Petition for Writ of Certiorari — Booster Lodge No. 405, International Ass'n of Machinists & Aerospace Workers v. National Labor Relations Board

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_— “W1-14

IN THE

Supreme Court of the United States, aie

OcrToBER TERM, 1971 nv. §.

No. 1 Er

| MICHAEL RODAK JR.,CLE

—

Booster Lopce No. 405, INTERNATIONAL A SOCIATION

oF MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO, Petitioner,

Vv.

NATIONAL LABOR RELATIONS BoARD

—and—

THe Borerna CoMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Prato E. Papps

Lovis PouLton

1300 Connecticut Avenue, N.W.

Washington, D. C. 20036

BERNARD DUNAU

912 Dupont Circle Building, N.W.

Washington, D. C. 20036

C. Paut BARKER

711 Carondelet Building

New Orleans, Louisiana 70130

Attorneys for Petitioner.

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

SS,

TABLE OF CONTENTS

Page

APUG PETE OU ORra PREC Re en 2

eid Oe Oe LG te ee Se oe 2

SNOUT PUREED fk nis cence coc savdeuauevas 2

I re go SG Seah k beh ewan os 2

se ah aS Sag ¢ Cc go oe « wo RAPE EE eH RE 3

I I is Wi ag le er nS ee 3

II. The Imposition of Fines for Strikebreaking ... 4

Sak SOO Oe IIE os vs cbs cc buen ec ceccn 6

IV. The Decision of the Court of Appeals ......... 8

Reasons FoR GRANTING THE WRIT .................-.. 9

EE SS a RSIS? SPI aig ie grain a aR 23

APPENDIX

RT re ei a kwh botene ku kes s la

Opinion of Court of Appeals ..................... Da

Decision and Order of NLRB ................... 34a

Decision and Order of NLRB in David O’Reilly .... 47a

Opinion of Court of Appeals for Fifth Cirenit § in

Local 1255, IAMAW v. NLRB ................. 68a

AUTHORITIES CITED

(‘ASEs:

Allen-Bradley Co., 127 NLRB 44 .................000 22

Ballantine Books v. Capital Distributing Co., 302 F.2d

EE ee eee Seer ee Eee eee 17

Communication Workers of America, 186 NLRB No. 50 14

deigaytiniue

Sabie

OES SRA SE ce ili sn te

Wtiitisatccnittiiisen tines

—e

il Table of Contents Continued

Page

Communication Workers of America, Local 2100, 186

E.R Ny Oe ea rane ee ee 14

Communication Workers of America, Local 6135, 188

RE ls OE: bbs b.dskebh etc cowsn bis Heesacecnss 14

Communication Workers of America, Local 9511, 188

RM od ida Ga A sini ae ce WA GD ECAR EN Say 14

David O’Reilly, 185 NLRB No. 23 ................... 2,7,9

Foundation Co., 120 NLRB 1453 ... 2.2... ee eee eee. 22

Fribourg Navigation Co. y. C.I.R., 383 U.S. 272 ...... 22

Griggs v. Duke Power Co., 401 U.S. 424 .............. 29

Independent Stave Co., 175 NLRB 156 .............. 22

International Association of Machinists, Oakland Lodge

8 ee errr eer err 14

International Brotherhood of Boilermakers v. Harde-

i a Cle cia cuceakeess0cn bse yiee es bos 16

International Chemical Workers Union, Local 1438, 188

Pe EE hea wn ontax ci swksewreraanekee ends. 14

International Typographical Union, 86 NLRB 951 .... 22

Jost v. Communications Workers of America, 91 Cal.

RN Sp ok ns aN eR E KEK Ade 6058 8s ties 17

L.A. Newspaper Guild, Local 69 v. Armenta, 73 LRRM

EPS SEP Per rey Cree ere 17

Local 248, United Automobile Workers, 149 NLRB 67 22

Local 1255 v. N.L.R.B., 79 LRRM 2787 .............. 13

Milwaukee Printing Pressmen Union No. 7, 192 NLRB

ME ck EXEL CERNE CRSA Chee ds bra wo dee veo 14

Minneapolis Star & Tribune Co., 109 NLRB 727 ...... 22

N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175

9, 15, 16, 19

N.L.R.B. v. Granite State Joint Board, 446 F.2d 369

10, 11, 12, 13, 14

N.L.R.B. v. Granite State Joint Board, Textile Workers

Union of America, Local 1029, AFL-CIO, October

co 8 Oe . PRP rrr eee 10, 28

N.L.R.B. v. Marine and Shipbuilding Workers, 391 U.S.

OU cCrawl end eased keeeeseshennsaaeeste saa’ 9, 20, 21

North Jersey Newspaper Guild, Local No. 173 v. Rakos,

ge PR eee oe eee re eee ree lv

Passaic Printing Pressmen’s Union No. 60, 190 NLRB

PR ME WeCiw was ORES SAN SAO R EES ON GEN Soe ROD 14

Penn General Casualty Co. v. Pennsylvania, 294 U.S.

WP prea kace des ew ts ceceetab ech cheen eseaye hous 17

Table of Contents Continued lil

Page

Radio Officers’ Union v. N.L.R.B., 347 U.S.17 ........ 18

Pe, ROT SUR MIOED BOUND ons ik vis sc tcevcvsveceusciras 22

Scofield v. N.L.R.B., 394 U.S. 423 .......... 9, 15, 16, 19, 22

United Construction Workers, Local 10, 187 N LRB No.

De SIAMENS doa ewe ee aed Gn ae VEN e a OSS ea N eek 14

United Rubber Workers of America, Local 510, 186

SS IO tah 6 oes Wd cd Gs God cana awk «> « 14

U.0.P. Norplex v. N.L.R.B., 445 F.2d 155 ............ 16

Walsh v. Communications. Workers of America, 271

PECs a Cra Uuliee LEON: WG ea Gecucauas fehl oo. 17

Washington-Baltimore Newspaper Guild, Local 35, 186

seg are nn os ee ae 14

MISCELLANEOUS:

RR 8 ERE Pip ao cae oe ae eee eT 2

National Labor Relations Act, 29 U.S.C. § 151

Pe eh as cokes ee bois kas DNkbns BIKE awe 2

SUED ons. habs cae Ue rbioes wom 2, 3, 7, 8, 9, 16, 21

IN THE

Supreme Court of the United States

OcTOBER TERM, 1971

No.

BoostER Lopak No. 405, InrerRNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE Workers,

AFL-CLO, Petitioner,

Vv.

NATIONAL Lasor ReLations Boarp

—and—

THE Boring Company

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Booster Lodge No. 405, International Association of

Machinists and Aerospace Workers, AFL-CIO, (the

Union), prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the District of Columbia Cireuit entered in the

above-entitled case on March 14, 1972 (infra, p. la).

ae hers

“ae Ot

Se LbeR hehe aR Ae aL &

LP PREBLE

Beairtiescteccn., Akoya

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

79 LRRM 2443 (infra, pp. 5a-33a). The opinion

of the National Labor Relations Board is reported at

185 NLRB No. 23 (infra, pp. 34a-45a). A companion

opinion of the National Labor Relations Board js

reported as David O'Reilly, 185 NLRB No. 23

(1970)' (“i fra, pp. 47a-58a).

JURISDICTION

The judgment of the Court of Appeals was entered

on March 14, 1972 (infra, p. la). The jurisdiction

of this Court rests on 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a member of a union may escape union

discipline, exerted by the levy of a court-collectible

fine, for violation of his union obligation to refrain

from strikebreaking by resigning from his union sub-

sequent to the commencement of a strike and engaging

in strikebreaking after his resignation.

2. Whether the National Labor Relations Board is

empowered to determine the reasonableness of a fine

assessed by a union against a member for violating its

valid rule against strikebreaking.

STATUTE INVOLVED

Section 8(b)(1)(A) of the National Labor Rels

tions Act (29 U.S.C. § 151) and its proviso are at th

statutory matrix of the controversy. Section 7 of th

Act accords employees inter alia ‘“‘the right to re

? Petition for review pending before the Court of Appeals for

the Ninth Cireuit, David O'Reilly v. N.L.R.B., No. 26,892.

—

frain’’ from ‘‘coneerted activities for . .. mutual aid

or protection.”? Section 8(b)(1)(A) makes it an un-

fair labor practice for a union ‘to restrain or

coerce . . . employees in the exercise of the rights

guaranteed in section 7... .’? A proviso to this pro-

hibition states that ‘‘this paragraph shall not impair

the right of a labor organization to prescribe its own

rules with respect to the acquisition or retention of

membership therein. . . .”’

STATEMENT

I. The Strike

The Boeing Company operates a plant at New Or-

leans, Louisiana, known as the Michoud plant (A. 3).

The production and maintenance employees at this

plant are represented in collective bargaining by the

Union and its parent, International Association of

Machinists and Aerospace Workers, AFL-CIO

(IAMAW) (A. 3-4). A single employer-wide collee-

tive bargaining agreement covers [AMAW-represented

units at the Michoud plant and at other facilities of the

Company located elsewhere in the United States

(ibid.) About 1,900 production and maintenance em-

ployees work at the Michoud plant (A. 67).

A collective bargaining agreement covering the

IAMAW-represented units at the Michoud plant and

other Company facilities was in effect from May 16,

I through September 15, 1965 (A. 66-67, 3). No

‘ srord upon new contract terms was reached upon

expiration of the agreement (A. 67, 5). A lawful

emplover-wide strike over the economic issues in dis-

pute, and picketing in support of the strike, began on

September 16, 1965 and ended on October 3, 1965 (A.

67, 5; 85-86).

sattet ea |

The strike was preceded by a union meeting at

which a strike vote was taken (A. 105, 184, Tr. 21),

The Constitution of the LAMAW provides that ‘a

strike vote... shall be by secret ballot. In order to

declare a strike, such vote must carry by a three-

fourths majority of those present and qualified to

vote’ (G.C. ex. 5, Art. XVIII, sec. 2, p. 54). The

Constitution further requires that no strike may be

declared without the approval of the Executive Coun-

cil of the LIAMAW, except that, ‘‘ In an extreme emer-

gency, ... the LP. [International President] may

authorize a strike pending the submission to and se-

curing the approval of the E.C. [Executive Council]”

(Id., Art. XVIII, Sees. 1, 2, pp. 53-54). The By-Laws

of the Union provide that, ‘‘The approval of a strike,

method of declaring a strike, and the settlement of a

strike shall be in accordance with applicable provi-

sions of the LAM Constitution’’ (G.C. ex. 6, p. 4).

A new agreement was reached on October 3, 1965,

retroactive to October 2 (A. 67, 5; 85-86). The strike

and picketing, which lasted eighteen days, embraced the

Michoud plant (A. 67, 5, 25, n. 28).

II. The Imposition of Fines for Strikebreaking

The Constitution of the [IAMAW defines ‘improper

conduct of a member’’ and establishes a full trial and

appellate procedure to determine the existence and

punishment of alleged offenses (A, 214-218). Among

the offenses defined as misconduct of a member is

‘Accepting employment in any capacity in an estab-

lishment where a strike or lockout exists as recognized

under this Constitution, without permission”’ (A. 6;

214). The Constitution provides that this offense, like

other ‘actions or omissions’’ constituting ‘‘misconduet

ie.

—

by a member,”’ shall ‘*warrant a reprimand, fine, sus-

pension and/or expulsion from membership, or any

lesser penalty or any combination of these penalties

as the evidence may warrant after written and specific

charges and a full hearing ...’’ (A. 68, 5-6; 214),

Disqualification from holding office for a period not

exceeding five years is expressly enumerated as a pen-

alty (A. 216).

Some 143 production and maintenance employees,

who were members of the Union when the strike began,

crossed the picket line and worked at the Michoud

plant during all or part of the period of the strike

(A. 67,5). Some 24 of these strikebreakers made no

attempt to resign from the Union during the strike

period (A. 67). The remaining 119 strikebreakers did

resign from the Union during the strike period (A,

57-68). Of these 119, 61 resigned from the Union and

returned to work subsequent to their resignation, and

8 resigned from the Union but returned to work

vefore their resignation (A. 67).

The Union tried all employees who were members

if the Union when the strike began who were known

0 have worked during the strike, and assessed a pen-

ity against each found guilty of strikebreaking, with-

ut regard to whether the accused had resigned from

he Union during the strike period or had started to

vork subsequent to his resignation (A. 3, 13 and n. 11;

98-200). The proceedings resulted in a ‘‘Not Guilty”

erdict as to two accused, a ‘No Fine’’ disposition as

0a third, and a ‘Mistrial’? without retrial as to a

ourth (A, 239, 127). The remaining accused were

ound guilty of strikebreaking but a different penalty

as assessed against a particular accused depending

pon the class within which he fell. Those accused

—

who appeared before the trial committee, apologized,

and pledged loyalty to the Union were in effect fined

fifty percent of their strikebreaking earnings and dis-

qualified from holding union office for varying periods

(A. 68, 7; 188-189, 204-205), Those accused who did

not appear for trial and were found guilty were fined

$450 and disqualified from holding office for five years

(A. 68, 6-7; 193).

The full $450 fine was assessed against 108 indi-

viduals, and the 50-percent-of-strikebreaking-earnings

fine against 35 individuals (A. 67, n. 3). All were in-

formed of their right to appeal the decision to the

International President of the LAMAW (A, 7, n. 4;

229-230). No appeals were taken (A. 7, n. 4).

Payment of the fines has followed a checkered course,

No $450 fine has been paid (A. 68). Reduced fines

have been paid in full in eighteen instances and in part

in three instances (A. 68; 238, 127). Payments have

averaged $40 (A, 68; 205-206), and payments in full

have ranged from a low of $10, a mid-point of ®54.80,

and a high of $120 (A, 238-239, 127). The Union has

warned individuals that failure to pay would result in

commencement of suit against them (A, 68-69, 7-8;

291-2533, 71, 72). Suit has been instituted against nine

individuals in loeal courts to recover the $450 fine as-

sessed against each (A. 69, 8; 210-212, 240-241). The

Company has undertaken the defense of these suits

(A. 5). The outeome of the suits has not been deter-

mined (A, 69).

III. The Board's Decision

The claim before the Board was that the Union re-

strained or coerced employees in the exercise of their

right to refrain from concerted activity for mutual aid

——

‘

or protection in violation of Seetion 8(b)(1)(A) of

the Act. The elaim divided into two parts. First, al-

though the Union’s rule against strikebreaking is

valid, the Union violated Section 8(b) (1) (A) by fining

its members in an wureasonably large amount for vio-

lation of the rule, and by seeking or threatening to seek

collection of that allegedly unreasonable fine by court

action. Second, independently of the reasonableness

of the fine, the Union violated Section 8(b)(1)(A) by

fining in any amount those persons who had resigned

from the Union for that strikebreaking activity in

which they engaged subsequent to their resignation.

The first claim—-the reasonableness of the fine—was

dismissed by the Board (infra, p. 42a, n. 16). It relied

for its rationale on its decision in David O'Reilly, 185

NLRB No. 22 (infra, pp. 47a-58a), which it issued on

the same day as the opinion in this case, In David

O'Reilly, one member dissenting, the Board held that,

given the settled validity of a rule requiring members

“to honor an authorized picket line’? and the settled

permissibility of punishing breach of the rule by

‘union fines (or court enforcement of same)’, Con-

gress did not intend “to have the Board regulate the

size of these fines and establish standards with respeet

to their reasonableness’? (infra, p. 55a). Rather, re-

lated as it is to **the fairness of union discipline meted

out to protect a legitimate union interest”? (infra, pp.

57a-58a ), the issue of the reasonableness of a fine is to be

determined by a court in a proceeding to collect or set

aside the fine. The *‘local courts are the more logical

tribunals for the establishment of standards of reason-

ableness’’ (infra, p. 55a).

The Board, one member dissenting, decided the see-

ond claim—pertaining to the situation of a person

it:

who had resigned from the Union—in favor of the

view that the Union violated Section 8(b) (1) (A) by

fining a person who had resigned from membership

for engaging in strikebreaking subsequent to his resig-

nation. The premise of the Board’s decision is that,

while a member is bound to observe his union’s valid

rules during his period of membership, ‘*the contract

between the member and the union becomes a nullity

upon his resignation. Both the member’s duty of fidel-

ity to the union and the union’s corresponding right to

discipline him for breach of that duty are extin-

guished”’ (infra, pp. 39a-40a). Accordingly, the Union

‘violated Section 8(b)(1)(A) of the Act by imposing

disciplinary fines upon resigners from its ranks, for

acts committed after their resignations’? (infra, p.

42a). However, as to those resigners who engaged in

strikebreaking before their resignation, the Union re-

tained ‘‘the right to discipline the employees for prior

strikebreaking. The effect of these employees’ resigna-

tions was only to extinguish the Union's future author-

ity over them”’ (infra, p. 48a).

IV. The Decision of the Court of Appeals

The Court of Appeals, in agreement with the Board,

affirmed its conclusion that ‘‘the Union violated See-

tion 8(b)(1)(A) of the N.L.R.A. by imposing fines

upon employees, and by threatening or attempting en-

forcement of such fines, because of those employees’

post-resignation conduct in working at the Company

plant during the authorized work stoppage’’ (infra,

p. 21a). However, in disagreement with the Board,

the Court of Appeals held that ‘tit is clearly the obli-

gation of the N.L.R.B. to resolve the question of rea-

sonableness where such an issue is appropriately

raised’”’ (infra, p. 25a), and it directed the Board on

—_—

remand to determine ‘‘the questions relating to the

reasonableness of the fines imposed by the Union’’

(infra, p. 33a).

