukee, Clemons,

Herriott & petitioners. *2 Silard, Joseph Rauh, Jr., unbecoming L. Har- John of conduct member” a Union Schlossberg, Stephen Taylor, subject riett R. I. to a each fine for of $1.00 Washington, C., Katz, by-law provides Irv- D. violation. The Harold A. Friedman, ing Chicago, 111.,Philip violations, persistent ceiling L. M. in case of Padden, Wis., charged Milwaukee, for amicus the offender would unbecoming curiae. “conduct member.” a Union guilty If were such a member found Mallet-Prevost, Marcel Asst. Gen. conduct, he could be assessed with N.L.R.B., Counsel, Gary Atty., Green, (enforceable maximum fine with- of $100 Washington, C., Ordman, D. Arnold Gen. specified sus- in a time automatic Manoli, Counsel, Dominick Associate L. pension suspended or expulsion) Atty., Counsel, Welles, Gen. Melvin J. expelled membership. from The Union’s N.L.R.B., respondent. for impair sanctions do not member’s sta- KNOCH, Judge, Before Circuit Senior Company. tus as an CUMMINGS, Cir- SWYGERT Judges. Ceilings time cuit were established through bargaining

to time be- CUMMINGS, Judge. Company Circuit tween the though the Union al- agree Company did not Petitioners, employees of Wis- wages accordingly. limit if an (“the Corporation Com- consin Motor pany”), employee produced excess order ask us aside an set ceilings, Company on re- would the National Labor Relations production quest pay him for his actual dismissing an com- unfair labor regard ceilings. far without to the So charges plaint upon that had issued Company unsuccessful been against their Union.1 its for elimination of are Union members of a ceilings ceiling rates, the Union but bargaining represent- that has been the piecework all were increased production employees of the ative of the July August The 1953 and Company since bar- 1937. The collective ceilings in time of this effect at gaining requires contract such dispute cents were between 45 and 50 belong pay Union or to above the machine rates. equivalent The Com- service fee to dues. Wisconsin, pany Allis, based West By rule, any production Union which Half where manufactures motors. production employee member has including employees, production its 850 yield pace out at a turned which would petitioners, compensated on a these are hourly ceiling above the rates is rates permitting amounts basis them to earn reported Company for not to be wages pro- hourly above their basic Instead, compensation. immediate such ducing at a rate of established excess required members are to “bank” hourly output. norms earnings Company in excess 1944, membership adopt- On Union occasions when (for example, ceilings providing in substance ceive less than a resolution pay- through idleness), [report for that “the men turn in absence or enforced per permits hour no more the members to draw 10 cents Union ment] charging upon rates.” the Com- machine their “bank” over above new approved previously membership pany produced for work but reported wage purposes. penalties for Al- of that not though as violation normally acquiesces penalties presently Company con- rule. The are by-law “banking” February system, tained in an 1961 Union disregard provides ployee any the Union member violat- chooses to “guilty ing ceilings report production production im- rule and all Automobile, America, parent Aircraft Local United UAW-AFL-CIO. Implement Agricultural Workers Union is intervenor. early Company, payment, As as not- this Court mediate though ed, proviso construed the him in Section will even Newspaper ceilings (A) in Pub American are exceeded. lishers Association v. National Labor began en the Union first Board, 193 F.2d 782 forcing system by impos 1951), grounds, affirmed on other fines. *3 100, U.S. 73 S.Ct. 552. There the the six members had violated expel viola threatened members for system reporting to the forbidding tion of them to work pro payment Company immediate shop Even in though with non-members. the Union rate in excess of duction expulsion might the the involve fined $35 Two members were job other loss the of and his paid of the fines. Two each and their pension economic and benefits such as each, petitioner members were fined $100 pp. provisions, (at mortuary held we $75, the the third fined and fourth was 806): 800-801, paying their fined Instead of was fines, $50. [proviso] “Under this Con- limitation petitioners unfair the filed four gress organizations free to left labor Regional charges the labor adopt they govern- any rules desired Director of the National Labor organiza- membership in their 1961, May in Board October expelled for tions. Members could be to collect filed a suit any pre- any in manner reason and in Milwaukee fines Civil Court organization’s rules, so scribed Wisconsin, pend County, still where 8(b) (1) (A) far as is concerned. § ing. the General December interpretation support in the This complaint the Board issued Counsel legislative history It of the Act. fining charging Union, in significant that the Board while suing petitioners, had restrained interpreting has been so this section exercise coerced them in the during years, past of the Congress Act rights of the National under Section has not amended section thereby violat Relations Act2 Labor interpreta- a broader indicate that (A) 8(b) (1) Act. of the Section or tion of the was intended section Company taken have Union and power It within the desired. is not job impair status measures to of the into section courts to write this