Petition for Writ of Certiorari — National Labor Relations Board v. Machinists Local 1327, International Ass'n of Machinists & Aerospace Workers

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8 4 te 4 9 4 (v) or ae U.S. |

ee Oe a a SEP 27 1984

ALEXANDER L. STEVAS,

In the Supreme Court of the United States merit

OCTOBER TERM, 1984 |

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

MACHINISTS LOCAL 1827, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO,

DISTRICT LODGE 115, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

WILFORD W. JOHANSEN (202) 633-2217

Acting General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT C. BELL, JR.

Attorney

National Labor Relations Board

Washington, D.C. 20570

--BESTAVAILABLE COPY (iia

ee ee eee eee ———— ag I

QUESTION PRESENTED

Whether a union rule that restricts members from re-

signing from the union during a strike and returning to

work impermissibly abridges the right of employees to

refrain from engaging in union activities.

(I)

Space

Workers, AFL-CIO, and its affiliated Local Lodge

1028, which are accordingly also respondents in this

peals and, pursuant to Rule 19.6 of the Rules of this

Court, are respondents in this Court.

PRESEN Bin > SD

Talal Eelit atla Rasy ais Merten

TABLE OF CONTENTS

\ Page

CA rene ee ee 1

Te Oey a TVeC ss ne vrcesuedeses 1

Statutory provisions involved ............+4++. 2

ES OES ee ee 2

‘ I. The Board’s decisions ................ 2

A. Machinists Local 1327 (Dalmo

RA aS SE ee 2

B. Machinists Local 1028 (Gray

I le ae Se ees ek 6 Ke 2 408 3S 5

II. The court of appeals’ decision ......... 6

Reasons for granting the petition ............. 7

ES ESAS TE ee 15

Ee ee ee ee la

SE re ee ee ee 13a

EM ih a BA ase RWS ois Sd 9 iad dv o.o'e av e'ss 35a

Seer rere ee eee 44a

AES er rer es err ere 80a

ay ay kanes cob snc pase ayn sO 4' 89a

TOT I eee ee a ae 9la

| Ee ree tere ee ee te eee rere eee 93a

TABLE OF AUTHORITIES

Cases:

Booster Lodge No. 405, International Asso-

ciation of Machinists v. NLRB, 412 U.S. |

ESS Pee re eee ae eer 4, 9, 10

Ford Motor Co. v. NLRB, 441 U.S. 488 .. 14

International Association of Machinists,

Local Lodge 1414, 270 N.L.R.B. No. 209

oa Sh ie ks wht avin ean eo «9 <6 5

Local 900 v. NLRB, 727 F.2d 1184 ....... 14

(III)

Cases—Continued: Page

Marlin Rockwell Corp., 114 N.L.R.B. 553 12

NLRB vy. Allis-Chalmers Mfg. Co., 388

Be Ses 15s et 5 Ue be neo 13

NLRB v. City Disposal Systems, Inc., No.

GS-30 (Mar. BI, 96D) eek eh. 14 F

NLRB vy. General Motors Corp., 373 U.S.

WE ia Dita wks Wee RaW eck RLU 12

NLRB vy. Granite State Joint Board, Tex-

tile Workers Union, 409 U.S. 213 ..... 4, 8-9, )

10, 18, 14

NLRB vy. Industrial Union of Marine &

Shipbuilding Workers, 391 U.S. 418 .... 10, 18

NLRB v. Iron Workers, 434 U.S. 335 .... 15

NLRB v. Magnavox Co., 415 U.S. 322 ... 14

NLRB v. Weingarten, Inc., 420 U.S. 251 . 15

Pattern Makers League v. NLRB, 724 F.2d

57, petition for cert. pending, No.

SU hc witwawkuncd bans 7, 8, 9, 10

Radio Officers’ Union v. NLRB, 347 U.S.

Bes pos is ene a in es Ua ee oes ea 12

Scofield v. NLRB, 394 U.S. 423 .... 8, 10, 11, 13

Union Starch & Refining Co., 87 N.L.R.B.

779, enforced, 186 F.2d 1008, cert. denied,

Be RE ears bo evcrns euee a esx. 12

United Stanford Employees, Local 680 v.

FIL, WE FE ck so vere dada secs 13

Statute:

National Labor Relations Act, 29 U.S.C. |

151 et seq.: |

merken 7, BP UBC. BGT one cneeves passim .

Section 8(a)(3), 29 U.S.C. 158(a)(3) .... 12

Miscellaneous: Page

Section 8(b)(1)(A), 29 U.S.C.

SNENIEED 3's 20 si keene cercnwnts passim

Section 8(b)(2), 29 U.S.C. 158(b)(2) ... 12

Summers, Legal Limitations on Union Dis-

cipline, 64 Harv. L. Rev. 1049 (1951) ... 14

Wellington, Union Fines and Workers’

Rights, 85 Yale L. J. 1022 (1976) ....... 10

In the Supreme Court of the Gnited States

OCTOBER TERM, 1984

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

MACHINISTS LOCAL 1327, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-C1O,

DISTRICT LODGE 115, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the National La-

bor Relations Board, petitions for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-12a) is reported at 725 F.2d 1212. A related earlier

opinion (App., infra, 35a-43a) is reported at 608 F.2d

1219. The decisions and orders of the National Labor

Relations Board (App., infra, 13a-34a, 44a-79a,

80a-88a) are reported at 231 N.L.R.B. 719, 2638

N.L.R.B. 984 and 265 N.L.R.B. 1049.

JURISDICTION

The judgment of the court of appeals (App., (fra,

89a-90a) was entered on February 14, 1984, and a peti-

(1)

tion for rehearing was denied on July 10, 1984 (App.,

infra, 9la-92a). This Court has jurisdiction under 28

U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 7 of the National Labor Relations Act, 29

U.S.C. 157, provides:

Employees shall have the right to self-

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

tions, to bargain collectively through representa-

tives of their own choosing, and to engage in other

concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and

shall also have the right to refrain from any or all

of such activities except to the extent that such

right may be affected by an agreement requiring

membership in a labor organization as a condition

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

this title.

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

Act, 29 U.S.C. 158(b)(1)(A), provides:

It shall be an unfair labor practice for a labor or-

ganization or its agents—

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

ercise of the rights guaranteed in section 7 of this

title: Provided, That this paragraph shall not im-

pair the right of a labor organization to prescribe

its own rules with respect to the acquisition or re-

tention of membership therein]. |

STATEMENT

I. The Board’s Decisions!

A. Machinists Local 1327 (Dalmo Victor)

1. Machinists Local 1327 is the collective bargaining

representative of the employees of Dalmo Victor, a di-

1 Two Board cases were consolidated in the court below. In

both, the facts had been stipulated by the parties before the

Board.

vision of Textron, Inc. On April 19, 1974, Local 1327

called a meeting of its membership, which at that time

included Daimo Victor employees Hilda Hall, Viola

Lapinski and Polmyra Gomes, to inform the members

of a newly adopted amendment to the Machinists’ Inter-

national constitution that provided as follows (App.,

infra, 15a):

Improper Conduct of a Member* * * Accepting

employment in any capacity in an establishment

where a strike or lockout exists as recognized un-

der this Constitution, without permission. Resigna-

tion shall not relieve a member of his obligation to

refrain from accepting emp'oyment at the estab-

lishment for the duration of the strike or lockout

lor] within 14 days, preceding its commencement.

Where observance of a primary picket line is re-

quired, resignation shall not relieve a member of

his obligation to observe the priraary picket line for

its duration if the resignation occurs during the pe-

riod that the picket line is maintained or within 14

days preceding its establishment.

In early June 1974, Local 1327 called a meeting of its

membership to take a strike vote against Dalmo Victor

and again reminded its members of the constitutional

provision. On the same day Loca! 1827 began an eco-

nomic strike against Dalmo Victor and established a

picket line. App., infra, 16a.

On February 14, 1975, Hall and Lapinski submitted

written resignations to the Union, and on February 18

they crossed the picket line and returned to work.

Gomes submitted her resignation on May 10, 1975, and

returned to work on May 12. Local 1327 fined Hall and

Lapinski $2,277.50 each and fined Gomes $1,125 for

working during the strike. The fines are enforceable in

court. App., infra, 16a.

2. The Board found that Local 1327 violated Section

8(b)(1)(A) of the Act, 29 U.S.C. 158(b)(1)(A), by fining

the three employees for returning to work during the

strike. In so holding, the Board construed the constitu-

tional provision as an unlawful attempt to restrict the

post-resignation conduct of former members, and not as

a restriction on the right of members to resign. App.,

infra, 17a-19a.?

3. The court of appeals denied enforcement of the

Board’s order (App., infra, 35a-48a). The court dis-

agreed with the Board’s finding that the constitutional

provision in issue was an attempt to control post-

resignation conduct, and instead found that it was a re-

striction on a member’s right to resign from the Union

(id. at 37a, 39a). Noting that the validity of such a con-

stitutional provision had been left open by this Court

both in NLRB v. Granite State Joint Board, Textile

Workers Union, 409 U.S. 2138, 216 (1972), and in

Booster Lodge No. 405, International Association of

Machinists v. NLRB, 412 U.S. 84, 85-86, 88 (1973), the

court remanded to the Board for reconsideration of that

issue (App., infra, 39a-40a).

4. On remand, the Board concluded that the constitu-

tional provision restricting resignation during the

course of a strike or within 14 days preceding its com-

mencement constituted an unreasonable restriction on

union members’ Section 7 right to refrain from con-

certed activities by resigning from the Union.? Accord-

2 Two dissenting Board members construed the provision as a

lawful restriction on resignations by members (App., infra,

25a-33a).

3 Board Members Fanning and Zimmerman found that “a

union rule which limits the right of a union member to resign

only to nonstrike periods constitutes an unreasonable restric-

tion on a member’s Section 7 right to resign” (App., infra, 53a).

In their view, however, the balance of competing interests be-

tween the member’s Section 7 right to refrain from concerted

activities and the union’s “legitimate interest * * * in pro-

tecting employees it represents who have joined together in col-

lective economic activity” (App., infra, 48a) would allow a union

to “place some reasonable limitation on the right to resign so

ingly, the Board reaffirmed its initial decision that Lo-

cal 1827 violated Section 8(b)(1}(A) of the Act by impos-

ing fines pursuant to that provision. App., infra, 55a.

The Board ordered Local 1327 to cease and desist from

imposing court-collectible fines on members who resign

during a strike and return to work, to rescind the fines

levied against the three employees, and to refund to

them any monies they may have paid as a result of the

fines (App., infra, 23a, 55a).

B. Machinists Local 1028 (Gray Motors)

1. Local 1028 is the collective bargaining representa-

tive of the employees of Gray Motors, Inc. At a regular

union meeting on May 6, 1980, copies of a flyer con-

taining the same provision in the Machinists’ Interna-

tional constitution relied on by Local 13827 (page 38,

supra) were passed out to the membership. At another

union meeting on June 3, 1980, at which members voted

to strike, the constitutional provision was again commu-

long as such rules are applicable during both strike and

nonstrike periods” (id. at 53a). Members Fanning and

Zimmerman stated that in their view “a rule which restricts a

union member’s right to resign for a period not to exceed 30

days after the tender of such a resignation” would constitute

such a reasonable limitation (id. at 54a).

Chairman Van de Water and Member Hunter, concurring in

the decision, found that any restriction imposed by a union on

its members’ right to resign is unreasonable, and therefore that

any fine or other discipline imposed for violation of such a re-

striction violates Section 8(b)(1)(A) (App., infra, 56a, 72a).

Member Jenkins, dissenting, found the constitutional provision

to be a lawful restriction on resignations during a strike (7d. at

73a-79a).

A majority of the Board subsequently adopted the position of

the concurrence in Dalmo Victor that any restrictions placed by

a union on its members’ right to resign during a strike are un-

reasonable. International Association of Machinists, Local

Lodge 1414 (Neufeld Porsche-Audi, Inc.), 270 N.L.R.B. No.

209 (June 22, 1984). The Board’s decision in that case is set forth

at App., infra, 93a-126a.

nicated to those present. Union member Robert

Ferguson was present at both meetings. App., infra,

83a.

On June 11, 1980, Local 1028 began a strike against

Gray Motors. Ferguson wrote a letter resigning his

union membership, which the Union received on June

13; on that day he returned to work for the balance of

the strike. Following a union disciplinary hearing,

Ferguson was fined $60 per day for each of the 22 days

he worked after his resignation became effective while

Local 1028 was on strike against Gray Motors. App.,

infra, 83a.4

2. The Board, relying on its decision in Dalmo Vic-

tor, found that Local 1028's fine against Ferguson vio-

lated Section 8(b)(1)(A) of the Act, 29 U.S.C.

158(b)(1)(A) (App., infra, 84a). The Board ordered Lo-

cal 1028 to cease and desist from the unlawful conduct,

rescind the post-resignation fines, and refund any mon-

ies paid (App., infra, 86a). \

- II. The Court of Appeals’ Decision

After consolidating the two cases for briefing and

oral argument, the court of appeals denied enforcement

of the Board’s orders. The court held that the union

constitutional provision at issue here is protected by

the proviso to Section 8(b)(1)(A) allowing a union “to

prescribe its own rules with respect to the acquisition

or retention of membership” and that therefore its en-

forcement does not constitute an unfair labor practice.

App., infra, la-12a.

The court reasoned that, although union members

have a right protected by Section 7 of the Act to refrain

from concerted activities by resigning from the union,

that right “coexists” with the union’s interest in pre-

4 The parties stipulated that the fine levied on Ferguson for

working on June 13, before his resignation became effective,

was not in issue (App., infra, 83a n.5).

senting “a solid front to the employer.” Thus, the court

held that, notwithstanding their Section 7 right to re-

sign, union members have an obligation to refrain from

“post-resignation strikebreaking.” App., infra, 8a-10a.

The court concluded that the union’s interest in solidar-

ity during and just prior to a strike therefore justifies

the penalty placed on the exercise of members’ Section

7 right to resign by the constitutional provision re-

stricting resignation.5 The court reasoned that a fine is

the union’s only effective method for insuring adher-

ence to the obligations imposed by the union-member

“contract.” App., infra, lla.

REASONS FOR GRANTING THE PETITION

1. The decision of the court of appeals that a union

does not commit an unfair labor practice by enforcing a

constitutional provision restricting resignations during

a strike or within 14 days preceding its commencement

is, as the court recognized (App., infra, 9a-10a n.5), in

direct conflict with the decision of the Seventh Circuit

in Pattern Makers League v. NLRB, 724 F.2d 57 (7th

Cir. 1983), petition for cert. pending, No. 83-1894. In

5 The court explained that restriction as follows (App., infra,

10a):

The union constitution * * * does not force a member to

remain a member * * * for the remainder of the strike.

Our previous finding that the rule constitutes “a restric-

tion on a member’s right to resign” * * * means only that

the rule puts some obstacles in the way of resignation. We

do not dispute the employee’s § 7 right to resign from the

union. But we disagree with the view that it is unreason-

able for the union to penalize a member for breaching cer-

tain crucial obligations—here, the duty to refrain from

strikebreaking.

