Amicus Curiae Brief — Booster Lodge No. 405, International Ass'n of Machinists & Aerospace Workers v. National Labor Relations Board

Supreme Court brief1973

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CITATIONS

CASES:

Boilermakers v. Hardeman, 401 U.S. 233 woe 2,4

Bus Employees v. Missouri, 374 U.S. 74 cccccccccecessesseeee 13

Calhoon v. Harvey, 379 U.S. 134 .......ccccccccccsscsscsososenssosenss 15

Charles S. Skura, 148 NLRB 679 wwe cccceseesesseesseseee 6

Iron Workers v. Perko, 373 U.S. 701 cue eeeeeeceeeese 2

Local 1424 Machinists v. NLRB, 362 U.S. 411 oo... 18

Machinists v. Gonzales, 356 U.S. 617 woeccccccceceeeseeeseeee 2,4

Minneapolis Star & Tribune Co., 109 NLRB 727 .... 4, 5, 10

Motor Coach Employees v. Lockridge, 403 U.S. 274 .... 2,11

NLRB v. Allis-Chalmers, 388 U.S. 175 ...... 2, 3, 4, 5, 7, 8, 10,

11, 12, 18, 21, 22

NLRB v. C&C Plywood Co., 385 U.S. 421 wow. 14, 15

NLRB v. Granite State Joint Board, ...... iS. agree

—41:;US.L.W. 4074 (Dee. 7, 1972) «0.0.0.0... 2, 8, 15, 16, 18, 22

NLRB v. Insurance Agents International,

NE TET - siccrnsicnnasicnasiisiiocsamnacslaanpiiinianieidia tata 12,13

NLEBB v. Marine & Shipbuilding Workers,

RE | Sener ae aCe eee te 2, 6, 20

NLBB v. Nabors, 196 F.2d 272, 275 (C.A. 5) cert

IEE GREY OF AEL SOD - secscsnicnsoninistiicictaitansubeatetiaicntabanea meas 14

eT, DAW, 200 F.2d 13 (CA. FB) csc 19

National Maritime Union, 78 NLRB 971, enforced

a Wn UU COIR. BD sccenescstshinniianssnensdilbeditemiasgia ae. 5

Porter Co. v. NLRB, 397 U.8S. 99 ...coscsceossssescssssoseseceseceenes

Plumbers Union v. Borden, 373 U.S. 690

Ricci v. Chicago Mercantile Exchange, ...... sole

41 U.S.L.W. 4097 (Jan. 9, 1973) ........scscscessssessecessssees

Scofield v. NLRB, 394 U.S. 423 woe 2, 3, 5, 6, 7, 10,

11, 13, 18, 21

Teamsters Union v. Morton, 377 U.S. 282 ......ccseeseene 13

Wisconsin Motor Corp., 145 NLRB 1097 ....... eee 8

STATUTES:

National Labor Relations Act 29 U.S.C. Section 151

et seq.

SP aE eee eae CN PUR ones PotD RIC 14

OD dh iaciniaieciihedicianseuthnnadeidieiuiguieneaabanatnnapiobicctaats 17, 18, 19, 20

SGD sicikcitersineivacsckanincttendeisnbueninespatelitibticonataangdiabitioates 14

§ 8(b)(1)(A) ...... 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 17, 19, 21

BD: chetcislascrsosisdlegseetnisbetictiacaaldoncieaipaseabroaniaoanshesiiss 11

gS ER Ras einai aaa tet near etree nee et 14

CID a nicceicsicsceasesnsvace Schicienibsasssdabapnaniongedteanesineissniininioaecinie 14

Labor Management Reporting and Disclosure Act of

1959, 29 U.S.C. Section 401 et seq.

RED asactecantnvendscbvcdcincheineseabimenntinniamniapmnidiiniion 2

TE Boek <icccisinscneipiiacieccencennncdnihatbabsaaatbapaaeaiaaibaicaiadnain. 15

BND TE iicexinchocinsdibihcn nanan iiastapaadaion mniniaiiamaal 15

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Supreme Court of the United States

October Term, 1972

No. 71-1417

Booster Lopce No. 405, INTERNATIONAL ASSOCIATION OF

MacHINIsts AND ArErospaceE Workers, AFL-CIO,

Petitioner,

NationaL Lapor Reiations Boarp

AND THE Bortnc Company

No. 71-1607

NationaL Lasor Reiations Boarp,

Petitioner,

Ture Borinc Company, anv Booster Loner No. 405,

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND ArrospacE Workers, AFL-CIO

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

This brief amicus, in support of the position of Booster

Lodge No. 405, International Association of Machinists

and Aerospace Workers, AF L-C1Q, is filed by the American

Federation of Labor and Congress of Industrial Organi-

zations (AFL-CIO), a federation of 115 national and inter-

national labor unions having a total membership of ap-

proximately 13,500,000 working men and women, with the

consent of the parties, as provided for in Rule 42 of the

Rules of this Court.

ARGUMENT

The first of the two questions presented here is whether

§8(b)(1)(A) of the National Labor Relations Act em.

powers the National Labor Relations Board to review

union fines, enforceable in court, which have been imposed

upon members who violate a valid union rule (here a

prohibition on crossing a picket line during a strike), to

determine whether those fines are excessive in amount.

This is the fifth case in the line stemming from NLRB y,

Allis-Chalmers, 388 U.S. 175, raising an issue as to the

scope of the Board’s authority to oversee the process by

which union members define the norms regulating the con-

duct of their affairs, develop procedures for the adjudieca-

tion of alleged violations, and determine the scale of appro-

priate sanctions. See also NLRB v. Marine & Shipbuilding

Workers, 391 U.S. 418; Scofield v. NLRB, 394 U.S. 423;

NLRB vy. Granite State Joint Board, ...... US. ......, 41

U.S.L.W. 4074 (Dee. 7, 1972). Moreover, in delineating

the preemptive effect of the NLRA, this Court has re-

peatedly addressed itself to the interplay between

§ 8(b)(1)(A) and the state and federal (the Labor Man-

agement Reporting and Disclosure Act of 1959) law en-

foreeable in court that regulates union discipline. See

Machinists v. Gonzales, 356 U.S. 617; Plumbers Union v.

Borden, 373 U.S. 690; Iron Workers v. Perko, 373 US. |

701; Boilermakers v. Hardeman, 401 U.S. 233; Motor Coach

Employees v. Lockridge, 403 U.S. 274. This sustained at-

tention to the ramifications of §8(b)(1)(A) requires, as

the first step in analysis, an explication of the basie prin-

ciples developed in those cases.

1. Initially, there can be no doubt that every aspect of

the right to enact and enforce disciplinary rules is sharply

eireumseribed. The inhibitions on union action designed

to assure that a member charged with an offense will be

dealt with honestly, fairly, and in accordance with public

policy, are comprehensive. The complex of public law,

which includes § 8(b)(1)(A) as one of its strands, only

“leaves a union free to enforce a properly adopted rule

which reflects a legitimate union interest, impairs no policy

Congress has imbedded in the labor laws, and is reason-

ably enforeed against union members who are free to leave

the union and eseape the rule.’? Scofield, 8394 U.S. at 430.

And the injunction against unreasonable enforcement finds

its major expression in the state law invalidating excessive

penalties. ‘*[S]tate courts, in reviewing the imposition

of union discipline, find ways to strike down ‘discipline

[which] involves a severe hardship’."’ Allis-Chalmers, 388

US. at 193, n. 82. Thus we acknowledge at the outset that

“a union rule * * * forbidding the crossing of a picket line

during a strike,’* the subject matter here, must be **duly

adopted and not the arbitrary fiat of a union officer,’? and

ean only be enforced ‘tagainst voluntary union members

by expulsion or a reasonable fine."’ Scofield, 394 U.S. at 428.

To state the full range and breadth of the substantive

law both administrative and judicial, state and federal,

however, is not to fix the metes and bounds of the pro-

hibitions contained in §8(b)(1)(A). The two are not co-

extensive. This Court, from the first, has reeognized that

in enacting that section Congress intended to grant the

Board a sharply restricted authority. ‘‘The protection of

union members in their rights as members from arbitrary

conduct by unions and officers has not been undertaken by

[the] federal law [embodied in the NLRA], and indeed

* * * [in] the proviso to § 8(b)(1) * * * the assertion of

any such power has been expressly denied.’’ Gonzales,

356 U.S. at 620. Section 8 (b)(1)(A) and its proviso, in

the Board’s words, ‘‘precludes * * * [Board] interference

with [the] internal affairs of a labor organization.”

Minneapolis Star & Tribune Co., 109 NLRB 727, 729. Thus:

‘‘The fairness of an internal union disciplinary pro-

ceeding * * * can [not] be said to raise issues ‘within

; the special competence’ of the NLRB. See NLRB y.

3 Allis-Chalmers Mfg. Co., 388 U.S. 175, 181, 193-194

3 (1967). As we noted in that case, the 86th Congress

which enacted §101(a)(5) [of the LMRDA which

guarantees procedural due process] was ‘plainly of the

view’ that the protections embodied therein were new

material in the body of federal labor law. 388 U.S., at

194. And that same Congress explicitly referred claims

under § 101(a)(5) not to the NLRB, but to the federal

district courts.’? Hardeman, 401 U.S. at 239.

Indeed, even the LMRDA, the statute in which ‘‘Congress

did seek to protect union members in their relationship

to the union by adopting measures to insure the provision

of democratic processes in the conduct of union affairs and

procedural due process to members subjected to dis-

eipline’’ (Allis-Chalmers, 388 U.S. at 194), is ‘‘more

limited in scope than much state law’’ (Hardeman, 401

U.S. at 244, n. 11). While the LMRDA insures members

charged with an offense procedural due process, and pro-

hibits discipline for the exercise of freedom of speech or

nee SATA “ee

assembly, it does not place any limitations on the sanctions

which may be imposed on a member who has been found

to have violated a valid union rule in a fair proceeding. It

is therefore true today, as it has been throughout the evolu-

tion of our federal Jabor policy, that, in general, ‘‘the regu-

lation of the relationship between union and employee is a

contractual matter governed by local law’’ which consti-

tutes a ‘‘federally unentered enclave.’’ Scofield 394 U.S.

at 426 n. 3.

2. The issue before the Court narrows then to deter-

mining the precise role § 8(b)(1)(A) was intended to fill

in the overall regulation of union discipline.

As such early decisions as Minneapolis Star & Tribune,

and National Maritime Union, 78 NLRB 971, 982-987 en-

forced 175 F 2d. 686 (C.A. 2), demonstrate, it has been

understood from the outset that the primary function of

§8(b)(1)(A) is to prevent ‘‘the union from inducing the

employer to use the emoluments of the job to enforce the

union’s rules,’’ and to proscribe ‘‘union coercion, such as

physical violence to induce employees to join the union

or to join in a strike.’’ Scofield, 394 U.S. at 428 n. 4, 429.

And in Allis-Chalmers this Court:

‘“‘essentially accepted the position of the National

Labor Relations Board dating from Minneapolis Star

& Tribune Co., * * * where the Board also distinguished

internal from external enforcement, * * * in holding

that a union could fine a member for his failure to take

part in picketing during a strike but that the same

rule could not be enforced by causing the employer

to exclude him from the work force or by affecting his

seniority.’’? Scofield 394 U.S. at 428.

naam e068 Ar oe & eee aoe,

Thus, §8(b)(1)(A) interdicts ‘tmeans unaceeptable in

themselves, such as violence or employer diserimination,”

While leaving the regulation of ‘internal technique[s of

enforcement such as} union fines, collected by threat of ex.

pulsion or judicial action’’ to the courts. 7d. at 430-431,

There are two caveats, both necessary to preserve the

overall integrity of the NLRA, to the proposition that so

long as the union limits itself to ‘tinternal teehniques”’ of

enforcement, the Board has no regulatory role to play,

As such recent eases as Charles S. Skura, 148 NLRB 679,

and VERB vy. Marine & Shipbuilding Workers, 391 US.

418, demonstrate, even purely internal means of enforee-

ment, such as expulsion, are subject to Board review to

ascertain ‘the legitimacy of the union interest vindicated

by the rule and the extent to whieh any poliey of the Act

may be violated.’’ Scofield, 394 U.S. at 431. Union rules

which interfere with the right of the Board to entertain

charges, thereby ‘frustratting|] the enforcement scheme

established by the statute’® (id. jl 430), are, therefore,

bevond the ambit of ‘tthe internal affairs of the union”

protected by (SCD) (1) CA) s proviso (Marine & Shipbuild.

ina Workers, 891 U.S. at 425).

On the other hand, ‘tas Allis-Chalmers and Marine

Workers made clear, it does not follow from * * * the fact

that the rule has and was intended to have an impact. be.

yond the contines of the union organization * * * that the

enforeement of the rule violates § 8(b)(1) (A), unless some

impairment of a statutory labor poliey ean be shown.”

Scofield, 894 U.S. at 4382. The NLRA is ‘tnot aimed at

completely internal union discipline of union members, even

though the discipline may result in the member's refusal to

COPY BOUND CL

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aceept work offered by the employer, Allis-Chalmers makes

this quite clear.’ 7d. at 485-486. The Aet does not grant

union members a right to work for a struck employer in

violation of a union rule against strikebreaking. Internal

union discipline **to protect against erosion, its status’’ as

exclusive bargaining agent (.A/l/s-Chalmers, 388 U.S. at

181) is permissible. While union-induced employer diserim-

ination for crossing a picket line during a strike in viola-

tion of a union rule is proseribed because that means of

securing the union's ends is ‘tunaceeptable in’ [it]self”’

(Scofield, 394 U.S. at 431); union fines enforceable in court

for the same offense are lawful beeause both the end sought,

and the means utilized, comport with the letter and poliey of

the Act. Thus, where the union rule in question is valid, the

“poliey of the Act is to insulate employees® jobs from their

organizational rights’* by assuring that as ‘tan employee,

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

as he meets the financial 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.”

Id, at 429 n. 5.

Finally, since its proviso only serves to earve Board

regulation of the union-member relationship out of

§S(b)(1)(A), enforcement of union rules against former

members who have lawfully resigned is an unfair labor

practice ;

“The Scofield case indicates that the power of the

union over the members is certainly no greater than

the union-member contract. Where a member lawfully

resigns from a union and thereafter engages in con-

ISE IN CENTER

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duct which the union rule proscribes, the union com.

mits an unfair labor practice when it seeks enforce.

ment of fines for that conduct. That is to say, when

there is a lawful dissolution of a union-member rela.

tion, the union has no more control over the former

member than it has over the man in the street.”

Granite State, 41 U.S.L.W. at 4075.

In sum, under the present regime, the Board is em-

powered to protect members from discipline through em-

ployer discrimination or violence, to assure that union

discipline is not predicated on rules inconsistent with the

NLRA’s policies, and to preclude discipline of non-mem-

bers. But that ageney’s mandate ends where the union

acts against a ‘‘member as a member rather than as an

employee’’ (Wisconsin Motor Corp., 145 NLRB 1097, 1104),

to vindicate a rule which is consistent with the NLRA’s

policies.

3. The central lesson of the legislative history of

§ 8(b)(1)(A), and the language of {ts proviso, is that ‘it

was not the intent of the sponsors in any way to regulate

the internal affairs of unions.’’ Allis-Chalmers, 388 US,

at 191-192. The law as summarized above is consistent

with that intent. Section 8(b)(1)(A), as it has been in-

terpreted thus far, interdicts ‘‘external’’ means of enforce-

ment, measures union rules against external standards

embodied in the NLRA, and prohibits the imposition of

union sanctions against non-members, te. individuals ex-

ternal to the organization. On the other hand, the great

bulk of union disciplinary proceedings are not subject to

Board regulation. So long as the union confines itself to

enacting rules which do not conflict with the NLRA, alleged

defects in the trial and punishment of a member as a mem-

ber are solely for the courts.

