# Morton Salt Co. v. National Labor Relations Board

> Court of Appeals for the Ninth Circuit · December 8, 1972 · 472 F.2d 416

URL: https://www.frixlaw.com/law-library/cases/8889452

## Case

- **Full name:** MORTON SALT COMPANY, a division of Morton International, Inc. v. NATIONAL LABOR RELATIONS BOARD, and International Association of Machinists, Oakland Lodge No. 284, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 8, 1972
- **Citations:** 472 F.2d 416
- **Precedential status:** Published
- **Opinion:** Concurring in part by Browning
- **Judges:** Browning, Sharp
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8889452

## Opinion text

BROWNING, Circuit Judge
(concurring in part, dissenting in part):
The majority’s holding that the Board accurately defined the issues before it seems proper.
The majority’s further holding that the Board correctly interpreted the “no strike” clause also appears sound. It follows, as the majority concludes, that the Board correctly held that the Union’s act of fining its members for refusing to honor the picket line was not in itself an unfair labor practice. This is settled by NLRB v. Allis-Chalmers Mfg. Co., 388 U.S 175, 87 S.Ct. 2001 , 18 L.Ed.2d 1123 (1967).
The majority then concludes, however, that if the fines were “unreasonable” in amount their imposition was an unfair labor practice, and hence subject to the Board’s jurisdiction under the National Labor Relations Act. The Board held, to the contrary, that a union disciplinary fine does not become an unfair labor practice subject to the Board's jurisdiction because it is excessive in amount, and that the reasonableness of such a fine is to be determined by state courts in the exercise of their traditional jurisdiction over suits involving relationships between voluntary associations and their members.
Giving the Board’s interpretation of the statute the deference to which it is entitled, 1 it should be sustained.
The Board is not granted general power to resolve any and all disciplinary disputes between unions and their members. On the contrary, “[u]nless the [union] 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.” Scofield v. NLRB, 394 U.S. 423 , *424 426 n. 3, 89 S.Ct. 1154, 1156 (1969). Specifically, “the state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline, [which] involves a severe hardship.’ ” NLRB v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 193, n. 32 , 87 S.Ct. at 2013 .
It is the responsibility of the Board, as the majority states, “to adjudicate and remedy unfair labor practices,” as defined by the National Labor Relations Act. But the majority does not indicate why an “unreasonable” fine for violating a union anti-strikebreaking rule is an unfair labor practice under the Act, when a “reasonable” fine for violating such a rule is not. The majority simply asserts that this result follows from the Supreme Court’s use of the adjective “reasonable” in relation to fines held not to constitute unfair labor practices.
There are other reasons for the Supreme Court’s references to “reasonable” fines. The most obvious is that there was no contention that the fines in Scofield were unreasonable. See 394 U.S. at 430 , 89 S.Ct. 1154 , 22 L.Ed.2d 385 . The same is true of the fines involved in Allis-Chalmers. See 388 U.S. at 192 -193 n. 30, 87 S.Ct. 2001 , 18 L.Ed.2d 1123 . If the adjective was used with some purpose in addition to that of accurately stating the facts of the cases, it “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.” International Association of Machinists and Aerospace Workers v. O’Reilly, 185 NLRB No. 22 at 7.
The Board has power to examine the reasonableness of a fine for violation of a union’s anti-strikebreaking rule only if imposition of an excessive fine for this purpose is expressly or impliedly prohibited by some provision of the Act. Such a prohibition is said to be implicit in section 7 and section 8(b) (1) (A).
It is argued that the section 8(b)(1)(A) prohibition against union coercion and restraint upon the exercise of an employee’s section 7 right to refrain from concerted activities was qualified in Allis-Chalmers only to the extent necessary to permit the union to protect its status as a bargaining representative for the unit as a whole. If a union seeks to impose a fine larger than is required for this purpose, the argument continues, “an inference is warranted that the fine was imposed on the member, not in vindication of a legitimate union interest, but as a reprisal for having exercised a statutorily protected right.” International Association of Machinists and Aerospace Workers v. O’Reilly, supra, 185 NLRB No. 22 at 14 (Member McCulloch, dissenting). The same notion, stated in the same language, is found in Booster Lodge No. 405 v. NLRB, 459 F.2d 1143 , 1159 (D.C.Cir. 1972). Petitioner adopts it also, phrased in terms of permissible “deterrence” versus prohibited “retribution.” The argument rests upon the premise that a union member has a “statutorily protected right” to cross a picket line in violation of a union rule. But the precise holding of Allis-Chalmers is that sections 7 and 8(b)(1)(A) grant no such right.
Petitioner disputes this interpretation, arguing that under Allis-Chalmers a union may not impose a fine large enough to completely remove an employee’s economic incentive to violate an anti-strikebreaking rule. Under Allis-Chalmers, petitioner asserts, a union may impose some punishment upon its members for violating a union rule against crossing a picket line, but not so much as to assure their compliance with the union rule. 2 *425 Allis-Chalmers does not permit such a distinction. The necessary effect of a fine in any amount is, literally, “to restrain or coerce” a member to adhere to the union’s anti-strikebreaking rule. Nevertheless, the Allis-Chalmers court held that as used in section 8(b)(1)(A) these words simply were not intended to include a prohibition against the imposition of fines on union members who violate such a rule. “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 status.” NLRB v. Allis-Chal-mers Mfg. Co., supra, 388 U.S. at 195 , 87 S.Ct. at 2014 .