® On August 15, 1984, we filed a memorandum in No. 83-1894

indicating that, because of the clear conflict and the importance

of the issue, we do not oppose the granting of the petition for

certiorari in that case. We are sending a copy of that memoran-

dum to respondents.

Pattern Makers the «euirt upheld the Board’s decision

that fines imposed under a similar constitutional provi-

sion restricting resignations during strikes violated

Section 8(b)(1)(A) of the Act.? The court, relying on

Scofield v. NLRB, 394 U.S. 423 (1969) (as did the

Ninth Circuit in the instant case), found that because

such a restriction “completely suspends an employee’s

right to choose not to be a union member and thus no

longer subject to union discipline, it frustrates the

overriding policy of labor law that employees be free to

choose whether to engage in concerted activities.” 724

F.2d at 60. The court rejected the proposition accepted

by the Ninth Circuit that, by joining the union and

participating in the decision to strike, members for-

feited their Section 7 right thereafter to change their

minds and abandon the strike by resigning from the

union. 724 F.2d at 60-61. Rather the court, citing

NLRB vy. Granite State Joint Board, Textile Workers

7 The constitutional provision in Pattern Makers provides

that: “‘No resignation or withdrawal from [the union] shall be

accepted during a strike or lockout, or at a time when a strike

or lockout appears imminent.’” 724 F.2d at 58. The Board,

relying on its decision on remand in Dalmo Victor, found that,

“(while [the challenged provision] apparently provides for res-

ignations during nonstrike periods, it clearly prohibits any such

resignations once a strike has begun or when one ‘appears immi-

nent.’ Under the Board’s holding in Dalmo Victor, [that provi-

sion] can be construed as neither valid nor enforceable.” 265

N.L.R.B. 1332, 1333 (1982). We do not believe that the differ-

ence between the provision in Pattern Makers and the one in

the instant case is legally significant. The threat of enforcing,

by court-enforceable fines, the prohibition against returning to

work after resigning from the union during a strike chills the

exercise of union members’ Section 7 right to resign no less than

does a flat prohibition against resignation. See also Neufeld

Porsche-Audi, Inc., App., infra, 98a, 102a, 103a. The Court

may nevertheless wish to consolidate this case with Pattern

Makers for argument and decision, in order to evaluate fully the

effects of both types of provisions.

Union, 409 U.S. 218 (1972), stated that “|t|he Section 7

right to refrain from union activities encompasses the

right of members to resign from the union” (724 F.2d at

60). The court added that “|ajn employee’s right to re-

sign cannot be overriden by union interests in ‘group

solidarity and mutual reliance in situations in which a

collective effort is necessary to achieve a particular re-

sult’ upon which the Union so heavily relies” (ibid.).

Accordingly, the court concluded that the proviso to

Section 8(b)(1)(A) does not allow a union to “compel

membership during a strike * * * in derogation of an

employee’s right to choose whether to be a part of such

* * * activity” (724 F.2d at 60).

The conflict between the Seventh and Ninth Circuits

concerns an important and recurring question under the

Act, which this Court has expressly left open on two oc-

easions. In NLRB v. Granite State Joint Board, Tex-

tile Workers Union, supra, and Booster Lodge No. 405,

International Association of Machinists v. NLRB, 412

U.S. 84 (1973), the Court held that unions violated Sec-

tion 8(b)(1)(A) of the Act by imposing discipline pursu-

ant to rules prohibiting strikebreaking by members on

employees who had resigned their membership in the

union before they returned to work.® Recognizing that

“the vitality of § 7 requires that the member be free to

refrain in November from the actions he endorsed in

May and that his § 7 rights are not lost by a union’s

plea for solidarity or by its pressures for conformity,”

Granite State, 409 U.S. at 217-218, the Court in both

eases held that “|w|here 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 enforcement of fines for

8 In Granite State the rule against working during the strike

was imposed by a membership vote after the strike began (409

U.S. at 214), while in Booster Lodge the union’s constitution

prohibited members from strikebreaking (412 U.S. at 84).

that conduct.” Jd. at 217; Booster Lodge, 412 U.S. at

87. But in both Granite State and Booster Lodge the

union constitutions and by-laws contained no restriction

on the right of members to resign during a strike, and

in both cases the Court expressly reserved “the ques-

tion of the extent to which contractual restriction on a

member’s right to resign may be limited by the Act.”

Booster Lodge, 412 U.S. at 88; see Granite State, 409

U.S. at 216, 217-218. Now that the Board has decided

that important question and the Board’s decision has

precipitated a direct conflict in the circuits, it is appro-

priate for the Court to settle the issue.

2. As this Court made clear in Scofield v. NLRB,

supra, a union under Section 8(b)(1)(A) is free “to en-

force a properly adopted rule which reflects a legiti-

mate union interest, impairs no policy Congress has

imbedded in the labor laws, and is reasonably enforced

against union members who are free to leave the union

and escape the rule.” But “if the rule invades or frus-

trates an overriding policy of the labor laws the rule

may not be enforced * * * without violating § 8(b)(1)”

(394 U.S. at 429). See, e.g., NLRB v. Industrial

Union of Marine & Shipbuilding Workers, 391 U.S.

418 (1968) (union rule requiring members to exhaust

union remedies before filing unfair labor practice

charges with the Board is unenforceable as contrary to

the policy of the Act in favor of unfettered access to the

Board). Although a union rule that in effect requires

members to relinquish their right to resign from the

union during a strike serves a legitimate union

® In addition to the unions involved here and in Pattern Mak-

ers, other unions have amended their constitutions since the

Court’s decision in Booster Lodge to restrict resignations from

membership during strikes. See Wellington, Union Fines and

Workers’ Rights, 85 Yale L. J. 1022, 1044 n.118 (1976).

interest, it violates policies that “Congress has

imbedded in the labor laws.”?°

Section 7 protects the right of employees freely to

choose whether to join a union or to refrain from doing

so, and this includes the right to resign from the union

after having joined it. The policy of freedom of choice

with respect to joining or supporting a union is firmly

imbedded in the Act, which recognizes only a limited

exception to the right of employees to make their own

choices concerning participation in union activities. As

the Board explained in Neufeld Porsche-Audi, Inc.

(App., infra, 108a (footnote omitted)): “The only statu-

tory limitation on these Section 7 rights is contained in

10 The restriction on resignation during a strike also runs

afoul of the teaching of Scofield that a union rule is valid only if

it is reasonably enforced against members “who are free to

leave the union and escape the rule” (394 U.S. at 430). Although

purporting to apply Scofield, the court below failed to dis-

cuss—or even to quote—this portion of the Scofield test (see

App., infra, 7a-8a). We submit that the Court’s analysis in

Scofield demonstrates that the union members’ freedom to “opt

out” is a critical element in any assessment of the reasonable-

ness of a union rule. Scofield approved a union rule enforcing a

production ceiling on union members who worked on a piece-

work basis; this Court explained its rationale as follows (394

U.S. at 435):

If [union] members are prevented from taking advantage

of their contractual rights [under the piece-work system]

* * * it is because they have chosen to become and remain

union members. * * * If a member chooses not to engage

in this concerted activity and is unable to prevail on the

other members to change the rule, then he may leave the

union and obtain whatever benefits in job advancement

and extra pay may result from extra work * * *.

In contrast, in the present case union members who left the

Union in order to return to work for their employer were sub-

jected to court-enforceable fines, and accordingly their freedom

under the union constitution to resign did not enable them to

“escape the rule” and obtain the benefits of nonmembership.

See Neufeld Porsche-Audi, Inc. (App., infra, 103a-104a,

106a-107a).

Section 8(b)(2),-29 U.S.C. 158(b)(2) and the second pro-

viso to Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3).

Even under those provisions, however, no employee

can be compelled to become a full union member, and

an employee thus remains free to choose to refrain from

union or other concerted activities.”

A union rule that requires employees, as a condition

of membership, to relinquish their right to leave the

union for the duration of a strike frustrates the Act’s

fundamental policy of free choice expressed in Section

7, and the corollary “policies of Section 8(b)(2) and the

second proviso to Section 8(a)(3) that serve to prohibit a

union from compelling full union membership” (Neufeld

Porsche-Audi, Inc., App., infra, 108a), no less than

11 The first proviso to Section 8(a)(3) of the Act, 29 U.S.C.

158(a)(3), permits unions and employers to enter into union se-

curity agreements requiring that employees join the union as a

condition of continued employment. In enacting the Taft-

Hartley Amendments of 1947, however, Congress made clear

that requiring union “membership,” even under the union secu-

rity proviso, does not permit unions to subject employees invol-

untarily to union discipline, but only requires that they pay

dues and normal fees, i.e., that they accept limited “financial

core” membership. Thus, in 1947 Congress added a second pro-

viso to Section 8(a)(3) stating that “no employer shall justify

any discrimination against an employee for nonmembership in a

labor organization * * * for reasons other than the failure of the

employee to tender the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or retaining mem-

bership * * *.” Similarly, Section 8(b)(2) prohibits comparable

union discrimination on grounds related to membership obliga-

tions other than failure to pay dues or fees. See NLRB v. Gen-

eral Motors Corp., 373 U.S. 734, 742-743 (1963); Radio Officers’

Union v. NLRB, 347 U.S. 17, 40-42 (1954); Union Starch &

Refining Co., 87 N.L.R.B. 779, 783-786 (1949), enforced, 186

F.2d 1008, 1012-1013 (7th Cir.), cert. denied, 342 U.S. 815

(1951). In interpreting these Amendments, the Board has long

held that resigning from a union after earlier accepting full

membership is “an act not qualitatively different from the re-

fusal by employees to join a union.” Marlin Rockwell Corp.,

114 N.L.R.B. 553, 560 (1955) (emphasis in original).

does a union’s attempt to impose discipline on an em-

ployee who is no longer a member, Granite State, or on

an employee who never joined.

The court of appeals’ position that there can be no

conflict “between the employee’s right to resign union

membership and the union’s interest in making rules re-

garding the acquisition and retention of membership”

because both are “embedded” in the statute (App.,

infra, 9a-10a), ignores the teaching of both Scofield

and Industrial Union of Marine & Shipbuilding Work-

ers, supra, that the proviso to Section 8(b)(1)(A) al-

lowing unions to make rules “with respect to the acqui-

sition or retention of membership” does not privilege a

union rule that is contrary to a basic policy of the Act.!?

And contrary to the view of the court below (App.,

infra, 8a-9a), an employee’s Section 7 right to refrain

from union activity by resigning from the union cannot

be overridden by the union’s need for solidarity to make

the strike effective, or by the reliance of other strikers

on the returning striker’s earlier promise to honor the

strike. See Granite State, 409 U.S. at 217-218. Al-

though an employee who has voluntarily joined a union

must accept its reasonable rules and is subject to court-

enforceable fines if he violates a union rule against

strikebreaking while he remains a union member

(NLRB vy. Allis-Chalmers Mfg. Co., 388 U.S. 175

(1967)), the vitality of Section 7 requires that a member

be free, even in the face of an express promise to re-

main a member during the ordeal of a strike, to quit the

union entirely and thereby avoid disciplinary fines for

12 Thus, although the proviso generally protects rules regard-

ing both acquisition and retention of membership, it permits a

union neither to require employees to acquire union member-

ship and join a strike against their will (see note 11, supra;

United Stanford Employees, Local 680 v. NLRB, 601 F.2d 980

(9th Cir. 1979)) nor to require employees involuntarily to retain

union membership for the duration of a strike.

his post-resignation conduct.!* As the Court noted in

Granite State, 409 U.S. at 217:

Events occurring after the calling of a strike may

have unsettling effects, leading a member who

voted to strike to change his mind. The likely dura-

tion of the strike may increase the specter of hard-

ship to his family; the ease with which the em-

ployer replaces the strikers may make the strike

seem less provident.

In sum, the Board reasonably concluded that Section

8(b)(1)(A) prohibits a union from requiring employees

involuntarily to retain union membership for the dura-

tion of a strike in derogation of their Section 7 right to

refrain from concerted activity. The court below, by

substituting its contrary judgment for that of the

Board, has impermissibly intruded on the Board’s “pri-

mary responsibility [under the Act] of marking out the

scope of the statutory language.” Ford Motor Co. v.

NLRB, 441 U.S. 488, 496 (1979); see NLRB v. City

Disposal Systems, Inc., No. 82-960 (Mar. 21, 1984), slip

13 The claim that employees contractually waive their Section

7 rights by assuming membership knowing of the restriction on

resignation is no more valid here, where the restriction is ex-

plicit in the Union’s constitution, than it was in Granite State,

409 U.S. at 217-218, where the restriction on resignation was

said to be implicit in the employees’ vote to strike. See also

NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974) (invalidating

a contract clause waiving the right of employees lawfully on

their employer’s premises to use their nonworking time to sup-

port or oppose the incumbent union); Local 900 v. NLKB, 727

F.2d 1184, 1190 (D.C. Cir. 1984) (rejecting union contention

that employees waived the protection of Section 7 by ratifying a

contract clause affording superseniority to certain union officers

and holding that the Section 7 right at stake is not waivable).

Moreover, it is significant that the “contract” here is one of

“adhesion” —that is, “(t]he member has no choice as to its terms

but is compelled to adhere to the inflexible ones presented.”

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

Rev. 1049, 1055 (1951) (footnote omitted).

op. 6; NLRB v. Iron Workers, 434 U.S. 335, 350

(1978); NLRB v. Weingarten, Inc., 420 U.S. 251, 260,

266-267 (1975).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

REx E. LEE

Solicitor General

WILFORD W. JOHANSEN

Acting General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT C. BELL, JR.

Attorney

National Labor Relations Board

September 1984

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 82-7580 & 82-7701

MACHINISTS LOCAL 1327, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

‘WoRKERS, AFL-CIO, District LODGE 115,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD, RESPONDENT,

and

VIOLA LAPINSKI, HILDA HALL, AND POLMYRA GOMES,

INTERVENORS.

Nos. 83-7052 & 83-7089

DISTRICT LODGE 160, INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,

AND AFFILIATED LOCAL LODGE 1028, PETITIONERS,

NATIONAL LABOR RELATIONS BOARD, RESPONDENT,

and

ROBERT C. FERGUSON, INTERVENOR.

ON PETITIONS FOR REVIEW

AND CROSS-APPLICATIONS FOR ENFORCEMENT

OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD |

ARGUED AND SUBMITTED AUGUST 8, 1983

Filed: Feb. 14, 1984

OPINION

Before TUTTLE* and MERRILL, Senior Circuit Judges,

and PREGERSON, Circuit Judge.

PREGERSON, Circuit Judge:

The question presented is whether a labor organiza-

tion reasonably restricts the right to resign union mem-

bership when it imposes a fine under its constitution on

a member who quits the union during a strike to re-

sume working for the struck employer.! Because the

restriction at issue comports with both national labor

policy and the test set out in Scofield v. NLRB, 394

U.S. 428 (1969), we refuse to enforce the order of the

National Labor Relations Board.