If the phrase ‘‘internal union affairs’’ is to be given any

content, it must include the processes designed to adju-

dicate alleged violations of valid union rules. It follows

that if this core area is opened to Board review on a

case-by-case basis, nothing is left of the Congressional in-

tent to leave significant aspects of the union-member rela-

tionship unregulated by the NLRA. And it is plain from

the list of criteria proposed by the court below’ that a

reading of §8(b)(1)(A) which would require the Board

to review the judgments reached by union trial boards to

ascertain whether they have acted properly in assessing

a fine enforceable in court does entail supervision of union

discipline on a case-by-case basis. The factual combinations

and permutations which must be considered under this

standard are limitless and are all but impossible to cap-

ture in per se rules.

Nor is there any rational way to limit Board intrusion

into union affairs to the review of the validity of the

sanction imposed. There is nothing in the Act, and no over-

all seale of values, which justifies the conclusion that an

‘The reasonableness of a fine would necessarily have to be

determined in light of the circumstances leading to its imposi-

tion. Such factors as the compensation received by the strike-

breakers, the level of strike benefits made available to the

striking employees, the individual needs of the persons being

disciplined for strikebreaking 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 con-

siderations would clearly be relevant.’’ Pet. App. 29.

Saaeas We Aes POR ey SA ee aati Sst feted

‘‘excessive’’ fine imposed after proper procedures is more

subject to censure than a ‘‘reasonable’’ fine imposed with-

out procedural due process. Indeed, the guidance Congress

has given in Title I of the LMRDA indicates that while

preservation of procedural due process is a federal concern,

the scale of the sanctions imposed after a fair trial is not.

By the same token, there is no principled distinction

which would draw the line at Board regulation of diseinline

in picket line eases. In Allis-Chalmers this Court was

unanimous in recognizing ‘‘the validity of the union rule

against its members crossing picket lines during a properly

called strike * * *.’? 388 U.S. at 198 (Mr. Justice White,

concurring). The argument for Board regulation of the

size of a fine imposed for a violation of that rule must,

therefore, proceed on the theory that ‘‘excessive’’ fines

violate §8(b)(1)(A) even though the union’s ultimate

object is entirely compatible with the policies of the Act.

And if the substantive validity of the rule does not preclude

Board jurisdiction in the instant cades, it follows that the

Board also has the obligation to scrutinize the reasonable-

ness of fines for wildcat activity, for participation in a

breach-of-contract strike, and as Minneapolis Star é&

Tribune indicates (109 NLRB at 737), even for refusals

to attend union meetings.

Thus, the rationale of the decision below completely

undermines the distinetion between ‘‘internal and external

enforcement’? of union rules developed by the Board, and

‘‘ossentially accepted’? by this Court (Scofield, 394 U.S. at

428), to express the congressional judgment that ‘‘ ‘purely

internal union matters’ [are] a subject the National Labor

Relations Act leaves principally to other processes of law”

—

(Lockridge, 403 U.S. at 296). The closest the lower court

came to providing a statutory predicate for this novel

expansion of the Board’s jurisdiction was the suggestion

that ‘‘[w]here a disciplinary fine is unreasonably excessive,

it may possibly affect the employee’s employment status

as adversely—and possibly even more adversely—as an

illegally obtained employment suspension’? and that such

a result is contrary to the ‘‘protective policy of the Act’’

against penalties which would ‘‘impare the members status

as an employee.’’ Pet. App. 50a. But this is to misstate

the policy of the Act. Allis-Chalmers squarely holds that

the Act does not protect an employee against internal

union discipline—including court-enforced fines—designed

to ‘result in the member’s refusal to aceept work offered

by the employer’’ (Scofield, 394 U.S. at 486). The policy

of the Act this Court has deemed to be controlling is that

‘(t]he power to fine or expel strikebreakers is essential

if the union is to be an effective bargaining agent * * *.’’

Allis-Chalmers, 388 U.S. at 181. This power plainly encom-

passes court-enforced fines for strikebreaking sufficient to

secure complete compliance with the union’s rule. For

nothing less will achieve the objective sanctioned in Allis-

Chalmers—the maintenance of strike solidarity through

internal union discipline. To be sure the union is not

permitted to achieve the same objective through union-

induced employer actions against employees. But this lim-

itation is not based on the view that union members who

work for a struck employer despite their union’s contrary

tule are to be assured of a profit for their violation. Rather,

it finds its roots in ‘‘the explicit wording of § 8(b)(2)”

which was intended to ‘limit union power to compel an

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employer to discharge a terminated member,’’ but was not

intended ‘‘to interfere with union self-government or to

regulate a union’s internal affairs.’’ Allis-Chalmers, 388

U.S. at 195.

Allis-Chalmers is instinct with the proposition that

internal union discipline to preserve strike solidarity

is an ‘‘economie weapon’’ which ‘‘is part and parcel of

the system’’ and which ‘‘acts as a prime motive power for

agreements in free collective bargaining’’ (NLRB v. Insur-

ance Agents International, 361 U.S. 477, 489). And the

critical role played by ‘‘the presence of economic weapons

in reserve’’ in the bargaining process has caused this Court

to stress the point that neither the Board nor the courts

are empowered to strike such weapons from the parties’

hands without a specific warrant from Congress. Any other

rule would allow an administrative agency, or the judici-

ary, to exercise a ‘‘considerable influence upon the sub-

stantive terms on which the parties contract”’ since ‘‘nego-

tiation positions are apt to be weak or/strong in accordance

with the degree of economic power the parties possess.”

Id. at 490. The right acknowledged in Allis-Chalmers, for

example, would be rendered meaningless if, as proposed

by the court below, it could be whittled down to the point

where union members would be assured that they will be

better off if they violate the union’s rules than if they obey

them. Such ‘‘influence’’ is, therefore, forbidden because

‘four labor policy is not presently on a foundation of gov-

ernment control of the results of negotiations.’’ J»surance

Agents, 361 U.S. at 490. The national labor policy does not

allow the Board, or the courts, ‘‘to introduce some standard

of properly ‘balanced’ bargaining power, or some new

distinction of justifiable and unjustifiable, proper and

thy

‘abusive’ economic weapons into * * * the Act.’’ Id. at

497-498; see also, Porter Co. v. NLRB, 397 U.S. 99, 102-104,

107-108. Thus, the statutory content the lower court would

provide to elucidate the concept of exe:ssive fines is based

on a misunderstanding of what the }LRA is all about.

Neither the state courts, if they are to regulate union fines

on their own, or those courts and the Board in the exercise

of concurrent jurisdiction, may disregard the paramount

policy of the Act precluding the invalidation of a fine

merely sufficient to secure ‘‘the member’s refusal te accept

work offered by the employer”’’ (Scofield, 394 U.S. at 436).

See Insurance Agents, 361 U.S. at 489-490, 497-498; Bus

Employees v. Missouri, 374 U.S. 74; Teamsters Union v.

Morton, 377 U.S. 252.

4. The legal analysis contained in the decision below is,

as we have attempted to demonstrate, inadequate to sustain

the result reached. That decision is, however, fully adequate

in revealing the concerns that animated the court below.

The arguments developed therein make it plain that the

lower court believed that there should be a uniform federal

law enforced by the Board which regulates all forms of

union discipline that touch the employment relationship,

and that this law should be grounded in a policy of protec-

tion for members who wish to work in violation of the

union’s rules.

“‘But Congress’s policy has not yet moved to this point’’

(Insurance Agents, 361 U.S. at 500). The substantive law

of § 8(b)(1)(A), as it stands, does not grant union members

the right to violate union rules against crossing picket

lines or exceeding production quotas, free of internal union

discipline effective to secure ‘‘the members refusal to accept

work offered by the employer”’ (Scofield, 394 U.S. at 436).

Congress chose instead to simply prohibit enforcement of

valid union rules by union induced employer discrimination

or violence. See pp. 5-8 supra.

Moreover, the decision to exclude Board oversight of

internal techniques of enforcing union rules even though

they relate to the employment relationship is no isolated

anomaly. A case can be made for centralizing all aspect of

labor law in a single federal statute enforced by a single

tribunal staffed by government prosecutors. But Congress

has chosen to provide the Board with a narrower range of

questions to answer. The scope of unreasonable employer

action detrimental to employees untouched by the NLRA is

vast. It is captured in the rubric that employer discipline is

not an unfair labor practice if imposed for good reason, .

bad reason, or no reason at all so long as it is not an anti-

union reason. See, e.g., NURB v. Nabors, 196 F.2d 272, 275

(C.A. 5) cert. denied 344 U.S. 865. And it is, of course,

equally well settled that the parties are free to utilize

‘‘economically harassing’’ bargaining tactics not spe-

cifically prohibited without running afoul of the Act. See

pp. 12-13 supra.

;

‘

San Aor

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The foregoing are instances in which federal law does

not condemn that which might well be condemned. But

even where Congress chooses to interdict conduct logically

related to that regulated by the NLRA it has not invariably

$ chosen to entrust enforcement to the Board, even where the

E contrary decision entails the drawing of lines more nice

than obvious. The classic example is the enforcement of

collective agreements. The ultimate purpose of the NLRA,

in the words of § 1, is to ‘‘encourag[e] the practice and pro-

cedure of collective bargaining.’’ And §§ 8(a)(5), 8(b) (3)

and 8(d) impose substantial continuing responsibilities on

Mii Toe eat AP

& PRAT SESS eon

_—_

the Board during a contract term. See NLRB v. C&C Ply-

wood Co., 385 U.S. 421. But in passing § 301, and rejecting

the proposed § 8(a)(6) of S. 1126, 80th Congress, Ist Sess.,

“Congress determined that the Board should not have gen-

eral jurisdiction over all alleged violations of collective

bargaining agreements and that such matters should be

placed within the jurisdiction of the courts.’? C&C Ply-

wood, 385 U.S. at 427 (footnotes omitted) .?

In short, both the specific language and legislative his-

tory of §8(b)(1)(A) and the overall pattern of the Act

support the Board’s conclusion that:

“The Board has long recognized that, as a practical

matter, ‘virtually all union rules affect a member’s

employment relationship.’ However, given the legiti-

macy 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-member-

ship 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 fairness

of union discipline meted out to protect a legitimate

union interest.’’

In Granite State Joint Board, this Court recognized that

*This pattern of fragmenting responsibilities that might well

be unitary is not confined to the allocation of jurisdiction between

the Board and the courts. It is also a prominent aspect of the

LMRDA. For example, regulation of union elections procedures

is divided between Title I, enforceable by private suit, and Title

IV enforceable solely by the Secretary of Labor. The resulting

allocational problems were explored in Calhoon v. Harvey, 379 U.S.

134.

Bisenie Sic EA ea age Rta Pe EA RR ES A LEELA ROARS READE EG RO LISTE

‘‘under $7 of the Act the employees have ‘the right to

refrain from any or all’ concerted activities relating to

collective bargaining or mutual aid and protection;’’ and

that so long as ‘‘no problem of construing a union’s con-

stitution or bylaws defining or limiting the circumstances

under which a member may resign from the union’? js

presented, the Board is “to apply the law which normally is

reflected in our free institutions—the right of the individual

to join or to resign from association, as he sees fit ‘subject

to any financial obligations due and owing’ the group with

which he was associated.’’ Thus ‘‘where, as [in Granite

State], there are no restraints * * * [stemming from] the

contractual relationship between union and member * * * on

the resignation of members,’’ the Court concluded that ‘‘the

vitality of § 7 requires that the member be free to refrain in

November from the actions he endorsed in May.’’ 41

U.S.L.W. at 4075.

-_ er ! : :

The Machinists Constitution now expressly provides, in a

provision which took effect January 1, 1973:

‘*Resignation shall not relieve a member of his obliga-

tion to refrain from accepting employment at the estab-

lishment for the duration of the strike or lockout if

the resignation occurs during the period of the strike

or lockout or within 11 days preceding its commence-

ment.”’

Moreover, at the time the instant case arose the Union’s

Constitution prohibited a member from ‘‘[a]ecepting em-

ployment in any capacity in an establishment where a

strike * * * exists.’’ And the Union has consistently inter-

preted this prohibition as requiring a member to abstain

ee ee el CT. Be FF 8

from strikebreaking for the duration of an existing strike

notwithstanding a mid-strike resignation.

The statutory question presented here is, therefore,

whether a constitutional provision conditioning the right

to resign union membership on a continuing commitment

not to break a strike in progress (or in immediate con-

templation), is valid under the proviso to § 8(b)(1)(A)3

Section 8(b)(1)(A) prohibits restraint and coercion of

employees in the exercise of §7 rights, and its proviso pre-

serves ‘‘the right of a labor organization to prescribe its

own rules with respect to the acquisition or retention of

membership therein * * *.’’ The provision in the Machinists

Constitution conditioning the right of members to resign

during a strike on the continued commitment to the obli-

gation, undertaken during membership, to respect the

strike, is squarely within the proviso’s language—it is a

“rule with respect to the * * * retention of membership.’’

Thus, to the extent that it can be said that this inhibition on

resignation at will and free of all continuing obligations,

restrains and coercises union members in the exercise of

§7 rights, it is precisely ‘‘[s]uch restraint and coercion

[that] Congress permitted by adding the proviso to

§ 8(b)(1)(A)’’ (Allis-Chalmers, 388 U.S. at 198, Mr. Jus-

tice White concurring.)

3 The following question as to the proper construction of the

Machinist’s Constitution is also presented—whether, assuming

arguendo that such provisions are valid, the provision in the

Union’s Constitution in foree at the time the instant case arose,

was sufficiently express to impose a restraint on post-resignation

strikebreaking. This latter question is treated in detail in the

Machinist’s brief, and we incorporate the Union’s discussion in

this brief at this point as if it were our own.

Pee iy oe

AGE?

<r IAD POC Aro o

ae Seg eee ee

Moreover, the Union’s rule is one which can survive the

most searching scrutiny as to ‘‘the legitimacy of the union

interest vindicated by the rule and the extent to which any

policy of the Act may be violated’’ (Scofield, 394 U.S,

at 431).

The interest vindicated is that specified in Allis-Chal-

mers, 388 U.S. at 181; ‘‘to protect against erosion [the

union’s] status’’ as collective bargaining representative

during the ‘‘vital [juncture] when the members engage in

strikes.’’ For:

‘*To say that Congress meant in 1947 by the §7 amend-

ments and § 8(b)(1)(A) to strip unions of the power to

fine members [who resign during a strike] for strike-

breaking * * * is to say that Congress limited unions in

the powers necessary to the discharge of their role as

exclusive statutory bargaining agents by impairing the

usefulness of labor’s cherished strike weapon * * *

{[w]here the union is weak, and mgmbership therefore

of little value * * *.’’ Zd. at 183.