petitioners. language Act, by interpretation, The Trial Examiner scope. which would broaden its (A) (1) 8(b) concluded Section ****** and dismissed not been violated had complaint. * «* * (1) 8(b) proviso in § the authoritative view (A) permits to enforce unions National in construction of that Section upon policies their member- internal Relations Board v. they ship as see fit.” Mfg. Co., 388 U.S. 87 S.Ct. deny must the em- L.Ed.2d we Relations Board National Labor ployees’petition Amalgamated for review. F.2d Local “ grants employees right prac- (b) Section It shall an unfair labor organization It refrain from activities. to provides concerted or its tice for agents— pertinent part (29 § U.S.C. 157): “(1) (A) to restrain or coerce right “Employees ployees rights shall have the the exercise of * * * * * * engage Provided, guaranteed concerted 7: section ** *, impair paragraph and shall also activities have the shall not That right any organization all to refrain from of a labor ** prescribe respect of such activities its own rules with acquisition member- or retention of * * (1) provides perti- 8(b) ship (A) 3. Section therein part (29 (1) (A)): nent § U.S.C. during strikes, 1955), threatened the union lawful cogent group support proviso deprive to Section certain members coverage stating 191-192, hospitalization be- insurance p. 2012): various refused to 5. Ct. at cause had disciplinary which and fines assessments “At it can be said least imposed upon Fol- them. the Union had rights proviso preserves Newspaper lowing of American the lead fines, impose lesser as a unions Association, held the Court Publishers impose penalty expulsion, and to proviso in that under explicit carry the im- fines with- threatened nonpay- expulsion plicit threat of rights insurance drawal Therefore, proviso under ment. complaining employees aas gov- the rule in the constitution UAW conformity measure in full erning the fines is valid *4 regulate affairs. internal to its nonpay- expulsion for themselves and labor ment not be an unfair would Circuit, even be in this practice.” Re fore the decision in National unnecessary de it to The Court Co., Mfg. Board Allis-Chalmers lations (1) (A) 8(b) cide whether Section L.Ed.2d 388 U.S. S.Ct. “proscribes imposition arbitrary of 1123, great was accorded breadth fines, punishment for disobedience 8(b) (1) (A). In proviso in Section (at p. of a fiat of union leader” a opinion Allis-Chalmers, the Court the of 2014).5 p. 87 S.Ct. at or coerce” that the “restrain holds words by 8(b) as shown used Section concurring opinion, Mr. Justice his Section, legislative history of proviso to more on the White relied encompass internal were not meant to legislative (1) (A) on Section than words, in In other affairs of unions. showing history inapplicability of among disciplines union are not ternal body language “restrain or coerce” of reaching proscribed restraints. joining opinion in the Section. conclusion, partly the Court was might Court, of that there he noted policy by labor motivated our national on “which be some internal union rules powers that analo clothes a union with wholly their and unen- face are invalid gous rules legislature, union (at p. 198, p. at forceable” 87 S.Ct. becoming by majority bind enacted 2016). minority. noted on the union, strong opposition piecework that in the case of a Union expulsion membership history far more is a from union move fine penalty dating a reasonable 1908.6 severe ment at least back to 2001) p. 183, expulsion The Court’s 4. 87 S.Ct. Fines and of members vio history legislative ceilings lating present examination and antecedent (1) (A) years. convinced We Section have been rule for 22 majority prohibit union not that the statute does are told that the work of imposition jeopardized employees fines of these would be reaching energetic employees, younger, them. suits to collect more body conclusion that and that intended is therefore (1) members, inapplicable well-being fines protect of all mem younger employees at aimed collection suits if the received working crossing picket higher pay production, bers lines increased Cox, (1) barring in Pre (b) of Law 4. “The Role See also court enforcement Democracy,” serving Harv.L. Union them. We need not consider whether (1959). proscribed 622-623 Rev. excessive fines would be that Section. the amounts 5. be that It should noted reasonable, Slichter, are so See Policies of the instant and Indus- Management (1941), pp. need to read Section trial there is no 285-286. objective turn mate union members, out sim- and the means were unable older appropriate it, de- quantities, would be to enforce our hand should' piecework ilar stayed. Mary lay-offs. theAs be McCulloch v. even face moralized and State ceiling land, Wheat.) out, (4 316, 420, rules L. pointed U.S. Trial Examiner Enough legitimate, in- traditional Ed.2d has been said derive They objectives. imposition reflect show that the Union’s in union terest working arbitrary (1) them- these not fines was fears of by overproduction; grounded rules are themselves selves out long-standing produc- policy (2) new of a cannot establishment piecework lowering rate invalid or unenforceable on norm deemed tive produc- compensation face. for actual and the morale-threatening jealousies tion; (3) argue pres by too problems caused health bargaining proc ent rule circumvents the pressure. were cov- These factors much ess, and that the Union should have excerpts from in some detail ered