BACKGROUND

This case comes before us a second time. The parties

do not dispute the facts, which we first outlined in

NLRB vy. Machinists Local 1327 (Machinists I), 608

F.2d 1219 (9th Cir. 1979). The facts show that shortly

before calling an economic strike against the employer,

* Honorable Elbert P. Tuttle, United States Court of Appeals

for the Eleventh Circuit, sitting by designation.

1 This is the question the Supreme Court reserved in both

Booster Lodge 405 v. NLRB, 412 U.S. 84, 88 (1973) (per

curiam), and NLRB vy. Granite State Joint Board, 409 U.S. 2138,

217 (1972). These cases do not suggest that the Court would in-

validate the rule in the present case, for neither Booster Lodge

nor Granite State involved a union rule that expressly penalized

a member resigning union membership during a strike to re-

sume working for the struck employer.

the union reminded all members about the following

ruie in the union’s constitution:

Improper Conduct of a Member: ... Accepting em-

ployment in any capacity in an establishment

where a strike or lockout exists as recognized un-

der this Constitution, without permission. Resigna-

tion shall not relieve a member of his obligation to

refrain from accepting employment at the estab-

lishment for the duration of the strike or lockout

within 14 days preceding its commencement ....

Eight months after the strike began, three of the

intervenor employees, Viola Lapinski, Hilda Hall, and

Polmyra Gomes, submitted their resignations to the

union, crossed the picket line, and returned to work.

Later, the union imposed court-collectible fines on each

employee for violating the rule. The employees re-

sponded by complaining that the union had violated Na-

tional Labor Relations Act (NLRA) § 8(b)(1)(A), 29

U.S.C. § 158(b)(1)(A) (1976),? and the Board issued a

complaint. In a case tried on stipulated facts, the Board

construed the provision as merely prohibiting certain

post-resignation conduct, not as restricting the union

member’s right to resign. 231 N.L.R.B. 719, 720-21

(1977).

2 Section 8(b)(1)(A) provides in relevant part:

It shall be an unfair labor practice for a labor organization

or its agents ... to restrain or coerce ... employees in the

exercise of the rights guaranteed in [§ 7] of this title: Pro-

vided, That this paragraph shall not impair the right of a

labor organization to prescribe its own rules with respect

to the acquisition or retention of membership therein ....

29 U.S.C. § 158(b)(1)(A) (1976). Section 7 provides:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations ... and shall also

have the right to refrain from any or all of such activities

Id. § 157.

Considering that decision on the first appeal, we crit-

icized the Board’s construction of the provision as

“hypertechnical.” Machinists 1, 608 F.2d at 1222. We

concluded that the rule “defines or limits the circum-

stances under which a member may resign, and is a re-

striction on a member’s right to resign,” and asked the

Board on remand to determine whether such a restric-

tion was valid. Jd.

On remand, a plurality of the Board decided that it

should balance two competing interests: the employee’s

right to refrain from collective activity under NLRA

§ 7, 29 U.S.C. § 157 (1976), and the legitimate interest

of a union in representing every employee in its bar-

gaining unit. 263 N.L.R.B. 984, 985 (1982) (Fanning &

Zimmerman, Members). After performing this opera-

tion, the plurality held that a union rule limiting a mem-

ber’s right to resign only to non-strike periods “consti-

tutes an unreasonable restriction” on the right to

resign. Jd. at 986. The plurality went on to articulate a

new rule permitting a union to prohibit a resignation

“for a period not to exceed thirty days after the tender

of such a resignation.” Jd. at 987.

But the two Board members who concurred in the re-

sult thought that any restriction on the employee’s

right to resign from the union is an unfair labor prac-

tice. Jd. at 987-88 (Van de Water, Chairman & Hunter,

Member, concurring). They filed a lengthy opinion dis-

agreeing with the plurality’s 30-day rule and virtually

all of its reasoning.

A fifth Board member dissented altogether. He

would have held that the rule was a reasonable restric-

tion on the right to resign. /d. at 993 (Jenkins, Mem-

ber, dissenting). '

The union now petitions for review and the Board

cross-applies for enforcement of its order.

STANDARD OF REVIEW

Ordinarily, we give “considerable deference” to the

Board’s expertise in construing and applying the labor

laws. Bureau of Alcohol, Tobacco & Firearms v.

FLRA, 1048. Ct. 439, 444 (1983); see NLRB v. United

Association of Journeymen & Apprentices of the

Plumbing & Pipefitting Industries, 704 F.2d 1164, 1166

(9th Cir. 1983).

But “‘the deference owed to an expert tribunal can-

not be allowed to slip into a judicial inertia which re-

sults in the unauthorized assumption by an agency of

major policy decisions properly made by Congress.’”

Bureau of Alcohol, Tobacco & Firearms v. FLRA, 104

S. Ct. at 444 (quoting American Ship Building Co. v.

NLRB, 380 U.S. 300, 318 (1965)).

Therefore, although we should uphold the Board’s

reasonable and defensible constructions of the NLRA,

we must not “‘rubber-stamp ... administrative deci-

sions that [we] deem inconsistent with a statutory man-

date or that frustrate the congressional policy underly-

ing [the] statute.’” Bureau of Alcohol, Tobacco «&

Firearms v. FLRA, 104 8S. Ct. at 444 (quoting NLRB

v. Brown, 380 U.S. 278, 291 (1965)); see Allied Chemi-

cal & Alkali Workers v. Pittsburgh Plate Glass Co.,

404 U.S. 157, 166 (1971).

For the reasons that follow, we believe that the

Board’s holding, including its 30-day rule,® frustrates

federal labor policy in important respects. P

3 We question the wisdom of calling the 30-day standard a

“rule.” Only two members concur in it; the other three oppose

it. Yet the concurring and dissenting opinions refer to the two-

member plurality as a “majority,” see, e.g., 2638 N.L.R.B. at

987 (Van de Water, Chairman & Hunter, Member, concurring);

id. at 993 (Jenkins, Member, dissenting), and imply that the

30-day standard is now the law of the Board.

ANALYSIS

A. National Labor Policy and Union Discipline

Our national labor policy is built on the premise that

employees can bargain most effectively for improve-

ments in wages, hours, and working conditions by

pooling their economic strength and acting through

freely chosen labor organizations. NLRB vy. Allis-

Chalmers Manufacturing Co., 388 U.S. 175, 180

(1967).

Congress embraced this policy when it passed the

Wagner Act in 1935 because the history of the labor

movement demonstrated that employees who acted col-

lectively were far more successful in improving their lot

than those who faced employers individually. See A.

Cox, D. Bok & R. Gorman, Cases and Materials on

Labor Law 15-17 (8th ed. 1977). But to ensure that a

union could not abuse its position as an exclusive bar-

gaining representative, Congress also enacted the Taft-

Hartley Act of 1947 and the Landrum-Griffith Act of

1959. These laws made unfair labor practices out of

union conduct coercing employees in the exercise of

their § 7 rights, see 29 U.S.C. § 158(b)(1)(A) (1976),

and preventing union members from participating fully

in union affairs, see id. § 411(a)(2). Moreover, the Su-

preme Court read the labor laws as requiring a union to

represent every employee in its bargaining unit fairly

and adequately. Vaca v. Sipes, 386 U.S. 171, 182

(1967); Steele v. Louisville & N.R.R., 323 U.S. 192,

202-03 (1944).

In imposing these substantial fiduciary obligations on

labor organizations, however, neither Congress nor the

Court gave individual members license to avoid union

rules designed to protect the welfare of the bargaining

unit.

Congress, therefore, enacted the proviso to

§ 8(b)(1)(A),4 which reserves to unions the power to

* See supra note 2.

make reasonable rules regarding the retention and ac-

quisition of membership. Allis-Chalmers, 388 U.S. at

181; 263 N.L.R.B. 984, 985 (1982) (plurality opinion).

This power

is particularly vital when the members engage in

strikes. The economic strike against the employer

is the ultimate weapon in labor’s arsenal for

achieving agreement upon its terms, and “(t]he

power to fine or to expel strikebreakers is essential

if the union is to be an effective bargaining

agent....” Provisions in union constitutions and

bylaws for fines and expulsion of recalcitrants, in-

cluding strikebreakers, are therefore commonplace

and were commonplace at the time of the Taft-

Hartley amendments.

Allis-Chalmers, 388 U.S. at 181-82 (footnotes omitted)

(quoting Summers, Legal Limitations on Union Disci-

pline, 64 Harv. L. Rev. 1049, 1049 (1951)).

In short, federal labor policy restricts the individ-

ual employee’s absolute power to order his relations

with management. Instead, it vests this power in a col-

lective representative who must protect the interests of

everyone in the bargaining unit. As a result,

[t]he complete satisfaction of all who are repre-

sented is hardly to be expected. A wide range of

reasonableness must be allowed a statutory bar-

gaining representative in serving the unit it repre-

sents, subject always to complete good faith and

honesty of purpose in the exercise of its discretion.

Allis-Chalmers, 388 U.S. at 180 (emphasis added)

(quoting Ford Motor Co. v. Huffman, 345 U.S. 330,

338 (1953) ).

B. The Scofield Test and Post-Resignation Discipline

In Scofield v. NLRB, 394 U.S. 423 (1969), the Su-

preme Court articulated a three-part test for determin-

ing when a union disciplinary rule is reasonable. A

union is free to enforce a properly adopted rule that (1)

reflects a legitimate union interest, (2) impairs no policy

that Congress has imbedded in the labor laws, and (3) is

reasonably enforced against union members. /d. at 480.

The Court elaborated part (2) of the test by holding

that it could not enforce a rule that “invades or frus-

trates an overriding policy of the labor laws.” Jd. at

429 (emphasis added).

The Board see 263 N.L.R.B. at 986, suggests that

this is a balancing test. It is not. Scofield sets out an

orderly three-step analysis for determining when the

Board may approve and the courts of appeals may en-

force a union rule. Scofield says that the rule cannot be

enforced unless it first meets all three conditions.

Scofield does not invite either the Board or the courts

to conduct an ad hoc weighing of the allegedly compet-

ing interests described in the main text of § 8(b)(1)(A)

on the one hand, and the proviso to § 8(b)(1)(A) on the

other.

For reasons that we offer below, we hold that the

rule in question meets all three parts of the test and

does not impair any congressional labor policy.

1. Legitimate union interest. Unions exist to pool the

resources of employees so that the employees can bar-

gain most effectively for improvements in wages,

hours, and working conditions. For at least two rea-

sons, post-resignation strikebreaking presents “the

most appealing case for allowing unions to restrain the

activities of those who have resigned.” Note, Union

Power to Discipline Members Who Resign, 86 Harv. L.

Rev. 1536, 1549 (1973) [hereinafter cited as Note, Un-

ion Discipline |.

First, post-resignation strikebreaking is a serious

threat to a union’s viability. It can set off a chain reac-

tion capable of destroying the collective bargaining en-

vironment. If a union cannot punish the few employees

who fail to honor the results of a strike vote, then those

employees can escape their obligations to their col-

leagues in the majority simply by resigning and re-

turning to work. If those members return to work and

collect paychecks from the struck employer while the

others remain on the picket line, some loyal union mem-

bers will feel pressure to do the same. Eventually, a

substantial number of defections could break the union

and once again give the employer greater power to set

the terms and conditions of employment. See Note,

Union Discipline, supra, at 1549-51.

Second, members who participate in the strike vote

and then fail to honor the result are breaching a prom-

ise to their colleagues. There is little point in taking a

strike vote if the people who disagree with the outcome

are free to resign anytime and escape its effects. “The

strike vote itself involves mutual reliance on the prom-

ise to honor it.” Note, Union Discipline, supra, at

1554; see 263 N.L.R.B. at 995 (Jenkins, Member, dis-

senting) (“In effect, the provision |for fining post.

resignation strikebreakers| permits the Union to en-

force its contract with each member—a contract which

was freely entered into by all parties—and thereby

protect its other members then exercising ‘the ultimate

weapon in labor’s arsenal.’”) (citation omitted).

The problems that post-resignation strikebreaking

poses, then, implicate the serious and legitimate inter-

ests of a union attempting to represent all its members.

2. Impairment of labor policy. The Board creates a

false conflict between the employee’s right to resign un-

ion membership and the union’s interest in making

rules regarding the acquisition and retention of mem-

bership.> These rights are preserved in § 7 and

§ 8(b)(1)(A) of the Act, respectively. Because both the

employee’s right and the union’s interest are policies

5 At least one Circuit, however, has agreed with the Board.

See Pattern Makers’ League of North America v. NLRB, No.

83-1045 (7th Cir. Dec. 21, 1983) (invalidating union rule fining

members who resign to return to work for struck employer).

10a

that have been “embedded” in the labor laws for over

35 years, neither can “impair” or “override” the other

within the meaning of Scofield. They must—and do—

coexist.

Consequently, we look beyond the non-existent con-

flict to the particular facts of this case. The Machinists

simply fine the union member who resigns to take a job

with the struck employer. The union constitution, how-

ever, does not force a member to remain a member for-

ever or even for the remainder of the strike. Our previ-

ous finding that the rule constitutes “a restriction on a

member’s right to resign,” Machinists I, 608 F.2d at

1222, means only that the rule puts some obstacles in

the way of resignation. We do not dispute the employ-

ee’s § 7 right to resign from the union. But we disagree

with the view that it is unreasonable for the union to

penalize a member for breaching certain crucial obliga-

tions—here, the duty to refrain from strikebreaking.

Relying on language in NLRB v. Granite State Joint

Board, 409 U.S. 128, 217-18 (1972), the Board argues

that the Machinists’ rule works unfair hardship on an

employee who votes to strike, walks out, and entertains

second thoughts months later when he is unable to pay

the bills and feed the family. We share the Board’s con-

cern but reject its remedy. If union members believe

that a strike should end, they have several options.

They may work within the union to persuade their col-

leagues, and the leadership, to end the walkout. They

may resign from the union and take a job with another

employer. Ultimately, they may elect new leaders who

share their views, or even petition the Board to

decertify the bargaining representative. But they may

not betray their colleagues and expect to get away

without paying a price for weakening the coliective bar-

gaining environment.

lla

3. Reasonable enforcement. The Board contends that

the union’s rule is too harsh because it restricts resigna-

tion for a period beginning two weeks before the strike

starts through the duration of the strike. We believe

this restriction is not only reasonable, but also critical.

First, these periods represent times when presenting a

solid front to the employer is most important. Even the

appearance of uncertain membership support may en-

courage the employer to be recalcitrant during negotia-

tions. Note, Union Discipline, supra, at 1553-54.

Second, once a member decides to resign from a labor

organization, the union has no effective means of dis-

couraging him from working for the struck employer

unles it can threaten to collect a fine. To a member pre-

pared to resign, of course, the threat of explusion [sic]

carries no weight. Cf. Local 1255, International Asso-

ciation of Machinists & Aerospace Workers v. NLRB,

456 F.2d 1214, 1217 (5th Cir. 1972) (union may condi-

tion readmission of expelled member on payment of fine

for strikebreaking if such measure is the only way to

collect the fine).

The Board argues, and we agree, that “the power of

the union over the member is certainly no greater than

the union-member contract.” Granite State, 409 U.S. at

217. But the terms of the contract before us condition

the member’s right to resign on his promise not to

break the strike. If the member can escape his obliga-

tion by pleading, when the union attempts to collect the

fine, that he is no longer part of the union, then the

terms of this contract mean little.