And the method chosen to vindicate that interest is per-

fectly consistent with the policy of the Act. Granite State

holds that where the union’s constitution is silent, the §7

right to refrain from concerted activity protects the right

to resign. But as Allis-Chalmers and Scofield demon-

strate, the §7 ‘‘right to refrain’’ does not grant union

members the freedom to disregard the union’s rules at

will. It is not a license to join a union as a full member

under one’s own terms. For, §7 also provides an equal

right ‘‘to form [and] join * * * labor organizations.’’ And

an organization with rules that all may disobey is a con-

tradiction in terms. It is an anarchy. The right to asso-

_—

ciation to further common goals presupposes the right to

enact and enforce membership obligations. ‘‘The Act

clearly contemplates a membership organization and hence

the existence of criteria for the acquisition, transfer, and

loss of membership.’’ Cf. Ricci v. Chicago Mercantile Ex-

change, ...... U.S. ......, 41 U.S.L.W. 4097, 4102 (Jan. 9, 1973).

And to the extent this is not plain from § 7 itself, it is made

explicit in the proviso to § 8(b)(1)(A). The $7 right to

refrain from concerted activity can not, therefore, be ex-

panded to the outer limits of its logic; for if it were, it

would render the §7 right to engage in concerted activity,

as amplified by the proviso to § 8(b)(1)(A), a nullity. This

portion of the Act, like others:

‘represented the Congressional response to com-

peting demands * * * Had Congress thought one or

the other over-riding, it would doubtless have found

words adequate to express that judgment. It did not

do so; it accommodated both interests, doubtless in a

manner unsatisfactory to the extreme partisans of

each, by drawing a line it thought reasonable.’’ Local

1424 Machinists v. NLRB, 362 U.S. 411, 418 n. 7.

That line has been marked out with precision in NLRB v.

UAW, 320 F.2d 12, 15-16 (C.A. 1) where the court upheld

a requirement, which limited resignation to a specified

period during each year, intended to insure ‘‘uniform prac-

tices to preserve [the union’s] financial standing by estab-

lishing reasonable times for resignations by those who

were in good standing:”’

‘‘Under Section 7 * * * the employee has indeed the

unfettered right to abstain from indulging in union

activity. He need not ‘form,’ ‘join’ or ‘assist’ a labor

organization and * * * this inactivity cannot be the

souree of recriminations. It is by now too clear for

citation that this facet of Section 7 was designed to

prevent forcing the unwilling worker into a union,

‘*However, we believe that it is quite another thing

when the employee eschews his ‘reluctance’ and volun.

tarily joins a labor organization. At this point, under

our view, the employee takes off the protective mantle

of Section 7’s ‘refraining’ provision and renders him-

4 self amenable to the reasonable internal regulations

of the organization with which he chooses to cast his

itn

eee

‘*TIn short, we believe that the Union’s Constitution and

By-laws—here relevant—were valid and viable pro-

visions with which the employees had to comply if they

desired to effectively sever their relationship with the

Union. It is true that under section 7 of the Act * * *

the subject employees need not have joined the Union,

However, once they voluntarily took that step, they

embraced not only the benefits bht also the burdens

which flowed from their union membership. One of

those ‘burdens’ was the duty of comporting with the

Union’s reasonable internal regulations * * *.’’

a . 5 Sn ee

LOGE + cE

In contrast, then, to the right to file charges with the

Board, which is an absolute (Marine & Shipbuilding Work-

ers, 391 U.S. at 425), the §7 right to refrain from con-

certed activity, and the right to resign, which is derived

therefrom, are qualified. While employees who voluntarily

assume full membership, and by so doing subject themselves

to the ‘provisions defining punishable conduct and the pro-

cedures for trial and appeal [that] constitute part of the

contract between member and union’? (Allis-Chalmers, 388

U.S. at 182), ‘‘are free to leave the union and escape the

DE ga seGlD Rte wikis aE A

PRidg

ME BNE ene

Pe ar

i SAPS

| 2 Baie teeta NES

| 21

rule’’ (Scofield, 394 U.S. at 430), that freedom is subject to

reasonable union rules. And there can be no doubt that it is

reasonable to condition resignation during, or in imme-

diate contemplation of, a strike, on continued adherence to

the union’s rule against strikebreaking.

As already noted (p. 19 supra), the end sought—pres-

ervation of strike solidarity—is legitimate under Allis-

Chalmers. And the restriction imposed on the members

freedom of action is precisely attuned to the exact achieve-

ment of that end and no more. The individual’s opportunity

to determine whether he will engage, or refrain from engag-

ing, in concerted activity takes precedence up to the point

at which its exercise would destroy the group’s opportunity

to evaluate its true strength in making its final calculation

as to whether to capitulate to the employer or commit itself

to utilization of ‘‘the ultimate weapon in labor’s arsenal for

achieving agreement upon its terms,’’ (Allis-Chalmers,

388 U.S. at 181). Even after that point the individual

may dissolve all his ties to the union except the one essen-

tial to permit it to prosecute the strike. And, of course, the

union’s reservation of authority terminates at the end of

the strike—the point at which the member’s prior failure to

resign can no longer be said to have induced a justifiable

reliance on the continuing ability to discipline him for

breaches of loyalty in the face of the enemy.

In sum, the Machinists rule conditioning the right to re-

sign is an internal union rule within the literal language of

the proviso to § 8(b)(1)(A) which is entirely compatible

with the NLRA’s policies. Under the principles developed

in this Court’s decisions from Allis-Chalmers to Granite

State it is therefore lawful.

i Raa tigl amit |

CONCLUSION

For the reasons stated above, as well as those stated by

the Union, the judgment below should be reversed and the

ease remanded to the Court of Appeals with directions to

affirm that part of the Board’s order dismissing the por-

tions of the complaint which rests on the alleged unreason-

ableness of the fines, and to set aside that part of the

Board’s order granting relief which rests on the conclusion

that the Union may not discipline post-resignation strike.

breaking by imposition of a court-collectible fine.

Respectfully submitted,

J. Aubert WoL.

General Counsel, AFL-CIO

Rosert C. Mayer

LauRENCE GOLD

736 Bowen Building

815 Fifteenth Street, N.W.

Washington, D.C. 20005

Tuomas EK. Harris

Associate General Counsel, AFL-CIO

815 Sixteenth Street, N.W.

Washington, D.C. 20006

February, 1973

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Summary of argument. - ' mpere. ial

Argument

The Union violated Section 8(b)(1)( A) of the Na-

tional Labor Relations Act by assessing, and seeking

judicial enforcement of a fine against an employee

for working during a strike after his resignation

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CITATIONS

Cases:

Int'l Bro. of Boilermakers v. Hardeman, 401 U.S, 233_-

Int'l Telephone & Telegraph Corp. vy. National Labor

Relations Board, 382 ¥. 2d 366, certiorari denied, 389

US. 1039. - - > aa aigenig ena

National Labor Relations Board v. “Allisat halmers Mfg.

Ce... 388 US. 176. ooo ncwenecaceccdo eee

National Labor Relations Board v. Graniite ‘State Joint

Board, No. 71-711, decided December 7, 1972. 3

6, 7, 8, 9,

National Labor Relations Board v. Pokins Machine C%.,

326 F. 2d 488 ad ep 2 ; :

Timken Roller Bearing Co. v. National Labor Relations

sang 325 F. 2d 746, prise ese: denied, 3576 U.S.

fe Ee oe

i, ited Auto Workere (General 1 Eleetrie Co, ¥ 197d NL RB

No. 93, 80 LRRM 1411___--- :

United Auto Workers (John I. Pantdin iq, ‘Sue: );

— |

NLEB 901, enforcement denied, 220 F. 2d 12__-_-

five 7

—

> St to bh te

12,13

10, 12

Statutes:

National Labor Relations Act, as amended (61 Stat,

136, 73 Stat. 519, 29 U.S.C. 151, et seq.). Pare

RS So ot et a ~ 64.48

Section 8(b) (1) CA)

SUA Rigs PONS aap ere hee 2, 4, 5, 7, 10, 13

Miscellaneous:

Freedom of Contract, 43 Colum. L. Rev. 629 (1943). 11-12

Summers, Legal Limitations on Union Diseipline, 64

Harv. L. Rey. 1049 (1951)______-. SRS Sy aT ll

gx the Supreme Court of the United States

OcTover TERM, 1972

BoostER LopcE No. 405, INTERNATIONAL ASSOCIATION

or MACHINISTS AND Arrospace Workers, Al L-CiO,

PETITIONER

Vv.

NatioNaL Lapor RELATIONS Boarp, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMEIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD’

OPiNIONS BELOW

The opinion of the court of appeals (Pet. App. 5a-

33a)" is reported at 459 F, 2d 1143. The decision and

order of the National Labor Relations Board (Pet.

App. 34a-46a) are reported at 185 NLRB No. 23.

*This brief will discuss only the resignation question (Jira.

p. 2). The other question, respecting the Loard'’s power to de-

termine the reasonableness of the fine, is discussed in the

Board’s brief in No. 71-1607, which has Leen consolidated wit!

this case.

*“Pet. App.” refers to the appendix to the petition for cer-

tiorari in No. 71-1417. “A.” refers to the separate appendix to

the briefs.

(i)

JURISDICTION

The judgment of the court of appeals (Pet. App.

la-8a) was entered on March 14, 1972. The petition

for a writ of certiorari was filed on May 1, 1972, and

was granted on December 18, 1972 (A. 205-206). The

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

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act are set forth at page 2 of the Board’s brief

in No. 71-1607.

QUESTION PRESENTED

Whether a union violates Section 8(b)(1)(A) of

the National Labor Relations Act by assessing, and

seeking judicial enforcement of, a fine against an em-

ployee for working during a strike after his resigna-

tion from the union.

STATEMENT

The facts are fully set forth in the Board’s bricf

in No. 71-1607 (pp. 3-7). We repeat only those facts

which are relevant to the question discussed herein.

On September 16, 1965, the day after the expiration

of a collective bargaining agreement between the

Union’ and the Company,’ the Union struck and

picketed the Company’s Michoud, Louisiana plant in

furtheranee of demands for a new contract. During

the 18 days that the strike continued, 143 of the

1800 production and maintenance employees repre-

sented by the Union at Michoud crossed the picket

line and went to work. All of the 143 employees had

* Booster Lodge No. 405, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO.

*The Boeing Company.

een members of the Union prior to the strike;° 61

vote letters to the Union resigning their member-

rip before crossing the picket line, 58 resigned by

tters sent after they went back to work, and the rest

id not resign. The Union’s constitution and bylaws

mtained no previsions expressly permitting or for-

idding such resignations from the Union (Pet. App.

Ja, n. 11; A. 11, 42, 111, 118).°

The strike terminated on October 4, 1965, following

tification of a new contract by the Union member-

iip. In late October or early November, the Unien

tified all employees who had crossed the picket

ne, including those who had resigned their Union

embership, that charges were beme brought against

wm under the Union constitution. The constitution

rovided for the imposition of a fine or other disci-

ine against a member who accepted “e:nployment in

ow] i e

°>The prior contract contained a maintenance-of-membership

use, Which required new employees to become members of

e Union as a condition of continued employment unless they

tified both the Union and the Company, within 40 days

accepting employment, that they did not desire to join

e Union. The contract also required employees who already

re Union members to retain their membership during the

rm of the contract. (Pet. App. 35a; A. 154-158.)

‘The constitution provides that membership may be can-

Hed where a member is delinquent for three months in the

yment of dues or special levies. There is also a constitutional

ovision whereby a member who ceases working at the trade

who becomes a supervisor can obtain an honorary with-

awal card, (A. 141-142.) Union business representative Hig-

as testified that there was no provision whereby a member

wld “yesign by letter”: the “only way a man might resign

ma the International Association of Machinists, was by being

arrears—honorary withdrawal card—become three months in

rear in dues or be suspended by the Local. itself or by the

ternational,” or “by death” (A. 111).

Fis

eae Rew

Caer le,

any capacity in an establishment where a strike op

lockout exists as recognized under this Constitution,

without permission” (A. 143). Fines were thereafter

imposed on all tlie emplovees who had gone to work

during the strike, regardless of whether, or when,

they had resigned from the Union. The Union has

filed civil suits against several employees to collect

the fines, plus attorney's fees and interest.

Upon a charge filed by the Company, the Board

held that the Union violated Section 8(1))(1) (CA) of

the Act by fining those employees who had resigned

from the Union before returning to work during the

strike, and by fining those who had resigned alter re-

turning to work to the extent that such fines were

based on post-resignation work (Pet. App. 37a—42a),.

But the Board held that the fines imposed on those em-

ployees who had not resigned from the Union, and

those imposed on resignees for work done while they

were still members did not violate the Act (Pet. App.

42a-43a). The Board’s decision rested upon the ra-

tionale that 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 upon the

member’s resignation from the Union; that, since the

Union constitution and bylaws had no procedure for

voluntary resignation, the member was free to resign

at will; and that the Union’s right to discipline em-

ployees thus terminated upon receipt of the em-

plovees’ letters of resignation (Pet. App. 59a—402 : 20a,

n. 21).

The Board ordered the Union to cease and desist

from fining employees who had resigned from. the

7 5

Union for their post-resignation work during the

strike, and from seeking court enforcement of such

fines. It further ordered the Union to reimburse

employees Who had already paid fines for any amount

imposed because of their post-resignation work. (Pet.

App. 43a—-A4a.)

The court of appeals sustained the Board’s factual

findings and its holding that the Union violated Sec-

tion 8(b)(1)(A) of the Act by fining enpleyees who

had resigned from the Union prior to returning to

work, and those who had resigned after returning to

work for post-resignation work (Pet. App. 16a—22a}.

SUMMARY OF ARGUMENT

This Court’s decision in National Labor Relations

Board v. Granite State Joint Board, No. 71-711. de-

cided December 7, 1972, requires that the decision of

the court below be affirmed insofar as it sustains the

Board’s holding that the Union violated Section 8(b)

(1)(A) of the Act by fining employees who resigned

from the Union for work done after such resigna-

tion, and seeking judicial enforcement of such fines.

The Union’s constitution and bylaws in the instant

case, as in Granite State, contained no express limita-

tion on a member’s right to resign. Thus, here, as in

Granite State, members were free to resign aid re-

turn to work during the course of a strike initiated

while they were members.

The existence of a constitutional provision stating

that union members should not work ina struck plant

is not significant, since it does not indicate that the

obligation continues after the member has resigned.

iia i ela MEI A kab lao ati he ELE MAS AL RA NAR id

It is not appropriate to extend this obligation to

former union members by implication in order to pro-

tect the Union’s interest in unity. Granite State shows

that considerations of mutual reliance do not warrant

implying such an undertaking by union membevs,

Moreover, since the employee’s right to refrain from

concerted activities is expressly protected by Section

7, a waiver of that right should not rest on impli-

cation. This conclusion is particularly appropriate

here since the contract between the member and the

union is a “contract of adhesion”’’; the member has no

choice as to terms but is compelled to adhere to the

inflexible ones presented. Therefore, any doubt as te

the meaning of the terms should be resolved against

the Union.

ARGUMENT

THE UNION VIOLATED SECTION 8(b) (1) CA) OF THE Na-

TIONAL LABOR RELATIONS ACT BY ASSESSING, AND SEEK-

ING JUDICIAL ENFORCEMENT OF, A FINE AGAINST AN

EMPLOYEE FOR WORKING DURING A STRIKE AFTER HIS

RESIGNATION FROM THE UNION

In National Labor Relations Board vy. Granite Stat:

Joint Board, No. 71-711, decided December 7, 1972.

the Court reaffirmed its decision in National Lebor

Relations Board vy, Allis-Chalmers Mfa. Co., S88 US.

