Duffy, Senior Circuit Judge, and Kiley and Pell, Circuit Judges. Duffy, S. C. J., concurring. Pell, C. J., dissenting.
Petitioner, U.O.P. Norplex, Division of Universal Oil Products Company (Norplex), seeks to have reviewed and set aside an order of the National Labor Relations Board which found petitioner had violated Section 8(a)(5) and (1) of the National Labor Relations Act*fn1 by insisting to the point of impasse upon the Union's*fn2 withdrawal of fines previously imposed on member-employees of Norplex who had crossed the picket line during an economic strike in violation of a Union rule. The Union seeks enforcement of the order. We deny the Norplex petition and enforce the order.
Norplex manufactures plastic parts for the automotive, electronic and other industries. The Union has been bargaining agent for employees of Norplex's predecessor and Norplex since it was certified after an election in 1958. The termination date of the last contract between Norplex and the Union was March 31, 1968. Efforts at negotiating a new contract failed, and the Union struck May 14, 1968. At that time 54 Union members of the 92 employee force in the bargaining unit joined the strike, but 13 Union members crossed the picket line and returned to work. Thereafter, the Union imposed fines on each of the 13, ranging from $300.00 to $500.00.
At the outset of the strike Norplex continued to operate with replacement of employees. On August 16, 1968, there were 98 employees doing bargaining unit work, 56 of them replacement employees. Norplex on that date refused to supply the Union with information requested by the Union for framing a proposal counter to one made by Norplex. After notice to the Union, Norplex petitioned for an election. The Union then filed a refusal to bargain charge. Subsequently, Norplex and the Union entered a settlement agreement under which Norplex agreed to "bargain collectively . . . by furnishing" the Union the information it requested which was necessary for bargaining as to "wages, hours, and other terms and conditions of employment."
We see no merit in the contention of Norplex that there is not substantial evidence in the record as a whole to support the finding that the Union represented a majority during the period of negotiation. The settlement agreement required Norplex to bargain with the Union, and following the settlement agreement Norplex continued to negotiate with the Union.
At a bargaining meeting on November 7, 1968, attended by a federal mediator, Norplex advised the mediator that any contract with the Union must include a provision that the Union would withdraw the fines imposed on members who crossed the picket line. The Union rejected such a provision. At a later meeting Norplex advised the Union committee that any contract must be predicated on the Union's withdrawal of the fines. The Union again rejected any such predicate on the ground that the fines were internal affairs of the Union. After an impasse in the negotiations was reached, the Union filed charge of violation of 8(a)(5), and the proceeding before us followed.
The question before us is whether Norplex's insistence to the point of impasse upon the withdrawal of the fines imposed upon the Union member-employees who crossed the picket line violated Section 8(a)(5) and (1).
In NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 2 L. Ed. 2d 823, 78 S. Ct. 718 (1958), the Supreme Court held that an employer's insistence, as a condition precedent to the execution of a contract, that the union agree to a "ballot clause" -- a clause which required polling of union members before calling a strike or refusing the employer's last offer -- violated Section 8(a)(5) and (1) of the Act. The Supreme Court stated that the phrase "wages, hours, and other terms and conditions of employment" in Section 8(d)*fn3 defines the subject matter over which the employer and union must bargain.
The Court reasoned that since the ballot clause related solely to the internal affairs of the union, it was a nonmandatory subject of bargaining, and the company's insistence to the point of impasse*fn4 on such a clause in its contract with its employees constituted a refusal to bargain about the mandatory bargaining items. The Court distinguished the ballot clause from a "no-strike" clause, which is a mandatory subject of bargaining:
A "no-strike" clause prohibits the employees from striking during the life of the contract. It regulates the relations between the employer and the employees. See Labor Board v. American Insurance Co., supra, [343 U.S. 395] at 408, n. 22, [72 S. Ct. 824, 96 L. Ed. 1027]. The "ballot clause ", on the other hand, deals only with relations between the employees and their unions. It substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the "representative" chosen by the employees. It enables the employer, in effect, to deal with its employees rather than their statutory representative. Cf. Medo Photo Corp. v. Labor Board, 321 U.S. 678, [64 S. Ct. 830, 88 L. Ed. 1007]. 356 U.S. at 350.
In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967), the Court held that a union imposition of fines on members who crossed picket lines and returned to work was not a violation by the union of Section 8(b)(1)(A).*fn5 The basis for the Court's decision was that Section 8(b)(1)(A) was not intended to interfere with the internal affairs of a union and that the imposition of such fines or expulsion from membership was a matter of "internal union discipline."