Because the union has no other practical means of

enforcing its rule against a member’s resigning and re-

turning to work for the struck employer, we believe

that collecting fines from members who break the rule

is a reasonable means of enforcement.

12a

CONCLUSION

For these reasons, we conclude that the union’s rule

fining strikebreakers is a reasonable restriction on the

right to resign union membership.

Enforcement of the Board’s order is DENIED.

13a

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 20-CB-3488

Case 20-CB-3491

Case 20-CB-3629

MACHINISTS LOCAL 1327, INTERNATIONAL ASSOCIA-

TION OF MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO, DISTRICT LODGE 115 (DALMO VICTOR)

and

VIOLA LAPINSKI, AN INDIVIDUAL

and

HILDA HALL, AN INDIVIDUAL

and

POLMYRA GOMES, AN INDIVIDUAL

DECISION AND ORDER

Upon charges duly filed by Viola Lapinski, Hilda

Hall, and Polmyra Gomes, the Regional Director for

Region 20 of the National Labor Relations Board, act-

ing on behalf of the General Counsel of the Board, is-

sued complaints alleging that the Respondent Union,

Machinists Local 1827, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO, District

Lodge 115, violated Section 8(b)(1)(A( of the National

Labor Relations Act, as amended (29 U.S.C. § 151, et

seq.).1 The Respondent filed answers to the complaints

1 Lapinski and Hall filed their charges in Cases 20—CB—

3488 and 20—-CB—3491 on May 7 and 12, 1975, respectively. On

September 16, 1975, the Regional Director for Region 20 issued

an order consolidating those cases, a consolidated complaint,

and notice of hearing. Gomes filed her charge in Case 20—

CB—3629 on September 11, 1975, and the Regional! Director is-

l4a

in which it admitted certain allegations of the com-

plaints and denied others, including all those charging it

with the commission of any unfair labor practices.

On various dates in December 1975 and January

1976, the General Counsel, the Charging Parties, and

the Respondent Union entered into a stipulation in

which they agreed to certain facts relevant to the issues

in this proceeding. They also agreed to waive a hearing

before an Administrative Law Judge, the issuance of an

Administrative Law Judge’s Decision, and the presen-

tation of any evidence other than that contained in the

stipulation and the exhibits there referred to. By order

dated February 20, 1976, the Board approved the stipu-

lation and transferred the proceeding to the Board.

Thereafter, the General Counsel and Respondent Union

filed briefs with the Board.

The Board has considered the entire record in this

case, including the parties’ briefs, and makes the

following:

FINDINGS OF FACT

I. The Business of the Employer

Dalmo Victor, the employer of the Charging Parties,

has been at all times material a division of Textron,

Inc., and has been a California corporation with a place

of business at Belmont, California, where it has been

engaged in the manufacture of electronic products.

During the past year, Dalmo Victor sold products

valued in excess of $50,000 directly to customers lo-

cated outside the State of California and purchased and

received supplies at its California operations valued in

sued complaint and notice of hearing in that case on October 10,

1975. Also on that date, the Regional Director issued an order

consolidating the three cases and also a notice of consolidated

hearing. \

2 The Respondent Union served its answers to the consolida-

ted complaint in Cases 20—CB—3488 and 20—CB—3491 on

September 22, 1975, and its answer to the complaint in Case

20—CB—3629 on October 14, 1975.

15a

excess of $50,000 directly from suppliers located outside

the State of California. Accordingly, we find, in agree-

ment with the parties, that Dalmo Victor has been at

all times material an employer engaged in commerce

and in operations affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act, and that it will ef-

fectuate the policies of the Act to assert jurisdiction in

this proceeding.

II. The Labor Organization

The Respondent Union is a labor organization within

the meaning of Section 2(5) of the Act.

III. The Unfair Labor Practices

The Union has been the bargaining representative of

employees of Dalmo Victor, herein called the Em-

ployer, since around 1949. At all times material Hall,

Lapinski, and Gomes, the Charging Parties, have been

employees of the Employer. On or about April 19, 1974,

the Respondent called a meeting of its members, who

at the time included the Charging Parties, and told

them of the then newly adopted union constitutional

provision whieh provided as follows:

Improper Conduct of a Member ... Accepting em-

ployment in any capacity in an establishment

where a strike or lockout exists as recognized un-

der this Constitution, without permission. Resigna-

tion shall not relieve a member of his obligation to

refrain from accepting employment at the estab-

lishment for the duration of the strike or lockout

within 14 days preceding its commencement.

Where observance of a primary picket line is re-

quired, resignation shall not relieve a member of

his obligation to observe the primary picket line for

its duration if the resignation occurs during the pe-

riod that the picket line is maintained or within 14

days preceding its establishment.

At all times since that meeting Hall, Lapinski, and

Gomes have been aware of the constitutional provision.

l6a

In early June 1974, the Union called a meeting to take a

strike vote and at that time again told its members

about the constitutional provision and warned them

that anyone crossing the picket line would be fined. The

employees, including the Charging Parties, began an

economic strike against the Employer on June 3, 1974,

which strike has continued to the present. The Union

has throughout the strike picketed the Employer.

On February 14, 1975, Hall and Lapinski resigned

membership in the Union, and the Union received no-

tice of their resignation on February 19. The previous

day the two had returned to work at the Employer's

struck plant. On May 8, Gomes submitted her resigna-

tion; the Union received notice of the resignation on

May 10; and Gomes returned to work on May 12. On

April 16, 1975, the Union fined both Hall and Lapinski

$2,277.50 each for working behind the picket line.

Gemes was, for the same reason, fined $1,125 on Au-

gust 6. The amount of the fines equaled the amount

each employee had received as strike benefits while out

on strike.® It is agreed that the fines are court

collectible.

The complaint alleges that the Respondent, by fining

the former members for working behind the picket line,

violated Section 8(b)(1)(A) of the Act. In support of this

allegation the General Counsel relies primarily on the

Board’s decision in O.K. Tool Company, Inc.4 There

the union fined certain former members who had re-

signed during a strike, for doing struck work. The fines

were alleged to be unlawful. The union defended its

3 As noted above, Lapinski and Hall returned to work a day

before the Respondent received any notification of their resig-

nation. This fact is not relied on by any party for any reason

whatsoever and the stipulation states that no part of these two

employees’ fines was for crossing the picket line prior to the Re-

spondent’s receipt of notice of their resignations.

* Local Lodge No. 1994, International Association of Ma-

chinists and Aerospace Workers, AFL-—CIO (O.K. Tool Com-

pany, Inc.) 215 NLRB 651 (1974).

17a

conduct on the ground that under the terms of its appli-

cable constitutional provision—the same one involved

in this proceeding and quoted above—the fining of the

“strikebreakers” was proper. A majority of the Board

held, however, that not only did the “proscription of

postresignation strikebreaking impair a former mem-

ber’s Section 7 right to refrain from concerted activity,

but it also is plainly contrary to Scofield’s requirement

that union members be free to leave the union to escape

membership conditions that they consider onerous.”>

It, thus, concluded that the union could not legally

“levy court-collectible fines against a former member

for exercising his Section 7 rights following lawful res-

ignation from the union.”®

There is no substantial or relevant distinction be-

tween the situation that faced the Board in O.K. Tool

and that which is now before us.’ Nor has the Respon-

dent raised in this proceeding any argument or other

5 215 NLRB at 653. The reference is to the Supreme Court’s

decision in Scofield v. N.L.R.B., 394 U.S. 423 (1969).

6 215 NLRB at 653. The Board also found in that case that the

union unlawfully threatened to fine former members for

postresignation “strikebreaking,” as well as unlawfully fining

them for such conduct. There is no allegation of unlawful threats

in the present case.

7 The Respondent points to the fact that in O.K. Tool, unlike

in the present case, the union had misstated to the fined em-

ployees the meaning of the “Improper Conduct of Member” con-

stitutional provision and claims that this is a factual difference

warranting a different result in this case. The rationale of the

concurring opinion in O.K. Tool did rest in part on the fact of

misrepresentation. However, the majority decision did not turn

at all on that fact but treated it as irrelevant by ignoring it. As

precisely set forth, the issue decided by the majority in O.K.

Tool—and it is the same issue as that before us now—was

“whether or not a labor organization may lawfully ... impose

. a court-collectible fine on a former member, who has ten-

dered a valid resignation, for conduct following his resignation

which is prohibited by the union’s constitution but protected by

Section 7 of the Act.” 215 NLRB 651, 652.

18a

consideration showing that the Board’s decision in that

case was wrong or otherwise inadvisable. Conse-

quently, we find for the reasons set forth in the major-

ity decision in O.K. Tool that the Respondent by fining

former members Lapinski, Hall and Gomes for their

postresignation “strikebreaking” violated Section

8(b)(1)(A) of the Act.

Our dissenting colleagues disagree with our result

here essentially on the ground that they would find that

the Union’s constitutional provision forbidding post-

resignation “strikebreaking” was actually a restriction

on the employees’ right to resign from the Union. From

this Member Jenkins concludes that such restriction

should be held proper—and thus the fines at issue in

this case lawful—as “measures ... within the ambit of

the Union’s control over its internal affairs” and both he

and Member Murphy view the restriction as a means of

protecting the strike as a legitimate economic weapon.

If indeed the constitutional provision here involved and

quoted above were truly a restriction on the right to re-

sign, then, as the dissenters in effect claim, we would

be faced with an issue the Supreme Court expressly left

open in its Scofield and Granite State decisions,® and

thus with determiiing if such a restriction as enforced

here with fines is lawful. But that issue is not before us,

and we express no opinion on it. For the Union’s consti-

tutional provision is clear and unambiguous in its lan-

guage, and that language places no clear restriction, no

subtle restriction, no restriction by implication, and, in

sum, no restriction whatsoever upon an employee’s

right to resign. Affirmatively, the provision seeks to do

8 Scofield v. N.L.R.B., supra; N.L.R.B. v. Granite State

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

AFL—CIO [International Paper Box Machine Co.|, 409 U.S.

213 (1972). In the latter case the Court in finding fines on

former members unlawful cautioned that it was not deciding “to

what extent the contractual relationship between union and

member may curtail the freedom to resign.” 409 U.S. at 217.

ee ee ee ee ee eee

19a

what its plain language says it seeks to do, that is, con-

trol, not resignations by members, but rather post-

resignation conduct, i.e., the conduct of employees who

are no longer members.® Consequently, as we have

found above, the Union’s fining the Charging Parties

for crossing the picket line was, as we held in identical

circumstances in O.K. Tool,!® unlawful under the Su-

® Our construction here not only is required by a plain reading

of the language involved but also is wholly consistent with the

actual position taken by the Union in stipulating that the

Charging Parties did indeed resign as of the date it received

their written resignations. Member Jenkins’ discussion seeking

to avoid the implications of this stipulated fact initially con-

cedes, as it must, that the employees did effectively resign on

such date. This concession is all that is necessary to reveal the

unsubstantiality of his position. As for his other observations

concerning the stipulated resignations, they are, even if true,

largely irrelevant but seem to us to be little more than an in-

volved rationalization intended to resolve the discrepancy be-

tween his theory of the case and the actual facts. Finally, we

might add that, if the Union had intended to place restrictions

on the right to resign, it could have done so directly and

unambiguously, but this it has not done.

10 Member Jenkins states in effect that in O.K. Tool the ma-

jority failed to realize that the Supreme Court decisions on

which they relied (Scofield and Granite State, both cited supra)

involved contexts “in which the union had placed no restrictions

on the right of a member to resign” and seems to imply that if

they had realized this the majority would have reached a differ-

ent result there. We fail to see how he could conceivably have

come up with any such idea. Even a most casual reading of the

O.K. Tool decision shows that the majority considered the con-

stitutional provision in dispute to be a restriction on post-

resignation conduct, not a restriction on resignation itself. Con-

sequently, the O.K. Tool ‘‘context’”’ was the same as the

“context” in the cited Supreme Court cases. Thus, even if the

O.K. Tool majority did not realize, as Member Jenkins claims,

that those Supreme Court cases involved contexts with no re-

strictions on the right to resign, we fail to see what difference it

would have made to the majority’s resolution of the issues be-

fore them. Of course, the majority was well aware that neither

their decision nor the Supreme Court decisions were concerned

with the issue of restrictions on resignation, for they stated that

20a

preme Court’s decision in Scofield and Granite State.

The contrary result championed by our dissenting col-

leagues is based on an obvious misconstruction of the

matters here before us.4

The dissenters treat the notice and consent required

for enforcement of the union-member contract?” as no

more than an annoying technicality. Otherwise they

could not seriously argue that the reasoning necessary

to equate the Respondent’s restrictions on postresig-

nation activity with restrictions on resignation is con-

sistent with reasonable notice that members may not

resign during a strike. The same provision was de-

scribed to the Supreme Court in Boeing as explicitly

binding “a member, notwithstanding his resignation, to

such an issue was “not raised by the facts of this proceeding.”

215 NLRB at 653.

11 Member Jenkins’ position might also be construed as a

claim that the fines are legitimate because the Union’s constitu-

tional provision provides for resignation subject to automatic

revocation in the event a former member breaches his obligation

not to eross a picket line—a rather novel concept—or provides

only for limited resignation, i.e., resignation for all purposes

other than noncompliance with the no-strikebreaking clause.

Both of these rather unrealistic constructions come down to

much the same thing and would in substance represent, if cor-

rect, an attempt by the Union to extend an obligation of mem-

bership to employees who, in view of their contingent or partial

resignations, no longer have any of the rights and privileges of

membership. See O.K. Tool Co., 215 NLRB at 6538. Thus, the

fines for crossing the picket line would under those theories find

no sanction in the Supreme Court’s decision in N.L.R.B. v.

Allis-Chalmers Mfg. Co., 388 U.S. 175, 196 (1967), and would

be in conflict with the Court’s statement in Scofield, supra at

430, to the effect that fines are lawful only against members

“who are free to leave the union and escape the rule” the breach

of which would result in a fine.

12 See N.L.R.B. v. Granite State Joint Board, supra at 217,

fn. 5; Booster Lodge No. 405. International Association of Ma-

chinists & Aerospace Workers, AFL—CIO [Boeing Co.| v.

N.L.R.B., 412 U.S. 84, 88 (1973).

2la

abstain from strikebreaking for the duration of an ex-

isting strike.”!%

There is a distinction between postresignation re-

strictions and restrictions on resignation, implicitly ac-

knowledged, if not identified, by the dissenters. A

member has the right to participate in his union’s af-

fairs, but surrenders that right on resignation. The dis-

senters suggest nothing which would show that the Re-

spondent continued to allow a former member to

participate in its affairs “notwithstanding his resigna-

tion.” The absence of that right and membership bene-

fits was decisive in O.K. Tool.