175, that “a union did not vielate §S(b)(1) by fin-

ing members who went to work during a lawful strike

authorized by the membership and by suing to collect

the fines” (slip op. pp. 2-3). It held, however, that

the union’s authority to do is is defined by the con-

tract between the union and its members and that,

“Tw]here a member lawfully resigns from a union and

thereafter engages in conduct which the union rule

proscribes, the union commits an unfair labor prac-

tice when it seeks enforcement of fines for that con-

duct” (id. at 4). Finding no provision in the Union’s

constitution or bylaws limiting the circumstances un-

der which a member may resign from the Union, the

Court concluded that the members were free to resign

at will, and that their right thereafter to return to

work, during a strike which had commenced while

they were members, was protected by Section 7 of the

Act. Therefore, it ruled, the Union’s imposition of

court-collectible fines on the former members for such

work violated Section 8(b) (1) (A).

We submit that the holding in Granite State re-

quires that the decision of the court below be affirmed

insofar as it sustains the Board’s holding that the

Union violated Section 8(b)(1)(A) by fining em-

ployees who resigned from the Union for work done

after such resignation, and seeking judicial enforce-

ment of such fines.’

1. The Board found (Pet. App. 40a, n. 11; A. 11),

and the court below agreed (Pet. App. 19a), that the

Union’s constitution and bylaws in the instant case,

like those in Granite State, contained no express pro-

vision hmiting the circumstances under which a mem-

ber could voluntarily resign from the Union. Al-

though Union Representative Higgins testified (n. 6,

supra) that a member could leave the union only

The discussion in the Union's brief of the pre-Granite State

opinions of this Court overlooks the explanation in that case

of their applicability to the precise factual situation involved

here and in Granite State. Compare slip op., pp. 2-4 with Br.,

pp. T4-77.

by falling in arrears in the payment of dues, by

leaving the industry, or by death, the Union constity-

tion and bylaws are simply silent on the subject of

voluntary resignation, As in Granite State, there is no

; evidence here that the emplovees knew, or had con-

sented to, any limitation on their right to resien dur

ing a strike. Moreover, since the retention-of-imen-

F bership provision of the collective agreement expired

7 with the agreement, that prevision imposed ne ob-

: stacle to resignation from the Union during the strike

; (Pet. App. 19a).

: Accordingly, here, no less than in Granite State,

we have “only to apply the law which normaliy is

retlected in our free institutions—the right of the

3 individual to join or to resign from associations, as he

3 sees fit ‘subject of course to any financial obligations

: due and owing’ the group with which he was associ-

: ated.’ Granite State, slip op. pp. 3-4.

“Indeed, the employees’ action in) sending the letters of

resignation indicates the contrary (A. 10, 61, 68-69, 71, 73-74. 89.

115-117, 128-129). Although Union Representative [liggins

testified that it was the Union's position at thet time that a

member could not resign by letter, this opinion was not com-

municated to the letter-writers: the letters were simply ig-

nored (A, 110-111).

The Union seems now to agree that the resignations were

; valid, and relies instead on the contention that former Union

: members have greater obligations to the Union during a strike

called while they were members than persons who have never

been members (Br. 57-59, 62. 78). This argument flies in the

4 face of the statement in @renife State that “when there is a

lawful dissolution of a union-member relation, the union has no

more control over the former member than it has over the

man in the street” (slip op. p. 4).

—_amemes om eee scat se 6

2, The Union seeks to distinguish Granite State on

the ground that, while the constitution here did not

expressly restrict the right to resign during a strike,

it contained a provision which the Union has inter-

preted as obligating a former member, notwithstand-

ing his resignation, to refrain from abandoning any

strike which was called while he was a member (Br.

57-58). But, as the Union acknowledges (Br. G1, 82),

this provision— which defines “misconduct by a mem-

ber’ to include “[a]ecepting employment in any ca-

pacity In an establishment where a strike or lockout

exists * * *** (A. 142-143)—is, on its face, only apph-

cable to amember ; it does not provide that the obligation

to refrain from strikebreaking continues even after

the member has resigned from the Union. Nor is

there any indication that the Union, prior to bringing

the instant charges against former members, ever in-

formed its members that it interpreted that provision

of its constitution as imposing such an obligation on

a resignee. For example, when the emplovees wrote

their resignation letters to the Union, the Union did

not advise them that the constitutional provision

against’ strikebreaking continued to be applicable

notwithstanding their resignation (hn. 8, supra).

Accordingly, the Union’s argument that its con-

stitution commits a member to adhere to a strike not-

withstanding his midstrike resignation boils down to

the contention (Br. 62, 69) that—sincee each member

depends on every other member to withhold his labor

from the struck employer in order to make the strike

effective—the constitution should be interpreted as

ne ae ee ae

x ae Sak eli, Peace thee anaes Oe:

| 3 PERARL A ed. ohlie ee

impliedly imposing such an obligation.” Whethep or

hot a constitutional or bylaw provision which ex.

pressly committed 2 member not to resign during a

strike, or to adhere to a strike notwithstanding a mid.

strike resignation, would be valid for purposes of

Section 8 (b)(1L) CA) of the Act.” Granite Siat shows

that the mutual reliance considerations advanced hy

the Union do not warrant finding such a coninites nt

by implication, This Court there rejected th

contention, which the court ef appeals had adopted

(see F465 F, 2d 369, 372-373 (CLA. 1)), that, by part

ipating in the strike vote and in ratifying the <ty7!

enet .

? Ulllons«

penalties, the resigning emplovees had made ay in-

plied commitment, which the other strikers hed yo

lied on, to stay with the strike until its conclisien,

Instead, it concluded that “the vitality of 87 requires

that the member be free to refrain in November fron

the actions he endorsed in May and that his 67

rights are not lost by a union's plea for solidarity or

"That the Union, in September 1972. amended its comti-

tution to provide explicitly that resignation shall not relieve

a meniber of his obligation to refrain from working during an

ongoing strike (Br. 58). does not justify reading a provision

into the earlier constitution by implication. Indeed. the fact

that the constitution was amended to add the provision is wr

suasive evidence that it was not there before.

In any event. a constitutional amendment made seven years

after the strike here could hardly have apprised the employees

of their obligation to the Union at that time.

The Board has not yet had occasion to consider that ques

tion, nor did the court below (Pet. App. 20a, n. 20). CL

Vuited Auto Workers (John I. Paulding. Ine.), 137 NLRB 91,

enforcement denied, 320 F, 2d 12 (CLA. 1): United Auta

Workers (General Llectric ('o.). 197 NLRB No, 93. 80 LRRM

141 (1992). See also National Lahor Relationa Board yy. Allix-

Chalucrs Mig. Co. 383 US. 175, 197. concurring opinion of

White, J.

crocs

by its pressures for conformity and submission to its

regime” (slip op., p.5).

Contrary to the Union’s contention (Br. 84-85),

an important statutory policy is defeated by impos-

ing, by implication, an obligation on a member to

adhere to a strike even after he has resigned from

the union. As the court below noted (Pet. App. 17a):

Section 7 of the N.L.R.[A.] expressly protects

the right of any employee to refrain from any

or all of the concerted activities guaranteed to

employees under the Act. * * *

It is well settled that a contract waiver of a statutory

right must be “clear and unmistakable’—*a mere

inference, ho matter how strong, [is] * * * insufficient.”

National Labor Relations Board vy. Perkins Machine

(‘o., 326 F. 2d 488, 489 (C.A, 1); accord: Int'l Tele-

phone & Telegraph Corp. v. National Labor Relations

Board, 382 FV. 2d 366, 373 (C.A. 3), certiorari denied,

389 US. 1039; Timken Roller Bearing Co. v. National

Labor Relations Board, 325 F, 2d 746, 751 (CLA. 6),

vertiorari denied, 376 U.S. 971.

It is particularly appropriate that this principle

be adhered to here, since the contract between a mem-

ber and his Union is a “contract of adhesion,”’ ic.,

“(t]he member has no choice as to terms but is com-

yelled to adhere to the inflexible ones presented.’ Sun-

mers, Legal Limitations on Union Discipline, 64 Marv.

L. Rev. 1049, 1055 (1951). In view of the lack of ne-

votiation over the terms of contracts of adhesion,

where there is Goubt as to the meaning of those terins,

the doubt is reseived against the party who drafted

the terms. 3 Corbin, Coutracts §559 (1960); 6A

id., $1376; see generally Kessler, Contracts of Ad-

hesion—Some Thoughts About Freedom of Coutract

‘ é 9

Bean

43 Colum. L. Rev. 629 (1943). Similarly here, where

there is no clear indication in the Union's coy.

stitution or bylaws that the member has waived his

richt to refrain from engaging in union activities sub.

sequent to his effective resignation from membership,

those documents should not be construed as effecting

such a waiver by implication.

Moreover, as the Court recognized in Granite State,

“felvents occurring after the calling of a strike niay

have unsettling effects, lending a meniber who voted

to strike to change his mind. The likely duration of

the strike may increase the specter of hardship to

his family; the ease with which the employer replaces

the strikers may make the strike seem less provi-

dent.”’ Slip op., p. 4. A member should not be deemed

to have given up his freedom to protect against these

serious hardships unless, at least, there is clear evi-

dence that he knowingly waived that right.

This analysis is not inconsistent with Jnft’! Bro. of

Boilermakers v. Hardeman, 401 U.S. 233. This Court

there held that “nothing in either the language or

the legislative history of § 101(a)(5)”" of the Labor-

Management Reporting and Disclosure Act, 29 U.S.C.

411(a)(5)—which provides that no member of a labor

organization may be disciplined unless, tater alra, he

has been “afforded a full and fair hearing’’—author-

ized “a substitution of judicial for union authority to

interpret the union’s regulations in order to deter-

mine the scope of offenses warranting discipline of

union members” (401 Uss. at 242-243). The Court’s

decision was based on the legislative history of that

particular provision (id. at 243-245), and does not

enunciate a general principle that is applicable to

other statutes as well. Moreover, in I/ardeman, the

conduct for which the member was disciplined—z.e.,

assault on a union official—was not otherwise pro-

tected by statute; the only issue was whether it was

proscribed by the Union's regulations. It is one thing

to give the Union wide latitude to interpret its regula-

tions in the latter situation; it is quite another mat-

ter to give it such authority where, as here, its in-

terpretation affects an employee's Section 7 rights.

CONCLUSION

The judgment of the court of appeals should be

affirmed insofar as it sustains the Board’s holding

that the Union violated Section 8(b)(1)(A) of the

Act by imposing court-collectible fines on employees

who resigned from the Union for work done after

such resignation.

Respectfully submitted.

Erwin N. Griswonp,

Solicitor General.

Harrier S. SHapio,

Assislaut to the Solicitor General.

Perer G. Nasu,

General Counsel,

JoHN S. IRVING,

Deputy General Counsel,

Patrick Harpin,

Associate General Counsel,

Norton J. Come,

Assistant General Counsel,

STANLEY R. Zink,

Altorncy,

National Labor Relations Board.

Maren 1975.

TABLE OF CONTENTS

Page

=. ae er ren wor rary erie Try 2

ES ey ck ae ue de eae Ae a NR ee

| er rr ee 2

Statute Involved ._........ Sea xh ae a ro ae

Statement

I. The Strike, The Fines And The Board’s

Pe. Ce Pe oss fa nea eles eee 4

II. The Board’s Decision And Order .......... 9

III. The Decision Of The Court Of Appeals ....11

re On ee ss voc sb as es eeekuesdes Gas 13

NES. 4:5 25s" aces £4 ed ohicendeh pias ee eee aeee 20

I. A UNION VIOLATES SECTION 8(b)(1)

(A) OF THE NATIONAL LABOR RELA-

TIONS ACT BY FINING EMPLOYEES

WHO RESIGNED FROM UNION MEM-

BERSHIP AND THEN RETURNED TO

WORK DURING A LAWFUL UNION —

AUTHORIZED STRIKE, AND BY SEEK-

ING JUDICIAL ENFORCEMENT OF

THE FINES sin id's ahve aS Rae Oe eee 20

A. Joining The Issue ........... we

B. The Decisions Of The Courts Make

It Clear That Members Are Free To

Resign From A Union And Escape

The Imposition Of Union Discipline

For Post-Resignation Conduct .........22

C. There Are No Facts Present Here

With Permit The Union To Discipline

be caaet a

KO ODO

es at : = > es mm wna

| = APA iE OAR RG rae SN SS . ar) .

—

TABLE OF CONTENTS (Continued)

Page

Former Members For Their Post-

Resignation Conduct, And The Union

May Not Now Impose Requirements

Which Subject Employees To Union

Discipline For Their Post Resigna-

tion Activities

II. THE BOARD IS EMPOWERED AND

REQUIRED TO DETERMINE THE

REASONABLENESS OF A FINE IM-

POSED UPON A MEMBER BY A UN-

ION FOR ACCEPTING WORK DURING

A STRIKE IN BREACH OF A VALID

UNION RULE, AND IT MUST DO SO

IF THE FINE IS TO BE COLLECTIBLE ... 30

A. In Order For An Otherwise Legal

Fine To Be Enforceable, The Amount

Of The Fine Must Be Reasonable ...... 31

B. The Court Below Properly Remand-

ed The Case To The Board With Di-

rections That The Board Determine

The Questions Relating To The Rea-

sonableness Of The Fines Imposed

et ee os Se verei ees he

C. The Board Is Peculiarly Suited To

Recognize And Administer Uniform-

ly Those Factors Determinative Of

What Is A “Reasonable” Fine .... .. 45

Conclusion .._.. 5G water’ Laie dtente cee roe ae

QA TESI EL OEIC ALEC AMAL IL OE SEALE AN A ALI RE P S IAM

ili

AUTHORITIES CITED

CASES: Page

Amalgamated Utility Workers v. Consolidated

Edison of New York, 309 U.S. 261 .............. 41

DeGtRe Vi Teka tty PPO. TACEEOO. niece vs 30

Brewery & Beverage Drivers Local 67 (Washing-

ton Coca-Cola Bottling Co.), 107 NLRB 299 ... 40

Carpenters Local Union No. 22 (Graziano Con-

struction Company), 196 NLRB No. 5, 79

INN MM cen gg ey a ta Kara 19, 41, 43, 44, 45

Electric Workers Local 861 (Plauche Electric

Sd, Se SEE ook es ack Waca cn tmses Say eee 40

Electrical Workers Local 1761 v. N.L.R.B., 366

NS eee oi cent tit ch ka eke aie ak as 40

Garner v. Teamsters Union, 347 U.S. 485 .......... 42

International Association of Machinists and

Aerospace Workers, AFL-CIO, Local Lodge

No. 504 (Arrow Development Co.) and David

O'Reilly, An Individual, 185 NLRB No.

re etry Are ee Ly 2, 11, 36, 37

IBEW Local 743, 185 NLRB No. 106, 75 LRRM

ie, BL eR MER AUT Gettin eid Oi 39

International Longshoremen’s Local 1416, AFL-

CIO v. Ariadne Shipping Company, 397 U.S.

SF PRT eek mois tha Pay MELE eas 41

Local 1255, International Association of Machin-

ists And Aerospace Workers, AFL-CIO v.

N.L.R.B., 456 F. 2d 1214, C.A. 5, 1972 ...... Oe

Longshoremen, I.L.A. Local 1419, 186 NLRB No.

ee ae EE ces Ss Ces Re a aca asals 40

4 1V

i AUTHORITIES CITED (Continued)

i Page

: Morton Salt Co. v. N.L.R.B., __ F. 2d __, 82

RF S| ee ere eerie & ee F

Myers v. Bethlehem Shipbuilding Corporation,

ORI MEE ees oe eke anes 4]

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

175 .... 13, 16, 17, 23, 24, 25, 30, 31, 33, 34, 35, 36, 37

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

Workers Union of America, AFL-CIO, 93 S.Ct.