REASONS FOR GRANTING THE WRIT

On August 27, 1970, in companion cases, the Board

decided two important and interrelated questions con-

cerning the scope of Section 8(b)(1)(A) of the Na-

tional Labor Relations Act and its proviso. In this

case it decided that a union may not levy a court-col-

lectible fine for postresignation strikebreaking upon a

person who had been a member of the union when the

strike began but who resigned during the strike. In

David O'Reilly, 185 NURB No. 23 (1970), it decided

that it was without power to determine the reasonable-

ness of a fine assessed by a union against a member

for violating its valid rule against strikebreaking

(infra, pp. 47a-58a). The Board applied its O'Reilly

determination in this case. This case, accordingly,

presents both branches of the Board’s companion hold-

ings, namely, that a union may not levy a fine for

postresignation strikebreaking and that the Board is

without power to determine the reasonableness of a

fine assessed for preresignation strikebreaking.

The Board supported both holdings in reliance upon

its understanding of this Court’s three decisions inter-

preting the scope of Section 8(b)(1)(A) and its pro-

viso (infra, pp. 39a-42a, 52a-56a). NLRB. v. Allis-

Chalmers Mfg. Co., 388 U.S. 175 (1967); N.DR.B. v.

Marine and Shipbuilding Workers, 391 U.S. 418

(1968) ; Scofield v. N.L.R.B., 394 U.S. 423 (1969). As

the Court of Appeals saw it, the Board had wrongly

read this Court’s decisions on the preresignation issue

(infra, pp. 23a-25a), but had rightly read the same de-

cisions on the postresignation issue (infra, pp. 13a-17a),

It therefore disagreed with the Board’s preresignation

3 holding but agreed with the Board’s postresignation

3 holding.

This Court should grant certiorari in this case to

review both issues, important and recurrent in the ad-

ministration of the Act, in the one case in which each

is squarely presented.

On March 20, 1971, this Court granted certiorari to

consider the postresignation issue in N.L.R.B. y.

Granite State Joint Board, Tecrtile Workers Union of

America, Local 1029, AFL-CIO, October Term, 1971,

No. 71-711. 40 U.S.L.W. 3455. As expressed by the

Board in its petition, the question presented is whether

‘*a union violates Section 8(b)(1)(A) of the National

Labor Relations Act by fining employees who resigned

from union membership and then returned to work

during a lawful union-authorized strike, and by seek-

ing judicial enforcement of the fines.’’ But it is this

case, not Granite State, which presents this question

forthrightly and unequivocally, and it is in this case,

not Granite State, in which the Board stated its ra-

tionale in support of its position.

In Granite State, in denying enforcement of the

Board’s order, the Court of Appeals for the First Cir-

cuit suggested that Granite State may be critically

different from this case (N.L.R.B. v. Granite State

Joint Board, 446 F.2d 369, 372, n. 5 (C.A. 1, 1971) ):

... [T]he Boeing case, supra, may be distinguish-

able on its facts since in Boeing the fines were

authorized by a general provision in a union con-

stitution, rather than by a specific decision of the

—7

membership adopted in the context of a particular

strike. In Boeing the Board emphasized that ‘‘the

Union had not warned members about the possible

imposition of disciplinary measures.’’ Also, the

Boeing opinion did not consider whether any of

the employees who crossed the picket line had orig-

inally voted to support the strike.

In this case, the court below embraced the distine-

tions suggested by the First Circuit, and in reliance

on them stated that ‘‘we believe that the [Granite

State] decision is inapposite to the present fact situa-

tion” (infra, p. 18a). It reasoned that (infra, pp. 18a-

19a) :

Although the court in Granite State upheld the

right of the union involved to impose fines on

strikebreakers for post-resignation activity, it em-

phasized that a specific set of facts was present

which it believed rendered such a result equitable,

and it specifically recognized that these considera-

tions were not present with respect to the instant

Booster Lodge 405 case. In Granite State, the

Board conceded that all of the fined employees had

voted in favor of the strike in question. It is also

important to note that the fines had not been im-

posed pursuant to a general provision in the union

constitution, as here, but rather in accordance with

a specific proclamation which had been unani-

mously adopted by the membership after the work

stoppage commenced. See 446 F.2d at 370, 372

n. 5. Furthermore, all of those who were dis-

ciplined in Granite State had been expressly pre-

warned of possible punishment for strikebreak-

ing, while the employees with whom we are herein

concerned received no such _pre-strikebreaking

notification. Because of these distinguishing

facts, we refuse to apply the rationale of Granite

State to the instant factual situation. The strong

equities which weighed in favor of the union there,

Pci cb S IR ek a

are clearly not present here. In fact, their very

absence powerfully supports the result which we

have accepted.

The First Circuit thus holds, and the District of

Columbia Circuit does not disagree, that a member

despite his resignation is bound to refrain from strike-

breaking for the duration of a strike when at the out-

set of the strike he made his own individual decision

to go out on strike. But the issue which the Board

presents, which the District of Columbia Circuit de-

cides, and which the First Circuit reserves, is whether

a member is bound by the institutional decision to

strike whether or not he was individually opposed to

that group decision. The District of Columbia Circuit

holds that a member by resigning may renounce the

institutional decision to strike at least in the absence

of a showing that he individually assented to the deci-

sion initially.

It is only this case, and not Granite State, which thus

squarely presents the issue of whether or not a member

is bound for the duration of the strike by the group

decision to strike, whatever his own original per-

sonal choice, which he cannot escape by resigning.

And it presents the issue in a situation which is typical

of the way in which strike decisions are generally

made. In this case, in order to authorize a strike, a

strike vote by secret ballot was mandatory, a three-

fourths majority vote in favor of the strike was nec-

essary to call the strike, and the strike call was further

dependent on having the sanction of the Executive

Council of the International Union (supra, p. 4).

As thus presented in this typical posture, the heart of

the question is whether the minority is bound by the

majority’s choice. Central to the answer is the indis-

pensability to effective labor action of binding the en-

tirety of the members for the duration of the strike

to the institutional decision to strike that the majority

has made. And the essence of a secret ballot is its

secrecy, a secrecy which the District of Columbia Cir-

cuit requires be broken if effect is to be given to its

notion that a member is bound by the institutional

decision only if he himself individually favored it

when it was made.

While the First Circuit suggested the distinctions

between this case and Granite State, it explicitly stated

that ‘‘[ w]e express no opinion, however, as to whether

these distinctions are determinative’’ (446 F.2d at 372,

n. 5, see also id. at 374, n. 8). The District of Colum-

bia Circuit in this case, while purporting to rest on

the distinctions that the First Circuit identified, never-

theless noted that ‘‘[t]o the extent that the First Cir-

cuit’s decision in Granite State may be read to sup-

port Booster Lodge 405’s position here, we respect-

fully decline to follow it’? (infra, p. 19a, n. 19). Sub-

sequent to both decisions the Court of Appeals for the

Fifth Circuit rejected the Board’s application of its

postresignation holding to the levy of a fine in which

the sole sanction for nonpayment was debarment from

union membership. Local 1255, TAMAW v. N.L.R.B.,

79 LRRM 2787, March 15, 1972, infra, pp. 68a-73a. The

Fifth Cireuit noted that ‘‘[t]o the extent that [the

District of Columbia Circuit’s decision in] Boeing

may be read to support the Board’s position that all

forms of discipline for postresignation picket-line-

crossing are barred by the Act, we respectfully de-

cline to follow it’’ (infra, p. Tla, n. 1).

This Court should grant certiorari in this case and

set it for argument together with Granite State so that

Piebliia alia Uta a ee

aed Bin

ftw

Birks vce

the postresignation issue will be before the Court in

its entirety in an unequivocal, typical, and fully-devel-

oped posture. Sound and informed decision will be

enhanced by having before the Court the very case in

which the Board expressed its rationale and which

presents the issue in straightforward fashion. Granite

State alone does not present the fact situation which

the Court must address if the heart of the question is

to be reached and decided.

The Board holds, but the Court of Appeals dis-

agrees, that the Board is without power to determine

the reasonableness of a fine assessed by a union against

a member for violating its valid rule against strike-

breaking. The question of the power of the Board to

determine the reasonableness of a union fine levied

to enforce a valid union rule is important and reeur-

rent Were the Board held to have this power the

2 Its recurrence is patent. Milwaukee Printing Pressmen Union

No. 7,192 NLRB No. 122, 78 LRRM 1047 (1971) ; Passaie Printing

Pressmen’s Union No. 60, 190 NLRB No. 38, 77 LRRM_ 1199

(1971) ; International Association of Machinists, Oakland Lodge

No. 284, 190 NLRB No. 32, 77 LRRM 1100 (1971), review pend-

ing sub nom., Morton Salt Co. Vv. N.L.R.B., C.A. 9, No. 71-1853;

Communications Workers of America, Local 6135, 188 NLRB No.

144, 76 LRRM 1635 (1971); International Chemical Workers

Union, Local 143, 188 NLRB No. 100, 76 LRRM (1971) ; Commun-

cation Workers of America, Local 9511, 188 NLRB No. 63, 76

LRRM 1324 (1971); United Construction Workers, Local 10, 187

NLRB No. 99, 76 LRRM 1121 (1971); Washington-Baltimore

Newspaper Guild, Local 35, 186 NURB No. 133, 75 LRRM 1438

(1970) ; Communication Workers of America, Local 2100, 186

NLRB No. 132, 75 LRRM 1441 (1970); United Rubber Workers

of America, Local 510, 186 NLRB No. 106, 75 LRRM 1420 (1970);

Communication Workers of America, 186 NLRB No. 50, 75 LRRM

1324 (1970).

ala

determination of reasonableness would become a new

but permanent part of the Board’s business. Pending

final determination of the existence or absence of

power, and under the impetus of the decision below,

unfair labor practice charges claiming unreasonable-

ness will continue to be filed, with the NLRB General

Counsel at a loss to know whether to dismiss the

charge in reliance upon the Board’s position or to

entertain the charge in reliance upon the reversal by

the court below. Uncertainty as to whether the Board

is an appropriate forum similarly vexes both those

persons who wish to prosecute and those who must

defend against claims of unreasonableness. State

courts will also be troubled by concern over the respec-

tive roles of the Board and the courts within this field,

a concern not quieted by the observation of the court

below that the ‘‘question of the extent to which union

action for enforcement of disciplinary penalties is pre-

empted by federal law is not before this court, and

we intimate no view concerning the resolution of this

complex issue”? (infra, p. 25a, n. 30). It is therefore

essential that this Court settle the question of the

Board’s power without delay.

1. The court below states that the Board’s conelu-

sion that it is without power ‘‘is based upon a clear

misconception of the law and the Supreme Court’s

relevant decisions’’ (infra, p. 23a). For its view of

the right reading of this Court's decisions it refers to

this Court’s advertence to a “reasonable fine’ in

V.L.R.B. vy. Allis-Chalmers Mfg. Co., 388 US. 175,

183 (1967), and in Scofield y. V.L.LR.B., 394 U.S. 423,

428, 436 (1969) (infra, pp. 23a-25a). But the court

below quite mistakes the meaning of the statements

alluding to a ‘‘reasonable fine,” These statements are

| 2 kai Saint.

RIE RT NAA BONG AL PMS, Soha

BIR

all referable to the conelusion in both Allis-Chalmers

and Scofield that the body of Section 8(b) (1) (A) had

not been violated and for that reason there was no need

to rely on the proviso. It is the proviso which bars

the Board from inquiry into the reasonableness of a

union fine, and neither <Allis-Chalmers nor Scofield

addresses the interpretation of the proviso as a limi-

tation upon the Board’s power. It is essential that

this Court clarify the meaning of its decisions.

2. To say that the Board is empowered to deter-

mine the reasonableness of a fine is to upset the exist-

ing allocation of function in overseeing the adminis-

tration of union discipline. Reasonableness is a ques-

tion for judicial determination under state law and

the Labor Management Reporting and Diselosure Act.

‘Unless the rule or its enforcement impinges on some

policy of the federal labor law, the regulation of the

relationship between union and employee is a eontrae-

tual matter governed by local law.”’ Scofield, 394 U.S.

at 426, n.3. “2... [S]tate courts, in reviewing the im-

position of union discipline, find ways to strike down

‘discipline [which] involves a severe hardship’.”

Allis-Chalmers, 388 U.S. at 193, n. 32. **The reason-

ableness of the fines is a matter for the state court to

determine... 0° U.O.P. Norplexr v. NLRB, 445

F.2d 155, 158 (CLA. 7, 1971). In short, exeept as entry

into the field is narrowly required to determine

whether a union rule offends a policy of the National

Labor Relations Act, regulation of internal union af-

fairs is a field from which Congress has exeluded the

Board. International Brotherhood of Boilermakers

v. Hardeman, 401 U.S. 283, 287-241 (1971).

To permit the Board to trespass on this field would

eutail intolerable risks of collision with state eourts.

State courts regularly and routinely adjudicate the

reasonableness of union fines.* Were the Board also

empowered to determine this question, the Board in

the same case might find a fine reasonable which a

court might find unreasonable, or the Board might

find a fine unreasonable which the court might find

reasonable. Since both the Board and the court would

be exercising independent jurisdiction, each as com-

petent to act as the other, there would be no basis for

according priority between them, nor would either be

required to stay its hand in deference to the other.

Each would operate concurrently and conflict in result

would be resolved by the happenstance of which pro-

ceeding ended sooner in a determinative disposition.‘

And if conflict were not resolvable in this way it would

not be resolvable at all short of decision by this Court.

For the Board surely does not sit as a supervisory

tribunal to review or displace judicial judgments. Nor

should it sit as a supplementary tribunal additional

to the courts to adjudicate claims arising from admin-

istration of internal union discipline.

The decision below thus dislocates the existing allo-

eation of function, bringing the Board into the busi-

ness allotted to the courts, and needlessly exacerbating

state-federal relations.

SE.g. North Jersey Newspaper Guild Local No. 173 v. Rakos, 110

Na. Super 77, 264 A.2d 453, 74 LRRM 2487 (NJ. Sup. Ct. App.

Div. 1970) ; L. A. Newspaper Guild, Local 69 v. Armenta, 73 LRRM

27s (Cal. Sup. Ct. App. Dept. 1969); Jost v. Communications

Workers of America, 91 Cal. Rep. 722, 64 CCH Lab. Cas. © 52,469,

p. 67,910 (Cal. Sup. Ct. App. Dept. 1970); Walsh v. Communica-

tions Workers of America, 271 A.2d 148, 75 LRRM 2629, 2632

Md. Ct. of App. 1970).

*Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 195

1935); Ballantine Books v. Capital Distributing Co., 302 F.2d 17,

19 (C.A. 2, 1962).

Fee ALK EAS

3. The decision below also upsets the statutory

scheme of the National Labor Relations Act ander

which it is the Board’s business to protect an em-

ployee’s job rights but not his membership rights.

Short of invoking a union security agreement to

require a member to pay his union dues and initiation

fee, the ‘policy of the Act is to insulate employees’

jobs from their organizational rights. Thus §§ 8(a) (3)

and 8(b)(2) were designed to allow employees to

freely exercise their right to join unions, be good, bad,

or indifferent members, or abstain from joining any

union without imperilling their livelihood.”’ Radio

Officers’ Union v. N.L.R.B., 347 US. 17, 40 (1954).

The object of statutory solicitude is thus job rights.

The employee is protected in his status as an employee

against reprisal for engaging in or abstaining from

concerted activity for mutual aid or protection. The

function of the Board is to safeguard the employee

for his protected action or inaction in his status as an

employee—in getting a job from an employer, in keep-

ing a job with his employer, in being compensated for

bis work by his employer, and in enjoying the other

emoluments of his work granted by his employer.

That is one side of the coin. The other side is that,

so long as the employee’s status as an employee is left

alone, the union may discipline the employee as a mem-

ber for failure to perform a valid membership obliga-

tion, and the Union’s exercise of its disciplinary au-

thority is none of the Board’s affair. As a member,

therefore, the employee may be expelled, suspended,

fined, reprimanded, or disciplined in other ways, and

objection to the means or extent of discipline is the

concern of tribunals other than the Board.

It is this duality which this Court synthesized and

preserved in Allis-Chalmers and Scofield. As the

Court observed in Scofield, “*As an employee, he may

be a ‘good, bad, or indifferent’ member so long as he

meets the financial obligations of the union security

agreement .... But as a union member... he is sub-

ject to union diseipline.”’ 394 U.S. at 429, n. 5. The

court below unglues this synthesis by requiring the

Board to determine the reasonableness of a union fine

and thus draws it into the internal administration of

union discipline.

4. In injecting the Board into a field foreign to its

statutory concern the decision below has already

worked a major dislocation in the law pertinent to

review of union discipline,

The court below directs the Board to determine the

reasonableness of the fines despite the absence of any

effort by the members to exhaust their available in-

ternal union remedies. Many did not appear for trial

at all; others who appeared for trial and were fined

took no internal appeal from the adverse decision

(supra, pp. 5-6). Accordingly, those who did not

appear for trial disregarded the internal union pro-

cedure altogether. Those who did appear for trial but

did not appeal forewent the internal appellate oppor-

tunity for reversal or favorable modification. In sum,

therefore, the internal union procedure was disre-

garded at its trial stage by many and at its appellate

stage by all.

To require the Board to review the reasonableness

of the fine when the internal union procedure for con-

sideration of the issue has been bypassed conflicts with

=. ee Dae ee cy

the requirement that the available internal remedy

be exhausted before relief is sought from other tri-

bunals. Where an available union remedy is shunted,

no extraunion tribunal should ordinarily consider in

the first instance a question whose determination

would distinctly benefit from full prior union serutiny,

which may be self-corrected if the claim is urged in-

ternally, and where forbearance would further the

independent interest in union self-government. As

Justice Harlan cautioned, ‘‘courts and agencies will

frustrate an important purpose of the 1959 legisiation

if they do not, in fact, regularly compel union mem-

bers ‘to exhaust reasonable hearing procedures’ within

the union organization. Responsible union self-goy-

ernment demands, among other prerequisites, a fair

opportunity to function.”” N.L.R.B. v. Marine and

Shipbuilding Workers, 391 U.S. 418, 429 (1968)

(concurrence ),

But the court below flatly rejects the exhaustion re-

quirement, holding that the ‘‘imposition of such a re-

quirement in this case concerning the reasonableness

issue would not... best serve the interests of justice

or further the objectives of the N.L.R.A. The issue

here involves public policy and thus transcends the

pure internal affairs of the Union’ (infra, p. 23a,

n. 27).