against provision obtain a incentive appended to labor authorities various through collective 1138-1141). report (145 his NLRB Company. petitioners concede Since authority pur- explained the such One validly ceilings impose can pose follows: limits as through bargaining, inception purpose of “At great departure to im allow them to be *5 pieceworkers applying not limits to posed enforcing by a rule partly primarily to to but make work ceilings already by established being protect weakened union from bargaining. validly If union a estab arising jealousies by dissensions against policy overproduction, lished a from the fact that some workers power must have the to dis concomitant others, jobs partly ceive better cipline members who violate Cf. playing fa- prevent to foremen from “Legal Summers, on Union Limitations assigning jobs, partly in vorites Discipline,” (1951). Harv.L.Rev. cutting prevent employers to Discipline by same has been described using piece or from rates liberal gov author criminal as the of union law earnings high an of some workers as Discipline: “The Law Union ernment. against general argument increase a Fact,” L. Yale What the Courts Do in in piece limits have rates. Such (1960). J. among glass past been common pointed out, As intervenor workers, glass blowers, flint bottle of more was enforced molders, potters, the stove consequence serious economic by being imposed the leather 1940 are ployees, permitted to were not in Massachusetts.” workers during work strike that might basis, and Here rational be forfeited. the rule has a reasonably permitted say were to work in excess not even we cannot was earnings ceilings, permissible end. de- with the additional to achieve calculated sys- “banking” Accepting stricture ferred under Union’s the Allis-Chalmers job rights considering questions tem. unaffected of union Their were by comparable discipline the rule. Petitioners assert union amount legislature, to determine involves small our function is production does Company’s policies these fines conform whether limitation viola- not overcome the Union’s Union and not formulated production, under federal but or its constitution tive legiti- Act, interpreted in Allis- here was a the end law.8 Since 166-167; Summers, “Legal Slichter, op. cit., pp. on Union Limitations also see Discipline,” Harv.L.Rev. 1073- 296-305. (1951). Chalmers, ceilings) (threats the Union rule would survive duction and methods discharge provision employer no to “bank” to force even there were earnings. employee) manifestly improper. excess were Associated of Greater Home Builders depend principally on Allen Bay, East Inc. National Rela Labor Bradley Company v. National Rela- Labor (9th Board, tions 352 F.2d 751-752 Board, (7th tions 286 F.2d 442 Cir. 1965); National Cir. 1961). question There the was whether Painters, 242 F. v. Brotherhood of obliged bargain good was 1957). They 2d 480-481 faith over a collective con- rely Skura, on Charles 148 NLRB S. provision proposed by employer tract the un which held limiting right discipline (1) (A) by fin ion violated Section holding fine its The members. was that filing employee-member an proposals company made were charge against unfair proper subject bargaining. for collective exhausting internal first union without question The for resolution this Court held that The Board union remedies.9 discipline was not whether union of mem- objective at odds with union’s (1) (A). bers violates Section Fur- “ pri policy ‘no considerations because thermore, Judge case, Major in that stat- permitted organization should be vate p. 446): any person’s to courts access restrict action, by way “Coercive whether justice’ policy No considerations ”. fine, discharge otherwise, which de- strength against comparable militate right prives a member of his to work issue. rule here at employer and his of the benefit of his services, only cannot said to relate petition is denied. for review to the internal affairs the union.” present case, In the been member has ENOCH, Judge (dis- Senior Circuit deprived of his nor has senting) . employer deprived been of the bene- *6 fit of a member’s extent services. To the concluding I think we are in error Bradley disap- that a dictum in Allen dispositive that Allis-Chalmers is of the proves union collection suits us, case before and that there is a dif- crossing aimed members only degree ference here and not of picket continuing line and kind. forceful dissent of employer, flatly that dictum re- Justices the limit- jected longer in Allis-Chalmers no and is ed concurrence of Mr. Justice White holds, Bradley viable. But as Allen still seem me to dictate a cautious Corporation the Wisconsin Motor can application principle that case quire bargain a demand over (such one) other cases in- give up rule. impairment volve collective bar- Co., rely gaining power on Printz Leather and its strike concomitant Inc., weapon. majority 94 NLRB where I fear have employer unduly scope union threatened to strike extended the Allis-Chal- discharge my opinion did not who mers. the coercive fines working imposed union felt was too fast. Printz here constituted an unfair inapplicable practice, because union’s there and the Board’s dismissal objective (unilateral imposition pro- complaint herein should be reversed. argument question awaiting expressed present 9. This is now Term. No view Supreme in Industrial herein as to the correctness of the Skura Board, No. v. National Labor Relations rule.