National Labor Relations Board v. Boeing Co.

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 re *80 turned 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 Gen *81 eral 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 work 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 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, *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 § 8 (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.

*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 commonsense” which are facets of the expertise of the Board, NLRB v. Radio & Television Broadcast Engineers, 364 U. S. 573, 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) emplojrees 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 *81 with respect to the acquisition or retention of membership therein.” 61 Stat. 141 , 29 U. S. C. § 168 (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 as a condition of employment as authorized in section 8 (a) (3).” 29 U. S. C. § 157 .