The requirement of exhaustion cannot be finessed by

saying that the substantive issue ‘involves public

policy.’’? The doctrine of exhaustion has its source in

a rule of judicial administration long and firmly estab-

lished not only for internal union remedies but also in

statutory administrative proceedings and for con-

tractual adjustment procedures created by collective

bargaining agreements. It is part of ** public policy”’

to require prior recourse to the tribunals having initial

responsibility for decision before permitting inter-

cession by other ultimate reviewing bodies. The in-

terest in orderly procedure which the exhaustion re-

quirement serves is as ex; cent whether the substantive

issue to be adjudicated is said to be ‘*publie,’’ * pri-

vate,”’ or an admixture. There is nothing in the nature

of a “reasonableness”? issue which suggests that it is

not suited to prior union serutiny through the union

trial and appellate procedures. On the contrary, the

issue especially implicates close attention to partie-

ularities, which resist useful generalization, and would

therefore uniquely benefit from full initial union

examination.

The court below invokes this Court’s decision in

V.LRB. vy. Marine and Shipbuilding Workers, 391

U.S. 418 (1968), to support its view (infra, p. 23a, n.

27). But Marine Workers holds that exhaustion is

not required where the rule for whose violation dis-

cipline is imposed is itself invalid. A rule against

strikebreaking is of course valid, and the reasonable-

ness of a fine for its breach is a question within the

heartland of union self-government. Prior recourse

to its procedures is hence obligatory if those pro-

cedures are adequate and fair. The court below thus

again misreads this Court’s decisions and in the proe-

ess works a gross distortion of accepted law.

5. Section 8(b)(1)(A) and its proviso were enacted

in 1947. The Board’s consistent interpretation of the

proviso, from the beginning to the present, is that it

places the administration of union discipline to en-

force a valid union rule outside its regulatory author-

Nidithiibaw a

ity.” It is of course settled that an agency’s uniform

construction of its own statute, especially a contempo-

raneous construction, *‘is entitled to great deference,”

Griggs Vv. Duke Power Co., 401 U.S. 424, 433-434

(1971). And in this case that ‘‘prior long-standing

and consistent administrative practice must be deemed

to have received congressional approval.”’ Friboury

Navigation Co. v. C.I.R., 383 U.S. 272, 283, (1966).

For the Board’s ‘‘interpretation of §8(b)(1)(A) ...

was reinforced by the Landrum-Griffin Act of 1959

which, although it dealt with the internal affairs of

unions, including the procedures for imposing fines or

expulsion, did not purport to overturn or modify the

Board’s interpretation of §8(b)(1).”’ Scofield, 394

U.S. at 429. An administrative construction with

these credentials should stand. Yet the court below

heedlessly upsets it.

In sum, the court below has decided an important

and recurrent question in the administration of the

Act in a way which conflicts with this Court’s deeci-

sions, upsets the allocation to the courts of the fune-

tion of overseeing union administration of internal

discipline, injects the Board into a field foreign to its

statutory concern, destroys the exhaustion require-

5 International Typographical Union, 86 NLRB 951, 957 (1949),

affirmed, 193 F.2d 782, 800-801 (C.A. 7, 1951); Minneapolis Star

and Tribune Co., 109 NLRB 727 (1954); Foundation Co., 120

NLRB 1453, 1466 (1958); Allen-Bradley Co., 127 NLRB 44, 47

(1960), enforcement denied, 286 F.2d 442, 446 (C.A. 7, 1961),

but court’s opinion not acquiesced in by Board, Scofield, 145 NLRB

NLRB 1097, 1102 (1964), and Board’s decision affirmed, 394 U.S.

423 (1969); Local 248, United Automobile Workers, 149 NLRB

67 (1964), affirmed, 388 U.S. 175 (1967); Independent Stave Co.,

175 NLRB 156, 159 (1969).

ment in an area where its operation is especially fit,

and diseards a long-settled and consistent administra-

tive construction.

Review by this Court is essential.

CONCLUSION

For the reasons stated, this petition for a writ of

certiorari should be granted, and the case should be

set down for argument together with N.L.R.B. v.

Granite State Joint Board, Textile Workers Union of

America, Local 1029, AFL-CIO, October Term, 1971,

No. 71-711.

April 1972

Respectfully submitted,

Puiato E. Paprs

Louis PouLTon

1300 Connecticut Avenue, N.W.

Washington, D. C. 20036

BERNARD DUNAU

912 Dupont Circle Building, N.W.

Washington, D. C. 20036

C. PauL BARKER

711 Carondelet Building

New Orleans, Louisiana 70130

Attorneys for Petitioner.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24687

Booster Lonce No. 405, INrernationat ASSOCIATION OF

Macuinists ANpD ArrospaceE Workers, AFL-CIO,

Petitioner,

Nationat Lasor Retations Boarp, Respondent,

Tne Boewwe Company, Intervenor.

No. 24744

Tue Borinc Company, Petitioner,

Natrona Lasor Retations Boarp, Respondent,

Booster Loncr No. 405, INTERNATIONAL ASSOCIATION OF

MAacuINIsts AND AEROSPACE WORKERS,

AFL-CIO, Intervenor.

Judgment

Filed March 14, 1972

Before: MacKinnon and Wilkey, Cireuit Judges and

Gourley,* Senior District Judge for the Western District

of Pennsylvania.

The above consolidated causes came on to be heard upon

petitions to review, and on a cross-application for enforee-

ment of, an order of the National Labor Relations Board

dated August 27, 1970, against Booster Lodge No. 405,

International Association of Machinists and Aerospace

Workers, AFL-CIO, its officers, agents, successors, and as-

* Sitting by designation pursuant to 28 U.S.C. § 294 (d) (1970).

Poe ee eae A Te ee eT

Ney a Lt ste Eat he

EROU Sux

signs. On February 3, 1972, the Court, being fully advised

in the premises handed down its opinion granting enforce-

ment of the Board’s order in part and remanding the case

in part to the Board for further consideration in accord-

ance with the Court’s opinion. In conformity therewith,

it is hereby

ORDERED AND ApJUDGED by the Court that Booster Lodge

No. 405, International Association of Machinists and Aero-

space Workers, AFL-CIO, its officers, agents, successors

and, assigns, shall:

1. Cease and desist from:

(a) Restraining or coercing employees, who had resigned

from and who were no longer members of Booster Lodge

No. 405, International Association of Machinists and Aero-

space Workers, AFL-CIO, in the exercise of their rights

guaranteed in Section 7 of the Act, by imposing fines

against such employees because of their post-resignation

conduct in working at the Michoud plant during the Sep-

tember 1965, strike, or by threatening to seek or seeking

court enforcement of such fines.

(b) In any like or related manner, restraining, or coere-

ing employees in the exercise of rights guaranteed by Sec-

tion 7 of the Act.

2. Take the following affirmative action to effectuate the

policies of the Act:

(a) Reimburse or refund to any employees, described in

paragraph 1(a) of this Judgment, who have paid fines

under the circumstances described in that paragraph, the

amount of said fines imposed because of post-resignation

conduct in working at the plant.

(b) Post at its office and meeting hall and at the Michoud,

Louisiana plant of the Boeing Company, if the Company is

willing, copies of the attached notice, marked ‘‘ Appendix.”

Copies of said notice, on forms provided by the Regional

ctor for Region 15, (New Orleans, Louisiana), after

y signed by an authorized representative, shall be

ed at the aforementioned locations, in conspicious

»s, including all places where notices to employees are

marily posted, and reasonable steps shall be taken

isure that said notices are not altered, defaced, or

red by other material.

) Notify said Regional Director, in writing, within

ays from the date of this Judgment, what steps Union

tioner has taken to comply herewith.

Is FurTHER ORDERED AND ApgupGEp by the Court that

‘ase be and it is hereby remanded in part to the Board

further consideration in accordance with the Court’s

ion.

Grorce EK. MacKinnon

Circuit Judge, United States Court

of Appeals for the District of

Columbia Circuit

Matcoum R. WILKEY.

Circuit Judge, United States Court

of Appeals for the District of

Columbia Circuit

Wa ace S. GourRLEY

Senior District Judge, for the

Western District of Pennsylvania

AM, cients Di cee atainalge: see

APPENDIX

NOTICE TO MEMBERS

Posten PURSUANT TO A JUDGMENT OF THE UNITED States

Court or AprEALs ENForRCING AN ORDER OF THE

NationaL Lasor RELATIONS Boarp

Aw AGENCY OF THE UNITED StTaTES GOVERNMENT

We Wut Nor restrain or coerce employees who had re-

signed from the Union and who, in the exercise of their

rights guaranteed in Section 7 of the Act, worked at the

Michoud plant during the September 1965 strike, by im-

posing fines or by threatening to seek or by seeking court

enforcement of said fines as to such employees.

We Witt reimburse nonmembers abovementioned for any

fines they may have paid to us for working during the

said strike.

We Wu. Nor in any like or related manner restrain or

coerce employees in the exercise of rights guaranteed to

them in Section 7 of the National Labor Relations Act.

Booster Lopcre No. 405, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

Workers, AFL-CTO

(Labor Organization)

SNE cca sun bcmanes WF RU ANA ED Kad han Ur EN abe REA

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This Notice must remain posted for 60 consecutive days from the

date of posting and must not be altered, defaced or covered by any

other material.

Any questions concerning this Notice or compliance with its pro-

visions, may be directed to the Board's Oftice, T6024 Federal Build-

ing (Loyola) 701 Loyola Ave., New Orleans, La. 70113 Telephone

504-527-6361,

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24,687

Booster Lopce No. 405, INTERNATIONAL ASSOCIATION OF

MacuiNists anp AgRospace Workers, AFL-CIO, petirionER

Vv.

Nationat Lasor ReLations Boarp, RESPONDENT

THe BoEING COMPANY, INTERVENOR

No, 24,744

Tur Boring COMPANY, PETITIONER

NatioxaL Lasnor Reiations Boarp, RESPONDENT

Booster Lopcr No. 405, IN rer, ciioNan ASSOCIATION OF

Macninists AND AERospack Workers, AF L-C1LO, intTERVENOR

Petitioners for Review and Cross-Application for Enforee-

ment of Order of the National Labor Relations Board

Decided February 3, 1972

Mr. Bernard Dunau, with whom Messrs. Plato E. Papps

and C. Paul Barker were on the brief, for petitioner in No.

24,687 and intervenor in No. 24,744.

Mr. C. Dale Stout for petitioner in No. 24,744 and inter-

venor in No. 24,687.

Mr. Glen M. Bendixsen, Attorney, National Labor Rela-

tions Board, with whom Messrs. Arnold Ordman, General

Counsel at the time the brief was filed, Dominick L. Manoli,

Associate General Counsel, Marcel Mallet-Prevost, Assist-

ant General Counsel, and Stanley R. Zirkin, Attorney, Na-

tional Labor Relations Board, were on the brief, for re-

spondent.

BPwan.. ee

Se a ee are

aevrrr> T

Before MacKisxon and WILKEy, Circuit Judacs, and

Govrey,” Senior District Judge for the Western District

of Pennsylvania.

MacKrssox, Circuit Judge: In this case, we are called

upon to examine the right of a labor organization, conso-

nant with the provisions of the National Labor Relations

Act (N.L.R.A.), to discipline those members who have

crossed its picket line to work during an authorized strike.

We must determine the effect which a member's resignation

from the union, before, during, or after such conduct, has

upon the union’s disciplinary authority. We are also re-

quested to consider the legal implications of the ‘‘reason-

ableness”’ of the fines imposed, where the union has threat-

ened enforcement thereof, or has actually sought collection

through legal means.

The essential facts are not in dispute. Booster Lodge No.

405, International Association of Machinists and Aerospace

Workers, AFL-CIO (hereinafter sometimes referred to as

the Union), and The Boeing Company, (hereinafter some-

times referred to as the Company), were parties to a col-

lective bargaining agreement which was effective from

May 16, 1963, through September 15, 1965." Upon the ex-

piration of the contract, the Union commenced a lawful

strike against Boeing at its Michoud plant, as well as at

various other locations. This work stoppage lasted 18

* Sitting by desidmation pursuant to 28 U.S.C. § 294(d) (1970)

1At the time of the execution of the 1963-1965 agreement.

Booster Lodge No. 405 was not yet in existence. Boeing's

Michoud, Louisiana plant, with which we are concerned in this

case, was considered to be a ‘* remote loeation’’ unit, identitie!

with the “primary loeation’’ unit at Seattle-Renton, Washington

Therefore, the production and maintenance employees in the

Michoud unit were represented by Aeronautical Industrial Lodge

No. 751, LAM. AFL-CIO, of Seattle, a signatory to the above.

mentioned contract with Boeing. Booster Lodge No. 405 came

into existence sometime later in 1963, with jurisdiction over th

Michoud plant. but the bargaining agreement was not modified te

reflect this occurrence.

—

days. On October 2, 1965, a new bargaining agreement was

signed, and the economic strikers returned to work the

following day. Both the expired agreement and the newly

executed contract contained maintenance-of-membership

clauses, which required all new employees to notify both

the Union and the Company within 40 days of their accept-

ance of employment if they elected not to become Union

members. It also required those who were Union members

to retain their membership during the contract term.

During the strike period, approximately 143 employees,

of tht 1900 production and maintenance employees repre-

sented by the Union at the Michoud plant, crossed the picket

line and reported to work. All of these persons had been

Union members during the 1963-1965 contract period. Some

of the employees who worked during the strike made no

attempt to resign from the Union during the strike. The

remaining 119 submitted their voluntary resignations, in

writing, to both the Union? and the Company. About 61

of the employees who resigned did so before they crossed

the picket line and returned to work. Another 58 resigned

during the course of the strike, but after they had crossed

the picket line in order to work. All resignations were

submitted after the expiration of the 1963-1965 contract,

and before the execution of the new agreement, and all were

submitted prior to the imposition of any Union discipline.

Union members had not been warned prior to the strike that

disciplinary measures could, or would, be taken against

those who crossed the picket line to work, nor had any such

*The Union objected below to the fact that notices of resigna-

tion were sent to District lodge 751, rather than to Booster

llge 405. However. since Booster Lodge 405 was not a party

to the original 1963-1965 agreement. as explained in footnote 1,

“pra, it is clear that the employees who notified District Lodge

Tl were attempting to comply with the applicable contractual

requirements. Furthermore, District Lodge 751 notified Booster

ladge 405 of all resignations it received. We thus see no validity

in the objection.

Rey

Pas Say

sates

discipline been imposed on members by Booster Lodge 405

prior to this time.

In late October or early November of 1965, the Union

notified all members and former members who had crossed

the picket line to work during the strike that charges had

been preferred against them under the International Union

Constitution, for ‘Improper Conduct of a Member’’ due to

their having ‘‘accept[ed] employment ... in an establish-

ment where a strike exist{ed|.’? They were advised of

the dates of their Union trials, which were to be held even

in their absence if they did not appear, and they were

notified of their right to be represented by any counsel

who was a member of the International Association of

Machinists and Aerospace Workers. Pursuant to the In-

ternational Union Constitution provision which permitted

the imposition of disciplinary measures, including ‘‘repri-

mand, fine, suspension, or expulsion from membership, or

any lesser penalty or combination,’’ where a member had

been found guilty of misconduct after notice and a hearing,

fines were imposed on all employees who had worked dur-

ing the strike. No distinction was drawn between those

‘persons who had resigned from the Union during the

course of the strike and those who had remained Union

members.

Employees who did not appear for trial before the Union

Trial Committee and those who appeared but were found

guilty were fined $450.00 each, the amount determined by

the membership, and they were barred from holding 4

Union office for a period of 5 years. The fines of about

35 employees who appeared for trial, apologized, and

pledged loyalty to the Union, were reduced to 50 percent of

the earnings they received during the strike? In some of

3 Employees who worked during the strike earned between $2.48

and $3.63 per hour, or between #95 and #145 per 40-hour week.

In some instances, earnings during the strike period were supple-

mented by the inclusion of bonus or premium rates for weekend

and overtime work.

these cases the time period during which these persons

were prohibited from holding Union office was decreased

to a period based upon the number of days of strikebreak-

ing activity each respective person had engaged in. None

of the disciplined individuals processed intra-Union ap-

peals,

Although none of the $450.00 fines has been paid, reduced

fines have been paid in some instances. The Union has sent

out written notices that the matter has been referred to an

attorney for collection, that suit will be filed if the fines re-

main unpaid, and that reduced fines will be reinstated to

$450.00 in the event of nonpayment. The Union has also filed

suit against nine individual employees to collect the fines

(plus attorney’s fees and interest). None of these suits has

yet been resolved.