Contrary to Member Murphy, we see no reason to

believe that the Textile Workers interests in Granite

State were any less legitimate than are those of the Ma-

chinists here or in Boeing, yet the attempts to enforce

those interests were found unlawful by both the Board

and the courts. The issue is not now, and has never

been, whether unions have legitimate interests in re-

stricting resignations or postresignation activity. They

do. But those interests are not absolute. The issue is

whether unions’ attempts to protect those interests

impermissibly intrude on other matters of concern un-

der the national labor policy.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of the Respondent set forth above,

occurring in connection with the Employer’s operations,

have a close, intimate, and substantial relationship to

trade, traffic, and commerce among the several States

and tend to lead to labor disputes burdening and ob-

structing commerce and the free flow of commerce.

V. The Remedy

Having found that the Respondent has engaged in,

and is engaging in, certain unfair labor practices, we

13 412 U.S. at 89, fn. 9.

22a

shall order it to cease and desist therefrom. In order to

effectuate the purposes of the Act, we shall also order

the Respondent to rescind the unlawful fines, to refund

any money paid to it as a result of the fines, with inter-

est computed at 7 percent per annum,’ and to post the

notice attached as an appendix to this Decision and

Order.

CONCLUSIONS OF LAW

1. The Employer is engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

2. The Respondent is a labor organization within the

meaning of Section 2(5) of the Act.

3. By imposing court-collectible fines on former mem-

bers who had duly resigned from the Union, for their

postresignation crossing of a sanctioned picket line and

working during a strike at Dalmo Victor, Respondent

restrained and coerced employees in the exercise of the

rights guaranteed them in Section 7 of the Act, and

thereby engaged in, and is engaging in, unfair labor

practices within the meaning of Section 8(b)(1)(A) of the

Act.

4. The aforesaid unfair labor practices are unfair la-

bor practices affecting commerce within the meaning of

Section 2(6) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board hereby orders that the Respondent, Machinists

Local 1327, International Association of Machinists and

Aerospace Workers, AFL-CIO, District Lodge 115,

14 In accordance with our decision in Florida Steel Corpora-

tion, 231 NLRB No. 117 (1977), we shall apply the current

7-percent rate for periods prior to August 25, 1977, in which the

“adjusted prime interest rate” as used by the Internal Revenue

Service in calculating interest on tax payments was at least 7

percent.

23a

Burlingame, California, its officers, agents, and repre-

sentatives, shall:

1. Cease and desist from:

(a) Restraining or coercing employees who have re-

signed from, and are no longer members of, Respon-

dent in the exercise of the rights guaranteed them in

Section 7 of the Act by imposing court-collectible fines

on such employees because of their postresignation con-

duct in working at Dalmo Victor during the strike

which began on June 3, 1974.

(b) In any like or related manner restraining or

coercing employees in the exercise of the rights guaran-

teed in Section 7 of the Act.

2. Take the following affirmative action designed to

effectuate the purposes of the Act:

(a) Rescind the fines levied against Viola Lapinski,

Hilda Hall, and Polmyra Gomes because of their

postresignation work for Dalmo Victor during the

strike which begain in June 1974, and refund to them

any money they may have paid as a result of such fines,

plus interest.

(b) Post at its business office and meeting halls copies

of the attached notice marked “Appendix.”!5 Copies of

said notice, on forms provided by the Regional Director

for Region 20, after being duly signed by an authorized

representative of Respondent, shall be posted by the

Respondent immediately upon receipt thereof, and shall

be maintained by it for 60 consecutive days thereafter

in conspicuous places including all places where notices

to members are customarily posted. Reasonable steps

shall be taken by the Respondent to insure that said no-

15 In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF AP-

PEALS ENFORCING AN ORDER OF THE NATIONAL LA-

BOR RELATIONS BOARD.”

24a

tices are not altered, defaced, or covered by any other

material.

copies of said notice for posting by Dalmo Victor, if the

Company is willing, in places where notices to employ-

ees are customarily posted. Copies of said notice, to be

furnished by the Regional Director, after being duly

signed by the Respondent’s authorized representative,

shall be returned forthwith to the Regional Director.

(d) Notify the Regional Director for region 20, in

writing, within 20 days from the date of this Order,

what steps the Respondent has taken to comply

herewith.

Dated, Washington, D.C. August 29, 1977

/s/ John H. Fanning

JOHN H. FANNING

Chairman

CO ni

JOHN A. PENELLO

Member

/s/ Peter D. Walther |

PETER D. WALTHER i wstt—its

Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

25a

MEMBER JENKINS, dissenting:

The majority accepts the fact that the Union had a

validly adopted constitutional provision which defines

“Improper Conduct of Member” as including the failure

of a member to observe a picket line for its duration,

notwithstanding his resignation, when the picket line

was established prior thereto. The majority also ac-

cepts the facts that the Union brought this provision to

the attention of its members, including the Charging

Parties, before the membership voted to strike, and

that the Charging Parties were aware of this provision

before the strike was called. In addition, the majority

does not contest the Union’s claims that this provision

was properly adopted and reasonably enforced against

the Charging Parties. The majority likewise acknowl-

edges that the amount of the fines assessed were equal

to the amount each employee had received as strike

benefits while out on strike.

Despite these acknowledgments, the majority finds

the Union’s actions in fining the Charging Parties pur-

suant to the above-stated constitutional provision to be

violative of Section 8(b)(1)(A) of the Act, on the

strength of the Board’s decision in O.K. Tool Com-

pany, Inc., supra. While I concurred in the similar re-

sult reached in that case based solely on the substan-

tially different set of facts involved here, I specifically

refrained from taking any position on the broader legal

issue of whether or not a union may, on proper notice

and in the absence of any other legal impediment, en-

force an otherwise valid constitutional provision forbid-

ding former members from returning to work following

lawful resignation from the Union. That legal issue has

been squarely presented here by a stipulated record

which effectively eliminates any other possible miscon-

duct on the part of the Union in terms of the manner in

which the constitutional provision was adopted or im-

plemented, or in terms of the actual notice given to the

Charging Parties. Contrary to the majority both here

and in O.K. Tool, I would conclude that the Union was

26a

entitled to levy these fines as a means of enforcing a

lawful rule, as such measures are within the ambit of

the Union’s control over its internal affairs.

My principal disagreement with the majority is based

on the O.K. Tool majority’s too narrow reading of Su-

preme Court precedent in this area. The Court in

Scofield, supra, stated that it had taken and would con-

tinue to take a dual approach to the problem of

evaluating the validity of union fines vis-a-vis Section

8(b)(1)(A) of the Act, such that properly adopted union

rules, reflecting legitimate union interests, which im-

pair no policy Congress had imbedded in the labor laws,

and which are reasonably enforced against members,

are permissible under that section, whereas fines

against exmembers would be violations. That statement

reflects the Court’s view that union rules and their en-

forcement are an internal matter governed by contrac-

tual considerations as embodied in the union’s constitu-

tion and bylaws, which are agreed to by the members

in consideration for the benefits attained by member-

ship. In support of this view, the Court has noted that

union security can not compel such membership. It is

also important to note, however, that in expressing this

view, the Court’ was speaking in a context in which the

union had placed no restrictions on the right of a mem-

ber to resign.16

16 | agree with the majority that a most casual reading of the

O.K. Tool majority decision might lead one to conclude that in-

asmuch as it was found there that the factual “context” did not

involve a restriction on the right of a union member to resign,

the union’s conduct was unlawful under prior Supreme Court

precedent. However, a close reading of that decision, as well as

the facts of that case—admittedly identical to the facts here rel-

ative to the constitutional provision under scrutiny—reveals the

fallacy of concluding that the provision is anything other than a

restriction on the right of a member to resign during an ongoing

strike. Whether or not the majorities here and in O.K. Tool

would have reached a different result if they had interpreted

the provision as I do is something I can only speculate about

since neither has spoken to the question left open by the Su-

: 7 eg gee Ie

27a

While the significance of that context was apparently

lost on the O.K. Tool majority, the Supreme Court it-

self acknowledged its importance in Granite State,1"

decided after Scofield, when as part of its decision find-

ing the union’s action in fining resigned members viola-

tive of Section 8(b)(1)(A), it disclaimed any considera-

tion of the problem of construing a union’s constitution

or bylaws defining or limiting the circumstances under

which a member may resign from the union, since no

such provision was involved in either that case or in

Scofield. Thus, the O.K. Tool majority, while citing the

language in Granite State by which the Court set forth

its rationale for finding the union’s conduct violative of

the Act, ignored the fact that in saying that a member

must be “free to refrain in November from the action

he endorsed in May” the Court specifically limited this

principle by the possibility that a union may restrict

this freedom by an express constitutional limitation,

properly adopted, duly instituted, and reasonably ap-

plied. The Supreme Court never had such a factual con-

text before it, even though the union in Granite State

argued that such a restriction could be implied from its

membership’s participating in the strike vote and ratifi-

cation of a poststrike rule against aiding and abetting

the employer during the strike.

Similarly, the Supreme Court rejected the union’s

contention in a later case! that a general constitutional

proscription against strikebreaking would suffice as an

implied restriction on the right of a member to resign

during a strike in order to avoid the rule against

strikebreaking. Contrary to the implication of the major-

preme Court, but instead have chosen to construe the facts in

such a way as to obviate it.

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

Union of America, Local 1029, AFL-CIO [International Paper

Box Machine Co. |, 409 U.S. 213 (1972).

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

chinists & Aerospace Workers, AFL-CIO [Boeing Co.] v.

N.L.R.B., 412 U.S. 84 (1973).

28a

ity, the 1973 decision of the Court in Boeing did not

consider the validity of the provision here invoked by

the Union, inasmuch as the Union’s constitution was

amended in 1974 to add the explicit language relied on

here.

The Court in Granite State as well as in Boeing re-

jected the union’s contentions since its concern with the

right of a member to resign and escape the effect of

union rules was too strong to permit the waiver of this

right by implication. Nevertheless, the Court did leave

open the question of the possible validity of a conscious

waiver as embodied in a reasonable constitutional pro-

vision limiting this right, to be decided when and if a

union adopted such a provision. The Court chose not to

decide this issue absent a factual context, presumably

so that the adoption and implementation, as well as the

substantive validity of such a limitation could be exam-

ined together. Indeed, it was these surrounding circum-

stances in O.K. Tool which led me to concur in the

result reached there without commenting on the sub-

stantive issue, even while recognizing that the provi-

sion, under proper circumstances, did raise the legal is-

sue. The majority in O.K. Tool, however, simply read

the provision before it as not limiting resignations, but

only postresigriation strikebreaking, thus sidestepping

the legal issue left open by the Court. In so doing, it

gave no justification for this interpretation except to

point out that the respondent union had “conceded”

that the fined employees had duly resigned before

crossing the picket line.

The conclusion is therefore inescapable that, contrary

to the almost exclusive reliance the O.K. Tool majority

placed on Granite State and Boeing in deciding the is-

sue before us, prior Court decisions do not decide the

question posed by the constitutional provision here and

in O.K. Tool. Moreover, the very fact that the Court

was careful to point out that the precise legal question

here was not presented by the facts in Granite State or

in Boeing is clear evidence that the Court felt that nei-

29a

ther its decisions in those cases nor its prior analysis of

the general area in Scofield was determinative of the

instant problem.

In light of the above, and inasmuch as it has been ad-

mitted that the fines were levied pursuant to the

Union’s constitutional provision, it becomes necessary

to determine whether or not the language of that provi-

sion is in real.ty a restriction on a member’s right to re-

sigmi or, as the majority concludes, an attempt to exer-

cise control over exmembers.

One attempt the majority makes to justify its con-

struction of the provision is that its construction is con-

sistent with the “actual” position taken by the Union in

stipulating that the Charging Parties did resign as of

the date it received their written resignations. This ap-

parently is in reference to the Union’s admitting to

those allegations in the complaint concerning the ten-

dering of resignations. While it is unquestionably cor-

rect that the resignations were stipulated as having

occurred when they did and that the stipulation may be

consistent with the majority’s construction, such facts

are in no way inconsistent with, nor do they undermine

in any way, the Union’s contention that these resigna-

tions were subject to the restrictions contained in the

constitution. There is no reasonable action the Union

could have taken, at the time these resignations were

tendered, to reaffirm the binding nature of its constitu-

tional provision conditioning these resignations on the

members’ prior commitment to honor the strike already

begun for its duration. A failure to accept these resig-

nations, at a time before these individuals had crossed

the picket line, would have constituted a refusal by the

Union to abide by its own constitution and the shoe

would be on the other foot. However, the Union lived

up to its contract with its members and accepted these

resignations pursuant to its constitution, while the

Charging Parties’ subsequent crossing of the picket line

was a breach of their prior commitment which imposed

30a

the condition that their resignations did not confer the

right to cross the picket line.

The majority also contends that the language cf the

provision places no restriction on the right to resign.

This contention is incomprehensible in light of the ex-

plicit language of that provision stating that “resigna-

tion shall not relieve a member of this obligation to ob-

serve the primary picket line for its duration if the

resignation occurs during the period [in question].”

While there is no evidence as to what the Charging

Parties understood by this, the majority does not ex-

plain in what respects the above language is either am-

biguous or unclear. Although my colleagues could per-

haps suggest language that would be more emphatic or

more direct, I can not accept a contention that the

words chosen by the Union are unintelligible or un-

clear, and there is no contention that these words were

not fully understood by all concerned. What is clear is

the foundation of the majority’s position, that because

the Union failed to use some favored form of language

(what this language might be is not revealed), this case

is outside the realm of the potentially valid action sug-

gested by the Supreme Court.

Finally, the majority attempts to bolster its construc-

tion by labeling the result of the construction I would

give the provision as constituting either contingent or

partial resignation. While I agree that such characteri-

zations might well apply, I fail to see how or why they

would be “unrealistic” as the majority says, inasmuch

as the resul* reached, no matter how you label it, is

precisely what was intended by the Union and accepted

by the members; and it is a result which the Supreme

Court inferentially found to be potentially valid. More-

over, to say, as the majority does, that the effect of

such a construction would be to limit somewhat the

freedom of a member to leave the union to escape the

rule is to ignore the fact that the Court in stating this

principle specifically left open the possibility that some

limitation might be possible if it was implemented prop-

3la

erly within the contractual relationship between union

and member. Gran?te State, 409 U.S. at 217.

There are no facts here from which it can be con-

cluded that the Charging Parties were not fully aware

of the restrictions placed upon them by the language in

question, and the majority admittedly has offered no

reasons why the restrictions here should not be dealt

with by the Board as would any other internal union

matter. Obviously some restriction of rights is in-

volved, but when the employees freely, knowingly, and

expressly agree to such limitations in order to attain

the additional strength such a prior commitment gives

to the strike as an economic weapon, I can perceive no

reason in Board law, Supreme Court precedent, or

overall labor policy to declare such a prior commitment

a nullity. Rather it seems to me to be a flagrant exer-

cise in semantic double-think to hold, as the majority

does, that the words “resignation shall not relieve a

member of his obligation [to honor a strike]|” are not a

restriction on the right to resign. What magic words

would the majority have a union utilize before it will ac-

knowledge the existence of this issue, about which it

here refuses to express any opinion?