Fea A ay es 20, 21, 22, 25, 26, 27, 28, 30, 46

N.L.R.B. v. Radio and Television ce

Union, 364 U.S. 573 .......... se

N.L.R.B. v. Raytheon Company, 397 U.S. 25, 28 41

N.LE.B. v. Television & Radio Broadcasting

Studio Employees, 315 F.2d 398, CA. 3,

Se eae nga. Geer Re Moree ee se

N.L.R.B. v. Truck Drivers Union, 358 U.S. 87, 96

og Raa epee ee ere Te

David O'Reilly v. N.L.R.B.

RII i ees Sneek e e e orie rk ath 2, 11, 12

Sailors Union of the Pacific (Moore Dry Dock

oe a Pe a ee ree 40

San Diego Building Trades Council v. Garmon,

UTE ec aa re dace bec ee aks 18, 41, 42

Scofield v. N.L.R.B., 394 U.S. 423. 13, 16, 17, 24, 25, 26,

33, 34, 35, 36, 37, 43

Steele v. Louisville and N. R. Company, 323 U.S.

a Cre cece Pee ne cae. weeny ee . 8

Wisconsin Motor Corp., 145 NLRB 1097 .......... 33

COPY BOUND C

AUTHORITIES CITED (Continued)

NE Pie es a ky eww Uukivioa ee ere peek ON

RSS RSS te Fermin one n UND EE ph ae eae ny ORD! a

MISCELLANEOUS:

Silard, Labor Board Regulation of Union Disci-

pline After Allis-Chalmers, Marine Workers

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

cee NEV caf PARE Snake en tes eleak

~OSE IN CENTER

Section 8(b)(2) ............., SCRE eRe ae ee

PEIN hc cee cs ca Stes eR 18, 39,

SO yo ae oh at oa ee 18, 40,

Page

STATUTES:

National Labor Relations Act, 29 U.S.C. Sec. 151:

SS Se eae 3, 15, 16, 21, 23, 24, 28, 32, 33, 44

TR Se eaten Ae Rh 4 east gh Bille wie. eee N og Ko 20

Section 8(b)(1)(A) ........ ce ae at 4, 7, 9, 11, 12, 13,

15, 17, 18, 20, 23,

24, 25, 30, 31, 33,

34, 35, 36, 37, 42,

. 20

apes |

COPY BOUND Cl

—Ve—7_—_” RT CE eS SAA Ob OL SS Ne DE RET RET LONE FRIST LE RE TESA BAM ,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No. 71-1417

BOOSTER LODGE NO. 405, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD AND THE

BOEING COMPANY

No. 71-1607

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

THE BOEING COMPANY AND

BOOSTER LODGE NO. 405, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF FOR THE BOEING COMPANY

ISE IN CENTER

ma mar:

ot on

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

459 F.2d 1143 (Pet. App. 5a-33a).' The opinion of the

National Labor Relations Board is reported at 185

NLRB No. 23 (Pet. App. 34a-46a). The decision of the

Labor Board’s Trial Examiner is reproduced at A. 2-47.

A companion opinion of the Nationa] Labor Relations

Board is reported as International Association of Ma-

chinists and Aerospace Workers, AFL-CIO, Local

Lodge No. 504 (Arrow Development Co.) and David

O'Reilly, An Individual, 185 NLRB No. 22 (Pet. App.

47a-67a).?

JURISDICTION

The judgment of the Court of Appeals was entered

on March 14, 1972 (Pet. App. la-3a). Petitions for writs

of certiorari were granted on December 18, 1972 (A.

205-6).

QUESTIONS PRESENTED

1. If a union is not precluded by Section 7 of the

National Labor Relations Act from fining its members

for crossing a picket line, the reasonableness of the

1“Pet. App.” refers to the petition for a writ of certiorari of Booster

Lodge No. 405 (i.e., the Union) in No. 71-1417. “A” refers to

the separate appendix to the briefs.

2Remanded to Board, sub nom., David O'Reilly v. N.L.R.B.,

F.2d __.__. 82 LRRM 2073 (C.A. 9, 1972), requiring that the

Board determine the reasonableness of a fine. The reasoning

in support of the remand is expressed in Morton Salt Co. v.

WLE.B., ....... F736 ......., G2 LARM 3666 (CA. 8, 1972).

amount of the fine is a matter to be determined by

the National Labor Relations Board.?

2. Whether, given a union constitution which pro-

hibits a member from “lajccepting employment

where a Strike ... exists,” 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 un-

jon subsequent to the commencement of a strike and

engaging in strikebreaking after his resignation.*

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29

U.S.C. 151, et seq.), are as follows:

Sec. 7. Employees shal] have the right to self

organization, to form, join, or assist labor or-

ganizations, to bargain collectively through

representatives of their own choosing, and to

engage in other concerted activities for the

3This question was stated in different form by each petitioner. In

No. 71-1417, the Union stated the question as follows: “Whether

the National Labor Relations Board is empowered to deter-

mine the reasonableness of a fine assessed by a union against

a member for violating its valid rule against strikebreaking.”

In No. 71-1607, the Board presented the question as follows:

“Whether the National Labor Relations Board, in determining

whether a union committed an unfair labor practice by assess-

ing and seeking court collection of a fine against a member

for violating a union rule against strikebreaking, is required

to determine whether the fine is reasonable in amount.”

4The quesion here is as stated in the Petitioning Union's brief,

page 2.

purpose of collective bargaining or other mu-

tual aid or protection, and shall also have the

right to refrain from any or all such activities

***

Sec. 8(b). It shall be an unfair labor practice

for a labor organization or its agents —

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

exercise of the rights guaranteed in section 7

***: Provided, That this paragraph shall

not impair the right of a labor organization to

prescribe its own rules with respect to the ac-

quisition or retention of membership therein

*¢*&@

STATEMENT

I. The Strike, The Fines And The Board’s Findings

Of Fact

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 by the Union and its parent, In-

ternational Association of Machinists and Aerospace

Workers, AFL-CIO. It is estimated that in September,

1965, approximately 6,000 employees were emploved

at Michoud, of which approximately 1500 to 1900 em-

ployees were in the unit represented by the Union (A.

3-4). A contract between the Union and The Boeing

ee |

‘

_— EN

‘ompany was in effect from May, 1963 to September

5, 1965. The contract provided that unit employees

yho are members of the Union or who become mem-

ers are required to maintain their membership as

. condition of employment. Employees hired after the

ffective date of the contract who are not members

f the Union have a specified period in which to give

otice that they do not desire to become members of

he Union. (A. 3-4).

U the expiration of the contract on September

5, 1965, the Union struck and picketed Boeing at Mi-

houd and other locations. The strike ended on October

, 1965, and a new contract was entered into. During

he strike, certain employees who were in the contract

nit at Michoud crossed the picket line and worked.

ome of these employees resigned from the Union prior

9 returning to work. Another group of those members

yho returned to work during the strike made no effort

o resign from the Union. Others resigned during the

ourse of the strike, but returned to work before sub-

nitting their resignations. All resignations, however,

vere submitted after the expiration of the 1963-65 con-

ract and before the signing of the new one, and all

vere submitted prior to the imposition of disciplinary

ctions by the Union. A. 4; Pet. App. 36a.

In late October or early November, 1965, the Union

otified all employees who returned to work during

he strike that charges had been preferred against

nem under the Internationa] Constitution for “Improp-

r Conduct of a Member” in “accepting employment

.. in an establishment where a strike ... exists.”

as>e tims

oO nt Dew

Employees were advised of the dates of their trials,

which were to be held even in their absence. Prior

to the strike, the Union had not notified or warned

members about the possible imposition of disciplinary

measures, In fact, the Union had never before imposed

disciplinary fines on any of the members for any rea-

son. A. 4-5; Pet. App. 36a.

Fines were imposed on all employees who had re-

turned to work during the strike, regardless of wheth-

er, or when, they had resigned from the Union. Those

employees who did not appear at their trial were fined

$450; those who appeared and were found guilty were

also fined $450.5 The fines of about thirty-five employ-

ees who appeared for trial, apologized and plead loyal-

ty to the Union were reduced to fifty percent of the

earnings they received during the strike. The Union

sent out written notices to the fined employees that

the matter had been referred to an attorney for col-

lection, that suit would be filed if the fines remained

unpaid, and that reduced fines would be reinstated to

$450 in the event of nonpayment. The Union filed suit

against at least nine employees to collect the fines

(plus attorney’s fees and interest). For instance, a ci-

tation dated April 11, 1966, shows the amount as $639

“with legal interest.” The amount of $630 was based

upon the $450 fine. plus $180 attorney’s fees. A. 6-7;

A. 134-5; Pet. App. 8a-9a.

SThere is no evidence that anyone was found not guilty. The

disciplined employees were also barred from holding office

for a period of five years. A. 6, ftn. 2.

On February 18, 1966, the Compary filed a charge

with the Nationa] Labor Relations Board, alleging that

the Union had violated Section 8(b)(1) of the Act, and

a complaint was issued by the Board’s General Coun-

sel. Pet. App. 9a-10a. The complaint alleged that the

fines were unreasonable, excessive, and discrimina-

tory. It further alleged that the Union levied fines a-

gainst certain employees who had resigned from the

Union prior to working during the strike and prior to

being fined, and these fines were also alleged to be

unreasonable, excessive, and discriminatory. A. 2.

A request was made to the Company by the Union

that the employment of certain of the fined employees

be terminated, and it was not unti] January 8, 1968,

that the Union withdrew its request. A. 201-4. Addition-

ally, on October 13, 1965, the Union published and is-

sued to all employees its house organ, “The Space

Travelers,” wherein the Union stated that its mailing

list is accurate and up-to-date for members only, and

instructed the members to “pass your paper on

to ‘someone listed’ and ‘you know who,’ so that they

will know that WE KNOW.” The reference to ‘someone

listed’ is to two pages of names of employees who al-

legedly “crossed the picket line and/or wrote letters

of termination of their membership” during the strike.

The names appear under the following heading:

WE SHALL NOT FORGET!!

Also on page one, over the signature of the Union’s

Business Representative, the employees were told:

ets a

THE 10% WHO WORKED BEHIND THE

LINES, COMMONLY CALLED SCABS, MUST

HAVE A GUILTY CONSCIENCE TO ACCEPT

THE GAINS WON BY OTHERS ®

The record shows that the Michoud plant was severe-

ly damaged by Hurricane Betsy and was closed for

three or four days, reopening just a matter of a few

days before the strike. Employees who worked during

the strike were deprived of the benefits of the Union’s

hurricane relief fund.” A. 19-20. By letter or otherwise,

there was no notification to the employees by the Un-

ion that it had reduced or would reduce the fines to

fifty percent of earnings under some circumstances,

A. 6. This alleged policy purportedly was instituted

in the “first part” of 1966. Ibid., n. 3.

The employees involved in the instant case normally

earned approximately $2.38 to $3.63 per hour, which

would mean a gross earning of approximately $95 and

$145 per 40-hour week, respectively. A. 18.

At the time of the 1965 strike, the Union’s Constitu-

tion and By-Laws contained no provisions for voluntary

resignations from membership. It was the Union’s po-

sition that the resignations were an exercise in futility

and it regarded them as having no effect. A. 11. Ac-

6A. 192-200.

7The Trial Examiner discredited Business Representative Higgins’

claim that the Union did take the hurricane situation into con-

sideration regarding the fines. A. 6-7.

EE . os SS NBER AR PATER Ob ECT ERY CBE HORS STE WE OF PCED IS

cording to the Union, by action which postdated the

events in this case, the International Constitution has

been amended to provide that resignation shall not re-

lieve a member of his obligation to refrain from ac-

cepting employment during a strike if the resignation

occurs within the period of the strike or within 14 days

preceding its commencement. Union’s brief, page 58.

But the contract between the Union and the employer

binds the member to membership for the duration

thereof. A. 154-8.

Il. The Board’s Decision And Order

The Union was alleged to have violated Section

8(b)(1)(A) of the Act by (1) fining its members an

unreasonable and excessive amount for violation of

the Union’s rule against working for a struck employ-

er and threatening to and initiating court action to col-

lect same, and (2) fining in any amount those persons

who had resigned from the Union for their activities

subsequent to their resignation. A.2. The Labor Board’s

Trial Examiner sustained these allegations, and con-

cluded that the fines levied against those employees

who had been resigned from the Union were unreason-

able. A. 43-47. The Trial Examiner devoted a consider-

able portion of his decision discussing how “reason-

ableness” should, in his opinion, be determined. A. 15-

42.

The Board found that the Union’s imposition of dis-

ciplinary fines upon individuals who had resigned from

the Union before engaging in the conduct for which

243 eos LAR eae — i

the discipline was imposed violated Section 8(b)(1)(A)

of the Act, regardless of the amount of the fine. Pet,

App. 37a et seq. The Board further found that the

Union did not violate the Act by imposing disciplinary

fines upon members who did not resign but worked

during the strike, and that the Union did not violate

the Act by fining former members for returning to

work prior to their resignations, but that the imposi-

tion of discipline for conduct engaged in after their

resignations was illegal. Pet. App. 42a-43a. The Board

ordered the Union to cease and refrain from the con-

duct which it found to be violative of the Act, and to

reimburse or refund to any employees who have paid

fines levied against them for any conduct which oc-

curred subsequent to their resignations. With regard

to those employees who returned to work before resign-

ing but who subsequently resigned, the Union was or-

dered to remit a prorata portion of the fine, so that

what remained reflected only preresignation conduct.

Pet. App. 43a-44a.

A majority of the Board found that the legality of

the fines does not depend on their reasonableness, and

did not adopt the Trial Examiner’s findings, conclu-

sions and recommendations on that issue. Chairman

McCulloch dissented in this regard; he would examine

the amount of the fines to determine their reasonable-

ness in those situations where the Union’s imposition

thereof and threatened or actual court action to collect

8Member Brown dissented with regard to this finding. Pet. App.

45a-46a.

—

ON AO ALSTON IAL AE OLLIE AINA SI PETE NGE LAME ATE LE A 3 SST

such fines would in all other respects be lawful. (Where

expulsion from membership is clearly the only avail-

able method of enforcement, he would consider the

size of the fine irrelevant). Pet. App. 42a, n. 16. In

so holding, the Board relied upon Arrow Development

Corp., 185 NLRB No. 22,° issued on the same day as

the decision and order in the instant case. Ibid. In that

case, the majority concluded that Congress did not in-

tend to have the Board regulate the size of fines and

establish standards with respect to their reasonable-

ness. Pet. App. 55a, et seq. Chairman McCulloch’s full

dissent is at Pet. App. 58a-67a.

In two cases, the United States Court of Appeals for

the Ninth Circuit has reversed the Board majority on

this question, and it has remanded those cases to the

Board. David O’Reilly v. N.L.R.B., supra; Morton Salt

Co.v. N.L.R.B., supra.’

III. The Decision Of The Court Of Appeals is

The Court of Appeals for the District of Columbia

Circuit agreed with the Board that the Union acted

within the sphere of its lawful authority in imposing

fines on the members who did not resign from the Un-

ion before returning to work (Pet. App. 13a), that the

Union did not violate Section 8(b)(1)(A) so far as its

8International Association of Machinists And Aerospace Workers,

AFL-CIO (Arrow Development Co. and David O’Reilly, An

Individual), Case No. 20-CB-1947. Pet. App. 47a, et seq. See

footnote 2, supra.

10See footnote 2, supra.

