Before SCHNACKENBERG, CASTLE and MAJOR, Circuit Judges.
This case is here upon petition of Allen Bradley Company (herein called the Company) to review and set aside an order of the Board issued against it on April 6, 1960, pursuant to Sec. 10(c) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C. Sec. 151 et seq .). The Board's decision and order are reported at 127 NLRB No. 8. In its answer to the petition, the Board requested enforcement of its order. This Court has jurisdiction, the unfair labor practices having occurred in Milwaukee, Wisconsin, where respondent is engaged in the manufacture and sale of electrical equipment in interstate commerce.
Upon a stipulation of facts, the Board found that the Company violated Sec. 8 (a)(5) and (1) of the Act by insisting on bargaining as a condition precedent to entering into a contract with the Union (Tool and Die Makers, Lodge No. 78, International Association of Machinists, AFL-CIO), on a Company proposal limiting the Union's right to discipline or fine its members.
In June 1954, the Board certified the Union as the bargaining agent for the Company's tool room employees. Thereafter, a collective bargaining agreement was negotiated between the parties, expiring September 1, 1956. Following the expiration of this agreement, a strike of three weeks' duration was called by the Union, in which some of the employees in the bargaining unit participated. However, fourteen employees who were members worked a part or all of the time during the strike. Each of the employees who thus worked was fined in the sum of $100, and local court actions were instituted to collect the same. These employees filed charges with the National Labor Relations Board, alleging that the Union violated Sec. 8(b)(1)(A) of the National Labor Relations Act. These charges were dismissed by the Regional Director and, on appeal, this action was upheld by the General Counsel of the Board. A complaint was then filed with the Wisconsin Employment Relations Board which ruled that the Union had violated the Wisconsin Employment Peace Act and ordered it to cease and desist from collecting the fines previously imposed.This order was reversed by the Wisconsin Supreme Court October 4, 1960, on the ground that the jurisdiction of the State Board had been preempted by Congress and vested exclusively in the National Labor Relations Board. Wisconsin Board v. Lodge 78, IAM 46 LRRM 3062.
While we recognize that the problem here must be solved on the basis of the record before us, we think we may appropriately take notice of a factual statement contained in the State Court decision, as it emphasizes the background leading up to the instant controversy. That Court stated:
"During the strike fourteen members of the Union crossed the Union's picket line and continued to work for the Company. After the conclusion of the strike such fourteen members were tried by the Union on charges that their conduct constituted a violation of the Union's constitution and by-laws, and each was fined $100. * * * Demand was made upon each of the fourteen for payment of such fines and on January 24, 1957, the Union instituted fourteen separate actions in the civil court of Milwaukee county to collect such fines."
On May 21, 1959, at a collective bargaining session between the parties, the Company submitted to the Union in written form two tentative clauses which had previously been discussed. These clauses were proposed in the alternative as follows:
"Neither the Company nor the Union nor its members will interfere with, restrain or coerce by discipline, discharge, fine or otherwise, any employee in the exercise of his rights guaranteed by Section 7 of the Labor-Management Relations Act, including the right to refrain from any or all of the specified activities."
"Neither the Company nor the Union nor its members will interfere with, restrain or coerce by discipline, discharge, fine or otherwise, any employee in the exercise of his right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of his own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or his right to refrain from any or all such activities."
In submitting these proposed clauses, the Company stated that it was open to discussion regarding the phraseology but that it would stand firmly for the principle set forth in the clauses and would insist that the Union make such an agreement. The Union took the position that the matter contained in these clauses was not a proper subject for collective bargaining because it related only to the internal affairs of the Union. At subsequent bargaining sessions the Company reiterated its position that a collective bargaining agreement could not be consummated absent Union agreement to the principle set forth in the proposed clauses. No question is raised but that the Company bargained in good faith in all other respects.
On the foregoing facts, the Board found that the Company violated Sec. 8(a)(5) and (1), and by the order under review required it to cease and desist from refusing to bargain collectively with the Union and from any like or related invasion of employee rights, to bargain with the Union upon request and to post the usual notices.
Two sections of the Act are involved. Section 8(d) requires an employer to bargain in good faith with the representative of the employees "with respect to wages, hours, and other terms and conditions of employment." Section 8(b)(1)(A) makes it an unfair labor practice for a labor organization "to restrain or coerce" an employee in the exercise of the rights guaranteed by Section 7. The latter section guarantees an employee the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and also "the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a ...