On February 18, 1966, the ( ‘ompany filed a charge with

the N.L.R.B., alleging that the Union had violated Section

8(b)(1)(A) of the N.L.R.AJ, and a complaint was issued by

£29 US.C. § 158(b) (1) (A) (1970), whieh provides:

(b) It shall be an unfair labor practice for a labor organi-

zation or its agents—

(1) to restrain or coerce (A) employees in the exercise of the

rights guaranteed in section 157 of this title: Provided, That

this paragraph shall not impair the right of a labor organiza-

tion to preseribe its own rules with respect to the acquisition

or retention of membership therein;

29 U.S.C. § 157 (1970) 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 agree-

ment requiring membership in a labor organization as a con-

dition of employment as authorized in section 158(a)(3) of

this title.

es |

10a

the General Counsel. The Labor Board decided that the

Union violated section 8(b)(1)(A): (1) by fining those em-

ployees who had resigned from the Union before they re-

turned to work during the strike; and (2) by disciplining

those employees who had resigned after returning to work,

to the extent that the fines were imposed for their working

during the strike after their resignations. The Board fur-

ther found that the Union did not violate the Act (3) by

fining members for crossing the picket line to work, and by

fining those employees who had resigned after returning

to work during the strike, for work they performed during

the strike prior to their resignations.

Finally, the Board determined (4) that it was not the in-

tention of Congress to have the N.L.R.B. regulate the size

of such disciplinary fines and establish standards with re-

spect to their reasonableness, and it dismissed the claim

that otherwise legal fines may be rendered violative of the

NLL.R.A. if unreasonably large. A cease and desist order

was issued, and the Union was ordered to refund any fines

collected from employees who had resigned before return-

ing to work. The Union was also required to refund a pro

rata portion of those fines collected from employees who

had resigned after first engaging in work during the strike,

so that the part of the fines retained would only reflect pre-

resignation conduct.

Booster Lodge 405 challenges the Board’s conclusion that

a mid-strike resignation from a union relieves an individual

from the burden of union discipline with respect to his post-

resignation activity, while The Boeing Company contends

that the N.L.R.B. should have examined the reasonableness

of the fines imposed by the Union. The Board seeks enforee-

ment of its order.

Part I of this opinon discusses the legality of the imposi-

tion of the disciplinary fines by the Union in response to the

strikebreaking by the approximately 143 employees in-

—_7_

lla

volved. Part IT considers the effect the reasonableness of

the fines has upon their propriety under the N.L.R.A., and

the proper function of the N.L.R.B. in this area. Finally,

Part III deals with the propriety of the Board’s remedial

order.

Tue Lecauity or tHe Discrptinary Fives

A. The Employees Who Did Not Resign

As early as 1954, in Minneapolis Star and Tribune Co.,

109 NLRB 727 (1954), the Labor Board held that a union

did not violate Section 8(b)(1)(A) of the Act by imposing

a fine on a member for his failure to perform picket duty

during the course of an authorized strike. The Board de-

cared that the proriso to 8(b)(1)(A)® precluded any inter-

ference by it with the internal affairs of a labor organization

insuch a situation. In V.L.R.B. vy. Allis-Chalmers Manufac-

turing C'0., B88 U.S. 175 (1967), a divided Supreme Court

similarly determined that a union did not violate the

N.L.R.A. when it imposed, and attempted to enforce through

court action, reasonable fines against members for their

failure to honor an authorized pieket line. Instead of re-

lying upon the express language of the »roviso, however,

the Supreme Court carefully analyzed the entire legislative

history of Section 8(b)(1)(A), and it concluded that Con-

gress did not intend to prohibit such internal union dis-

cipline by the prohibition against ‘‘restraint’’ or ‘‘eo-

ercion.’’ See 388 U.S. at 183-195. The Court noted:

National labor policy has been built on the premise

that by pooling their economic strength and acting

*See on. 4, supra.

"For another good analysis of the legislative history of § 8(b)

I}(A), see National Maritime Union, 78 NLRB 971, 982-987

148), enfd., 175 F.2d 686 (2nd Cir. 1949), cert. denied, 338

IS. 954 (1950).

through a labor organization freely choosen by the ma-

jority, the employees of an appropriate unit have the

most effective means of bargaining for improvements

in wages, hours, and working conditions. The policy

therefore extinguishes the individual employee’s power

to order his own relations with his employer and cre-

ates a power vested in the chosen representative to act

in the interests of all employees. ‘‘Congress has seen

fit to clothe the bargaining representative with powers

comparable to those possessed by a legislative body

both to create and restrict the rights of those whom it

represents ...”’

298 U.S. at 180. See J. 1. Case Co. v. N.L.R.B., 321 U.S. 332

(1944). The Court further stated:

Integral to this federal labor policy has been the

power in the chosen union to protect against erosion

fof] its status under that policy through reasonable

discipline of members who violate rules and regula-

tions governing membership. That power is particu-

larly vital when the members engage in strikes. The

economic strike against tlie employer is the ultimate

weapon in labor’s arsenal for achieving agreement upon

its terms, and ‘‘[t]he power to fine or expel strike-

breakers is essential if the union is to be an effective

bargaining agent ...’’

388 U.S. at 181.

12a

In more recent decisions, the Supreme Court has reaf-

firmed the right of a union to impose and enforce reason-

able fines against members who engage in strikebreaking

activities. In Scofield v. N.L.R.B., 394 U.S. 423, 428-490

(1969), the Court emphasized the right of a union to en-

force a properly adopted rule which reflects a legitimate

union interest, impairs no statutory labor policy, and is

reasonably enforced against union members. See N.L.R.B.

vy. Marine Workers, 391 U.S. 418, 423 (1968). See also

fe RAL PONTING: DRE

a ——w ze FOLENS LAR ROTR HHO

13a

Rocket Freight Lines Co. y. N.L.R.B., 427 F.2d 202, 205-206

(10th Cir. ), cert. denied, 400 U.S. 942 (4970) ; Silard, Labor

Board Regulation of Union Discipline After Allis-Chal-

mers, Marine Workers and Scofield, 38 Gro. Wasu. L. Rev.

187 (1969). In light of these developments,’ it is clear that

the Union acted within the sphere of its lawful authority

when it decided to impose fines on the 24 strikebreaking

members who did not resign from the Union.* Similarly,

the Union’s threats to enforee these fines, as well as its

actual efforts to achieve court enforcement thereof, were

not prohibited by the N.L.R.A.. However, a more difficult

question arises with respect to the 119 employees who re-

signed from the Union during the strike period.

B. The Employees Who Did Resign

As the Supreme Court recognized in Allis-Chalmers,

when Section 8(b)(1)(A) was enacted, ‘Congress was op-

erating within the context of the ‘contract theory’ of the

union-member relationship which widely prevailed at that

time.” NLRB. v. Allis-Chalmers Mfg. Co., supra, 388

U.S. at 192. See International Association of Machinists

v. Gonzales, 356 U.S. 617, 618 (1958). Under this theory

inion membership was deemed in effect to create a ‘‘con-

*The Company has asked this court to overrule Allis-Chalmers

in order to foree reconsideration of the union discipline area by

the Supreme Court, but that is not our function. We recognize

that ‘‘the Supreme Court should retain the exclusive privilege of

overruling its own decisions, save perhaps when opinions already

delivered have created a near certainty that only the occasion is

needed for pronouncement of the doom.’’ Salerno vy. American

League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2nd

Cir. 1970), cert. denied, 400 U.S. 1001 (1971). In light of Scofield

and Marine Workers, any argument for such reconsideration must

be addressed to the Supreme Court itself. See U.S. Gypsum Co. vy.

Steelworkers, 384 F.2d 38, 42-44 (oth Cir. 1967), cert denicd, 389

US. 1042 (1968): United States vy. Ullman, 221 F.2d 760, 762

(2nd Cir. 1955), affd., 350 U.S. 422 (1956),

*See Part II, infra, regarding the effect of the ‘‘reasonableness”’

of the fines imposed on their legality under § 8(b) (1) (A).

tract’? between the labor organization and the member

which imposed certain obligations on the member, and the

decision emphasized ‘‘that ‘The courts’ role is but to en-

force the contract.’ ’’ 388 U.S. at 182. See Summers, The

Law of Union Discipline: What the Courts Do in Fact, 70

Yate L. J. 175, 180 (1960). It is, therefore, obvious that

membership in the labor organization is the sine qua non

to the authority of a union to impose desciplinary burdens

upon the employees it represents. This has been widely

recognized.

l4a

In Allis-Chalmers, the Court expressly limited its holding

to ‘‘reasonable discipline of members who violate rules and

regulations governing membership.”’ N.L.R.B. v. Allis-

Chalmers Mfg. Co. supra, 388 U.S. at 181 (emphasis sup-

plied). See also id. at 195-196.° The Labor Board speci-

fically recognized this indispensable prerequisite in Scofield,

145 NLRB 1097, 1104 (1964), where it noted that ‘‘{a]

union rule that a member is subject to a fine if he [violates

a valid union rule] does not mean that he is subject to

such a fine as an employee.’’ (emphasis in original) This

membership requirement for union disciplinary authority

was affirmed by the Supreme Court in Scofield v. N.L.R.B.,

394 U.S. 423, 429 n. 5:

As an employee, [an individual] may be a ‘‘ good, bad,

or indifferent’? member so long as he meets the finan-

In Allis-Chalmers, all of the persons disciplined by te union

enjoyed full membership status. Thus the Court was not required

to decide what obligations vis-a-vis the union a person would be

under where he was not a full member, but only a ‘‘limited mem-

ber’’ who merely paid dues and fees in accordance with an appro-

priate union-security agreement. 388 U.S. at 197. See 29 USC.

§ 158(a)(3) (1970); N.L.R.B. v. General Motors Corp., 373 U.S.

734, 742 (1963). Since the contracts involved in the instant case

only contained maintenance-of-membership provisions, employees

were either full members or total non-members. For this reason,

we too intimate no view regarding the obligation which a union

may lawfully impose on a person whose only ties with the labor

organization are his payment of dues and fees.

l5a

cial obligations of the union security contract. * * * But

as a union member, so long as he chooses to remain one,

he is subject to union discipline. (emphasis supplied)

See 394 U.S. at 435. Thus the Court recognized that ‘union

members ... are free to leave the union and escape the

[union] rule.’’? 7d. at 430..° It is therefore apparent that

Booster Lodge 405 only had the authority to discipline those

employees who were in fact Union members at the time they

engaged in the complained of activity.

Approximately 58 of the employees who worked during

the strike submitted their resignations to the Union after

they had already engaged in some of the conduct proscribed

hy the International Union Constitution. In light of the

above discussion regarding union authority over action un-

dertaken by full members, we must coneur in the Board’s

determination that the Union did not violate Section

8(b)(1)(A) so far as its imposition of disciplinary fines

roncerned this pre-resignation conduct. The fact that the

ines were not officially imposed for these pre-resignation

breaches of Union regulations until after the strikebreakers

iad resigned, in no way negated the authority of the Union

”*IN]o employee is subject to union rules if he chooses to

orego the privileges and duties of union membership.’’ Silard,

Abor Board Regulation of Union Discipline After Allis-Chalmers,

farine Workers and Scofield, 38 Geo. Wash. L. Rev. 187, 190

1969). See International Association of Machinists and Acrospace

Vorkers, Local Lodge 504, 185 NURB No. 22, 75 LRRM 1008

1970). Since unions are only authorized to impose discipline

there legitimate internal affairs are concerned, N.L.R.B. y. Allis-

halmers Mfg. Co., supra; Scofield vy. N.L.R.B., supra; N.L.R.B.

. Marine Workers, 391 U.S. 418, 424 (1968) ; Local 138, Interna-

onal Union of Operating Engineers, 148 NLRB 679, 682 (1964),

is clear that any effort to fine non-members would constitute an

tempt to affect erternal activities, an area in which Congress did

ot intend to permit such union regulation. This was correctly

ognized by the N.L.R.B. in this ease.

a BE

s =

l6a

over these persons with respect to these acts, as the

N.L.R.B. properly recognized.

The provisions of a contract are enforceable, and a

eause of action can be brought upon them, even after

the expiration or termination of the agreement. The

rights and duties created by an agreement thereof,

Thus the termination of some employees’ membership

here did not affect the Union’s subsequent assertion of

rights which had acerued to the Union during their

earlier period of membership, such as the right to dis-

cipline the employees for prior strikebreaking. The

effect of these employees’ resignations was only to ex-

tinguish the Union’s future authority over them.

Booster Lodge No, 405, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO, 185 NURB No.

23, 1970 CCH NLRB § 22,259, at p. 28,693 (1970)."

(, Fines Imposed for Post-resignation Conduct

An extremely difficult question is presented with respeet

to the fines which were imposed upon employees for their

post-resignation conduct.'* Booster Lodge 405 has made a

sophisticated argument which would expose persons who

were members at the commencement of a particular strike

to union discipline with respect to any strikebreaking action

undertaken during that specifie work stoppage. Although

it concedes that such a restriction is not contained in any of

"A resignation acts to terminate the existing relationship so

far as the incursion of future obligations is concerned, Previously

established or perfected liabilities survive the termination, See 5A

Corbin, CONTRACTS § 1229, pp. 508-510 (1964).

' This would, of course, include the approximately 61 persons

who resigned from the Union before engaging in any strikebreak-

ing activity, as well as the 58 persons discussed previously, who

resigned during the period of their strikebreaking, so far as their

actions undertaken after they effectively resigned are concerned.

_—

17a

the express language of the International Union Constitu-

tion or By-laws, the Union urges this court to ‘flesh out’?

such documents by imposing such an obligation by impli-

cation. We must decline this invitation.

It must be emphasized that in situations like this, while

‘the function of the court is to determine, as far as is

possible, the intention of the contracting parties and to give

legal effect thereto,’’ * it is generally recognized that courts

will not usually imply offenses not specified in a union’s

constitution or by-laws.'* We believe that this latter con-

sideration is controlling with respect to the instant ease.

As the Union recognizes, there is nothing in the record

which evidences any intention on the part of the approxi-

mately 119 persons who resigned during the strike in ques-

tion that their initial acceptance of Union membership

would impose upon them the type of continuing obligation

which Booster Lodge 405 now asks this court to impose.

Furthermore, the very fact that they resigned during this

period, in an obvious attempt to eseape the disciplinary

authority of the Union, belies this proposed line of

reasoning.

In addition, an extremely important national labor policy

militates against the imposition of such an implied obliga-

tion. Section 7 of the N.L.R.B."° expressly protects the right

of any employee to refrain from any or all of the concerted

activities guaranteed to employees under the Act. While

Allis-Chalmers and Scofield recognized the legality of cer-

tain express union provisions limiting an employee's free-

dom where he had voluntarily accepted full union member-

ship, nothing in those decisions supports the Union’s theory

of implied, post-resignation restrictions. In fact, language

"1 Cornin, Contracts $95, p. 396 (1963).

Summers, Legal Limitations on Union Discipline, 64 Marv. L,

Rev. 1049, 1059-1061 (1951). and see cases cited therein.

"29 U.S.C. § 15 (1970). See n. 4, supra.

18a

in Scofield expressly indieates otherwise. The Supreme

Court only recognized the right of a union ‘‘to enforce a

properly adopted rule which reflects a legitimate union in-

terest, impairs no policy Congress has imbedded in the labor

laws, and is reasonably enforeed against union members who

are free to leave the union and escape the rule.’’ Scofield y.

N.L.R.B., supra, 394 U.S. at 480 (emphasis supplied). As the

Board properly coneluded below, after resignation, ** [b]oth

the member’s duty of fidelity and the union’s corresponding

right to discipline him for breach of that duty are extin-

guished.’’ Booster Lodge No. 405, International Association

of Machinists and Aerospace Workers, AFL-C1O, supra,

1970 CCH NLRB § 22,259, at p. 28,692.

The Union has relied heavily upon the First Cireuit’s

holding in N.L.R.B. v. Granite State Joint Board, Textile

Workers Union, Local 1029, 446 F.2d 369 (1st Cir. 1971),

but we believe that the decision is inapposite to the present

fact situation. Although the court in Granite State upheld

the right of the union involved to impose fines on strike-

breakers for post-resignation activity, it emphasized that a

specific set of facts was present which it believed rendered

such a result equitable, and it specifically recognized that

these considerations were not present with respect to the

instant Booster Lodge 405 case."" In Granite State, the

Board conceded that all of the fined employees had voted in

favor of the strike in question.” It is also important to note

that the fines had not been imposed pursuant to a general

provision in the union constitution, as here, but rather in

accordance with a specific proclamation which had been

unanimously adopted by the membership after the work

stoppage commenced. See 446 F.2d at 370, 372 n. 5. Further-

Bh cel acan EPS ee tg Bs.

"See 446 F.2d at 3872 n. 5, wherein the First Cireuit dis-

tinguished the facts present in the instant ease from those present

in Granite State.

446 F.2d at 370, n. 2. In the present ease, there is no evidence

that the disciplined strikebreakers voted to strike.

_ —

19a

more, all of those who were disciplined in Granite State had

been expressly pre-warned of possible punishment for

strikebreaking,"” while the employees with whom we are

herein concerned received no such pre-strikebreaking notifi-

cation. Because of these distinguishing facts, we refuse to

apply the rationale of Granite State to the instant factual

situation.’” The strong equities which weighed in favor of

the union there, are clearly not present here. In fact, their

very absence powerfully supports the result which we have

accepted.

Since the International Union Constitution and By-laws

contained no express restriction upon a member’s right to

resign, It is clear that the strikebreaker employees were free

to resign at will, subject only to their being bound by any

permissible collective bargaining agreement provision limit-

ing this right. Local Union 621, United Rubber, Cork, Lino-

leum and Plastic Workers of America, 167 NURB 610

(1967); Communications Workers v. NLRB. 215 F.2d 835

(2d Cir. 1954); NLRB. v. Mechanical and Allied Produe-

lion Workers, Local 444, 427 F.2d 883 (1st Cir. 1970). Fur-

thermore, since the resignations all oceurred after the

termination of the 1963-1965 agreement and before the

execution of the new contract, the maintenance-of-member-

ship provision was not applicable to limit this right either.