We think these two cases dispose of the issue before us. It seems clear that since the Union had the right -- as an internal Union affair -- to discipline by fining, the right not to withdraw the fines is likewise an internal Union affair, and accordingly a matter "involving relations between the employees and their union" within the meaning of Borg-Warner, and therefore not a mandatory bargaining item.
The Union's fining of members who break an authorized strike is analogous to the ballot clause, which the Borg-Warner Court held to be a non-mandatory bargaining item. Both are matters primarily involving the relations between the employee and his union, although both are of some interest to the employer, or the employer would not pursue the point to impasse. Neither ballot clause nor withdrawal of fines for strikebreaking relates to terms or conditions of employment within the meaning of Section 8(d).
Norplex's freedom to insist that the fines be withdrawn would destroy the effectiveness of the Union rule against crossing picket lines. This in turn would permit the employer to strengthen its position vis-a-vis the Union by dealing with "the employees rather than their statutory representative," NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 350, 2 L. Ed. 2d 823, 78 S. Ct. 718 (1958), and, if permitted, would give rise to the same "weakening [of] the independence of the 'representative' chosen by the employees" which was condemned by Borg-Warner, and would effectually destroy the Union's economic strike power, a power which the Supreme Court has called "the ultimate weapon in labor's arsenal for achieving agreement upon its own terms."*fn6 NLRB v. Allis-Chalmers Mfg. Co., supra 388 U.S. at 181.
We hold that Norplex's insistence upon withdrawal of the Union imposed fines upon its member-employees who crossed the picket line is a matter between the Union and its members. Under 8(d), Norplex's interest in the Union members and Union is minimal, and Norplex's insistence to the point of impasse that the fines be withdrawn is with respect to a non-mandatory item of bargaining resulting in a refusal to bargain within the meaning of 8(a)(5) and (1).
There is no validity in the attempt to distinguish between the facts in Allis-Chalmers and the case before us on the ground that the fines here are excessive and the fines in Allis-Chalmers reasonable. Even if excessive, they have no bearing on the issue before us. The Board here made no finding that the fines were excessive, although the Examiner stated he was sympathetic to the respondent's position that the fines were excessive. The reasonableness of the fines is a matter for the state court to determine should the Union seek judicial enforcement of the fines.*fn7 See, NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 193 n. 32, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967).
Petitioner relies on this court's opinion in Allen Bradley Co. v. NLRB, 286 F.2d 442 (7th Cir. 1961), for its view that the Board's order should be set aside. Allen Bradley was decided six years before the Supreme Court's decision in Allis-Chalmers. The issue in Allen Bradley was whether a company-proposed clause -- whereby both the company and the union agreed not to restrain or coerce employees in the exercise of their statutory rights, including the right to refrain from any of the specified activities, "by discipline, discharge, fine or otherwise" -- was a mandatory subject of bargaining. The court decided that it was, bottoming its decision on two grounds. First, the National Labor Relations Act "permits no impairment of the right of an employee to work, with the corollary right of an employer to utilize his services."*fn8 Second, the imposition of fines on union members who cross picket lines is "more akin" to the no-strike clause example than to the ballot clause example in Borg-Warner.
We think both of these grounds of decision are vitiated by the Supreme Court's decision in Allis-Chalmers. The first statement, in so far as it means that a union may not fine members for crossing a picket line -- as the dictum 286 F.2d at 446 indicates that it does*fn9 -- is rejected by the holding in Allis-Chalmers. See Scofield v. NLRB, 393 F.2d 49, 54 (7th Cir. 1968). The second statement, while not expressly rejected by Allis-Chalmers, is undermined by that decision. The Court's holding in Allis-Chalmers, that the union's imposition of the fines was lawful is based on the notion that the fines were a matter of internal union discipline. Accordingly, it follows that such fines would be a matter between the union and its members and, like the ballot clause in Borg-Warner, of no legal concern to the employer.
Neither this court's opinion in Scofield v. NLRB, 393 F.2d 49 (1968), nor the Supreme Court's affirmance of Scofield, 394 U.S. 423, 22 L. Ed. 2d 385, 89 S. Ct. 1154 (1969), supports petitioner's contention that Allen Bradley is still viable. Both decisions do cast doubt on whether every union rule is a non-mandatory bargaining item.*fn10
This court held in Scofield that a union's imposition of fines is not unlawful under Section 8(b)(1)(A) of the Act. The court went on to state: "But as Allen Bradley stills holds, the Wisconsin Motor Corporation can require the Union to bargain over a demand to give up its ceiling rule." 393 F.2d at 54. This statement does not decide the question before us, namely, whether withdrawal of fines imposed on Union members for crossing the picket line is a mandatory bargaining item. The Supreme Court in its Scofield opinion did not ...