: imposition of disciplinary fines concerned the pre-res-

ignation conduct of those employees who returned to

work and then resigned (Pet. App. 15a), and that the

Union violated the Act by imposing fines upon em-

ployees, and by threatening or attempting enforcement

of such fines, because of those employees’ post-resig-

nation conduct in working during the strike (Pet. App.

21a).

The Court unanimously refused to accept the Board’s

majority conclusion that Congress did not intend to

empower the Board with the authority to examine the

severity of Union discipline when ascertaining its le-

gality, and remanded the case to the Board for further

proceedings. Pet. App. 22a-23a. In so doing, the Court

stated (Pet. App. 25a):

Since the imposition of an unreasonably ex-

cessive 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 Court proceeded to set forth reasons why the

Labor Board should determine the question of reason-

ableness, and enumerated a number of factors which

it felt the Board could and should consider in resolving

the question. Pet. App. 26a-30a.

SUMMARY OF ARGUMENT

The Court of Appeals, in agreement with the Board,

correctly affirmed the conclusion that “the Union vio-

lated Section 8(b)(1)(A) by imposing fines upon em-

ployees, and by threatening or attempting enforcement

of such fines, because of those employees’ post-resig-

nation conduct in working at the Company plant during

the authorized work stoppage.” The imposition of fines

under such circumstances was held to violate the poli-

cies underlying the National Labor Relations Act and

has effects outside the area of internal union affairs,

and therefore they are clearly coercive within the

meaning of Section 8(b)(1)(A)."

It is only by virtue of the membership relationship

that the union has any authority over the employee-

member. Thus, when the membership relationship

ceases to exist, so does the union’s authority to take

disciplinary actions. The sanctions allowed by the

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

175 (1967), were against those who enjoyed full union

membership. Even then, for the union’s rule to be valid

and enforceable, the members must be free to leave

the union and escape the rule. Scofield v. N.L.R.B., 394

U.S. 423 (1969)

Pet. App. 21a.

pI ae

The employees here had no obligation to continue

their membership in the Union when the 1963-65 con-

tract expired. Pet. App. 20a-2la. Thus, having relin-

quished their membership, they were free to “refrain

from engaging in any and all concerted activities,” in-

cluding observance of the Union’s picket line. See Sec-

tion 7 of the Act, page 3, supra.

Contrary to the Union’s assertion, there is no con-

tinued duty, implied or otherwise, on the former mem-

ber to refrain from returning to work subsequent to

his resignation. The Union would have the Court sup-

ply a contractual or other obligation where none exists.

All resignations in question here were submitted after

the expiration of the 1963-65 contract, and before the

execution of the new agreement, and all were submit-

ted prior to the imposition of any Union discipline,

or threats or warnings. Pet. App. 7a. The Union’s Con-

stitution and By-Laws make no reference to resigna-

tions.

The subsequent insertion into the Union’s Constitu-

tion of a provision purportedly prohibiting members

from accepting employment at the struck establish-

ment,'* effective over seven years after the Michoud

strike had ended, can have no etfect here. Hereto-

fore, the Constitution was silent with regard to resig-

nations and the Union took the position that its mem-

bers could not resign, except “by death.” Moreover,

the newly-added provision contravenes the pur-

12Union’s brief, page 58.

poses and policies of the Act, par icularly Section

7 thereof, for, as a practical matter (considering the

union security language of the contract), this provision

will prevent any employee from being able to resign at

any time, including during strike situations. Events

occuring after a strike is called may have the effect,

moreover, of changing conditions in such a manner

that even if the employee were bound initially to join

in the strike he should no longer be so bound. Addi-s

tionally, it has the effect of “locking in” members who

may not wish to strike at all, and prohibiting them

irom resigning from the union and exercising their

rights under Section 7 of the Act.

The decisions of this Court demonstrate that in ap-

plving Section 8(b)(1)(A), the Board is required

to make an accommodation between the right of a un-

ion to protect against erosion of its status as exclusive

bargaining representative through reasonable dis-

cipline of members who violate valid rules governing

membership, and the right of emplovees, conferred

by Section 7, to refrain from engaging in union activity.

They further indicate that the union’s right of disci-

pline flows from the fact that, in joining the union,

the member agrees to abide by lawful union rules and

policies, and that a member may escape the discipline

by leaving the union.

The very fact that a worker gives up so much free-

dom of action in joining a union supports the conclusion

that he must ultimately have the right to leave the

union if he finds some aspect of its regulations intol-

erable. The Board was reasonable and correct in con-

~ ey

cluding that the members had a right to resign from

the Union and that the Union’s right of discipline was

coterminous with the union-member relationship.

The contention of the Union'? and of the AFL-CI0"s

that because oj the Union’s prohibition against mem-

bers working for a struck employer the members have

thus by specific commitment mutually promised each

other to refrain from strikebreaking, notwithstanding

resignations, is not tenable, and contrary to the proyi-

sions of Section 7 of the Act and to this Court's deci-

sions. See Scofield, supra, page 13 and Granite State,

infra, page 20. The qualification of Section 7 rights

sought by the Union and the AFL-CIO would seriously

curtail employees’ Section 7 rights to refrain from en-

gaging in union activity. Even where a member's sup-

port of any rule or policy. such as increased dues or as-

sessments, may actually be shown, such support may

be viewed as a waiver of any right to oppose the rule,

but it can hardly be viewed as a commitment to remain

a member or support the rule (e.g., pay dues) after he

has resigned. Support at one time of a particular union

project may not be construed in derogation of Section 7

rights, so as to commit a member irrevocably to union

membership or to support of a union rule once he has

left the union.

Where a member lawfully resigns from a union and

thereafter engages in conduct which the union rule pro-

scribes, the union commits an unfair labor practice

when it seeks enforcement of fines for that conduct.

13Union’'s brief, pages 58-59.

oe ‘Amicus curiae brief, pages 16-17.

_—

Il.

The Board contends that it has no authority to deter-

mine the reasonableness of an otherwise lawfully im-

posed fine by a union upon its members. It also argues

that Section 8(b)(1)(A) of the Act does not require

the Board to determine whether a judicially enforce-

able union fine imposed upon a member for breach

of a valid union rule is reasonable in amount.'®

Contrary to the contentions of the Board, the Union

and the AFL-CIO," in order for an otherwise valid

union fine to be Jegal under Section 8(b)(1)(A), it must

be reasonable in amount or size, and the Labor Board

not only is empowered to determine the question of

reasonableness, but it is the proper forum for doing

$0.

The Court of Appeals for the District of Columbia

Circuit specifically stated that the Board's belief that

it does not have the obligation of examining the reason-

ableness of union fines in Section 8(b)(1)(A) proceed-

ings is based upon a clear misconception of the law

and the Supreme Court's relevant decisions. Pet. App.

%a. The decisions of the Supreme Court, in Allis-Chal-

mers, and Scofield, supra, make it clear that the rea-

sonableness of the fine must be determined before the

legality of the fine, under Section 8(b)(1)(A), can be

determined.

'SBoard’s brief in No. 71-1607, page 8.

16Amicus Curiae brief, page 2, et seq.

Se ee ee eT ne

The position of the Board on this question is incon.

sistent with the preemption doctrine. See San Diego

Building Trades Council v. Garmon, infra at page 41,

As the court below noted, the possible existence of a

concurrent state court remedy does not relieve the

Board of its duty to adjudicate the remedy of unfair

labor practices under the Act. The state courts are

reluctant to become embroiled in such matters, and

there is a compelling need for national uniformity and

guidance in such matters. Pet. App. 25a-27a. Moreover.

the Board is not without expertise in related areas. It

has long been called upon, under Section 8(b)(5) of

the Act, to determine whether initiation fees required

by a labor organization are excessive. See Radio &

Studio Employees Union, infra, at page 40. The fact that

Section 8(b)(1)(A) does not provide the Board with spe-

cific standards to be applied in determining the reason-

ableness of a union fine, while Section 8(b)(5) does in-

clude some express standards, does not detract from

the Board's authority and responsibility under Section

8(b)(1)(A). “Experience and co:;amon sense will supply

the grounds for the performance of this job.” N.L.R.B.

v. Radio and Television Engineers Union, infra, page

39.17

A fine imposed for the violation of a union rule should

be viewed with close scrutiny. Such fines should be

permitted only when needed for protection of legiti-

mate union interests. If the amount of the fine is in-

17364 U.S. at 583.

_—

ordinately 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 having ex-

ercised a statutorily protected right. Pet. App. 29a.

The Board’s contention that for it to determine the

reasonableness of the amount or size of uni m imposed

fines would require it to protrude itself into tthe inter-

nal affairs of a union which was not contemplated by

Congress either in the Taft-Hartley Act or im the La-

bor-Management Reporting and Disclosure Act not on-

ly is without merit but it is contrary to the Board’s

own decisions. The Board has stated that the Depart-

ment of Labor is directly responsible for the adminis-

tration of the Labor-Management Reporting and Dis-

closure Act, but that in determining the legaliity of un-

ion fines, the Board is charged with “considering the

full panoply of congressional labor policies.” Carpen-

ters Local Union No. 22 (Graziano Constructiion Com-

pany), 195 NLRB No. 5, 79 LRRM 1194 (1972)). In that

case, the Board recognized and decided thatt a union

may not, under the guise of enforcing intermal disci-

pline, deprive members of rights guaranteed wnder the

Labor-Management Reporting and Disclosure Act to

participate fully and freely in the internal affairs of

their union.

It is the Board, and not the state courts, which has

been entrusted to determine the true motivation of em-

plovers and unions alike in taking disciplinary actions

against employees. The Board has developed that par-

a NT NE rae,

ticular expertise in resolving issues under Sections

8(a)(3) and 8(b)(2) of the Act. The same expertise

should be applied in determining the reasonableness

of otherwise valid union fines.

ARGUMENT

I. A Union Violates Section 8(b)(1)(A) Of The

National Labor Relations Act By Fining Employees

Who Resigned From Union Membership And

Returned To Work During A Lawful Union-Au-

thorized Strike, And By Seeking Judicial Enforce-

ment Of The Fines.

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

Workers Union of America, AFL-CIO, 93 S.Ct. 385

(1972), the Court held that, where neither the contract

nor the Union’s constitution or by-laws contained any

provision defining or limiting the circumstances under

which a member could resign, a member is free to

re:ign from his union during the course of a strike

and then return to work without incurring the liability

of a court-collectible fine imposed by the union to dis-

cipline him for his post-resignation return to work. The

Court did not consider an initial membership vote to

strike, or a later membership resolution subjecting any

member aiding or abetting the employer during the

strike to a $2,000 fine, to suffice as a restriction on

resignation.

As the Union points out,'® the Court did state, “We

18Union’s brief, page 57.

do not now decide to what extent the contractual re-

lationship between union and member may curtail the

freedom to resign. But where, as here, there are no

restraints on the resignation of members, we conclude

that the vitality of Section 7 requires that the member

be free to refrain in November from the actions he

endorsed in May and that his Section 7 rights are not

lost by a union’s plea for solidarity or by its pressures

for conformity and submission to its regime.” (93 S.Ct.,

at 387; footnote omitted).

Contrary to the Union’s assertion, however, the ques-

tion purportedly reserved in Granite State is not pre-

sented in this case. Here, the Union’s constitution and

by-laws made no provision for resignation from mem-

bership, and the resignations were submitted subse-

quent to the expiration of the old collective bargaining

agreement and prior to the execution of the new one,

and prior to any disciplinary action being taken or

threats of same by the Union.

A. Joining the Issue

The Board holds, with court approval, that in the

absence of an explicit contrary restriction upon the

effect of resignation. a member’s resignation from his

union in the midst of a strike frees him from any obli-

gation he may have had to refrain from returning to

work during the strike, after his resignation. The

Board reasoned that in joining a union, the individual

member becomes a party to a contract-constitution,

and in so doing, without waiving his Section 7 right

to refrain from concerted activities, he consents to the

Re on aa hee on

possible imposition of union discipline upon his exer.

cise of that right. But, the Board reasons, “(T)he con-

tract between the member and 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 that duty are extinguished.”

Pet. App. 39a-40a.

The Union contends, however, that the issue before

the Court is the interpretation of the post resignation

breach of a union rule against working for a struck

employer.'® The question here is no different from the

one submitted to the Court in Granite State, supra; i.e,

“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

seeking judicial] enforcement of the fines.”?°

B. The Decisions Of The Courts Make It Clear

That Members Are Free To Resign From

A Union And Escape The Imposition Of

Union Discipline For Post-Resignation

Conduct.

We submit that the jurisprudence supports the opin-

ions of the Board and the Court of Appeals for the

19Union’s brief, page 62.

20N.L.R.B. petition for writ of certiorari, N.L.R.B. v. Granite State

Joint Board. Textile Workers Union of America, Local 1029,

AFL-CIO, October Term, 1971, No. 71-711, at page 2.

_ — oP tie a PES Ail PSR Me: PY meee ote

District of Columbia Circuit that, absent possible other

considerations not present here, employee-members

are free to resign from a union and escape imposition

of union discipline for their post-resignation conduct.

In such situations, the “internal affairs” of a union

are no longer involved, and unions may not, by their

constitutions or otherwise, infringe upon the Section

Trights of the employees.

Local 1255, International Association of Machinists

And Aerospace Workers, AFL-CIO v. N.L.R.B., 456

F.2d 1214, C.A. 5, 1972, is not to the contrary. There,

the court merely held that a union member who re-

signs during a strike and crosses his union’s picket

line to return to work may be fined by the union for

his post resignation strikebreaking, when the fine is

enforceable only by explusion from the union. More

accurately, the Court held that the “thrust of the pen-

alty was to recondition readmission to membership

on the payment of the fine,”?' a matter reserved to

the union under the proviso of Section 8(b)(1)(A).

The Court’s decision in Allis-Chalmers Mfg. Co.,

supra, does not support the Union’s position. To the

contrary, there the Court was not presented with the

issue of resignations. In the decisions of the Board and

of the Court of Appeals for the District of Columbia

Circuit, the Union’s right to fine a member for crossing

a picket line was recognized, but it was held that the

union’s right to do so is extinguished by the member’s

effective resignation from the union before crossing

the nicket line.

21456 F.2d at 1217.

In the Scofield case, supra, the Court held that a un-

ion did not violate Section 8(b)(1)(A) by fining em-

ployees who exceeded a production quota established

by union rule and acquiesced in by the employer,

The Court reasoned that “Section 8(b)(1) leaves a un-

ion free to enforce a properly adopted rule which re-

flects a legitimate union interest, impairs no policy

Congress has imbedded in the labor laws, and is rea-

sonably enforced against union members who are free

to leave the union and escape the rule.” 394 U.S. at 430;

‘ emphasis supplied.?2

‘

These decisions make clear that, in applying Section

§(b)(1)(A), the Board is required to make an accomo-

dation between the right of a union “to protection a-

gainst erosion of its status [as exclusive bargaining

representative] through reasonable discipline of mem-

bers who violate rules and regulations governing mem-

bership” (Allis-Chalmers, supra, 388 U.S. at 181), and

the right of employees, conferred by Section 7. “to

refrain from” engaging in union activity. They further

indicate that the union’s right of discipline flows from

the fact that, in joining the union, the member agrees

to abide by lawful union rules and policies, and that

a member may escape the discipline by leaving the

union.