VLRB. ve Mechanical and Allied Production Workers,

Local 444, supra, 427 F.2d at 884-885; N.L.RLB. v. Granite

State Joint Board, Teatile Workers Union, Local 1029,

supra, 446 F.2d at 872. Under these circumstances we coneur

in the reasoning of the Second Cireuit in Communications

Workers v. N.L.RLB., supra, 215 F.2d at 838:

We agree that the proviso [to §8(b)(1)(A)] pro-

teets the Union’s right to make its own rules with re-

"$446 F.2d at 371.

“To the extent that the First Cireuit’s decision in Granite

State may be read to support Booster Lodge 405’s position here,

we respectfully decline to follow it.

at ae tlt AB

«v

20a

spect to membership, but assuming, arquendo, that a

rule wholly prohibiting voluntary resignations would

be valid, we think that in the absence of any rule on the

subject of voluntary resignation, the proviso is inap-

plicable. Concededly the Union Constitution and by-

laws are absolutely silent as to whether a member can

voluntarily resign. Henee we think that the common

law doctrine on withdrawal from voluntary associations

is apposite. Under that doctrine, a member of a volun-

tary association is free to resign at will, subject of

course to any financial obligations due and owing the

association. [citations omitted] ”

For the reasons set out above, we conclude that the Labor

Board correctly determined that ‘*the Union's right to

discipline employees terminated upon the employees’ sub-

mission of their letters of resignation [, thus t]he attempted

imposition of discipline for subsequent conduct was beyond

the powers of the Union.’? Booster Lodge No. 405, Inter-

national Association of Machinists and Acrospace Workers,

AFL-C10, supra, 1970 CCH NLRB € 22,259, at p. 28,692."

2 We express no opinion herein concerning the legality of any

union constitution or by-law provision expressly limiting the right.

of a member to resign during the period of an ongoing strike.

Compare N LAB. ¥. International Union, U.A.W., 320 F.2d 12

(Ist Cir, 1963). We similarly intimate no view regarding the

legality of any such provision expressly imposing a continuing

obligation on any resigning member to refrain from strikebreaking

during a work stoppage which was properly commenced prior to

the time of the resignation.

1 1¢ is clear, as the Board has recognized, that the **resigna-

tions were effective upon receipt of notification by the Union.”

Local 1012, UE... UST NLRB No, 46, 76 LRRM 1038 (1970

(emphasis supplied). See Belle-Moc, Inc., 51 NLRB 6, 7 (1949) ;

Kocniq Bros, 108 NLRB 304 (1954); NLRB. v. Vapor Re

covery Systems Co., VL F.2d 782, 785 (Mh Cir, 1962), Any

questions which may possibly arise concerning the effective dates

of particular employee resignations ean either be determined by

the Board on remand of the reasonableness issue, in accordance

with Part II of this opinion, or, if the N.L.RLB. prefers, such

21a

We therefore affirm the Board's finding that the Union vio-

lated Section 8(b)(1)(A) of the N.L.R.A. by imposing fines

upon employees, and by threatening or attempting enforee-

ment of such fines, because of those employees’ post-resigna-

tion conduct in working at the Company plant during the

authorized work stoppage. Since the imposition of fines

under such circumstances violated the policies underlying

the N.L.R.A. and had effects outside the area of internal

Union affairs, they were clearly ‘‘coercive’’ within the mean-

ing of Section 8(b)(1)(A). See N_L.R.B. v. Marine Workers,

391 US. 418 (1968); District 50, Local 12419, 176 NLRB

No. 89, 71 LRRM 1311 (1969): Local 138, International

Union of Operating Engineers, AFL-CIO, 148 NLRB 679

(1964). See also International Molders and Allied Workers,

Local 125,178 NLRB 208, 72 LRRM 1049 (1969), enfd., 442

F.2d 92 (7th Cir. 1971).” We thus grant enforcement of the

problems may be left for resolution at the compliance stage or

in supplemental proceedings. United Steelworkers of America,

Local 5571 v, NLRB. 130 US. App. D.C. 369, 373, 401 F.2d

$34, 458 (1968), cert. denied, 395 US, 946 (1969). See American

Fire Apparatus Co. v. N.LRB., 380 F.2d 1005, 1007(Sth Cir.

1967); N_L.RB. v. International Longshoremen’s I ‘nion, Lacal 12,

378 F.2d 125, 130 (%h Cir 1967), cert. denied, 3839 US. 846

(1967); V.LRB. v. Darling & Co., 420 F.2d 63, 66 (7th Cir.

1970).

* This would inelude the Union's effort not only to discipline

those employees who had resigned from membership before en-

gaging in any sirikebreaking, but also the organization's imposi-

tion of fines on those who resigned during the period of their

strikebreaking, to the extent that such discipline was imposed as

a result of their post-resignation conduct,

“The fact that the fines imposed upon the employees for’ eon-

duct undertaken after they had severed their ties with the Union

might not have been collectable in a subsequent collection suit,

does not detract from the facet of their coerciveness at the time

they were imposed. See NLRB. v. American Bakery and Con-

fectionery) Workers, Local 300, 411 F.2d 1122, 1126 (7th Cir.

1909). See also Local Union No, 167, Progressive Mine Workers

of America v. NLRB, 422 F.2d 538, 542 (7th Cir.), cert.

denied, 399 U.S, 905 (1970),

6S bh debe # O68 tar ele abe ode). bdloe + ne eee ——

“wis ¥ « =

| ee OE th Me ad at 1 ie Ge TA.

22a

N.L.RB.B.’s cease and desist order so far as it concerns the

imposition of fines for post-resignation conduct.”

Tue Boarv’s Duty to DeTerMINe THE REASONABLENESS OF

Fixes

In its decision below, the N.L.R.B. relied upon a compan-

ion case, International A ssociation of Machinists and Aero-

space Workers, Local 504 [Arrow Development Co.], 185

NLRB No. 22, 75 LRRM 1008 (1970), in concluding that a

fine’s “‘reasonableness’’ has no effect upon its legality under

the N.L.R.A. This conclusion was based upon the Board's

belief that Congress did not intend to empower the Labor

Board with the authority to examine the severity of union

discipline when ascertaining its legality, and it indicated

that it thought that local courts were the most logical tri-

“This result also supports the Board's conclusion that the

Union fines which were imposed upon the approximately 35 per.

sons who apologized and pledged loyalty, should be confined to

50% of their pre-resignation strikebreaking earnings, since any

attempt to enforee the diseipline with respect to postere signation

remuneration could be reasonably construed as an effort to punish

the very conduet which we have held the Union may not so

regulate. ‘‘While it is true that [the Board's] retroactive order

might [afford] these employees a better position .. . the Board

can hardly be said to be effectuating policies beyond the purposes

of the Act by resolving the doubt against the party who violated

the Act.”’ Leeds & Northrup Co. v. N.L.R.B., 391 F.2d 874, S80

(3rd Cir. 1968). We therefore grant enforcement to that part of

the Board’s order which limits enforeement of such fines to 50G

of pre-resignation earnings, which we believe results in the en-

forcement of a reasonable fine, Similarly, the prohibition against

holding Union office, which, with respect to these persons, was

calculated on a pro rata basis refleeting the number of strike-

breaking days each worked, must necessarily also be restricted so

that the length of sueh prohibitions will only reflect: preresigna-

tion activity. See expanded discussion of the Board's remedial

authority in Part IIL of this opinion, infra.

2 Appeal is now pending before the Ninth Cireuit, sub nom.

David O'Reilly v. N.L.R.B., No. 26,892.

—

23a

bunals for the establishment of standards of reasonableness.

The Board therefore refused to examine the question of

reasonableness in the present ease, despite an express deter-

mination by the Trial Examiner that the imposed fines were

impermissibly excessive. We rejeet the position of the

Board,” and remand the ease for further proceedings in

conformity with the views set out below.”

The Board’s belief that it does not have the obligation of

examining the reasonableness of union fines in Section

8(b)(1) (A) proceedings is based upon a clear misconception

of the law and the Supreme Court’s relevant decisions. In

Allis-Chalmers, the Court stated:

It is no answer that the proviso to §8(b)(1)(A) pre-

serves to the union the power to expel the offending

* We emphasize the fact that in the instant ease, the Union

not only threatened to utilize court action to enforee the fines

imposed, but in several instances, actual collection suits were

begun. Under sueh circumstances, we believe that the reasonable-

ness of the fines in question is highly relevant to the question of

their legality under §8(b)(1)(A). We intimate no view regard-

ing the need for an examination of the reasonableness of dis-

ciplinary fines where the only enforeement mechanism contem-

plated by the union involves the expulsion of the individual from

the union.

* Although the Union has argued that the aggrieved employees

should not have the right to have a Board determination econ-

cerning the reasonableness of the fines imposed, due to the fact

that they have not exhausted all available interna] Union rem-

edies, we reject this contention, An individual need not, in all

eases, exhaust all internal union proceedures before secking the

services of the N.L.R.B. See N_L.R.B. v. Marine Workers, 391

US. 418 (1968); Local 138, International Union of Operating

Engineers, 148 NLRB 679 (1964). The imposition of such a

requirement in this case coneerning the reasonableness issue would

not, in our opinion, best serve the interests of justice or further

the objectives of the N.LZR.A. The issue here involves publie

poliey and thus transeends the pure internal affairs of the Union.

391 US. at 422-428,

—

24a

member. Where the union is strong and membership

therefore valuable, to require expulsion of the member

visits a far more severe penalty upon the member than

a reasonable fine.

’

N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 183

(emphasis supplied). The Court further recognized tha:

‘‘the proviso preserves the rights of unions to impose fines,

as a lesser penalty than expulsion . . ”” 388 US. at 191-192

(emphasis supplied).* This implicity recognized that, fora

disciplinary fine to be less coercive than expulsion from the

union, the fine imposed must be a ‘‘reasonable’’ one, for it is

intuitively obvious that enforcement of a grossly excessive

fine might visit a far greater burden upon an individual

than would mere expulsion.” The Supreme Court also ex-

28 Justice White, in his concurring opinion, observed :

[S]ince expulsion would in many cases—certainly in this

one involving a strong union—be a far more coercive tech-

nique for enforeing a union rule and for collecting a reason-

able fine than the threat of court enforcement, there is no

basis for thinking that Congress, having accepted expulsion

as a permissible technique to enforee a rule in derogation of

§7 rights, nevertheless intended to bar enforeement by an-

other method [court action] which may be far less coercive.

388 U.S. at 198 (emphasis supplied). It is also informative to

note the express interpretation given to the Allis-Chalmers opinion

by the dissenting members of the Court: ‘‘ {T]he Court's holding

boils down to this: a court-enforced reasonable fine for non-

participation in a strike does not ‘restrain or coeree’ an employee

in the exercise of his right not to participate in the strike.”’ 3s

US. at 200-201 (dissenting opinion of Black, J.) (emphasis

supplied).

2? Even the attorney who argued Allis-Chalmers for the union

before the Supreme Court has recognized this limitation in the

Court’s decision. He has indicated that Allis-Chalmers only deter-

mined that ‘‘a union suit to collect a reasonable fine imposed on

a member for violating a ‘no strikebreaking’ rule does not violate

section 8(b)(1)."" Silard, Labor Board Regulation of Union Dis-

cipline After Allis-Chalmers, Marine Workers and Scofield, 3>

Gro. Wasu. L. Rev. 187, 190 (1969) (emphasis supplied).

pressly recognized this fact in its recent Scofield decision,

wherein it concluded that the enforcement of a proper union

rule **by reasonable fines does not constitute the restraint or

coercion proscribed by §8(b)(1)(A).”? Scofield v. N.L.R.B.,

supra, 394 US. at 436 (emphasis supplied). The Scofield

Court emphasized that under Allis-Chalmers, ‘*{a] union

rule, duly adopted and not the arbitrary fiat of a union of-

fieer, forbidding the crossing of a picket line during a strike

lis]... enforceable against voluntary union members by

expulsion or a reasonable fine.’’ 394 U.S. at 428 (emphasis

supplied). In light of the Court’s emphasis on the require-

ment of ‘*reasonable fines’? if a union is to avoid a violation

of the Act in these cireumstances, we must conclude that the

imposition of an unreasonably large fine, at least where the

union threatens or actually attempts court enforcement of

the fine, may be coercive and restraining within the meaning

of section 8(b)(1) (A).

Since the imposition of an unreasonably excessive disei-

plinary fine is violative of Section 8(b)(1) (A), it is clearly

the obligation of the N.L.R.B. to resolve the question of

reasonableness where such an issue is appropriately raised.

The Board asserts that such a result might cause conflicts

between it and state courts which attempt to examine the

reasonableness issue in actions to collect such fines. How-

ever, we do not believe that this possible problem detracts

from the Board’s obligation under the N.L.R.A.”

We recognize that ‘‘state courts have been adjudicating

internal union disputes for more than 60 years.’’ Summers,

The Law of Union Discipline: What the Courts Do in Fact,

” The question of the extent to whieh union action for enforee-

ment of disciplinary penalties is pre-empted by federal labor law

is not before this court, and we intimate no view concerning the

resolution of this complex issue, Compare San Diego Building

Trades Council v. Garmon, 359 U.S. 236, 245 (1959), with Linn

v. United Plant Guard Workers, Local 114, 383 U.S. 53 (1966),

See NLRB. vy. Allis Chalmers Mfg. Co., supra, 388 U.S, at 197

n. 37,

~—

70 vALe LJ. 175 (1960). We further acknowledge the fact

that ‘‘the state courts, in reviewing the imposition of union

discipline, find ways to strike down ‘discipline [which] in-

volves a severe [monetary] hardship.’ ’’ * However, these

considerations do not relieve the N.L.R.B. of its duties under

the N.L.R.A. ‘‘{T]he business of the Board, among other

things, is to adjudicate and remedy unfair labor practices.

Its authority to do so is not ‘affected by any other means of

adjustment or prevention that has been or may be estab-

lished by agreement, law, or otherwise... .’ §10(a),... 29

U.S.C. §160(a).”’ N.L.R.B. v. Strong, 393 U.S. 357, 360

(1969). See Office and Professional Employees International

Union, Local 425 v. N.L.R.B., 136 U.S. App. D.C. 12, 15-16,

419 F.2d 314, 317-318 (1969).** Furthermore, the fact that

26a

eS cant ste

31 See eases cited 70 Yate L. J. at 175 n. 3. ‘Unless the rule

or its enforeement impinges on some policy of the federal labor

law, the regulation of the relationship between union and em-

ployee is a contractual matter governed by local law.’’ Scofield

v. N.L.R.B., supra, 394 U.S, at 426 n. 3.

32 N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 193

n. 32, quoting from Summers, Legal Limitations on Union Dis-

cipline, 64 Harv. L. Rev. 1049, 1078 (1951). For some examples

of state court willingness to examine the reasonableness of union

disciplinary fines, see: North Jersey Newspaper Guild, Local 173

y. Rakos, 110 N.J. Super 77, 74 LRRM 2487 (N.J. Sup. Ct., App.

Div. 1970); L.A. Newspaper Guild, Local 69 v. Armenta, 73

LRRM 2078 (Cal. Sup. Ct, App. Dept. 1969) ; Walsh v. Com-

munications Workers of America, 75 LRRM 2629, 2632 (Md. Ct.

of App. 1970); McCauley v. Federation of Musicians, Local 294,

26 LRRM 2304 (Pa. Ct. of Com. Pls. 1950).

33 Although the Union has cited language in U.0.P. Norplez,

Div. of Universal Oil Products Co. v. N.L.R.B., 445 F.2d 155, 158

(7th Cir. 1971), stating that ‘* [t]he reasonableness of . . . fines

is a matter for the state court to determine should the Union

seek judicial enforeement of the fines,’’ in support of its conien-

tion that this issue is outside the seope of the Board’s authority,

this statement is clearly not apposite to the present case. The

Court was there concerned with whether the subject of internal

27a

some state courts might not permit enforcement of excessive

fines in a collection action by the union, does not detract

from their coerciveness, or the need for N.L.R.B. action.

V.LRB. v. American Bakery and Confectionery Workers,

Local 300, 411 F.2d 1122, 1126 (7th Cir. 1969). See Local

Union No. 167, Progressive Mine Workers of America v.

V.L.RLB., 422 F.2d 538, 542 (7th Cir.), cert. denied, 399 U.S.

905 (1970).

Other factors also support the conclusion that Board

intervention is authorized in this very limited area, despite

the historical activity of state courts and the reluctance of

the 80th Congress to interfere in the internal affairs of

unions. There is something to be said for having the reason-

ableness of fines determined by standards that are as nearly

uniform as national standards promulgated by the N.L.R.B.

can be. Furthermore, access to the Labor Board is more

readily available than meaningful access to state courts.

Before the Board, the employee is represented by the Gen-

eral Counsel, and the agency bears the expense of the litiga-

tion. If the same employee wants a complete resolution of

the reasonableness issue in a state court collection action

brought by the union, he must be prepared to accept at least

some financial burden. ‘The danger that the legal rights of

a disciplined member will go by default because of the cost

of asserting them in court is obvious ...’? Summers, The

Law of Union Discipline: What the Courts Do in Fact, 70

YALE LJ. 175, 220 (1960). We therefore reject the argument

that the N.L.R.B. is required to defer to state tribunals with

respect to the reasonableness issue. Such “reverse preemp-

union fines was a mandatory subject for collective bargaining, and

it recognized that ‘‘even if the fines were excessive, the remedy

would be for the company to file an 8(b)(1)(A) charge aguinst

the union, not to try to convert an otherwise non-mandatory sub-

ject of bargaining into a ‘term or condition of employment’.’’ 445

F.2d at 158 n. 7 (emphasis supplied), The Boeing Company fol-

owed the exact procedure suggested,

SE ds te we

JSa

tion’’ would not, in our view, be consonant with the princi-

ples underlying the N.L.R.A.**

Although the Board has not previously had to examine the

reasonableness of urion fines, it is not without experience in

a related area. Under Seetion 8(b)(5),” it is required to

determine whether initiation fess required by a labor organi-

zation under a union-security agreement are excessive.”