Taking a cue from the concluding phrase of this quotation, petitioner argues that an unreasonably large fine for crossing a picket line does indeed “affect a member’s employment status.” This argument finds support in Booster Lodge No. 405 v. NLRB, supra, 459 F.2d at 1159. Of course, the union could not induce the employer to threaten the member with suspension or discharge as a means of collecting a fine, but this is true whether the fine is reasonable or unreasonable in amount. Absent some such conduct, the mere imposition of an unreasonably large fine would have no effect upon the member’s employment status. The fine would be collectible, or would not, whether the employee retained his employment or left it. 3
A fine may be unreasonably high, but not because of its impact upon a union member’s right to cross a picket line in violation of a union rule, or on the supposition that it affects his employment status. In a collection proceeding, a statute court may find equitable reasons for refusing to enforce unnecessarily severe punishment (NLRB v. Allis-Chal- *426 mers Mfg. Co., supra, 388 U.S. at 193 n. 32, 87 S.Ct. 2001 ), but collection proceedings are not for the Board. 4
In some circumstances, it has been suggested, the unfair use of fines may violate the union’s duty of fair representation (see Note, Fair Representation and Union Discipline, 79 Yale L.J. 730 , 742 (1970); Note, Labor Policy: Judicial Enforcement of Fines after Allis-Chalmers, 53 Cornell L.Rev. 1094, 1097 (1968)), but there is no contention that such circumstances exist in this case.
Since under Allis-Chalmers a fine which restrains a union member from working during a strike is not an unfair labor practice, and since no other tenable theory of an unfair labor practice has been advanced in this case, the Board correctly ruled that it had no jurisdiction to consider the reasonableness of the fines.
. See NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 691-692 , 71 S.Ct. 943 , 95 L.Ed. 1284 (1951).
. In O’Reilly v. NLRB, a case raising this same issue and decided by the court this day, petitioner frames this argument as follows:
“Enforcement of the Union’s rule against working during a strike by the imposition of a fine equal in amount to employee’s take-home pay serves in the *425 instant case to deny completely that employee’s right to refrain from collective activity guaranteed in Section 7 of the Act. As suggested, above, the Union may have legitimate interest in protecting its own position, especially during a strike. It may take disciplinary action to deter recalcitrant and other members from undermining its status by the assessment of reasonable fines for strike breaking. In doing so, the Union furthers its own interest, and that of its membership, by action which necessarily infringes, but not to a prohibitive extent, the Section 7 rights of the members affected. “Although, as the Court suggests in Allis-Chalmers, the Union may be likened to a legislative body in that its action may tend to ‘restrict the rights of those whom it represents,’ nowhere does the Supreme Court begin to suggest that the Union in the legitimate exercise of its internal or external powers may deny its members’ Section 7 rights in their entirety. Yet the Union’s action in the instant case has precisely this effect. By assessing fines in the amount of take-home pay earned during a strike, the Union completely negates the positive value of a member’s exercise of his right not to participate in a work stoppage. Additionally, the Union makes clear to all other members that any future attempt at exercising this right not to strike will be completely frustrated by subsequent union action denying to those employees any remuneration they earn during the period of a strike. To permit sucli union action would render the Section 7 right permitting employees to refrain from collective activities utterly superfluous, and would deny any purpose of Congress in including these words in the Section. Whether by a holding that such a fine was not restraint or coercion within the meaning of Section 8(b)(1)(A), or that it was protected by the proviso to that Section, the sanctioning of such a fine would work directly against the clear intent of Congress in amending Sections 7 and 8.” Brief for Petitioner at 33-35, O’Reilly v. NLRB, 472 F.2d 426 (9th Cir. 1972).
. Other arguments favoring Board jurisdiction are based on the preemption doctrine (Brief for Petitioner at 41 — 47, Morton Salt v. NLRB, No. 71-1853 (9th Cir. 1972)) and upon the advantage of uniform review of fines by a body economically accessible to the employee. See Booster Lodge No. 405 v. NLRB, supra, 459 F.2d at 1158. The preemption argument is undercut by the Supreme Court’s explicit acknowledgement of state court jurisdiction in Allis-Chalmers, 388 U.S. at 193 n. 32, 87 S.Ct. 2001 . Uniformity and economic accessibility may be valid policy reaons for a legislative grant of jurisdiction to the Board, but they cannot furnish a basis for jurisdiction in the absence of such a grant.
. As counsel for the Board points out, when Congress undertook to regulate the internal disciplinary processes of unions by the passage of the Labor-Management Reporting and Disclosure Act of 1959, Pub.L.No. 86-257, Sept. 14, 1959, 73 Stat. 519 , it vested the authority in the Department of Labor and the United States Courts, and not in the Board. State court remedies were expressly saved. See L.M.R.D.A. §§ 103 and 603(a) ; 29 U.S.C. §§ 413 , 523(a).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8889452. Public record. Not legal advice.