# Petition for Writ of Certiorari — Booster Lodge No. 405, International Ass'n of Machinists & Aerospace Workers v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1574%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 412 U.S. 84 ## Text _— “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, oi 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 a 4 B. q « 5 ¥ 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 29 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 er PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ee 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 \ x 4 4 " 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. — 3 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 | 4 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. — 5 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). 6 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: 5 ed * > 8 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 —_— 9 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. 10 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. I 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 11 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 ee 12 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- a 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. 13 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 14 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. II 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 aa 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 15 | 2 kai Saint. RIE RT NAA BONG AL PMS, Soha BIR Ys a 16 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 T 6a 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. — a 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 y sates Sa 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. Ya 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. I 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 3 *. : d 4 a Py - = 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 am 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 7" 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.” II 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. , ¥ 4 | : ’ 4 : : 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). 2a 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 Il 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. We Maa Ne tie SELB aNSaEY aad 2 V) we 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 BD Seah a Pen Paes Lek Seta Cet eG SRS TR SB at 3 % 3 & | 4 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). | { t s ‘J a ; helen TR hr +s 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. ct ae bes ee VR WROD PRR OC nla meng OATS Bes. Se aA, ROTATE RE ng OAS Die toes CMD Ge Figg SSE ie 5 —— ? 4 » Bee: EAE Sg Sot SRO nt SLES Pid bee ahs ep tig! Se a eine 56a 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. sa haat kat 5 ets motes » a « 7 m > one - io 35 nih Rehr AE lh AE PPS SE LE EIA ALLA DDO NALA TRS wep susitede | oo Nar ti The VIR MO § 58a 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 ‘‘reasonable fines’? was laid to rest by the Court’s subsequent decision in Scofield.” The Court there summarized its decision in Allis-Chalmers as holding that a union rule, duly adopted and not the arbitrary fiat of a union officers, forbidding the crossing of a picket line during a strike... was enforceable [without violating 8(b)(1)(A)] against voluntary union members by expulsion or a reasonable fine. [Emphasis supplied.] *° The Court in Scofield further stated that 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union inter- 27 Td. at 198. 2 the Court’s holding boils down to this: a court-enforced reasonable fine for nonparticipation in a strike does not ‘restrain or coerce’ an employee in the exercise of his right not to partici- pate in the strike.’’ [Emphasis supplied.] Jd. at 200. 29 Scofield v. N.L.R.B., 394 U.S. 423. %° Scofield v. N.L.R.B., 394 U.S. at 428. 6la est, 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.] * It was ‘‘this view of the statute,’’ the Court added, that “must be applied’’® in determining whether Section 8(b) (1)(A) was violated by the enforcement of the fine in the case before it. [Emphasis supplied.] Then, after noting the absence of any ‘‘showing in the record that the fines were unreasonable,’’ ** and after finding that the other afore- mentioned conditions had been satisfied, the Court con- cluded : We affirm, holding that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b)(1)(A). [Emphasis supplied.] * The Court’s repeated use of the adjective ‘‘reasonable’’ in both Allis-Chalmers and Scofield to describe the fines there in issue cannot be passed over casually as without significance. By its carefully drawn distinction between ‘“‘reasonable’’ and ‘‘unreasonable’’ fines, the Court, it seems to me, meant not only to define the limits of its holdings in these cases, but also to indicate affirmatively that it re- garded court-collectible fines which were unreasonable, either in their nature or size, as not serving a legitimate union interest, and therefore not privileged from the pro- scription of Section 8(b)(1)(A). Support for the view that the Supreme Court did not read the Act and its legislative history as removing ‘‘unreason- 17d, at 430. 