The opinion
KENNEDY, Circuit Judge,
dissenting:
I do not agree with the majority that the Board’s decision is simply a “hypertechnical” construction that can be ignored. I believe there is great substance to the distinctions the Board makes, and I respectfully dissent.
The provision of the union constitution in question here seeks not to condition resignations by members, but rather to control the post-resignation conduct of employees who are no longer union members. I submit it is unlawful for a union to fine a former member for post-resignation conduct otherwise protected by § 7 of the Act. Booster Lodge No. 405, Int’l Ass’n of Machinists v. N. L. R. B., 412 U.S. 84, 88 , 93 S.Ct. 1961 , 36 L.Ed.2d 764 (1973); N. L. R. B. v. Granite State Joint Board, Textile Workers Union, 409 U.S. 213, 215 , 93 S.Ct. 385 , 34 L.Ed.2d 422 (1972). The majority suggests that, because the Union’s constitution specifically prohibits former members from returning to work following resignation during a strike, Booster Lodge and Granite State are not applicable. It concludes that the right of a labor organization to maintain solidarity during a strike and to prescribe its own rules with respect to the acquisition and retention of membership must take precedence over whatever section 7 rights its former members may have to abandon a lawful strike and return to work.
In holding that it would not imply limits on an employee’s right to resign, the Su *1223 preme Court in Granite State and Booster Lodge reserved the question whether an explicit constitutional provision or bylaw specifically limiting the right to resign would be valid. These cases did not suggest, however, that restrictions on post-resignation conduct, even if contained in explicit constitutional provisions, might be valid. Both Booster Lodge and Granite State hold that the disciplinary power of a union is restricted to those employees who are members of the union. Once that relationship is dissolved, “the union has no more control over the former member than it has over the man in the street.” Granite State,- 409 U.S. at 217 , 93 S.Ct. at 387. When a member “lawfully resigns” from the union, “its power over him ends.” Id. at 215, 93 S.Ct. 385 . Once having resigned his membership, an employee again becomes fully protected by section 7 in refraining from participation in a strike, and the imposition of a court-collectible fine for working during a strike violates section 8(b)(1)(A). Booster Lodge, 412 U.S. at 87-88 , 93 S.Ct. 1961 ; Scofield v. N. L. R. B., 394 U.S. 423 , 89 S.Ct. 1154 , 22 L.Ed.2d 385 (1969). The Supreme Court thus has employed the concept of membership to delineate in sharp relief the bounds of union authority. There is no dispute in this case that the employees had submitted valid resignations, thereby terminating their union membership. Indeed, the Union stipulated that the charging parties did effectively resign as of the date it received their written resignations. This concession is all that is really necessary to reveal the lack of substance in the Union’s position regarding the characterization of the constitutional provision. If the Union had placed direct and unambiguous restrictions on the right to resign, the case might be different, but it did not do so. The logic of Booster Lodge and Granite State thus compels the conclusion that the union cannot control the conduct of these former members.
If the provision of the union constitution here involved were truly a restriction on the right to resign, then I agree with the majority that we would face the issue expressly left open in Granite State and Booster Lodge; see also Scofield v. N. L. R. B., 394 U.S. 423 , 89 S.Ct. 1154 , 22 L.Ed.2d 385 (1969). That issue is not before us, however, since the union’s constitution places no restriction on a member’s right to resign. It attempts to control the post-resignation conduct of former members, and even the majority recognizes that a union’s power does not extend so far.
The Union’s right to enforce the fines it imposes on its members is a corollary of the member’s rights not only to reap the benefits of continuing union membership, but also to maintain a continuing voice in the union’s course of action. N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 191 , 87 S.Ct. 2001 , 18 L.Ed.2d 1123 (1967). No such justifications support the imposition of court-collectible fines on former members. I cannot agree that continuing membership to the extent, but only to the extent, that the “member” remains subject to union discipline is the equivalent of the “full union membership” relied upon by the Court in Allis-Chalmers, and relied on again in distinguishing that decision in Granite State. Thus, the distinction between membership or nonmembership is far more than a verbal nicety to be dismissed as lightly as the majority opinion does.
As the Board recognized in Local Lodge No. 1994, Internad Ass’n of Machinists (O.K. Tool Co.), 215 N.L.R.B. 651 , 653 (1974):
Conformity may be none too high a price for the benefits of union membership. But the choice, at least in the absence of reasonable restrictions on resignation, is the individual’s to make, not the union’s. Should he choose to resign and forego the benefits of union membership, the union may not nonetheless seek to exact conformity without regard to the individual’s section 7 rights.
Whether or not the union might lawfully have placed reasonable restrictions on its members’ rights to resign, it did not do so here, and so I find it unnecessary for the Board on remand to consider the validity of such hypothetical restrictions. I would hold *1224 that a court may not enforce union fines levied against a former member for exercising his section 7 rights following his lawful resignation.