In sum, as I view the Supreme Court decisions

herein as not having foreclosed the possible validity of

union restrictions on postresignation strikebreaking,

and since the issue here has been limited by stipulation

to what amounts to a purely legal question, I would

conclude on that basis that the restriction here is not

contrary to Board law, excepting O.K. Tool as here

construed, or to the policies of the Act, and would

therefore find, contrary to my colleagues in the major-

ity, that the Union’s actions were not violative of Sec-

tion &(b)(1)(A). To whatever extent O.K. Tool is incon-

sistent, I would overrule it.

The intent of the provision, as a means by which

unions protect the strike as a legitimate economic

weapon, has been consistently accepted as valid by this

Board as well as the Supreme Court. The amounts of

32a

the fines were limited to the actual amounts of money

received by the individuals from the Union when they

were supporting the strike and were therefore neither

excessive nor punitive.

Although the majority has seen fit to suggest that

underlying the technical approach it takes throughout

most of its decision there lies a question of balancing le-

gitimate interests, it nevertheless steadfastly adheres

to its basic rationale that the Union’s constitution does

not place any restrictions on a member’s right to re-

sign, thus essentially foreclosing any real discussion of

the broader legal issue involved. If indeed the issue

here is, as the majority suggests (and I agree),

“Whether [the Union’s] attempts to protect [its] inter-

ests impermissibly intrude on other matters of concern

under the national labor policy,” why is it that its hold-

ing is predicated on the conclusion that this issue is “not

before us, and we express no opinion on it.” The major-

ity cannot have it both ways. Either they must recog-

nize the fact that this case presents the essential legal

and policy issue, or leave it open for decision in a later

case. Accordingly, I would dismiss the complaint in its

entirety. |

Dated, Washington, D.C. August 29, 1977

/s/) Howard Jenkins, Jr.

HOWARD JENKINS, JR.,

Member

NATIONAL LABOR RELATIONS BOARD

33a

MEMBER MURPHY, dissenting:

I cannot agree with the conciusion that the Respon-

dent acted unlawfully in imposing fines under the facts

of this case. I believe a union member has a right under

Section 7 of the Act to resign membership from his or

her union at any time, subject to such reasonable re-

strictions as the union through its constitution and by-

laws may have duly placed on resignations and timely

brought to the member’s attention. The relevant Su-

preme Court decisions certainly do not preclude this

conclusion, even if they do not expressly endorse it.

See, e.g., Scofield v. N.L.R.B., 394 U.S. 423 (1969);

N.L.R.B. v. Granite State Joint Board etc., 409 U.S.

213 (1972).

Here I find that a realistic construction of the inter-

related provisions of Respondent’s constitution clearly

show that it contained such a reasonable and valid re-

striction on resignation. Thus, the restrictions on work-

ing behind a picket line during a strike are in any prac-

tical sense an obvious restriction on the right of

members to resign from the Union just before or during

a strike for the purpose of working at their employer's

struck plant. Furthermore, I believe that such a re-

striction on the right to resign under the facts here is

directed toward protecting a legitimate union interest

and is, thus, reasonable and lawful. Consequently, in

the circumstances before us, where the employees were

given full and timely notice of the prior existence of a

reasonable restriction on their right to resign, I would

find, contrary to the majority, that Respondent in fin-

ing the Charging Parties for working behind the picket

line did not, as alleged, violate the Act. I would, there-

fore, dismiss the complaint.

Dated, Washington, D.C. August 29, 1977

/s/ Betty S. Murphy

BETTY SOUTHARD MURPHY

Member

NATIONAL LABOR RELATIONS BOARD

34a

APPENDIX

NOTICE TO EMPLOYEES AND MEMBERS

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT restrain or coerce employees who

have resigned from the Union and who, in the exercise

of the rights guaranteed in Section 7 of the National

Labor Relations Act, work after their resignation at

Dalmo Victor during the strike which began in June

1974, by imposing court-collectible fines on them for

working during the strike.

WE WILL NOT in any like or related manner restrain

or coerce employees in the exercise of the rights guar-.

anteed them in Section 7 of the National Labor Rela-

tions Act.

WE WILL rescind the fines levied against Viola

Lapinski, Hilda Hall, and Polmyra Gomes because they

worked at Dalmo Victor after their resignations from

the Union during the strike which began in June 1974,

and refund any money they may have paid as a result of

such fines, plus interest.

MACHINISTS LOCAL 1327, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WoRKERS, AFL-CIO, DistrRicT LODGE 115

Labor Organization

Date RE og tL

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any ques-

tions concerning this notice or compliance with its pro-

visions may be directed to the Board’s Office, 13018

Federal Building, Box 36047, 450 Golden Gate Avenue,

San Francisco, California 94102. Telephone

415-556-0335.

acerca

35a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 77-3723

NATIONAL LABOR RELATIONS BOARD, PETITIONER,

Uv.

MACHINISTS LOCAL 1327, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

DISTRICT LODGE 115, RESPONDENT.

PETITION TO REVIEW A DECISION OF THE

NATIONAL LABOR RELATIONS BOARD

[Filed Oct. 10, 1979]

OPINION

Before: DUNIWAY and KENNEDY, Circuit Judges, and

BONSAL,* District Judge

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions for en-

forcement of its order against the respondent Union.

The Board’s Decision and Order are reported at 231

N.L.R.B. 719 (1977). We decline to enforce the Board’s

order, and remand to the Board for further

proceedings.

The facts are stipulated, and the case went directly

to the full Board. It held, by a 3 to 2 vote, that the Un-

ion had violated § 8(b)(1)(A) of the National Labor Re-

*The Honorable Dudley B. Bonsal, Senior United States Dis-

trict Judge for the Southern District of New York, sitting by

designation.

36a

lations Act, 29 U.S.C. § 158(b)(1)(A) by fining three of

its members who, during a strike, had resigned,

crossed a picket line, and gone back to work.

The Board’s condensed statement of the stipulated

facts is as follows:

Since approximately 1949 the Union has been the

collective-bargaining representative of employees

of Dalmo Victor, a division of Textron, Inc., (“the

company”). About April 19, 1974, the Union called

a meeting of its members and apprised them, in-

cluding Company employees Hilda Hall, Viola La-

pinski, and Polmyra Gomes, of an amendment to

the Union’s constitution that provided as follows

(R. 21):

Improper Conduct of a Member: ... Accepting

employment in any capacity in an establishment

where a strike or lockout exists as recognized

under this Constitution, without permission.

Resignation shali not relieve a member of his ob-

ligation to refrain from accepting employment at

the establishment for the duration of the strike

or lockout or within 14 days preceding its com-

mencement. Where observance of a primary

picket line is required, resignation shall not re-

lieve a member of his obligation to observe the

primary picket line for its duration if the resigna-

tion occurs during the period that the picket line

is maintained or within 14 days preceding its

establishment.

On June 3, 1974, the Union called another meet-

ing to take a strike vote and again told its mem-

bers, including Hall, Lapinski, and Gomes, that un-

der the provision anyone crossing the picket line

might be fined. On that same day the Union com-

menced an economic strike against the Company

and established a picket line. (R. 22.)

Eight months later, on February 14, 1975, Hall

and Lapinski submi*ted written resignations to the

Union; they then returned to work, crossing the

37a

still-existing picket line on February 18. Gomes re-

signed from the Union on May 10, 1975; she then

crossed the picket line [and returned to work] on

May 12. On April 16, 1975, the Union fined Hall

and Lapinski $2,277.50 each and on August 6, 1975

the Union fined Gomes $1,125 for working behind a

picket line. (R. 22-23.) The fines are court-

collectible (R. 30).

The strike was still continuing when the stipulation was

executed on January 27, 1976.

In holding that the Union’s constitutional provision

did not justify the discipline, the Board found that the

provision did not purport to restrict the members’ right

to resign from the Union, but rather sought only to

unlawfully regulate post-resignation conduct. The dis-

senting Board members would have found the provision

to be a restriction upon the right to resign, rather than

a restriction upon post-resignation conduct. We think

that the Board’s holding is hypertechnical, and that the

dissenting Board members state and apply the law

more accurately.

We begin with the power of a union to discipline its

members for crossing its lawful picket line or returning

to work during a strike. A union rule against that con-

duct is a legitimate internal regulation of the conduct of

its members, and imposition of a fine on a member is

lawful under § 8(b)(1)(A) of the Act, 29 U.S.C.

§ 158(b)(1)(A). N.L.R.B. v. Allis-Chalmers Mfg. Co.,

1967, 388 U.S. 175, 195. See also N.L.R.B. v. Granite

State Joint Board, Textile Workers Union, 1972, 409

U.S. 218, 215.

On the other hand, a union member has a right to re-

sign from his union, protected by Section 7 of the Act,

29 U.S.C. § 157. N.L.R.B. v. Martin A. Gleason,

Inc., 2 Cir., 1976, 534 F.2d 466, 476. Moreover, when

the member does resign, “when there is a lawful disso-

lution of aunion-member relation, the union has no more

control over the former member than it has over the

38a

man in the street.” Granite State, supra, 409 U.S. at

217. To the same effect, see Booster Lodge No. 405,

Int’l Ass’n of Machinists v. N.L.R.B., 1973, 412 U.S. )

84, 88. It is these two decisions upon which the Board

majority placed its principal reliance.

However, in each case, the Court carefully restricted

its holding. In Granite State, supra, Justice Douglas’

opinion for the Court says:

Neither the contract nor the Union’s constitution

or bylaws contained any provision defining or limit-

ing the circumstances under which a member could

resign (409 U.S. at 214).

We have here no problem of construing a union’s

constitution or bylaws defining or limiting the cir-

cumstances under which a member may resign

from the union. (/d. at 216.)

Similarly, the Per Curiam opinion in Booster Lodge,

supra, which simply followed Granite State, says: ;

Neither its [the Union’s] constitution nor its by-

laws contained any provision expressly permitting

or forbidding such resignation (412 U.S. at

85-86)...

|We]| leave open the question of the extent to

which contractual restriction on a member's right

to resign may be limited by the Act. (/d. at 88).

It was after the decision against it in Booster Lodge,

supra, that the Machinists Union, in 1974, adopted the

amendment to its constitution that is quoted in the stip-

ulation of facts. The Union asserts that its purpose was

to impose “contractual restrictions on a member’s right

to resign,” the validity of which was left open in

Booster Lodge. The Board’s position is that

|T|he Union’s constitutional provision is clear and

unambiguous in its language, and that language

places no clear restriction, no subtle restriction, no

restriction by implication, and, in sum, no restric-

tion whatsoever upon an employee’s right to re-

39a

sign. Affirmatively, the provision seeks to do what

its plain language says it seeks to do, that is, con-

trol, not resignations by members, but rather post-

resignation conduct, i.e., the conduct of employees

who are no longer members.

We cannot accept this hypertechnical reading of the

Union’s constitution. It plainly tells its members that

resignation “shall not relieve a member from his obliga-

tion to refrain from accepting employment” at the

struck establishment, or from his “obligation to observe

the primary picket line” during the strike or the picket-

ing, if the resignation occurs during that time or 14

days before. Surely that is a “restriction on a member’s

right to resign,” Booster Lodge, supra, a “defining or

limiting [of] the cireumstances under which a member

may resign,” Granite State, supra. Apparently the

Board majority would confine these phrases to provi-

sions that expressly prohibit resignation at certain

times or under certain circumstances. Such a provision

would be a more drastic limitation on the member’s

right to resign, and thus less likely to be upheld, than

the provision that is before us.

In short, we conclude that this case presents the

question reserved by the Court in Granite State and

Booster Lodge. We answer that question in part, by

concluding that the provision before us defines or limits

the circumstances under which a member may resign,

and is a restriction on a member’s right to resign.

The next question is whether the provision, con-

strued as we construe it, is valid. Obviously, that ques-

tion was not reached in Granite State or Booster Lodge.

It was expressly reserved by the Board majority in this

case (231 N.L.R.B. at 720). We should give the Board,

the expert body in the field of labor relations, an oppor-

tunity to consider and decide the question. See

N.L.R.B. vy. Food Store Employees Union, 1974, 417

40a

U.S. 1, 8-9; Mohland v. N.L.R.B., 9 Cir., 1968, 394

F.2d 701, 704.

The petition for enforcement of the Board’s order is

denied. The case is remanded to the Board for further

proceedings consistent with this opinion.

a ee ‘

4la

KENNEDY, Circuit Judge, dissenting:

I do not agree with the majority that the Board’s de-

cision is simply a hypertechnical construction that can

be ignored. I believe there is great substance to the dis-

tinctions the Board makes, and I respectfully dissent.

The provision of the union constitution in question

here seeks not to condition resignations by members,

but rather to control the post-resignation conduct of

employees who are ne longer union members. I submit

it is unlawful for a union to fine a former member for

post-resignation conduct otherwise protected by § 7 of

the Act. Booster Lodge No. 405, Int'l. Ass’n of Machin-

ists v. N.L.R.B., 412 U.S. 84, 88 (1973); N.L.R.B. v.

Granite State Joint Board, Textile Workers Union, 409

U.S. 218, 215 (197)). The majority suggests that, be-

cause the Union’s constitution specifically prohibits

former members from returning to work following res-

ignation during a strike, Booster Lodge and Granite

State are not applicable. It concludes that the right of a

labor organization to maintain solidarity during a strike

and to prescribe its own rules with respect to the acqui-

sition and retention of membership must take prece-

dence over whatever section 7 rights its former mem-

bers may have to abandon a lawful strike and return to

work.

In holding that it would not imply limits on an em-

ployee’s right to resign, the Supreme Court in Granite

State and Booster Lodge reserved the question whether

an explicit constitutional provision or bylaw specifically

limiting the right to resign would be valid. These cases

did not suggest, however, that restrictions on post res-

ignation conduct, even if contained in explicit constitu-

tional provisions, might be valid. Both Booster Lodge

and Granite State hold that the disciplinary power of a

union is restricted to those employees who are mem-

bers of the union. Once that relationship is dissolved,

“the union has no more control over the former member

42a

than it has over the man on the street.” Granite State,

409 U.S. at 217. When a member “lawfully resigns”

from the union, “its power over him ends.” Jd. at 215.

Once having resigned his membership, an employee

again becomes fully protected by section 7 in refraining

from participation in a strike, and the imposition of a

court-collectible fine for working during a strike vio-

lates section 8(b)(1)(A). Booster Lodge, 412 U.S. at

87-88; Scofield v. NLRB, 394 U.S. 423 (1969). The Su-

preme Court thus has employed the concept of mem-

bership to delineate in sharp relief the bounds of union

authority. There is no dispute in this case that the em-

ployees had submitted valid resignations, thereby

terminating their union membership. Indeed, the Union

stipulated that the charging parties did effectively re-

sign as of the date it received their written resigna-

tions. This concession is all that is really necessary to

reveal the lack of substance in the Union’s position re-

garding the characterization of the constitutional provi-

sion. If the Union had placed direct and unambiguous

restrictions on the right to resign, the case might be

different, but it-did not do so. The logic of Booster

Lodge and Granite State thus compels the conclusion

that the union cannot control the conduct of these

former members.