2 Td, ** Supra, fn. 25. “ Scofield, 394 U.S. at 436. 4 a * ‘ % 5 3 - 4 E | 3 ¢ k 62: able’’ fines from the reach of Section 8(b)(1)(A) is to be found in the language from Scofield, quoted above, wherein the Court outlined the test that ‘‘must be applied.’’ Additional support is to be found in the Court’s analysis in Allis-Chalmers of national labor policy considerations which led it in substantial part to conclude that Congress, in amending the Act in 1947, did not intend Section 8(b) (1) (A) to condemn a union’s continued use of reasonable, disciplin- ary measures. The Court stated in part: Integral to this federal labor policy has been the power in the chosen union to protect against erosion 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 members engage in strikes. The eco- nomic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement on its terms, and ‘‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent. . . .’’ [Emphasis sup- plied.] * Implicit in the Court’s analysis of this aspect of national labor policy is the concept that a union has a legitimate in- terest in imposing reasonable discipline upon a voluntary member if needed to protect its status as an institution for effective bargaining, even though such discipline also serves to restrain and coerce the member’s exercise of his Seetion 7 right to refrain from engaging in concerted activities. The corollary is that where otherwise lawful discipline oversteps reasonable bounds of needed protection and becomes essen- tially punitive in nature, it impairs federal labor policy. And since no legitimate union interest is then served, it re- mains within the compass of Section 8(b)(1)(A). Thus, expulsion, or enforcement of a fine solely by expulsion, con- % Allis-Chalmers, 388 U.S, at 181. 63a stitutes a legitimate exercise of internal union discipline, as it serves only to rid the union of a member not in sympathy with its objectives, So, too, a court-enforeed fine for viola- tion of a legitimate rule must be viewed as presumptively protective, and therefore privileged when the amount of the fine, taking into account the characte * and importance of the ends served by the rule being enforeed, is reasonably related to the need for protection. However, if the amount of a fine is such as to be inordinately disproportionate to the needed protection, an inference is warranted that the fine was im- posed on the member, not in vind} ‘ation of a legitimate union interest, but as a reprisal for having exercised a sta- tutorily protected right.” As is indicated in the Supreme Court cases cited above, and as is more concretely reflected in N.L.R.B. v. Marine & Shipbuilding Workers, 391 U.S. 418, the determination of whether union disciplinary action Violates Seetion 8(b) (1)(A) involves a balancing process in which the union’s interest in maintaining discipline is measured against public policies imbedded in the labor laws. In considering whether ** An exeeption would be a ease such as Skura, 1448 NLRB 679, where the rule enforeed by expulsion invades and frustrates an overriding Statutory policy, See also NLRB. vy. Maring and Ship. building Workers, 391 U.S. 418, * The imposition of such a disproport ionately large fine may also be condemned as arbitrary union action. Although the Supreme Court in Allis-Chalmers expressly refrained from deciding, sinee it was unnecessary to the disposition of that ease, **whether 8(b) (1)(A)_ proseribes arbitrary imposition of fines,’’ the Court else- where in its decision at least intimated its view that federal labor poliey, as shaped by the Courts, eneompasses a poliey against unfair or arbitrary conduct by a bargaining representative, (Cf, Vaca vy. Sipes, 386 U.S. 171. Though the policy embodied in a tule may not itself be objectionable, a fine for violation of the rule may nevertheless be considered **an arbitrary imposition’? if it is So exeessive in amount as to bear no fair relationship to the legitimate purposes of the poliey served. 64a a fine, court-enforced, may, at least in certain circumstances, be so excessive in amount as to overcome a union’s other- wise legitimate interest in enforcing its internal rules, the policy of the Act protecting employees from interference with their job rights is a consideration which, I believe, should not entirely be ignored. Thus, where, as in this case, a court-enforeeable fine im- posed on employee-members for working during a strike is greater than the wages earned during the strike, it consti- tutes a total restraint on their right to refrain from engag- eng in the concerted activity, different in form but in eco- nomic reality the same as if they had been blocked at the plant gate by unlawful violence or a mass picket line. Few employees indeed will feel they have any choice in the mat- ter knowing that if they do violate the union rule and go to work, they will be deprived of all the fruits of their labor. It may perhaps be arguable—a matter on which I now ex- press no judgment—that a fine is justifiable in the protective interests of a union, if it does no more than strip an offend- ing member of the profits of his rule v [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1574%3A02. Public record. Not legal advice.