The fact that Section 8(b)(1)(A) does not provide the

Board with specific standards to be applied in determining

the reasonableness of a union fine, while Section 8(b) (5)

does include several express standards, does not detract

from the N.L.R.B.’s authority under 8(b)(1)(A). See

N.L.R.B. v. Radio and Television Broadcast Engineers

Union, 364 U.S. 573, 582-583 (1961). ‘‘ Experience and com-

%4 We emphasize the fact that ‘‘ [t]he function of striking that

balance to effectuate national labor policy is often a difficult and

delicate responsibility, which the Congress committed primarily

to the National Labor Relations Board . . .”’ V.L.R.B. v. Truck

Drivers Union, 353 U.S. 87, 96 (1957). This is the very function

which the Board is being asked to perform here.

599 U.S.C. §158(b) (5) (1970), which provides:

(b) It shall be an unfair labor practice for a labor organi-

zation or its agents—

* * * we cz * * *

(5) to require of employees covered by an agreement au-

thorized under subsection (a) (3) [, ie., a union-seeurity pro-

vision,] the payment, as a condition precedent to becoming

a member of such organization, of a fee in an amount which

the Board finds excessive or discriminatory under all the cir-

cumstances, In making such a finding, the Board shall con-

sider, among other relevant factors, the practices and customs

of labor organizations in the particular industry, and _ the

wages currently paid to the employees affected ; (emphasis

supplied )

86 See, e.g., Longshoremen, 1.L.A., Local 1419, 186 NLRB No.

94, 75 LRRM 1411 (1970), wherein a violation of §&8(b)(5)

was found. See also N.L.R.B. v. Television & Radio Broadcasting

Studio Employees, Local 804, 315 F.2d 398 (3rd Cir. 1963).

—_

29a

mon sense will supply the grounds for the performance of

this job,’’ which we have concluded was implicitly entrusted

by Congress to the Board. 364 U.S. at 583.

The Board must remember that a fine imposed for the

violation of a legitimate union rule should be viewed as

presumptively protective, and therefore privileged, when

the amount of the fine, taking into account the character and

importance of the ends served by the rule being enforced, is

reasonably related to the need for protection. On the other

hand, if the amount of the fine is such as to be inordinately

disproportionate to the needed protection, an inference is

warranted that the fine was imposed upon the member, not

in vindication of a legitimate union interest, but rather as a

reprisal for his having exercised a statutorily protected

right. In the latter situation, as we have previously indi-

cated, the fine would be ‘‘coercive’’ within the meaning of

Section 8(b)(1)(A) of the Act. In determining whether an

imposed fine is privileged or prohibited, due to its size, many

factors may properly be considered by the Board. We shall

mention several obvious factors which might be considered

on remand, along with others the Board may consider to be

applicable.

The reasonableness of a fine would necessarily have to be

determined in light of the circumstances leading to its im-

position. Such factors as the compensation received by the

strikebreakers, the level of strike benefits made available to

the striking employees, the individual needs of the persons

being disciplined, the detrimental effect of the strike-

breaking upon the effectiveness of the strike effort, the

length of time of the work stoppage, the strength of the

particular union involved, the availability of other less

harsh union remedies, and many other similar considera-

tions would clearly be relevant.

One additional consideration is worthy of mention. In its

original Scofield decision, 145 NLRB 1097, 1104 (1964), the

Board expressly indicated that a union had no right to

usd eaten |

>" ad.

30a

impose any penalty which would ‘timpair the member's

status as an employee.’’ This prohibition against union

diseiplinary action adversely affecting an employee’s em-

ployment status has been approved by the Supreme Court,

See N.L.R.B, v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at

195; Scofield v. N.L.R.B., supra, 394 U.S, at 423, 428. While

this prineiple clearly prohibits a union from seeking the sus-

pension or termination of an employee by his employer due

to his strikebreaking,” its implications may have further ap.

plication which might be relevant to the present case. Where

a disciplinary fine is unreasonably excessive, it may possibly

affeet the employee's employment status as adversely—and

possibly even more adversely—as an illegally obtained em.

ployment suspension, On remand, the Board might also con-

sider this protective policy of the Act in determining the

reasonableness of the fines in question under Scetion

8(b) (1) (A).

8t See 29 U.S.C, § 158(b) (2) (1970), which provides, inter alia;

(b) It shall be unfair labor practice for a labor organiza-

tion or its agents—

» * * * % * » *

(2) to cause or attempt to cause an employer to discrimi.

nate against an employee in violation of subsection (a) (2)... .

29 U.S.C. § 158(a) (3) (1970), provides inter alia:

(a) It shall be an unfair labor practice for an employer-

* * * * * * * *%

(3) by diserimination in regard to hire or tenure of em-

ployment or any term or condition ef employment to en-

courage or discourage membership in any labor organiza-

Sik

88 We, of course, recognize that Section &8(b)(2) was enacted

to prevent a union from improperly interfering with an indi-

vidual’s employment relationship through his employer, Towever,

this does not detract from the fact that this provision evidences a

Congressional desire to protect an employee from any unresason-

able adverse affect on his employment status by a labor organiza-

tion, See NLRB. vy, Allis-Chalmers Mfq. Co., supra, 388 U.S. at

195; Scofield v. N.L.RB, supra, 394 U.S. at 123, 128.

dla

Labor Board Remedy

Although we are remanding this case to the N.L.R.B. for

further consideration of the reasonableness question, it is

apparent that the other aspects of the Board’s decision

below should be immediately affirmed. As was noted earlier

in this opinion, the cease and desist order prohibiting fur-

ther Union action pertaining to post-resignation strike-

breaking conduct is granted enforcement. A more dificult

question arises with respect to the aflirmative aspects of the

Board’s decision.

“In §10(c) of the Act Congress has given the Board

broad power to fashion remedies to effectuate the policies of

the Labor Act. So long as the Board exercises responsibility

inits judgment, courts should not interfere with its remedy,

since this is ‘peculiarly a matter for administrative com-

petence.’ Phelps Dodge Corp. v. NLRB, 313 U.S. 177, at

194... (1941).’’ “The Board’s power to fashion remedies

places a premium upon agency expertise and experience,

and the broad discretion involved is for the ageney and not

the court to exercise.’? Amalgamated Clothing Workers of

America v, N.L.R.B., 125 U.S. App.D.C., 275, 281, 371, F.2d

740, 746 (1966).”

"29 U.S.C. §160(e) (1970) authorizes the Board to require

the perpetrator of an unfair labor practice ‘‘to take such affirma-

tive action . . as will effectuate the policies of this Fees as

” Office and Professional Employees International Union, Local

25 v. N.LR.B., 136 U.S. App.D.C. 12, 19-20, 419 F244 314, 321.

322 (1969). See Frank Bros. Co. vy. V.L.R.B., 321 U.S. 702, 704

(1944); Fibreboard Paper Products Corp. v. N.L.R.B., 379 US,

203, 215-217 (1964). See also N.L.R.B. y. Seve n-Up Bottling Co.,

34 US, 844 (1953).

"See cases cited 125 U.S. App.D.C. at 281 n. 5, 371 b.2d at

46 n. 5,

With these considerations in mind, we clearly must affirm

that part of the Board’s order which requires the Union to

reimburse the approximately 35 employees who apologized

and pledged loyalty, thereby obtaining a reduction in their

respective penalties, for any amounts paid which were based

upon post-resignation strikebreaking earnings.” We simi-

larly affirm that portion of the order requiring the total

reimbursement of any fines paid by employees who effee-

tively resigned before engaging in any strikebreaking

activity.

With respect to the Board’s order as it relates to the re-

maining employees who resigned, the Board established a

reimbursement formula which pro rated each employee's

respective fine, thereby limiting the collectable portion to

that part which reflects the amount of pre-resignation con-

duet. It obviously believed that this was the most reason-

able manner in which to rectify the effects of the Union's

unfair labor practice with respect to these persons,

The utilization of remedial formulas has been approved

by the Supreme Court. V.L.R.B. v. Seven-Up Bottling Co.,

344 U.S. 344 (1953). Keeping in mind our limited review

function, we are unable to conclude that ‘‘the order is a

patent attempt to achieve ends other than those which can

fairly be said to effectuate the policies of the Act.’? Virginia

Electric & Power Co. v. N.L.R.B., 319 U.S, 538, 540 (1945).

‘‘While it is true that [such] a retroactive order might

afford the employees a better position ... the Board can

hardly be said to be effectuating policies beyond the pur-

poses of the Act by resolving the doubt against the party

who violated the Act.’’ Leeds & Northrup Co. v. N.LRB.,

* See n. 24, supra, for further discussion of the remedy pertain

ing to these persons.

——_

33a

391 F.2d 874, 880 (8rd Cir. 1968).** We therefore must affirm

this portion of the Board’s affirmative reimbursement

order.

The case is remanded to the Labor Board for further con-

sideration of the questions relating to the reasonableness of

the fines imposed by the Union

So Ordered.

“We are cognizant of the fact that the Union's $450.00 fine

Was imposed upon all strikebreakers except those who apologized

and pleaded loyalty—regardless of the number of days of strike-

breaking engaged in by each. Although the Union argues that this

fact indicates that no pro rata reduction should have been re-

quired by the Board with respect to these employees, we recognize

the N.L.R.B.’s obvious desire to formulate an affirmative order

would reetify the Union's improper attempt to punish post-resiena-

tion conduct. We eannot conclude that the Board has abused its

broad diseretionary authority in this area. See V.L.R.B. y. Seven-

Up Bottling Co., 344 U.S, 344 (1953),

34a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 15-CB-779

Booster Lodge No. 405, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO and The

Boeing Company

Decision and Order

On December 30 1968, Trial Examiner Ramey Donovan

issued his Decisioa in the above-entitled proceeding, finding

that the Respondent had engaged in certain unfair labor

practices and recommending that it cease and desist there-

from, and take certain affirmative action, as set forth in the

attached Trial Examiner’s Decision. Thereafter, the Gen-

eral Counsel, the Charging Party, and the Respondent each

filed exceptions to the Decision, together with supporting

briefs. The Charging Party filed a reply brief. Subsequently

in response to an invitation of the Board, the Charging

Party and the Respondent filed supplemental briefs. In re-

sponse to the same invitation, statements of position were

filed by the National Association of Manufacturers, and by

the American Federation of Labor and Congress of Indus-

trial Organizations, joined by the International Brother-

hood of Teamsters and the International Union, UAW, as

amici curiae.

The Board has reviewed the rulings of the Trial Exam-

iner made at the hearing and finds that no prejudicial error

was committed. The Board has considered the Trial Exam-

iner’s Decision, the exceptions and briefs, the reply brief,

the supplemental briefs, the statements of position amie

curiae, and the entire record in the case. The Board adopts

the Trial Examiner’s findings of fact, but adopts his conelu-

sions and recommendations only to the extent that they are

consistent with the decision herein.

35a

The essential facts of this case are not in dispute. Booster

Lodge No. 405, International Association of Machinists and

Aerospace Workers, AFL-CIO, hereinafter called IAM or

the Union, and Boeing were parties to a collective-bargain-

ing agreement effective from May 16, 1963 through Septem-

ber 15, 1965." Upon the expiration of the contract, the Union

commenced a lawful strike against Boeing at its Michoud

plant in New Orleans, Louisiana, and at various other loca-

tions. The strike lasted 18 days. On October 2, 1965, a new

contract was signed. The strikers returned to work on the

following day. Both contracts contained maintenance-of-

membership clauses, which required new employees to no-

tify both the Union and the Employer of their desire not to

join the Union within 40 days of accepting employment.

During the strike period, some 143 employees of a unit of

approximately 1900 production and maintenance workers

crossed the picket line and reported for work. All had been

members of the Union during the contract period. One group

of strikebreaking employees, numbering some 24, made no

attempt to resign from the Union. The remaining 119 strike-

breaking employees submitted their voluntary resignations,

in writing, to both the Union and the Employer.2 Many

"At the time of the execution of the 1963 agreement, Booster

Lodge 405 was not in existence. Boeing’s Michoud, Louisiana. plant

was considered a ‘*Remote Location’? unit, identified with the

“Primary Loeation’’ unit at Seattle-Renton, Washington. Pro-

duction and maintenance employees in the Michoud unit were

represented by Aeronautical Industrial Distriet Lodge No. 751,

IAM, AFL-CIO, Seattle, a signatory to the contract with Boeing.

Booster Lodge No. 405 came into existence sometime later in 1963,

but the contraet was not modified to reflect this event.

*The Union objects to the faet that notiees of resignation were

sent to District Lodge 751 rather than to Booster Lodge 405. How-

ever, since Booster Lodge 405 was not a party to the original

contract, as explained in footnote 1 supra, it would appear that

employees who notified Distriet Lodge 751 were at’empting to

comply with contractual requirements. Moreover, District Lodge

751 notified Booster Lodge 405 of all resignations.

Maa Ne

tie

SELB aNSaEY

aad 2 V)

ES Be SON BUC LS SH Wa oe a cag tS

36a

resigned from membership prior to reporting for work dur-

ing the strike. Others resigned during the course of the

strike, but returned to work before submitting their resig-

nations.* All resignations were submitted after the expira-

tion of the original contract and before the signing of the

new one. All were submitted prior to the imposition of disei-

pline by the Union.

In late October or early November 1965, the Union noti-

fied all strikebreaking employees that charges had been pre-

ferred against them under the International Constitution

for ‘‘Improper Conduct of a Member” in ‘‘aceepting em-

ployment... in an establishment where a strike ... exists.”

Employees were advised of the dates of their trials, which

were to be held even in their absence, and of the availability

of union-member counsel. Prior to the strike, the Union had

not warned members about the possible imposition of disei-

plinary measures. However, the IAM constitution provides

that members found guilty of misconduct after notice and a

hearing are subject to ‘‘reprimand, fine, suspension, or ex-

pulsion from membership, or any lesser penalty or combina-

tion.’’ The constitution sets no maximum dollar limitation

on fines.

Fines were imposed on all strikebreaking employees, re-

gardless of whether, or when, they had resigned from the

Union. Employees who did not appear for trial were fined

$450, as were those who appeared and were found guilty.

The fines of employees who appeared for trial, apologized,

and pledged loyalty to the Union were reduced to 50 per-

cent of strikebreaking earnings. The level of fines was set

by the union membership. There is no indication of the

* Four-hundred-and-fifty dollar fines were imposed on 108 em-

ployees, Of these, 61 had resigned their union membership prior

to reporting for work during the strike, and others resigned dur.

ing the eourse of the strike. Reduced fines were imposed on 39

employees.-The record as to the timing of their resignations is

not clear.

37a

method of computation. Strikebreaking employees earned

between $2.58 and $3.63 per hour, or between $95 and $145

per 40-hour week. In some instances, earnings during the

strike were supplemented by the inclusion of bonus or pre-

mium rates for weekends and overtime.

Reduced fines have been paid in some instances. Pay-

ments have averaged $40. None of the $450 fines has been

paid. The Union has sent out written notices that the matter

has been referred to an attorney for collection, that suit will

be filed upon nonpayment of fines, and that reduced fines

will be increased for $450 in the event of nonpayment. The

Union has filed suit against nine individual employees to

eollect the fines (plus attorney’s fees and interest). The

outcome of the suits has not been determined.

A principal issue in this case is the legality of the Re-

spondent’s imposition of disciplinary fines upon individuals

who had resigned from the Union before engaging in the

conduct for which the discipline was imposed. The eom-

plaint alleges, and the Trial Examiner found, that the

Respondent’s action in fining employees in this category

violated Section 8(b)(1) (A) of the Act. We agree with the

Trial Examiner’s conclusion.‘ However, as the Trial Ex-

aminer has not fully spelled out his reasoning in this regard,

and in light of the views of our dissenting colleague, we be-

lieve that further explication of our reasoning is appro-

priate here.

Under Section 8(b) (1) (A) of the Act, it is an unfair labor

practice for a labor organization to ‘‘restrain or ee ree em-

ployees in the exercise of rights guaranteed in Section 7.’

Included among those rights is the right to refrain from

*The Trial Examiner's reference to a ‘‘eompounded’’ violation

of Section 8(b)(1)(A) perhaps implies that the violation is

merely derivative. On the contrary, we find, as spelled out more

fully herein, that the very imposition of a fine on nonmembers

violates the Act, regardless of the amount of the fine.

Ie Mont

ee ee

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38a

engaging in any of the protected concerted activities enu-

merated at the beginning of Section 7.

The levy of a fine is calculated to force an individual both

to pay money and to engage in particular conduct against

his will. This is true regardless of the ultimate collectibility

of the fine. A man who is held up at gunpoint is coerced

whether or not the gun is loaded. As with the levy of a fine,

the coercion lies in the calculated threat and, as has been

held, the ‘‘argument that the fines imposed were not collec-

tible in a court of law, even if accepted is beside thie

point.’?* The imposition of a fine has immediate coercive

consequences. Faced with the possibility ef action against

him, the employee may well be, for practical purposes, im-

pelled to forego his statutory right not to honor the Union's

picket line rather than risk involvement in a lawsuit whose

outcome he cannot predict.® Or, should he choose to take that

risk, he will find it necessary to hire counsel whose services

he ordinarily would not require.

The Board has long recognized that a fine is inherently

coercive.’ Yet in situations where a union imposes disciplin-

ary fines on its members the Board has held that the union

does not violate Section 8(b)(1)(A).6 The basis of the

Board’s holdings in these early fine cases was the proviso

5 See N.L.R.B. v. American Bakery and Confectionery Workers’

Local Union 300, 411 F.2d 1122, 1126, (C.A. 7), enfg, 167 NLRB

596.