If the provision of the union constitution here in-

volved were truly a restriction on the right to resign,

then I agree with the majority that we would face the

issue expressly left open in Granite State and Booster

Lodge; see also Scofield v. N.L.R.B., 394 U.S. 423

(1969). That issue is not before us, however, since the

union’s constitution places no restriction on a member’s

right to resign. It attempts to control the post-

resignation conduct of former members, and even the

majority recognizes that a union’s power does not ex-

tend so far.

megs Seatac cn

43a

The Union’s right to enforce the fines it imposes on

its members is a corollary of the member’s right not

only to reap the benefits of continuing union member-

ship, but also to maintain a continuing voice in the

union’s course of action. Allis-Chalmers Mfg. Co. v.

N.L.R.B., 388 U.S. 175, 191 (1967). No such justifica-

tions support the imposition of court-collectible fines on

former members. I cannot agree that continuing mem-

bership to the extent, but only to the extent, that the

“member” re.nains subject to union discipline is the

equivalent of the “full union membership” relied upon

by the Court in Allis-Chalmers, and relied on again in

distinguishing that decision in Granite State. Thus, the

distinction between membership or nonmembership is

far more than a verbal nicety to be dismissed as lightly

as the majority opinion does.

As the Board recognized in Local Lodge No. 1994,

Internat’l Ass’n of Machinists (O.K. Tool Co.), 215

N.L.R.B. 651, 653 (1974):

Conformity may be none too high a price for the

benefits of union membership. But the choice, at

least in the absence of reasonable restrictions on

resignation, is the individual’s to make not the

union’s. Should he choose to resign and forgo the

benefits of union membership, the union may not

nonetheless seek to exact conformity without re-

gard to the individual’s section 7 rights.

Whether or not the union might lawfully have placed

reasonable restrictions on its members’ rights to resign,

it did not do so here, and so I find it unnecessary for

the Board.on remand to consider the validity of such

hypothetical restrictions. I would hold that a court may

not enforce union fines levied against a former member

for exercising his section 7 rights following his lawful

resignation.

44a

APPENDIX D

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

263 NLRB No. 141

D-9206

Belmont, CA

MACHINISTS LOCAL 1327,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

AFL-CIO, DistricT LODGE 115

(DALMO VICTOR)

and

Case 20-CB-3488

VIOLA I.,APINSKI, AN INDIVIDUAL

Case 20-CB-3491

HILDA HALL, AN INDIVIDUAL

Case 20-CB-3629

POLMYRA GOMES, AN INDIVIDUAL

SUPPLEMENTAL DECISION AND ORDER

On August 29, 1977, the Board issued a Decision and

Order in this proceeding! in which it found that a con-

stitutional provision adopted by Respondent, Machin-

ists Local 1327, International Association of Machinists

and Aerospace Workers, AFL-CIO, District Lodge

115, did not constitute a restriction on a member’s right

1231 NLRB 719.

45a

to resign from Respondent but rather constituted an

unlawful attempt by Respondent to restrict the post-

resignation conduct of former members.* Accordingly,

the Board concluded that Respondent had violated Sec-

tion 8(b)(1)(A) of the Act by imposing fines on the

Charging Parties, Viola Lapinski, Hilda Hall, and

Polmyra Gomes, for resigning their membership in Re-

spondent and returning to work during the course of a

strike. It then ordered Respondent to rescind the fines

levied against Lapinski, Hall, and Gomes and to refund

to them, with interest, any moneys they may have paid

as a result of the unlawfully imposed fines. Thereafter,

Respondent filed a petition for review of the Board’s

Decision and Order with the United States Court of

Appeals for the Ninth Circuit and the Board filed a

cross-petition for enforcement of its Order.

On October 10, 1979, the court issued its opinion in

this case* denying enforcement of the Board’s Order on

the ground that Respondent’s constitutional provision

was, contrary to the Board’s finding, a restriction on a

member’s right to resign and not an unlawful attempt

to restrict a former member’s post-resignation conduct.

However, noting that the Board had not had the oppor-

tunity to determine whether the provision, as con-

strued by the court, was valid, the case was remanded

2 The constitutional provision provided as follows:

Improper Conduct of a Member ... Accepting employment

in any capacity in an establishment where a strike or lock-

out exists as recognized under this Constitution, without

permission. Resignation shall not relieve a member of his

obligation to refrain from accepting employment at the es-

tablishment for the duration of the strike or lockout within

14 days preceding its commencement. Where observance

of a primary picket line is required, resignation shall not

relieve a member of his obligation to observe the primary

picket line for its duration if the resignation occurs during

the period that the picket line is maintained or within 14

days preceding its establishment.

3 608 F.2d 1219.

46a

by the court to the Board for further proceedings con-

sistent with its opinion.4

On December 12, 1979, the Board, having deter-

mined that this and another case,5 involving the right of

a labor organization to impose restrictions on a mem-

ber’s right to resign, presented issues of importance in

the administration of the National Labor Relations Act,

as amended, scheduled oral argument for January 16,

1980. Thereafter, on January 16, 1980, Respondent, the

General Counsel, the Charging Parties, and the Ameri-

—ean Federation of Labor and Congress of Industrial Or-

ganizations® presented their oral argument before the

Board.

The Board, having duly considered the entire record

in this case and the oral arguments presented to it,

finds as follows:

Pursuant to the court’s remand, we are here asked to

decide whether a union can, pursuant to an internal

rule prohibiting resignations during a strike or within

14 Gays preceding its commencement, lawfully impose a

fine on members who tendered resignations and re-

turned to work during the course of a strike in apparent

violation of the union rule prohibiting such resignations.

Respondent asserts that, under the proviso to Section

4 We have accepted the remand from the Court of Appeals for

the purpose of determining the validity of art. L., sec. III, asa

restriction on resignation. We accept the court’s determination

that this provision is a restriction on resignation only as the law

of the case. We ctherwise adhere to our earlier determination

that this clause constitutes a restriction on post-resignation

conduct.

5 Pattern Makers’ League of North America, AFL-CIO, and

its Rockford and Beloit Associations (Rockford-Beloit Pattern

Jobbers Association), Case 33-CB-1132.

6 The American Federation of Labor and Congress of Indus-

trial Organizations appeared as amicus curiae and argued

orally on behalf of the Respondent’s position.

47a

8(b)(1)(A) of the Act,’ its constitutional provision is

valid and enforceable and that, consequently, the fines

imposed thereunder are lawful. The Charging Parties,

on the other hand, contend that the restriction in ques-

tion unreasonably interferes with their Section 7 rights

and that the attempt to impose and collect fines under

such a provision violates Section 8(B)(1)(A) of the Act.

We agree with the Charging Parties’ contention.

Initially, we note that in N.L.R.B. v. Allis-

Chalmers Manufacturing Co., 388 U.S. 175 (1967),

the Supreme Court held that a union may, without

violating the Act, impose fines on persons who, while

retaining full membership rights in the union, cross an

authorized picket line and return to work during a

strike in contravention of a union rule proscribing such

conduct. The Supreme Court found that the right to

impose such fines was incidental to the contractual rela-

tionship between the union and its members.® Once the

member lawfully resigns, however, the union’s control

over that former member ceases and any attempt to

impose and collect a fine from that former member for

engaging in conduct prohibited by a union rule violates

7 Sec. 8(b)(1)(A) of the Act provides that it “shall be an unfair

labor practice for a labor organization or its agents—(1) to re-

strain 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 acquisition or retention of membership

therein... .”

Sec. 7 of the Act guarantees to employees the right to orga-

nize and to engage in “other concerted activities for the purpose

of collective bargaining or other mutual aid or protection,” and

also the right to refrain from such activities.

8 In Allis-Chalmers, supra, the Supreme Court did not rely

on the proviso to Sec. &(b)(1)(A) but focused its attention in-

stead on the legislative history of the phrase “restrain or co-

erce” in that section of the Act.

48a

Section 8(b)(1)(A) of the Act.? In both Granite State

and Booster Lodge, supra, the Supreme Court found

that the union’s constitution and bylaws contained no

provision restricting a member’s right to resign and

that, consequently, union attempts to fine former mem-

bers for crossing an authorized picket line violate Sec-

tion 8(b)(1)(A) of the Act. Because of the absence of any

articulated restriction on a member’s right to resign,

the Supreme Court in Granite State and Booster Lodge

expressly left open the question, now before us, of the

extent to which a “contractual restriction on a mem-

ber’s right to resign may be limited by the Act.”?!°

Addressing this question requires us to balance two

fundamental principles upon which our labor laws rest,

principles that inherently conflict. The first is the right

of an employee to refrain from collective activity, a

right specifically codified in Section 7 of the Act. The

second is the legitimate interest of a certified repre-

sentative in protecting employees it represents who

have joined together in collective economic activity.

Reasonable rules governing the acquisition or retention

of membership in the union, or resignation therefrom, |

are necessary to protect that interest. These concerns |

are fundamental to the overall scheme of the Act and

are recognized in the proviso to Section 8(b)(1)(A).

Guided by the Supreme Court’s interpretations in |

this area, we find that neither of these interests is abso-

lute. Thus, a union may impose reasonable time restric-

tions on the right of members to resign from the union,

to facilitate the orderly management of its affairs, in-

cluding times when a strike may be imminent or is

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

Union of America, Local 1029, AFL-CIO (International Paper

Box Machine Co.)|, 409 U.S. 213 (1972); Booster Lodge No. 405,

International Association of Machinists and Aerospace Work-

ers, AFL-CIO [Boeing Co.| v. N.L.R.B., 412 U.S. 84 (1978).

10 412 U.S. at 88; 409 U.S. at 217.

—— eae

49a

underway. But, in our judgment, the restrictions

imposed by Respondent here are unreasonable in that

they fail to protect sufficiently the interest of individual

employees and are, therefore, impermissible, and we so

find.

A union’s responsible and operational effectiveness is

a key component of national labor policy and enables it

to better represent the majority of its members in the

collective-bargaining process. A union’s most powerful

economic weapon—the strike, approved by a majority

of its members—is a right embedded in the Act. For a

union to determine effectively whether to exercise its

right to strike against an employer, it must be able to

know with some degree of certainty whether solidarity

amongs its members will be maintained. Indeed, the

Supreme Court in Allis-Chalmers, supra, recognized

that a union’s interest in solidarity constitutes a funda-

mental part of our Federal labor policy. The Court

there noted that:

Integral to this federal labor policy has been the

power in the chosen union to protect against erc-

sion of its status under that policy through reason-

able discipline of members who violate rules and

regulations governing membership. That power is

particularly vital when the members engage in

strikes."

A literal reading of Section 7 might appear to permit

a union member employee to pick and choose among the

union actions he wishes to support without fear of

union-imposed sanctions for refusing to participate in

collective activities of which he does not approve. It is

already settled, however, that Section 7 is not nearly

that sweeping. The Supreme Court’s endorsement of

the proposition in Allis-Chalmers, that a union may

discipline members for crossing a picket line, lays to

11 388 U.S. 175, 181.

50a

rest any claim to an absolute right to refrain from union

activity, and supports our finding that certain limited

restrictions may be imposed on the right to resign from

a union.

It is therefore apparent that a union’s need to reflect

the continuing will of a majority of its members, espe-

cially during a strike, reflects not only a legitimate un-

ion interest but also implements a right inherent in the

statutory scheme of our labor laws. This does not mean,

however, that any rule which furthers this legitimate

union interest can be deemed to be valid and

enforceable.

Although, as Respondent correctly points out, the

proviso to Section 8(b)(1)(A) of the Act leaves it free to

enact rules pertaining to the acquisition and retention

of membership, the Supreme Court has found that “if

the rule invades or frustrates an overriding policy of

the labor laws the rule may not be enforced, even by

fine or expulsion, without violating Section 8(b)(1).”??

That overriding interest is the right of an individual

employee, once having joined a union, to resign from

membership, which may therefore be subject only to a

reasonable time limitation.

Respondent’s rule prohibiting resignations during the

entire course of a strike or within 14 days preceding its

commencement does indeed constitute an intrusion into

an employee’s Section 7 right to resign. Consequently,

we must determine if that rule is a reasonable restric-

tion or whether it impermissibly contravenes other

matters of concern under the national labor policy.!*

12 Scofield, et al. v. N.L.R.B., 394 U.S. 423, 429 (1969).

13 In Member Fanning’s view the issue in these cases is the

right of an employee to exercise his Sec. 7 right to refrain from

collective activity by working during a strike. Union coercion of

an employee in the exercise of that right is, prima facie, a vio-

lation of Sec. 8(b)(1)(A). However, an employee who has joined

a labor organization, enjoys full membership in that organiza-

i erence :

5la

As noted, Section 7 of the Act specifically grants em-

ployees the right to refrain from concerted activities.

This right to refrain, as the Ninth Circuit correctly

points out, encompasses the right of a member to re-

sign from a union having once joined.'!* Further, this

right to resign is not forever and irrevocably lost

merely because an employee chooses to become a union

member.!® On the other hand, the right to resign is not

a right to instantaneously abandon the union and the

fellow members who have determined to exercise col-

lectively their protected right to strike. A union faced

with resignations during a strike maintains a continuing

obligation to represent all employees in the unit, and to

protect the interests of those employees who maintain

their membership in the union and continue to honor

tion, and has agreed not to engage in strikebreaking, may be

disciplined by internal union sanctions for violation of that un-

dertaking. N.L.R.B. v. Allis-Chalmers Manufacturing Co.,

388 U.S. 175. Once the employee lawfully resigns from the

union, the union’s power over him ends. N.L.R.B. v. Granite

State Joint Board, 409 U.S. 218. The significance of member-

ship in this context is simply as a defense to what otherwise

would be a plain unfair labor practice: coercion or restraint of an

employee in the exercise of a Sec. 7 right to work during a

strike. The question is not the legality of restrictions on resig-

nation, but rather whether or not the restrictions are effective

in this context. Thus, in Member Fanning’s view, it is the right

to refrain from collective activity by working despite a

strike—not the “right” to resign-—which must be balanced

against the right of the labor organization and the striking em-

ployees to wage an effective strike.

14608 F.2d 1219, 1221. See also N.L.R.B. v. Martin A.

Gleason, Inc., 534 F.2d 466, 476 (2d Cir. 1976). Member

Fanning does not here endorse the view that there is an inde-

pendent Sec. 7 right to resign from a labor organization; di-

vorced from the employment relation, membership is an inter-

nal union matter.

15 See Local 1384, United Automobile, Aerospace, Agricul-

tural Implement Workers, UAW (Ex-Cell-O Corporation), 227

NLRB 1045, 1050 (1977).

52a

the strike. Thus, important statutory and policy consid-

erations compel us to balance the right to resign against

the legitimate interest of the union, and the majority of

its membership which supports the strike, in main-

taining its effectiveness. We cannot, as the Charging

Parties would have us do, read Section 7 in isolation

from the rest of the Act.

