# Amicus Curiae Brief — Booster Lodge No. 405, International Ass'n of Machinists & Aerospace Workers v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1574%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 412 U.S. 84 ## Text Re att 2a te Page SEIEEIET ET aicctesazovsossnevuniniohsstdenisuedeinislaieceshteapinsicacbodaaaananal 2 SUIREIIINUDT: - cxsecchacioninstinssihadeapisaiiniehapensaielsiiiaiehdaiddiaiea da iiiaaae 22 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 i 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 Se: Question presented. ..........---------- pyar 36e IEP rer ererrrrrrir erry Tr oa 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 pen the wile... . . 2 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: ); — | ~I NLEB 901, enforcement denied, 220 F. 2d 12__-_- ne five 7 — > e nm a] = > St to bh te - 12,13 5, 10, 12 11 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) es 2 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. 3 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). tS cu ® 2g * 4 g $ ag 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 6 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 7 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. 8 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 9 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 10 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 es mm wna | = APA iE OAR RG rae SN SS . ar) . — ii 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 i i 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 43 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 40 45 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 2 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). ww 3 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. 4 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 te 5 ‘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 rT 6 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 8 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 9 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 10 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 11 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. a 12 : 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 14 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. 15 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- a ~ 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. 16 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. _— ws 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 18 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. _— 19 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, 20 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. 21 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 22 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. Te 24 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 : ‘ F 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 25 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 26 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 27 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. 28 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 29 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 30 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 ga 31 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 32 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- & 4 ¥ n .. ee E .y y » J Bs ‘# 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. 4 4 a } : COPY BOUND CLC 33 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 34 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). , x A x a 5 * +3 ite q % 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¢ _—— ie 35 (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 36 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 — 37 388 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 38 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). yz 4 2 3 a > ¢ a ; 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! — oS 39 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 40 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 _ 41 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 42 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° 3 : : 4 : a 23 3 2 $ 2 5 é te 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 t _— 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. uF E IN CENTER ee St TRS BAER CBA SS ee ee eas kee 44 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 45 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 46 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. 47 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1574%3A06. Public record. Not legal advice.