® We do not share the confidence of our dissenting colleague in

the ability of the ordinary employee to evaluate the ultimate legal

consequences of the union’s act. Nor would we require him to

attempt to do so.

7 See e.g. Minneapolis Star & Tribune Co., 109 NILRB 727, 73s.

8 Thid. See also Local 283, United Automobile, Aircraft & Agqri-

cultural Implement Workers of America, UAW-AFL-C1O (Wis-

consin Motor Corp.), 145 NLRB 1097; Local 248 et al., United

Automobile, Aerospace & Agricultural Implement Workers of

America, AFL-CIO (Allis-Chalmers Mfg. Co.), 149 NLRB 67.

39a

to Section 8(b)(1) (A), which exempts ‘‘the right of a labor

organization to prescribe its own rules with respect to the

acquisition or retention of membership’’ from the coverage

of that section. Although a union’s membership rules may

well be coercive, their enactment is specifically protected by

the Act. In Minneapolis, supra, the Board construed the

levy of the fine as the prescription of a rule with respect to

the retention of = membership, and held that the union’s

conduct, which was protected by the proviso, therefore did

not violate Section 8(b) (1) (A).

In Peng the Board’s conclusions in Allis-Chalmers,

the Supreme Court held that the body of Section 8(b)

(1)(A) was not intended to reach the conduct of a labor

organization in imposing and enforcing a fine upon its

members for crossing an authorized picket line.’ Thus, the

Court found it unnecessary to pass on the Board’s holding

that the proviso protected the union’s conduct. Neverthe-

less, the basis of the Court’s holding was the underlying

relationship between the union and its members. Through-

out the opinion, the Court emphasized the right of unions to

regulate their own internal affairs. Reference was made to

the ‘‘contract theory’’ of union membership. And, finally,

the Court cited the proviso to Section 8(b)(1)(A) as offer-

ing ‘‘cogent support for an interpretation of the body of

Section 8(b)(1)(A) as not reaching the opposition of fines

and attempts at court enforcement.’’

The significance of the membership relationship is that

it establishes the union’s authority over its members. In

joining a union, the individual member becomes a party to

acontract-constitution. Without waiving his Section 7 right

to refrain from concerted activities, he consents to the pos-

sible imposition of union discipline upon his exercise of

that right.” But the contract between the member and

° NLRB. vy. Allis-Chalmers Mfg. Co., 388 U.S. 175.

The power to discipline recalcitrant members is essential to

the union’s self-preservation, This eoereive power is protected by

the proviso to Section 8(b) (1) (A).

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40a

the union becomes a nullity upon his resignation. Both

the member’s duty of fidelity to the union and the union’s

corresponding right to discipline him for breach of that

duty are extinguished.

In the case at bar, the Union’s right to discipline employ-

ees terminated upon the employees’ submission of their let-

ters of resignation."* The attempted imposition of disci-

pline for subsequent conduct was beyond the powers of the

Union.” It was not consented to by the employees. Nor,

in our view, was it protected by the proviso to the Act.

The holding in Allis-Chalmers was carefully restricted to

the facts of that case. The Court expressly refused to pass

on the legality of the imposition of a fine upon ‘‘limited

members’’ of the union™ It appears to us that in this reser-

vation there was the implication that such a fine when

levied against nonmembers constitutes a form of restraint

and coercion proscribed by Section 8(b)(1)(A). The deci-

sions in two subsequent fine cases reinforce that implica-

tion.

™ The Union takes the position that voluntary resignation from

its ranks is impossible of achievement beeause its constitution and

by-laws set forth no procedure for such resignations. As this argu-

ment is contrary to long-standing Board precedent, we reject it

here. See Communications Workers of America, CIO (New Jersey

Bell Tel. Co.), 106 NLRB 1322, enfd. 215 F.2d 835 (CLA. 2);

Local Union No. 621, United Rubber, Cork, Linoleum & Plastic

Workers of America, AFL-CIO (Atlantic Research Corp.), 167

NLRB 610; District Lodge 751, International Association of

Machinists & Aerospace Workers, AFL-CIO (Boeing Co.), 173

NLRB No. 71. Moreover, as indicated infra, the Supreme Cowt

in the Scofield case expressly sanctioned the strategy of leaving

the union to avoid discipline.

2 The Union’s disciplinary authority was, as we hold, limited to

conduct engaged in during the period of membership.

18 While the court did not specifically refer to the fining of non-

members, the cited reservation indicates the relevance of the mem-

bership issue.

—

4la

In its recent Scofield opinion,** the Supreme Court sum-

marized its construction of Section 8(b)(1)(A) as follows:

|The section] leaves a union free to enforce a pro-

perly-adopted rule which reflects a legitimate union

interest, impairs no policy Congress has imbedded

in the labor laws, and is reasonably enforced against

union members who are free to leave the union and

escape the rule. [Emphasis supplied. ]

This suggests that the prohibitions of Section 8(b)(1)(A)

encompass union rules which do not conform with the

enumerated qualifications. Included in this latter category

is a rule enforced against nonunion members. By observ-

ing that members could ‘‘leave the union and escape the

rule,’? the Court seems to have envisaged the possibility

that union members could, indeed, resign membership and

avoid discipline.

In the Shipbuilding Workers Case," the Supreme Court

found unlawful a union’s attempt to discipline members for

filing charges with this Board before exhausting their intra-

union remedies. The Court construed Section 8(b)(1)(A)

as assuring a union freedom of self-regulation only ‘‘where

its legitimate internal affairs are concerned.’ But the impo-

sition of discipline upon nonmembers can hardly be deemed

an internal affair.

Our dissenting colleague treats Allis-Chalmers as if it ex-

isted in a vacuum, overlooking subsequent decisions and the

statutory provisions themselves. But to extend the Allis-

Chalmers doctrine beyond the perimeters of the situation

there involved is to emasculate the provisions of Section

8(b)(1)(A). Such a result can hardly have been intended

by the Supreme Court. It should not be reached here. In

the interplay between the statutory policy to prevent coer-

Scofield, et al. v. N.L.R.B., 394 U.S. 423.

“NLRB. vy. Marine & Shipbuilding Workers, 391 U.S. 418.

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42a

cion of employees for exercising Section 7 rights on the

one hand, and the policy to permit unions to guide their

internal affairs and determine their membership qualifica-

tions on the other, the former must prevail where the mem-

bership relation which justifies the latter is terminated.

For the foregoing reasons, we find that the Respondent

violated Section 8(a)(1)(A) of the Act by imposing dis-

ciplinary fines upon resigners from its ranks, for acts com-

mitted after their resignations. We shall order the Respond-

ent to cease and desist from such conduct, including at-

tempts to collect the illegal fines through court proceedings.

Also at issue in this case is the legality of the Respond-

ent’s imposition of disciplinary fines upon two other cate-

gories of strike-breaking employees, those who crossed the

picket line without resigning from the union, and those

whose resignations were submitted after the commencement

of strikebreaking activities but prior to the initiation of dis-

ciplinary action against them. The legality of the imposition

of discipline upon members for conduct engaged in during

the period of membership is clear."® Accordingly, we find

that the Respondent did not violate Section 8(b)(1) (A) by

fining the nonresignees. Nor, in our opinion, does the Re-

spondent’s failure to exercise its disciplinary authority with

respect to the second group until after the submission of

16 N.L.R.B, vy, Allis-Chalmers Mfq. Co., sapra. As @ majority of

the Board (Members Fanning, Brown, and Jenkins), would find

that the legality of union fines does not depend on their reason-

ableness, the Board does not adopt the Trial Examiner’s findings,

conclusions and recommendations on that issue, See Arrow De-

velopment Corp., 185 NLRB No, 22, issued this day, For the

reasons stated in his dissenting opinion in the Arrow ease, Chair-

man MeCulloch would examine the amount of the fines to deter-

mine their reasonableness in those situations where the union's

imposition thereof and threatened or actual court action to collect

such fines would in all other respeets be lawful. Where expulsion

from membership is clearly the only available method of enforece-

ment, he would consider the size of a fine irrelevant.

—_7

43a

their resignations affect the legality of its action. As the

source of the Union’s disciplinary authority lies in the con-

tractual relationship between the organization and its mem-

bers, it is to the gules of contract law that we turn in eval-

gating the Union's conduct. The provisions of a contract

are enforeeable, and a cause of action can be brought upon

them, even after the expiration or termination of the agree-

ment. The rights and duties created by an agreement are

extinguished only prospectively by the termination thereof.

Thus the termination of some employees’ membership here

did not affect the Union's subsequent assertion of rights

which had acerued to the Union during their earlier period

of membership, such as the right to discipline the employ-

ees for prior strikebreaking. The effect of these employ-

ee’s resignations was only to extinguish the Union’s future

authority over them.

Accordingly, we further find that the Respondent did

not violate Seetion 8(b)(1)(A) of the Act by fining former

members for misconduct engaged in prior to their resigna-

tions from among its ranks. Vlowever, this conclusion does

not legitimize the imposition of discipline for conduct en-

gaged in after the resignations. We shall order the Respond-

ent to cease and desist from such action, and to remit a

prorata portion of the fine, so that what remains reflects

oly preresignation conduct.

ORDER

Pursuant to Section 10(¢) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

hereby orders that the Respondent, Booster Lodge No. 405,

International Association of Machinists and Aerospace

Workers, AFL-CIO, its officers, agents, successors, and as-

signs, shall:

1. Cease and desist from:

(a) Restraining or coercing employees, who had re-

signed from and who were no longer members of the Union,

;

ee bilan 37%

t4ta

in the exercise of their rights guaranteed in Section 7 of

the Act, by imposing fines against such employees because

of their post-resignation conduct in working at the Mich-

oud plant during the September 1965, strike, or by threat-

ening to seek or seeking court enforcement of such fines.

(b) In any like or related manner, restraining, or

coercing employees in the exercise of rights guaranteed by

Section 7 of the Act.

2. Take the following affirmative action to effectuate the

policies of the Act:

(a) Reimburse or refund to any employees, de-

scribed in paragraph l(a) of this Order, who have paid

fines under the cireumstances described in that paragraph,

the amount of said fines imposed because of post-resigna-

tion conduct in working at the plant.

(b) Post at its office and meeting hall and at the

Michoud, Louisiana plant of the Boeing Company, if the

Company is willing, copies of the attached notice, mark»

‘*Appendix.’’'* Copies of said notice, on forms provided

by the Regional Director for Region 15, shall, after being

signed by an authorized representative, shall be posted at

the aforementioned locations, in conspicuous places, inelud-

ing all places where notices to employees are customarily

posted, and reasonable steps shall be taken to insure that

said notices are not altered, defaced, or covered by other

material,

10 days from the date of this Order, what steps Respond-

ent has taken to comply herewith.

In the event this Order is enforeed by a judgment of the

United States Court of Appeals, the words in the notice reading

‘*Posted by Order of the National Labor Relations Board’’ shall

read *‘ Posted pursuant to a Judgment of the United States Court

of Appeals enforcing an Order of the National Labor Relations

Board.”’

toa

IT IS FURTHER ORDERED that those portions of the

complaints as to which no violation has been found be, and

they hereby are, dismissed.

Dated, Washington, D, C., August 27, 1970.

Joun H, Fannin, Member

Frank W. McCvutiocn, Member

Howarp JENKINS, JR., Member

(Seal)

NationaL Lapor Retations Boarp

Member Brown, concurring in part and dissenting in part:

I join with my colleagues in dismissing the allegations of

the complaint with respect to the imposition of discipline

upon members for conduct engaged in during their period

of membership. Hlowever, T would also dismiss the remain-

ing allegations concerning the imposition of fines upon pur-

ported resigners from the Union.

My colleagues’ disposition of this question is predicated

upon the premise that an employee, faced with the threat

of a union fine, ‘‘may well be impelled to forego his sta-

tutory right not to honor the Union’s picket line rather

than risk involvement in a lawsuit whose outeome he ean-

not predict.’* But this is what Allis-Chalmers was all about.

There, a union fine, or the threat of it, expressly designed

to foree employees to ‘forego [their] statutory right not

to honor the Union’s picket line’? was nevertheless held not

to violate Section 8(b)(1)(A) even though such a fine was

collectible, or collected, in court. The Supreme Court

reasoned that 8(b)(1)(.A) was not intended to apply to this

kind of coercion. If, as is the case here, a Union does not

violate 8(b)(1)(.A) by imposing or threatening to impose a

collectible fine, it is difficult to see how a presumably un-

collectible fine can be violative of that Section. Even if,

as the majority reasons, the employee concerned may not

be sufficiently knowledgeable to evaluate the Union's fine

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46a

as *‘un-collectible,’’ and thus feel completcly free to cross

the picket line with impunity, he is plainly no more co-

ereed than the full-fledged member.

A further consideration, ignored by my colleagues, im-

pels me to this view. Each of the employees involved here,

and in all other situations of which I am aware, was a

member of the Union in all senses of the word before the

strike began. Thus the fealty owed by a member to his

union in effeet came into play when the strike was author-

ized and began, and a ‘‘resignation’’ at that point was al-

ready a disloyal action from the standpoint of the Union

and his fellow members. Moreover, I cannot conceive of

a ease arising where a union would ‘‘fine’’? someone who

had never been its member at all. It is only because the

employees here were, in the eyes of the Union, and _ pur-

suant to the Union’s constitution and bylaws, still Union

members, that the fines would have any impact at all upon

them. In this respect, whether employees are still members

of the Union for purposes of imposition of a Union fine,

the proviso to 8(b)(1)(A), in express terms, applies to a

union’s rules for acquisition or retention of membership."

For all these reasons, I would find no violation of See-

tion 8(b)(1)(A) of the Act in a Union’s fining a nonmem-

ber or a purported nonmember.

Dated, Washington, D. C., August 27, 1970.

Geratp A. Brown, Member

NationaL Lasor RELaAtIons Boarp

* The cases cited by my colleagues in footnote 11 concern a

Union’s application of its membership rules to his job tenure, and

thus are inapposite to the instant situation, where the rules per-

tain solely to another interna] union matter.

47a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 20-CB-1947

INTERNATIONAL ASSOCIATION OF MACHINISTS

anp Agrospace Workers, AFL-CIO

Loca Lopce No. 504, (Arrow DevELOPMENT Co.)

AND

Davin O’Rettiy, An I[xpivipvau

Decision and Order

Upon a charge duly filed on November 14, 1968, by

David O’Reilly, an individual, the General Counsel of the

National Labor Relations Board, by the Regional Director

of Region 20, issued a Complaint and Notice of Hearing

on February 26, 1969, against International Association of

Machinists and Aerospace Workers, AFL-CIO, Local Lodge

No. 504. The complaint alleged that the Respondent Union

had engaged in and was engaging in unfair labor practices

within the meaning of Section 8(b)(1)(A) of the National

Labor Relations Act, as amended, by imposing a fine of

$500 against David O’Reilly for crossing a picket line estab-

lished by Respondent at Arrow Development Co., and by

attempting to collect said fine. On March 3, 1969, Respond-

ent filed an answer denying the commission of any unfair

labor practices.

On various dates between April 14, 1969, and April 21,

1969, the parties executed a Stipulation of Facts and a

Motion to Transfer Proceeding to the Board by which they

waived a hearing before a Trial Examiner and the issuance

of a Trial Examiner’s Decision and Recommended Order

and agreed to submit the case to the Board for findings of

fact, conclusions of law, and an order, based upon a record

consisting of the Stipulation of Facts and the exhibits at-

tached thereto.

RE ATR ET ER RS OS OOD a Ore

— sre a

48a

On April 28, 1969, the Board approved the stipulation of

the parties and ordered the case transferred to the Board,

granting permission for the filing of briefs. Thereafter, the

General Counsel, Charging Party, and Respondent filed

briefs, and the General Counsel and Respondent filed

answering briefs.

Upon the basis of the stipulation, the briefs, and the

entire record in this case, the Board makes the following:

Findings of Facet

I. Jurisdiction

Arrow Development Co., hereinafter also referred to as

Arrow, is a California corporation with its principal place

of business in Mountain View, California, where it is en-

gaged in the manufacture and wholesale distribution of

cides for use in amusement parks. During the past vear,

in the course and conduct of its business, Arrow shipped

goods valued in excess of $50,000 directly to customers lo-

cated outside the State of California.

We find that Arrow is, and at all times material herein

has been, an employer engaged in commerce and in oper-

ations affeeting commerce within the meaning of Section 2

(6) and (7) of the Aet.

Il. The Labor Organization Involved

International Association of Machinists and Aerospace

Workers, AFL-CIO, Loeal Lodge No. 504, is a labor organ-

ization within the meaning of Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. Facts

Respondent has represented Arrow employees for a num-

ber of years. The most recent collective-bargaining contract,

which contained a union-seeurity clause requiring member-

ship in the Union as a condition of employment, was op-

—

49a

erative for the period April 1, 1967, to Mareh 31, 1968. On

March 31, Respondent held a meeting, attended by David

O'Reilly, at which a strike was authorized by vote of the

membership, The strike began on April 1, and lasted until

April 29, when a new agreement between Arrow and the

Union was reached, During the 4-week period of the strike,

O'Reilly crossed the picket line and continued to work,

earning $610.62 (net earnings were $511.33) for this period.

At all times material herein, O'Reilly has been a member

of the Union, On April 29, 1968, he was notified by the

Union that charges had been filed against him for crossing

the picket line and working for Arrow during the strike.

O'Reilly did not attend the subsequent trial and, in his

absence, Respondent's trial committee found him guilty

and recommended that he be fined $250. Thereafter, at a

regular membership meeting, Respondent’s members eon-

curred in the verdiet of the committee and voted to fine

Reilly $500, O'Reilly was so notified.