22The Court added: “If a member chooses not to engage in this

concerted activity and is unable to prevail on the other mem-

bers to change that Rule, then he may leave the union and

obtain whatever benefits in job advancements and extra pay

may result from extra work, at the same time enjoying the

protection from competition, the high piece rate, and the job

security which compliance with the union rule by union mem-

bers tends to provide.” 394 U\S. at 435.

ee ee ee ee ee

The very fact that a worker gives up so much free-

dom of action by joining a union (Allis-Chalmers, su-

pra, 388 U.S. at 180) supports the conclusion of Scofield,

supra, that he must ultimately have the right to leave

the union if he finds some aspect of its regulations

intolerable. In this case, as in Granite State Joint

Board, supra, the unico ‘s constitution and by-laws

contained no restriction on members’ rights to re-

sign and the retention of membership provision of the

collective bargaining agreement had expired with the

agreement.

The Board correctly noted (Pet. App. 40a):

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 reserva-

tion there is implication that such a fine when

levied against non-members constitutes a form

of restraint and coercion proscribed by Section

8(b)(1)(A). The decisions in two subsequent

cases reinforce that implication. (Footnotes

omitted).

No emplovee is subject to union rules if he chooses

to forego the privileges and duties of union member-

shin. Silard, Labor Board Requlation of Union Disci-

pline After Allis-Chalmers, Maine Workers and Sco-

field, 38 Geo. Wash. L. Rev. 187, 190 (1969). As stated

by the Court of Apneals helow (Pet. Anp. 15a, n. 10):

OSE IN CENTER

ie Wd ANS n an eed REIS 4

~——_

Since unions are only authorized to impose dis-

cipline where legitimate internal affairs are

concerned (citations omitted), it is clear that

any effort to fine nonmembers would consti-

tute an attempt to affect external activities,

an area in which Congress did not intend to

permit such union regulation.

The Court’s opinion in Granite State, supra, disposes

of any issue here. There, the Court expressly stated

(93 S.Ct., at 387):

The Scofield case indicates that the power of

the union over the member is certainly no

greater than the union-member contract.

Where a member lawfully resigns from a union

and thereafter engages in conduct which the

union rule proscribes, the union commits an

unfair labor practice when it seeks enforce-

ment of fines for that conduct. That is to say,

when there is a lawful dissolution of a union-

member relation, the union has no more con-

trol over the former member than it has over

the man in the street. (Emphasis supplied).

It appears that the foregoing language, after compar-

ing the facts in Granite State and the facts in the in- |

stant case, squarely disposes of the second question

presented by the Union in No. 71-1417. The arguments

of the Union in its brief (p. 57 et seq) to the contrary

merely beg the issue, rather than join it. The question

assertedly reserved in Granite State is not presented in

this case. Here, neither the contract nor the Union's

tabled - PRAISES Pe Ya WTR PTFE SF

constitution nor its by-laws defined or limited the cir-

cumstances under which a member could resign. In

fact, it was the position of the Union that its members

could resign only “by death.” A. 11 Moreover, in Gran-

ite State, there was evidence that all of the resigning

members against whom fines had been levied had par-

ticipated in the vote to strike (93 S.Ct., at 387); no such

evidence is present in the subject case.?%

In its amicus curiae brief, even the AFL-CIO takes

the position that the Board is empowered to preclude

discipline of non-members (AFL-CIO brief, pages 7-8).

The AFL-CIO states (Brief, page 8):

_.. Section 8(b)(1)(A), as it has been inter-

preted thus far, interdicts ‘external’ means of

enforcement, measures union rules against ex-

ternal stendards embodied in the NLRA, and

prohibits the imposition of union sanctions a-

gainst non-members, i.e., individuals external

to the organization. (Emphasis supplied).

Moreover. since the collective bargaining agreement

here provided that once an employee becomes a mem-

ber he retains his membership only for the life of the

contract term (Pet. App. 7a), it may well be argued

that resignations were not necessary and that any

membership obligations which may have existed were

extinguished upon the expiration of the collective bar-

23Cf. concurring opinion of the Chief Justice, 93 S.Ct. at 388.

gaining agreement. Accordingly, the decision of the

Board and the Court below, that the employee-mem-

bers were free to resign and escape the imposition

of union discipline for post-resignation conduct, is rea-

sonable and correct.

C. There Are No Facts Present Here Which

Permit The Union To Discipline Former

Members For Their Post-Resignation Con-

duct, And The Union May Not Now Im-

pose Requirements Which Subject Em-

ployees To Union Discipline For Their

Post-Resignation Activities.

1. The Granite State case, supra, p. 20, presented

the court with an excellent opportunity to concluce '

notwithstanding the absence of a provision

union’s constitution and by-laws or in the «

bargaining agreement regulating the rights of

bers to resign their membership, there were oth«

siderations and factors present which deprived me

bers of their right to do so. In fact, the Court of Annes

for the First Circuit had so held. Nevertheless, the

Court held to the proposition that where there were no

such provisions, members were free to resign at will

and that the union no longer had any right to attempt

to impose disciplinary fines upon them.

2. No factors to the contrary are present here.

Moreover, a union may not, by constitutional amend-

ments or otherwise, abridge the Section 7 rights of em-

ployee members to resign and to refrain from engag-

COPY BOUND C

ing in concerted activities, including prohibiting the

employee from resigning his membership and return-

ing to work during a strike. Regardless of any pro-

visions which a union may attempt to impose, em-

ployees may continue to resign their membership and

remain free from union disciplinary action, such as

fines, for exercising their statutory rights.

3. The Union here would have the Court read into

the restrictions as they existed in 1965 other obligations

purportedly imposed on its members by constitutional

amendments in 1972, effective January 1, 1973.24 How-

ever, the purported amendment is patently invalid

und illegal, regardless of when it was adopted; even if

it were not, it could not be applied retroactively.

The facts demonstrate that if the purported amend-

ert were to be given effect, it would, as a practical

motter, deprive employee-members of the right to

resign from the Union at any time, because (a) the

amendment binds him to the union rules during a

strike and (b) he is bound to membership during the

life of the contract. A. 154-8. According to the Union’s

argument, at no time could a member resign until the

strike ended following the 1963-65 agreement, and he

could not do so even then because the new contract did

not provide him with the opportunity to escape the

future obligations of membership,

A Union may not, under the guise of prescribing “its

own rules with respect to the acquisition or retention

24Union’s brief, pages 58-59.

OSE IN CENTER

ig aay nedinegthy a a Ree RS el

Bee: Rati apse

of membership therein,”?5 contravene either the ex-

press provisions or the purposes of the Act by denying

to employees the right to refrain from union member-

ship or from other protected or concerted activities.

4. Once a member has effectively resigned, the

union may not discipline him for his post-resignation

conduct by attempting to impose fines upon him and

attempting cr threatening to collect those fines, or by

any other means of discipline “. ..(W)hen a member

lawfully resigns from *he union, its power over him

ends.” Granite State Joint Board, supra, p. 20 (93 S.Ct.,

at 386).

II. The Board Is Empowered And Required To

Determine The Reasonableness Of A Fine Im-

posed Upon A Member By A Union For Accepting

Work During A Strike In Breach Of A Valid

Union Rule, And It Must Do So If The Fine Is To

Be Collectible.

In Allis-Chalmers Mfg. Co., supra, p. 13, a majority

of the Court ruled that a union can, without violating

Section 8(b)(1)(A) of the Act, obtain judicial enforce-

ment of reasonable fines against its members who

crossed a picket line in violation of a valid union rule.

Subsequently, the Court stressed the implication of

Allis-Chalmers that a disenchanted member may re-

sign to avoid any rule he considers against his best in-

terest. Scofield, supra, page 13. On December 18, 1972,

in No. 71-1563; The Boeing Company v. National Labor

25Section 8(b)(1)(A).

COPY BOUND CL

Relations Board and Booster Lodge No. 405, Interna-

tional Association of Machinists and Aerospace Work-

na... Ua. , the Court declined to reverse its de-

cision in Allis-Chalmers, supra, holding that members

may escape the disciplinary fines of a union by resign-

ing from it, but those who remain members are subject

to reasonable fines for violation of valid union rules.

The Board is the proper forum for determining the

question of reasonableness. The Court below,?® and

Court of Appeals for the Ninth Circuit?” agree.

A. In Order For An Otherwise Legal Fine To

Be Enforceable, The Amount Of The Fine

Must Be Reasonable.

In Allis-Chalmers, the Court stated (388 U.S. at 183):

It is no answer that the proviso to Section

8(b)(1)(A) preserves to the Union the power

to expel the offending member. Where the Un-

ion is strong and membership therefore val-

uable, to require expulsion of the member vis-

its a far more severe penalty than a reason-

able fine. (Emphasis added).

The Court further recognized that “the proviso pre-

serves the right of unions to impose fines, as a lesser

penalty than expulsion ...” 388 U.S. at 191-2 (Empha-

26Pet. App. 23a-25a.

27See ftn. 2, supra.

nee

gig

SE IN CENTER

sis supplied).2® This implicitly recognized that, for a

disciplinary fine to be less coercive than expulsion

from the union, the fine imposed must be a reasona-

ble one, for it is intuitively obvious that enforcement

of a grossly excessive fine might visit a far greater

burden upon an individual than would expulsion.29

In reaching its decision, the Court evaluated the

position of unions as the bargaining representative of

collective bodies of workers and their needs in this

position, and weighed these considerations against the

5 challenge to any interference with employees’ Section

7 rights. The Court found that “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... .”°° From an appreciation of the inter-

» J

‘#

28Mr. 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 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

7 Congress, having accepted expulsion as a permissible

technique to enforce a rule in derogation of Section

7 rights, nevertheless intended to bar enforcement

by another 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

CER Oa

3 for nonparticipation in a strike does not ‘restrain or coerce’ an

2 employee in the exercise of his right not to participate in the

3 strike.’ 388 U.S. at 200-201 (dissenting opinion of Black, J.)

: (emphasis supplied).

: 29See Pet. App. 24a-25a.

z 30388 U.S. 175, 180, quoting Steele v. Louisville and N.R. Company,

‘ 323 U.S. 192, 202.

}

COPY BOUND CLC

play of the Section 7 right to refrain from collective

activity and the Section 8(b)(1)(A) prohibition on un-

ion interference with this right, as well as the legisla-

tive history of Section 8(b)(1)(A), the Court concluded

that the “imprecise”s' terminology, “restrain or co-

erce,” of Section 8(b)(1)(A) was not meant to prohibit

absolutely union imposition of fines. Rather, the Court

held that reasonable fines are not a type of restraint

or coercion prohibited by Section 8(b)(1)(A).32

The Court’s decision in Allis-Chalmers thus con-

firmed the ability of unions to assess reasonable fines

for strike-breaking, and outlined the interpretative

framework in which analysis of union disciplinary ac-

tion must take place. This reconciliation of the rights

and obligations of union members under the Act was

refined much further in the Scofield case. The issue

before the Court there was the legality of union fines

assessed against employees who disregarded a union

rule setting a ceiling on daily pay for piece work per-

formed for the Wisconsin Motor Corporation.*3 The

Court considered the provriety of union fines as a

disciplinary device and reaffirmed its Allis-Chalmers

31388 U.S. 192, 202.

32The Court, in Allis-Chalmers. chose to consider the overall

scheme of the Act and to balance the needs of labor unions

against the assertion of an absolute right of freedom of ac ‘ion

on the part of union members. The Court did not adop: the

Board’s reasoning that the union’s action was privileged by

the Section 8(b)(1)(A) proviso: “Our conclusion that Section

8(b)(1)(A) does not prohibit the locals’ action makes it un-

necessary to pass on the Board holding that the proviso pro-

tected such actions.” 388 U.S., at 192, n. 29.

33See the statement of facts set forth by the Trial Examiner in

Wisconsin Motor Corp., 145 NLRB 1097 (1964).

E IN CENTER

decision that “{a] union rule, duly adopted and not

the arbitrary fiat of a union officer, forbidding the

crossing of a picket line during a strike was therefore

enforceable against voluntary union members by ex-

pulsion or a reasonable fine.” 394 U.S, at 428 (em-

phasis added). The Court expressly recognized that

: the enforcement of a proper union rule “by reasonable

fines does not constitute the restraint or coercion

proscribed by Section 8(b)(1)(A).” 395 U.S., at 436

(emphasis supplied).

ite

The Supreme Court's decisions in Allis-Chalmers and

Scofield established the following standards, each of

which must be met if a union’s disciplinary action

against a member imposed because of the member's

exercise of his Section 7 rights is to escape the prohibi-

tion of Section 8(b)(1)(A) of the Act:34

(1) The fine must be reasonable;

(2) The fine must not be the mere fiat of a

union leader;

(3) The members fined must be free to leave

the union;

: (4) The means used to enforce a rule must

, be acceptable;

4 (5) The rule must be supported by a legiti-

3 mate union interest;

(6) The rule must not violate federal labor

law policies.

A negative answer to any of these issues removes

the union action from the protection of Allis-Chalmers

and Scofield, and makes it a violation of Section 8(b)

34Scofield, 394 U.S., at 430-1.

SA LGR SLA BRE RE AA IES

Biiesonicrs.

CADRDY ROLIND CL¢

_——

(1)(A). The facts here show that the first three

standards were not met. The Trial Examiner found

that the fines were unreasonable in amount. Union

fiat was also present in the treatment of the fined em-

ployees; the amount was determined before any hear-

ing and the fine was imposed regardless of a mem-

ber’s knowledge or lack thereof of the rule, notwith-

standing the fact that they were not warned in ad-

vance that such disciplinary action would or might

be taken against them, and the Union had never pre-

viously imposed disciplinary fines on any of its mem-

bers. The Union admits that employees fined were

involuntary members because, according to the Union,

it is impossible to resign from its membership.

The Court below, after reviewing Allis-Chalmers and

Scofield, concluded (Pet. App. 25a):

*** In light of the Court’s emphasis on the

requirement of ‘reasonable fines’ if a union is

to avoid a violation of the Act in these circum-

stances, 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 ex-

cessive disciplinary fine is a violation of Sec-

tion 8(b)(1)(A), it is clearly the obligation of

the National Labor Relations Board to resolve

the question where such an issue is appro-

priately raised, (Emphasis supplied).

Sec. :

Si ee

-e pean ee 6 eee ee

In the Morton Salt Co. case, supra (82 LRRM at

2066)3* the Court of Appeals, after reviewing Allis.

Chalmers and Scofield, stated:

eee eT ee

4 While, again, the issue was not squarely pre-

$ sented to the Supreme Court, we particularly

: note the adjective ‘reasonable’ in the above-

i quoted portion of the [Scofield] opinion used

d in the context of enforceability and legality of

3 the fine. The corrollary of this Scofield conclu-

4 sion is that an unreasonable fine is an unfair

labor practice. (Emphasis supplied; citations

: omitted).

3 After citing, with approval, the decision of the Court

below herein, the Court of Appeals for the Ninth Cir-

cuit said, “We agree that the lawfulness of fines im-

posed depends, in part, upon the reasonableness of the

amount...” 82 LRRM at 2071. (Emphasis supplied).

: The Trial Examiner who heard the instant case, after

| reviewing Allis-Chalmers?*, stated (A.13):

We proceed, therefore, on the basis, as indi-

cated by the Court, that under the body of Sec-

tion 8(b)(1)(A) the fine imposed and enforced

S| or sought to be enforced must be ‘reasonable.’

Chairman McCulloch, dissenting in the O'Reilly

case,’?7 noted that the dissenting opinion in Allis-

Chalmers interprets the Court’s holding as limited in

its scope to “a court enforced reasonable fine,” citing

35See ftn. 2, supra

36His decision issued before that of the Court in Scofield.