On August 2, 196%, Respondent brought suit against

(Reilly in the Municipal Court for the San Jose- Milpitas-

Alviso Judicial Distriet. County of Santa Clara, State of

California, to collect the fine. On November 15, the Union

was awarded a judgment for $528." Since that date, Re-

spondent has attempted to colleet on the judgment by

garnisheeing of O’Reilly’s wages.

B. Contentions of the Parties

In Alis-Chalmers,? the Supreme Court held that a union

does not violate Seetion S(b)(1)( A) by imposing fines

against its members fot failure to honor an authorized

picket line, and by attempting to enforce the fines through

court action, for the reason that S(b)(1)( A) was not in-

Five hundred dollars on the debt, $26.50 in eosts, and $1.50

in fees for issuance of the writ of exeeution.

* NLRB. vy. Allis-Chalmers Mfg. Co., 388 U.S. 175.

50a

tended by Congress to prohibit a labor organization from

imposing such fines.* The fines in that ease ranged from $20

to $100. In Scofield v. N.L.R.B.,* the union had imposed fines

of $50 and $100 on members who violated its rule (impos-

ing a ceiling on production for which members could aec-

cept immediate piecework pay). In holding the union’s fore-

: going conduct had not violated the Act, the Supreme Court

; observed, inter alia, that there was no showing that the fines

were unreasonable in amount. The General Counsel urges

in the instant ease that ‘*The Supreme Court has thus in-

dicated that a union may violate Section 8(b)(1)(A) if it

imposes an unreasonable fine on its members.’’ According

to General Counsel, regardless of the reason for the assess-

ment once it is shown that a fine is unreasonably large, ‘‘the

excessiveness of the ... penalty makes ... [the] con-

4 duct an unprotected restraint upon employees,’’ since such

4 a penalty necessarily coerces employees with respect to the

. exercise of their Section 7 right to refrain from assisting a

4 labor organization. Thus, a fine, such as the one in the

: instant case, which equals or exceeds wages earned during

)

Sas 24

iP ahi nl shh Bi hs Sony Dig

a strike is a total restraint upon an employee’s election to

work is confiseatory, and, therefore, presumptively unlaw-

ful.° Finally, General Counsel argues that the Board should

not permit the state courts to become the sole arbiters of

’The Board (149 NLRB 67) had reached the same result by

application of the 8(b)(1)(A) proviso, a holding which the Su-

preme Court found unnecessary to pass upon.

4394 U.S, 423.

5 As analogical support for his position, General Counsel] directs

the Board’s attention to its decision in Charles S. Skura, 148

NLRB 679 (approved by the Supreme Court in N.L.R.B. vy.

Marine & Shipbuilding Workers, 391 U.S. 418), which assertedly

establishes the proposition that union imposition of fines on its

members may, in some circumstances, constitute restraint and

coercion, However, in that ease, it was the reason for the discipline

(fining of members who had filed charges with the Board) rather

than its severity which made the discipline unlawful.

5la

the question of whether or not a fine is reasonable (an

issue which those courts will face in entertaining union suits

to enforce fines) because a uniform national policy is

required.

The Charging Party, in addition to the contentions ad-

vanced by General Counsel, urges the following consider-

ations:

1. The strike vote was not by secret ballot.

2. The Union constitution denies a member the right to

select counsel of his choice to represent him during union

disciplinary proceedings.’

3. The Union attempted to enforce the fine by engag-

ing in conduct prohibited by Section 8(b)(2).*

4. After securing a judgment, the Union served the Em-

plover with garnishment papers requiring the Employer

to deduct 50 percent of the Charging Party’s wages until

the fine was satisfied.’

®We need not determine whether or not the vote was by secret

ballot; the balloting procedure utilized for the strike vote in this

ease is an internal union matter not governed by any provisions

of the National Labor Relations Act.

‘The Union constitution provides that a member must select his

attorney from among the members of the Union. The Board will

not review the procedural regularity of this internal union dis-

ciplinary proceeding.

*The alleged 8(b) (2) conduct has been the subject of a separate

settlement agreement, approved by the Regional Director, and thus

is not before us in the instant ease.

*By serving the Employer with garnishment papers, after se-

curing a judgment, the Union was apparently following applicable

procedures under California law for collection on a judgment.

These procedures are not subject to our review. If the original

imposition of the fine was lawful under this Act, and the suit

to enforee the fine was also lawful, then it necessarily follows that

the Union may avail itself of judgment collection procedures under

state law.

ee See tad gee Sate Peres ST

‘

”

5. The Charging Party was not a voluntary union mem-

ber, but joined the Union solely because of the requirements

of the then operative contract union-security clause."°

Respondent urges that Allis-Chalmers establishes that a

union’s action in fining a member for crossing a lawful

picket line does not conflict with any policy of the Act

and, therefore, the amount of the fine is necessarily an

internal union matter, removed from Board jurisdiction by

the 8(b)(1)(A) proviso. Further, Respondent contends, the

fine in this case is reasonable as the Union, in fining the

Charging Party an amount roughly equal to his net strike-

breaking earnings, has merely deprived him of the fruits of

breaking the union rule. Employees who obeyed the rule

suffered a comparable loss. Additionally, according to

Respondent, a fine may lawfully serve a penal function and,

in that case, may be greater ‘‘ihan the monetary benefit

that the wrongdoer derives from his offense.’’"

C. Conclusion

As early as 1954, the Board held in Minneapolis Star and

Tribune Company ® that a union had not violated the Act

10 Tn Allis-Chalmers, a form of union-security ¢lause was also

in effect, and it was urged that membership was a result of this

requirement and not voluntary choice, The Supreme Court held

that the relevant question was not what motivated full member.

ship, so long as full membership existed in facet. The Court stated:

‘** Allis-Chalmers offered no evidence in this proceeding that any

of the fined employees enjoyed other than full union membership.

We will not presume the contrary.’’ We regard this holding as

dispositive of the issue raised by the Charging Party herein.

™ Respondent also urges that the complaint is defective because

it does not specifically allege that the $500 fine is unlawful be-

cause the amount is unreasonable. Respondent further contends

that the complaint should be dismissed because of the Charging

Party's failure to exhaust internal union procedures, In view of

our disposition of the case, we need not pass upon these conten-

tions.

22.109 NLRB 727.

— .

58a

by imposing a fine of $500 on a member for his failure to

perform picket duty during the course of a 1-week strike.

The Board concluded that ‘‘. . . the proviso to Section 8(b)

(1)(A) precludes any such interference with the internal

affairs of a labor organization.’’ The Board adhered to this

rationale in its more recent decisions in Wisconsin Motor

Corporation** and Allis-Chalmers Manufacturing Com-

pany,'* both involving fines and judicial proceedings to en-

force the fines. In Allis-Chalmers the Board held:

Here too the Respondents have properly maintained

the distinction between treatment of the individual

as a member of the Union and treatment of him as

an employee. They have imposed the fine only on

their own members. It is not alleged that the Re-

spondents ever attempted to affect the jobs or

working conditions of any of the fined individuals.

Nor is it alleged that the rule prohibiting members

from crossing a picket line during a strike is not the

legitimate concern of a union or properly the sub-

ject matter of internal discipline. It may be said

then that the Respondents were engaged only in

prescribing and enforcing their own rules with re-

spect to the acquisition or retention of membership.

Since, under the proviso, Section 8(b) (1) (A) does not

impair the right of a labor organization to do this, it

follows that the Respondents did not violate that

section.

In affirming the Board’s conclusions in Allis-Chalmers,

the Supreme Court reviewed the legislative history under-

lying the enactment of the Taft-Hartley Act and held that

Section 8(b)(1)(A) was not intended to reach the conduct

of a labor organization in fining its members for crossing

8145 NLRB 1097.

“149 NLRB 67.

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54a

an authorized picket line, and seeking court enforcement of

those fines.’* The Court held at 195:

Thus this history of congressional action does not

support a conclusion that the Taft-Hartley prohibi-

tions against restraint or coercion of an employee

to refrain from concerted activities included a pro-

hibition against the imposition of fines on members

who decline to honor an authorized strike and at-

tempts to collect such fines. Rather the contrary

inference is more justified in light of the repeated

refrain throughout the debates on $8(b)(1)(A) and

other sections that 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 employ-

ment status.

In Wisconsin Motor,'® the Court reaffirmed its holding in

Allis-Chalmers. It further noted that the Board’s decision

in Skura,“ and its own decision in Marine Workers,’ estab-

lish that if a union rule ‘tinvades or frustrates an over-

riding policy of the labor laws the rule may not be enforced,

even by fine or expulsion, without violating § 8(b)(1).’? The

net effect of the two lines of cases, said the Court, is that:

Under this dual approach, $8(b)(1) leaves a union

free to enforce a properly adopted rule whieh re-

flects a legitimate union interest, impairs no policy

‘Congress has imbedded in the labor laws, and is

reasonably enforced against union members who are

free to leave the union and eseape the rule.

®% The Court's rationale made it unneeessary to test the Union's

conduct against the 8(b)(1)( A) previse, as the Board had done.

6 Scofield v. N.L.R.B., footnote 4, supra.

Footnote 5, supra.

18 Td,

The Court coneluded:

The union rule here left the collective bargaining

process unimpaired, breached no collective contract,

required no pay for unperformed services, induced

no discrimination by the employer against any class

of employees, and represents no dereliction by the

union of its duty of fair representation. In light of

this, and the acceptable manner in which the rule

was enforeed, vindicating a legitimate union interest,

it is impossible to say that it contravened any policy

of the Act.

Thus, the Court’s synthesis of the Allis-Chalmers and

Skura lines of eases makes the initial distinction that 8(b)

(1)(A)’s prohibitions extend to union discipline imposed

for certain prohibited purposes, but not the severity of

otherwise lawful discipline.

Given this preeedent, particularly the holding of the

Supreme Court that Congress did not, by enacting Section

S(b)(1)(A), undertake to regulate union fines (or court

enforcement of same) imposed on members for their failure

to honor an authorized picket line, we cannot conclude that

Congress nonetheless intended to have the Board regulate

the size of these fines and establish standards with respect

to their reasonableness. Indeed, as the legal enforeeability

of the fines is grounded in contract theory, it is obvious

that the loeal courts are the more logical tribunals for the

establishment of standards of reasonableness. While in Wis-

consimn Motor the Court noted that the fines in that case

were reasonable in amount, the Court addressed itself more

fully to this question in Allis-Chalmers, stating:

There may be concern that court enforeement may

permit the collection of unreasonably large fines.

However, even were there evidence that Congress

shared this concern, this would not justify reading

the Act also to bar court enforcement of reasonable

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fines.** [Other footnotes omitted and emphasis sup-

plied. ]

52 It has been noted that the state courts in reviewing the

imposition of union discipline, find ways to strike down

‘‘discipline [which] involves a severe hardship.”’

Thus, the Court’s findings that the fines in those cases were

reasonable 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. Such considerations are of an

equitable nature rather than of the character of restraint

and coercion with which the National Labor Relations Act

treats.”°

Finally, it is urged that large fines are a deterrent to the

exercise of ‘job rights,’’ and therefore coercive, Apparently

our dissenting colleagues would not go this far—for he

states that ‘‘regardless of the amount of a fine’’ he would

find it clearly privileged under the proviso of 8(b)(1)(A)

if enforced solely by internal union methods such as expul-

sion or suspension, except where the reasons for the fine

offends some overriding statutory policy. Thus, it is not

1% Where Congress desires that the Board make this type of

determination, it has said so, Thus, Section 8(b)(5) of the Act

authorizes the Board to decide whether or not initiation fees

charged of employees required to join a labor organization under

a union-security clause are excessive and discriminatory.

2° Our dissenting colleague suggests that because no contention

was made in the 8(b)(1)(A) eases before it that the fines involved

were unreasonable, the Supreme Court did not ‘‘squarely rule”

on the question of reasonableness. To so interpret these decisions

is to hold that the Supreme Court will not accord weight to the

very considerations it clearly indicates it expects lower courts to

apply where collection of such fines is involved. It is more logical

to conclude that no specifie ruling on this issue was made because

reasonableness was not relevant to the 8(b)(1)(A) issue before

the Court.

—_

ova

the unreasonableness of the fine which the dissenting opin-

ion finds to be an invasion of the statutory prohibition of

Section 8(b)(1)(A), but the attempted collection of the fine

through legitimate court proceedings. We find nothing in

the Act or in the opinions of the Supreme Court which

justifies so limiting a union’s method for enforcement of its

legitimate internal rules to its own internal procedures,

If our colleagues would further limit ‘‘coercive fines’’ to

those actually enforced through external collection proceed-

ings, our differing views would have no meaningful impact,

for the courts, under the mandate of the Supreme Court,

will have enforced only reasonable fines. However, in his

view, the threat to collect an excessive fine by internal

methods is also coercive. To this suggestion we would pose

the query, what threat cognizable under Section 8(b) (1) (A)

is there in an uncollectible fine that is not present in a

reasonable collectible fine?

The Board has long recognized that, as a practical mat-

ter, ‘‘virtually all union rules affeet a member’s employ-

ment relationship.’’ * Ilowever, given the legitimacy of the

rule, the only question of relevance to the agency enforcing

this Act is ‘*whether, in enforcing the rule, the Union goes

outside the area of union-membership relationship and

enters the area of employee-employer relationship.’’ ** The

Union has not done so here, nor has it sought to vindicate

a policy in conflict with the National Labor Relations Act,

and the Act does not authorize this Board to evaluate the

*The Court in V.L.R.B. v. American Bakery & Confectionary

Workers, 411 F.2d 1122, (C.A. 7), did not treat with the argu-

ment that a fine, uneollectible in a court of law, was noncoercive

but instead *‘specifically’’ found the argument ‘‘ beside the point,’’

beeause the purpose for which the fines were imposed, namely, to

discipline employees for filing charges and cooperating in Board

proceedings, would make any fine unlawful.

* Allis-Chalmers Manufacturing Company, 149 NLRB 67, 70.

* AlliseChalmers Manufacturing Company, supra.

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fairness of union discipline meted out to protect a legitimate

union interest.

Accordingly, we shall dismiss the complaint in its entirety,

ORDER

Iv 1s Heresy Orverep that the complaint herein be, and

it hereby is, dismissed in its entirety.

Dated, Washington, D.C. August 27, 1970.

/s/ Geracp A. Brown, Member

/s/ Joun H. Fannie, Member

/s/ Ilowarp Jenxtys, Jr., Member

NatrionaL Lasor RELATIONS

Boarp

(SEAL)

Member McCulloch, dissenting:

Tam unable to agree with the conclusion of my colleagues

that the reasonableness of the amount of a court-collectible

fine imposed on a union member for failure to honor his

union’s picket line during a strike is not relevant to a de-

termination of whether Section 8(b)(1)(A) of the Act has

been violated.* In my view, the Supreme Court decisions

cited by the majority do not command the result they reach,

but rather support an opposite conclusion.

241 would reach a different conclusion where the only sanction

invoked or threatened for nonpayment of the fine, is expulsion or

suspension from union membership. For, regardless of the amount

of a fine, its enforcement solely by such internal methods appears

clearly to be privileged by the proviso to Section 8(b)(1)(A),

except of course in a situation—not the one before us—where the

reason for the fine offends some overriding statutory policy. In

Minneapolis Star and Tribune Company, 109 NLRB 727, relied

upon by the majority as Board precedent for its position in this

ease, it does not appear that there was any actual or threatened

court enforeement of the fine there involved.

a9a

In neither of the cited cases, as the Court was careful to

note, Was any contention made that the fines were unreason-

able in amount.*’ As the question of reasonableness was

therefore not directly before the Court, it was not squarely

ruled upon. There are, however, clear indications in these

decision, when read together, that a majority of the Court

likely would have come to a different result had it appeared

in those cases that the fines imposed were unreasonable in

amount.

In Allis-Chalmers, the opinion for the Court was joined

in fully by four justices; Mr. Justice White wrote a separate

concurring opinion in which, while agreeing generally with

the opinion of the Court, he expressed doubts ‘‘about the

implications of some of its generalized statements.’’ ** Four

other justices joined in the dissenting opinion written by

Mr. Justice Black. In holding that the imposition of court-

enforced fines for crossing a union picket line was outside

the intended reach of Section 8(b)(1)(A), the Court, in the

course of its principal opinion, at several points used the

term ‘‘reasonable fine.’? Thus, at page 183, it stated:

Where the union is strong and membership therefore

valuable, to require expulsion of the member visits

a far more severe penalty upon the member than a

reasonable fine. [Emphasis supplied. ]

At page 192, the Court rejected, in effect, the argument that

its holding might result in the enforcement of unreasonably

large fines, stating that such a contention ‘would not jus-

tify reading the Act also to bar court enforcement of reason-

able fines.”? [Emphasis supplied.] And Mr. Justice White,

explaining why he found the majority more persuasive than

the dissent, focused on the reasoning of the Court’s opinion

that since expulsion would in many cases—certainly

in this one involving a strong union—be a far more

* VLLR.B, vy. Allis-Chalmers Mfq. Co., 388 U.S. 175, 193, fn.

30; Scofield v. N.L.R.B., 394 U.S. 423, 480.

6 Allis-Chalmers, 388 U.S. at 199.

RAR id pets Wl oe a oa

60a

coercive technique for enforcing a union rule and

for collecting a reasonable fine than the threat of

court enforcement, there is no basis for thinking that

Congress, having accepted expulsion as a permissible

technique to enforce a rule in derogation of §7 rights,

nevertheless intended to bar enforcement by another

method which may be far less coercive. [Emphasis

supplied. } *7

It is noted, too, that the dissenting opinion in Allis-Chal-

mers interprets the Court’s holding as limited in its scope

to ‘‘a court-enforced reasonable fine.’’** [Emphasis sup-

plied. ]

Any doubt that the Court did not intend its holding in

Allis-Chalmers to extend beyond

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