37See ftn. 2, supra; O'Reilly v. N.L.R.B.

Dain? Wiki rari. wee ie.

COPY BOUND CLC

—

388 U.S. at 200. (Pet. App. 60a). He further expressed

his dissent as follows (Pet. App. 6la-65a):

The Court’s repeated use of the adjective

‘reasonable’ in both Allis-Chalmers and Sco-

field to describe the fines there in issue cannot

be passed over casually as without signifi-

cance. By its carefully drawn distinction be-

tween ‘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 un-

reasonable, either in their nature or size, as not

serving a legitimate union interest, and there-

fore not privileged from the proscription of

Section 8(b)(1)(A).

B. The Court Below Properly Remanded The

Case To The Board With Directions That

The Board Determine The Questions Re-

lating To The Reasonableness Of The

Fines Imposed By The Union.

In the decision the Board, relying upon its own de-

cision in International Association of Machinists And

Aerospace Workers, AFL-CIO, Local Lodge No. 504

(Arrow Development Co.), supra’® concluded that

“the Act does not authorize this Board to evaluate the

fairness of union discipline meted out to protect a le-

gitimate union interest.” Pet. App. 42a, n. 16. The Court

of Appeals for the District of Columbia Circuit, how-

$8See ftn. 2, supra. Remanded to Board, sub. nom. O'Reilly v.

N.L.R.B.

Bear.

si x

ks: rt

E IN CENTER

ever, disagreed, and remanded the instant case to the

Board for further consideration of the question re.

lating to the reasonableness of fines imposed by the

Union. Pet. App. 33a.

The Court below observed (Pet. App. 26a-27a):

. (T)he business of the Board, among other

things, is to adjudicate and remedy unfair la-

bor practices, ‘ts authority to do so is not ‘af-

fected by any other means of adjustment or

prevention that has been or may be established

by agreement, law, or otherwise...’ * * *

Furthermore, the fact that some state courts

‘might not permit enforcement of excessive

fines in a collection action by the union, does

not detract from their coerciveness, or need for

N.L.R.B. action. * * * (Footnotes and citations

; omitted).

;

ee het eae auth

The Court further stated, after rejecting the Board’s

“reverse preemption” argument, that it was empha-

sizing the fact that “(t)he function of striking that ba-

lance to effectuate national labor policy is often a dif-

: ficult and delicate responsibility, which the Congress

committed primarily to the National Labor Relations

Board,” citing N.L.R.B. v. Truck Drivers Union, 358

U.S. 87, 96 (1957), and added: “This is the very func-

tion which the Board is being asked to perform

here.”®

In Morton Salt*°, the Ninth Circuit Court, after agree-

ing with the District of Columbia Circuit Court, stated

pete hk aa

39Pet. App. 28a, n. 34.

40See ftn. 2, supra.

Pitted Cxtin seca

COPY BOUND C!

—

that an unreasonable fine is an unfair labor practice,

(82 LRRM at 2070):

A statutory responsibility of the Board is to

adjudicate and remedy unfair labor practices.

N.L.R.A. Section 10(a); 29 U.S.C. Sec. 160 (a).

We conclude that the determination of reason-

ableness is for the Board, (Emphasis sup-

plied).

And at 81 LRRM 2071, the Court stated, “We agree

that the lawfulness of fines imposed depends, in part,

upon the reasonableness of the amount, and that the

N.L.R.B. is the proper forum for this determination.”

(Emphasis added).

1. The Soard’s argument that the Act does not “re-

quire” it to determine whether a fine imposed on a

union member for breach of valid union rule is rea-

sonable in amount does not meet the question pre-

sented. The Board advanced the same argument when

it took the position that it was net authorized, em-

powered or required to award assignments of work

in jurisdictional dispute cases under Sections 8(b)(4)

(D) ane 10(k) of the Act. The Supreme Court rejected

that position in N.L.R.B. v. Radio and Television

Broadcast Engineers Union, 364 U.S. 573 (1961), noting

that “the Board need mot disclaim the power given it

for lack of standards.”4' Since that decision, the Board

has developed “standards” for making affirmative

awards in jurisdictional disputes which it applies uni-

formly, and which provide parties to such disputes

with uniform guidance in the resolution or litigation

of same. See, e.g., IBEW Local 743, 185 NLRB No. 106,

41364 U.S. at 583.

ISE IN CENTER

75 LRRM 1164 (1970). The Board’s expertise in inter.

preting Section 8(b)(5) of the Act is also of value to

the Board in determining the reasonableness of such

fines. The Board has exercised its experience in this

area and, fairly recently, concluded that a union vio-

, lated Section 8(b)(5) by imposing excessive initiation

fees which restrained and coerced emplovees in their

right to join a union. In so doing, the Board pointed to

; such factors as the fee »eing six times greater thon

the weekly wage of employees belonging to the union,

and that it was twice as large as that of the union's

sister local. Longshoremen, I.L.A. Local 1419, 186 NLRB

No. 94,75 LRRM 1411 (1970).4?

a nk shih

—*

ages Bs

Although Congress set forth broad, general prohihi-

tions against illegal secondary activities by unions in

Section Sib) 4) of the Act, it has been the Board itself

which has refined and interpreted the prohibitions,

and it has been the Board which has established

“standards” thereunder for regulating secondary pic-

keting. Fer instanee, the Act itself makes no reference

to “commen-situs” picketing. Yet. the Board has de-

veloped guidelines and standards for such situations.*$

i A EAS A LG ETT

AEA ARL ABELL wa

The court below recognized the fallacies of the

Board's contention**, as did the Board’s dissenting

member, then Chairman McCulloch. See Pet. App. 65a.

ee ee

42See also N.L.R.B. v. Television & Radio Broadcasting Studio Em-

ployces, 315 F.2d 398, C.A. 3, 1963.

a3See, e.g. Sailors Union of the Pacific (Moore Dru Dock Co.,

Inc.), 82 NLRB 547 (1950): Electrical Workers Local 1761 v.

N.L.R.B.. 366 U.S. 667 (1961); Brewery & Beverage Drivers

Local 67 (Washington Coca-Cola Bottling Co.), 107 NLRB 299

(1953): and Electric Workers Loca! 861 (Plauche Electric Co.

135 NLR 250 (1962).

44See Pet. App. 23a; 25a: 28a-29a.

Sab ss as eet Meio

COPY BOUND CI

2. The Board’s position as stated in Carpenters,

Local 2°. spre, is more in conformity with the con-

gressional and judicial scheme of administration of

labor laws and policies than is the position being taken

by the Board in the present case; i.e., that it may not

pass on the reasonableness of these fines. It was the

purpose of Congress in establishing the Board to have

one agency for the adjudication of issues arising from

labor disputes.*5 Only recently, the Supreme Court has

reaffirmed the “primary responsibility” of the NLRB

for guiding the development of national labor policy.*§

To support the Board’s preeminent position in the

scheme of national labor policy, the Supreme Court

in San Diego Building Trades Council v. Garmon4?

and other cases, set forth the preemption doctrine.

When an activity is arguably subject to Sec-

tion 7 or Section 8 of the Act, the States as

we'll as the federal courts must defer to the

exclusive competence of the National Labor

Relations Board if the danger of state inter-

ference with national policy is to averted.4®

In such situations. the “power and duty of primary

decision lies with the Board.” rather than with one

45Muers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41

(1938); Amaloamated Utility Workers v. Consolidated Edison

of New York, 309 U.S. 261 (1940).

46N.L.R.B. v. Raytheon Company, 398 U.S. 25, 28 (1970).

47359 U.S. 236 (1959).

48359 U.S. 236, 245. Accord, International Longshoremen's Local

1416, AFL-CIO v. Ariadne Shipping Company, 397 U.S. 195,

200 (1970).

iS =

5E IN CENTER

or several other tribunals, for the sensible reason that

“a multiplicity of tribunals and a diversity of pro-

cedures are quite as apt to produce incompatible or

conflicting adjudications as are different rules of sub-

stantive law.”49 Congressional concern for a coherent

national labor policy naturally manifests itself in a

corollary interest in “uniform application of its sub-

stantive rules [avoiding] diversities and conflicts like-

ly to result from a variety of local procedures and

attitudes towards labor controversies.”’5°

b> 4

a Pe

3. The question of the “reasonableness” of a court-

collectible fine is not one relating to the “internal af-

fairs” of a union. The fact, alone, that the Union at-

tempted to impose fines upon employees, and threat-

ened or attempted enforcement of such fines against

employees because of their post-resignation conduct,

particularly when coupled with the Union’s insistence

that its members may not resign during the course

of a strike and therefore they remained subject to the

Union’s’ disciplinary actions, had _ effects out-

side the area of internal union affairs, and clearly fall

within the purview of the Board in interpreting and

: applying Section 8(b)(1)(A) of the Act. Pet. App. 2la-

i 22a.

Moreover, inasmuch as the imposition of an unrea-

sonable fine is coercive, per se, the proviso to Section

‘ 8(b)(1)(A) is not applicable. See also Pet. App. 29a-30a.

49Garner v. Teamsters Union, 347 U.S. 485, 489, 490-91 (1953).

50San Diego Building Trades Council v. Garmon, 359 US. 236,

243, quoting Garner v. Teamsters Union, 346 U.S. 485, 490.

| sends

COPY BOUND CLC

_—

The contentions of the Board®' and the Union®? that

the cision of the court below (and those of the Court

of Appeals for the Ninth Circuit) would involve the

Board in purely internal affairs of the Union ignore

the above-mentioned factors, as well as the Board’s

own decision in Carpenters Local Union No. 22, supra,

page 19. There, the Board held that a union violated

Section 8(b)(1)(A) of the Act when it fined a member

for allegedly violating a union rule, where the union,

according to the Board, utilized the union rule as pre-

text pecause of the fined employee’s intraunion ac-

tivities. In so holding, the Board stated, “The policies

which the Union’s conduct here seeks to frustrate are

embodied in the Labor-Management Reporting and

Disclosure Act of 1959, rather than specifically in the

National Labor Relations Act. This difference does not,

however, impel a different conclusion.”

After referring to language from the Court’s decision

in Scofield, the Board stated (79 LRRM 1196):

. (T)he Board is charged with considering

the full panoply of congressional labor policies

in determining the legality of a union fine.

Here the Union, in the guise of enforcing in-

ternal union discipline, has sought to deprive

its members of the right, as guaranteed by the

Labor-Management Reporting and Disclosure

Act, to participate fully and freely in the in-

ternal affairs of his own union. A fine for that

purpose not only in our opinion fails to reflect

51Board’s brief, page 13.

52Union’s brief, pages 17-19.

E IN CENTER

St TRS BAER CBA SS

ee ee eas kee

a legitimate union interest but rather in fact

impairs a policy that Congress has imbedded

in the labor laws. (Footnote omitted),

Similarly, then, an unteasonably excessive tne for

working behind a picket line also “impairs a_poiicy

that Congress has imbedded in the labor laws” — the

policy expressed in Section 7 of the National Labor

Relations Act, guaranteeing employees the right to re-

frain from concerted activities.

In a footnote in Carpenters, Local 22, supra, the

Board noted (79 LRRM 1196, n. 5):

... We are not unmindful of the fact that the

Department of Labor, and not this Agency, is

directly charged with the administration of the

requirement of the Landrum-Griffin Act. We

traditionally respect this differentiation.

* * * In this area, however, as we under-

stand it, we have been specifically charged by

the Supreme Court with the duty of determin-

ing the overall legitimacy of union interests,

and must therefore take into account all Fed-

eral policies and not limit ourselves to those

embodied in our own Act. (Citations omitted;

emphasis supplied).

Therefore, in “determining the overall legitimacy

of unicn interests,” it is incumbent upon the Labor

Board, and not the state courts, to determine and for-

mulate a body of law as to the reasonableness of union

imposed fines.

COPY BOUND CLOS

gana

Cc. The Board Is Peculiarly Suited To Recog-

nize And Administer Uniformly Those Fac-

tors Determinative Of What Is A “Reason-

able” Fine.

The Board, if the decision of the Court below is to be

upheld, would have the authority to determine whether

the Act is violated by the particular fine imposed by

aunion. The effect of shifting to other fora, scores of

different courts of various shades of jurisdiction, the

determination of the reasonableness of fines legally

imposed, would be to place an undue burden upon in-

dividual employees and to create a lack of uniformity

of justice in the administration by the courts of an

issue which can be affected by so many different tests

inso many different parts of the country.

Within the Board’s owr experience under Section

§(b)(5) of the National Labor Relations Act,.5* we find

that the particular facts of a case are to be evaluated,

and similar standards applied, in deciding whether an

unfair labor practice has been committed.

For example, the Board probably would take into

consideration the motivation of the imposition of the

‘ine as well as the amount thereof. See, e.g., Carpenters,

Local 22, supra, Other factors would include the dura-

ion of the strike (see Granite State Joint Board,

This Section limits the amount of dues or initiation fees that a

union may charge employees. The Board is instructed to look

to “all the circumstances” to decide if a given amount is “‘ex-

cessive or discriminatory.” The “wages currently paid to the

employees effected” are deemed to be relevant to the Board's

determination. 29 U.S.C. Section 158(b)(5). See, TV & Radio

Broadcasting Studio Employees, supra, at footnote 42.

- INCENTER

supra). Other factors might be (a) the employees’

personal circumstances, particularly their financial

desperation; (b) fines imposed by the union, if any,

4 for similar reasons and under like circumstances; (c)

whether the amount of the fine is such as to be in-

ordinately disproportionate to the needed protection;

(d) the compensation received while employed during

the strike; (e) the level of strike benefits, if any, made

available to the striking employees; (f) the avail-

ability of less harsh union remedies; (g) whether or

not the penalty would “impair the member’s status as

an employee.” Pet. App. 29a-30a. Similarly, the method

of the payment of the fine and the time period within

which it must be paid could be relevant factors, as

well as the manner in which charges were filed and

processed which led to the imposition of the fine or

other penalty. In assessing the reasonableness of a

fine the Board might also consider whether or not

; other sanctions or punishments were imposed upon

x those who were fined. In the instant case, for instance,

e members were barred from holding office in the Un-

; ion for a period of five years. Still another possible

factor in determining the reasonableness of the fine

‘ might be whether the employees were informed in

advance that they would be violating a union rule if

they worked behind a picket line, and whether they

were warned in advance that they would be penalized

and to what extent or degree.54

Be tke

op EER RTS TS

NESE

It is inconceivable that the multiplicity of factors

that may be involved in resolving the issue of reason-

54Cf. A. 15, n. 19.

Bieveus:

COPY BOUND CI

wil

ableness can be entrusted to the courts, rather than to

a single administrative body, without the effects of

confusion and inequities.

Also entitled to consideration is the likely effect

upon the individual employee, faced with the choices

of (a) exercising his rights under the Act or (b) a law-

suit at considerable personal expense in which he re-

sists a substantial union fine. Denied the National La-

bor Relations Board as the forum for resolving this

issue at no expense to him, will his rights under Section

7 be frustrated because he cannot afford an attorney

and possible court costs to test the penalty assessed by

an affluent union?

CONCLUSION

Frr the reasons stated, the judgment below should

be affirmed.

Res (), submitted,

C. DALE STOUT

FREDERICK A. KULLMAN

SAMUEL LANG

KULLMAN, LANG, INMAN

& BEE

Post Office Box 60118

New Orleans, Louisiana 70160

COUNSEL FOR THE

BOEING COMPANY

| March, 1973

WE ts

et ete

OSE IN CENTER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.