In view of the balancing of interests required, we

turn to the question of whether a union rule may per-

missibly differentiate between strike and nonstrike pe-

riods. The Supreme Court, in Scofield, supra, stated

that union members must be free to leave a union to es-

cape membership conditions that they consider oner-

ous.'® We find nothing in that decision or, indeed, in

any of the subsequent Supreme Court decisions con-

cerning this issue, to suggest that a member’s right to

leave the union and escape the rule could be limited to

periods when a strike is not in progress. Rather, quite

the converse appears true. In Granite State, the Su-

preme Court recognized that there may be circum-

stances under which a member might feel compelled to

resign during a strike:

Events occurring after the calling of a strike may

have unsettling effects, leading a member who

voted to strike to change his mind. The likely dura-

tion of the strike may increase the specter of hard-

ship to his family; the ease with which the em-

ployer replaces the strikers may make the strike

seem less provident. !7

The Court, noting that there were no restraints on a

member’s right to resign in that case, went on to state

that “the vitality of Section 7 requires that the member

be free to refrain in November from the actions he en-

dorsed in May and that his Section 7 rights are not lost

16 See Local Lodge No. 1994, International Association of

Machinists and Aerospace Workers, AFL-CIO (O.K. Tool Com-

pany, Inc.), 215 NLRB 651, 653 (1974).

17 409 U.S. 218, 217.

eee

58a

by a union’s plea for solidarity or 'y its pressures for

conformity and submission to its regime.”?8

Clearly then, the Supreme Court’s remarks in Gran-

ite State, read in conjunction with the Scofield require-

ment that union members must be free to leave the

union and escape the rule, lead inescapably to the con-

clusion that a member’s right to resign from a union

applies both to strike and nonstrike situations.19 We

hold today that a union rule which limits the right of a

union member to resign only to nonstrike periods con-

stitutes an unreasonable restriction on a member’s Sec-

tion 7 right to resign.

In sum, the balancing of competing interests ex-

pressed in the Act has led us to find that the right of

union members to resign is not absolute. A union may

place some reasonable limitation on the right to resign

so long as such rules are applicable during both strike

and nonstrike periods. In assessing the reasonableness

of such rules, we recognize that in a strike context a

union may need to reassess its bargaining strategy, to

adjust its conduct at the bargaining table, and to con-

sider whether to commence, or to continue, a strike in

the face of one or more resignations based on members’

unwillingness to support the strike. Moreover, there

may also be administrative matters associated with the

termination of membership which the union is entitled

to a reasonable period to complete.

Accordingly, in order to vindicate its vital interest in

assessing its strength throughout the course of a Strike,

and to protect those employees who have committed

themselves to exercise their right to strike, we find

that a union is entitled to reasonable notice of the effec-

18 Td. at 217-218.

19 Indeed, the Board in Ex-Cello-O, supra, found unen-

forceable a union rule that, inter alia, accorded no weight to the

competing considerations which might have necessitated the

resignation of members during a strike.

54a

tive date of resignations which occur immediately be-

fore or during a strike.

We realize that what may constitute a reasonable pe-

riod for protecting such institutional interests under

one set of circumstances may be unreasonable under

another. Nonetheless, we find it salutary to set forth a

general rule for the behavior of parties in this area.

Having carefully considered the competing interests in-

volved, we find that a rule which restricts a union mem-

ber’s right to resign for a period not to exceed 30 days

after the tender of such a resignation reflects a reason-

able accommodation between the right of union mem-

bers to resign from the union and return to work, and

the union’s responsibility to protect the interests of em-

ployees who maintain their membership, as well as its

need to dispose of administrative matters arising from

such resignations.?° Such a rule gives clear guidance to

employees and unions alike concerning their respective

responsibilities and further adds stability to the field of

labor relations.?!

20 Obviously, where the member has not been apprised of the

existence of such a rule prior to tendering this resignation, then

the member’s resignation becomes effective immediately rather

than upon the expiration of the 30-day period following such

tender of resignation. See General Teamsters Local 439, Inter-

national Brotherhood of Teamsters, Chauffeurs, Warehouse-

men & Helpers of America (Loomis Courier Service, Inc.), 237

NLRB 220, 223 (1978); Ex-Cell-O Corporation, 227 NLRB at

1048. Further, where the members have been apprised of the

existence of such a rule, the running of the 30-day period before

the resignation becomes effective must be triggered solely by

the member’s notice to the union, and not contingent on any

other obligations.

21 We realize, however, that under extraordinary circum-

stances, a union may need more than the 30 days found reason-

able herein to dispose of the administrative matters arising

from the resignations. In those cases, the Board will determine

whether or not circumstances exist warranting a longer period

of time.

55a

As stated above, the Ninth Circuit found that the

constitutional provision in question here constitutes a

restriction on resignations.22 We conclude that Respon-

dent’s constitutional provision as a restriction on resig-

nations is unenforceable. Thus, Respondent’s rule per-

mits union members to resign only if the resignations

are submitted no later than 14 days preceding the com-

mencement of a strike. However, if a member chose not

to exercise his right to resign or, for whatever reason,

failed to do so prior to the 14-day period preceding the

strike, the member was locked into the strike and pro-

hibited from resigning until the strike ended. Such a

rule is clearly contrary to our finding here and cannot

be enforced. Consequently, Respondent’s attempt to

impose and to enforce fines on the Charging Parties

prusuant to such a rule violates Section 8(b)(1)(A) of the

Act. Accordingly, the Respondent shall be ordered to

comply with the Board’s Order as set forth in the un-

derlying Decision herein.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board hereby orders that the Respondent, Machinists

Local 1327, International Association of Machinists and

Aerospace Workers, AFL-CIO, District Lodge 115,

Burlingame, California. its officers, agents, and repre-

sentatives, shall take the action set forth in the Board’s

Order at 231 NLRB 719, dated August 29, 1977.

Dated, Washington, D.C. September 10, 1982

JOHN H. FANNING, Member

Don A. ZIMMERMAN, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

22 We adopt this finding as law of the case only. See fn. 4,

supra.

56a

CHAIRMAN VAN DE WATER and MEMBER HUNTER,

concurring:

We agree with our colleagues in the majority that

Respondent violated Section 8(b)(1)(A) by its imposition

of fines against employees who resigned their union

membership and returned to work during the strike.

We also agree that Respondent’s constitutional provi-

sion is an unreasonable restriction on the members’

right to resign from the Union. Unlike our colleagues,

however, v’e would not find reasonable a 30-day limita-

tion on the effective date of an employee’s resignation

from a union.?* As set forth below, we believe the

30-day rule promulgated by the majority is an arbitrary

exercise of this Board’s authority that is premised upon

faulty analysis and rationale. The few arguments pre-

sented in support of the rule, in our view, are contrary

to fundamental principles embodied in our Act, incon-

sistent with the teachings of relevant Supreme Court

decisions, and represent a transparent effort to achieve

a legislative result rather than a reasoned legal conclu-

sion. Contrary to our colleagues, we would find any re-

striction imposed upon a union member’s right to resign

to be unreasonable and, therefore, we would find the

imposition of any fines or other discipline premised

upon such restrictions to be violative of Section

8(b)(1)(A).

23 Although our response to the majority is cast in terms of

the majority’s 30-day rule, we note with dismay that the “rule”

is not so precisely contained. Thus, in fn. 21 of its Decision, the

majority states that “extraordinary circumstances” may justify

a restriction of longer than 30 days. Accordingly, despite the

expressed desire for a “salutary” rule that provides “clear guid-

ance,” the majority has constructed a loophole tailor-made for

enterprising litigators that will insure continued litigation and

uncertainty in this area.

————

57a

The starting point for meaningful analysis of the is-

sue presented here is the quartet of cases?4 decided by

the Supreme Court that examine the union’s authority

to enforce its rules against member and nonmember

employees within the confines of Section 8(b)(1) and re-

lated provisions of the Act. A rather simple framework

can be constructed from these holdings: (1) If an em-

ployee is not a full union member, the union may not

enforce its rules against that employee; (2) if an em-

ployee is a full union member the union can, within

specified limits, enforce its reasonable rules against the

employee-member; and (3) if an employee resigns from

the union, the union loses its authority to enforce its

rules against the employee. Simply stated, the question

presented here is whether a union can lawfully enforce

a rule that restricts an employee’s ability to place him-

self into the third category. In other words, can a union

rule be used to compel an employee to remain subject

to union discipline for 30 days beyond the employee’s

expressed desire to sever ties with the union??5

In resolving the issue before us, we believe the ma-

jority has failed to look beyond the Court’s specific

holdings and examine the principles and concepts which

2- N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S.

175 (1967); Scofield, et al. v. N.L.R.B., 394 U.S. 423 (1969);

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

of America, Local 1029, AFL-CIO [International Paper Box

Machine Co.], 409 U.S. 213 (1972); Booster Lodge No. 405, In-

ternational Association of Machinists and Aerospace Workers,

AFL-CIO (Boeing Co.| v. N.L.R.B., 412 U.S. 84 (1973).

25 Concededly, the Court has not specifically passed upon the

precise issue of whether a union may restrict its members’ right

to resign. This does not, however, give rise to what appears to

be a tacit assumption by the majority, i.e., that the Board has

free rein to fashion a rule that satisfies somé personal sense of

equity and balance. Although the actual holdings of the Court

may not bind us here, the principles established in reaching

those holdings cannot be ignored.

58a

led to the particular results. For the Court’s decisions

contain findings and determinations that are clearly ap-

plicable to the issue before us. Indeed, the Court has

established a specific test, largely ignored by the ma-

jority, by which the lawfulness of a union’s enforcement

of :ts rules against members and nonmembers is to be

tested. We believe that a proper application of these

principles and the specific test prescribed by the Court

effectively preclude this Board from sanctioning a rule

that restricts the right of resignation.

In Allis-Chalmers, the Court held that a union could

discipline its full members for returning to work during

a strike. In the simplest terms the Court ruled that a

union’s reasonable enforcement of a legitimate rule

against its full members does not constitute restraint

and coercion within the meaning of Section 8(b)(1).26 In

so ruling, the Court articulated a bright line distinction

between “internal” and “external” union actions with

the former being insulated from the proscriptions of

Section 8(b\(1). The Court defined internal actions as

those applying to full union members pursuant to a

nonarbitrary rule aimed at achieving a legitimate union

26 In its characterization of the Court’s holding, we fear the

majority has confused the Court’s ruling with its own desire to

reach a particular result. Thus, the majority states, “The Su-

preme Court’s endorsement of the proposition in Allis-

Chalmers, that a union may discipline members for crossing a

picket line, lays to rest any claim to an absolute right to refrain

from union activity, and supports our finding that certain lim-

ited restrictions may be imposed on the right to resign from a

union.” In reality, as noted above, the Court held only that such

union discipline of its full members is not restraint and coercion

within the meaning of Sec. 8(b)(1). While this holding may well

mean that a full union member does not have an absolute right

to refrain, without penalty, from concerted or other union activ-

ities, it simply does not necessarily follow that nonmembers do

not enjoy an absolute right to refrain or that once a member

acts to sever ties with the union that his Sec. 7 rights are any

less absolute than if he never had joined the union.

59a

objective.27 External actions, i.e., those proscribed by

Section 8(b)(1), were defined as those aimed at

interfering with an employee’s employment status?® or

at interfering with the rights of nonmembers or em-

ployees outside the bargaining unit.2® Having estab-

lished this distinction, the Court found that the union’s

enforcement of its rules prohibiting the return to work

during a strike against its full members was an internal

matter and, therefore, insulated from the proscriptions

of Section 8(b)(1).

Significantly, for our purposes here, the Court’s es-

tablishment of a dichotomy between “internal” and “ex-

ternal” matters by which it sanctioned union restric-

tions on employee-members returning to work during a

strike was not predicated upon any “balancing” of con-

flicting rights between unions and employees. Nor was

the decision predicated upon a construction of Section

8(b)(1)(A)’s proviso which allows a union to establish

rules for the acquisition or retention of membership. In-

stead, the Court’s ruling was premised upon a detailed

review of the act’s legislative history and an analysis of

the Act’s interrelated provisions. Accordingly, the deci-

sive importance of whether a union action is internal or

external in nature in determining whether enforcement

of a union rule violates Section 8(b)(1)(A) is a concept

embedded in the very fabric of our Act.

The concepts established ir Allis-Chalmers were re-

iterated and expanded in Scofield where the Court

again sanctioned the enforcement of what was deter-

mined to be a legitimate union rule on the basis that it

was an internal union matter.®° In so doing, the court

27 388 U.S. at 195.

28 Tbid.

29 Jd. at fn. 25 and accompanying text.

30 The union rule at issue imposed production ceilings and

provided that union members who exceeded these ceilings

would be subject to fines.

60a

reiterated that a union’s authority to discipline

employee-members is limited to actions that are purely

internal in nature.*! In addition, the Court, for the first

time, precisely articulated the test to be utilized in

* evaluating the lawfulness of attempts to enforce union

rules. Thus, the Court held that:

§ 8(b)(1) leaves a union free to enforce a properly

adopted rule which reflects a legitimate union in-

terest, impairs no policy Congress has embedded in

the labor laws, and is reasonably enforced against

union members who are free to leave the union and

escape the rule.*?

In Granite State,?* the Court confronted a situation

where the union sought to enforce its legitimate rule

“against returning to work during a strike in an external

manner, i.e., against nonmembers. Applying the

Scofield test, the Court found that such efforts violated

Section 8(b)(1)(A). Because, in our view, the Court’s

decision in Granite State effectively undermines the

purported bases for establishing a 30-day limit on resig-

nations, we feel it is necessary to give that decision

more than the cursory treatment provided by the

majority.

In Granite State, the union membership, several

days before the existing collective-bargaining agree-

ment expired, authorized a strike if agreement on a

new contract was not reached by a specific date. No

agreement was reached and a strike commenced. A few

days into the strike the employees met and unani-

mously adopted a resolution which provided that a

member who “aided or abetted the Company during the

strike” would be subject to a fine of up to $2,000. Six

weeks into the strike, two members resigned their

31 394 U.S. at 435-436.

32 Id. U.S. at 430.

33 409 U.S. 213 (1972). F

6la

union membership and returned to work. Beginning 6

months later, 29 members resigned and returned to

work. The union imposed fines against all 31

employees.

The Board held that the fines against all 31 employ-

ees violated Section 8(b)(1)(A).84 The Court of Appeals

for the First Circuit, however, denied enforcement oi

the Board’s Order.** The First Circuit reasoned that,

because the employees had mutually relied upon each

other’s commitment to strike, all employees were

bound to honor the strike under a “mutual subscription”

theory. The court also advanced the theory that a

union’s interest in strike solidarity could be reconciled

with Section 7’s right to refrain by treating an employ-

ee’s agreement to join a strike and impose sanctions for

strikebreaking as a waiver of his or her Section 7 right.

Responding to the Scofield test, the First Circuit ex-

plained that it did not read Scofield as requiring that a

union member be “free to leave the union and escape

the rule” at any time and under all circumstances. Nor

did the court find a deleterious impact on Federal labor

policy, since the court concluded that the employee-

members had waived their Section 7 rights.

In an eight-to-one decision,*® The Supreme Cout re-

versed the First Circuit and found that the fines

imposed violated Section 8(b)(1)(A). In its decision, the

Court began by reiterating the Scofield test and by

again emphasizing the distinction between a union’s in-

ternal and external actions. As for the latter concept,

the Court stated:

34 187 NLRB 636 (1970).

35 446 F.2d 369 (1st Cir. 1971).

36 Chief Justice Burger rendered a concurring opinion which

provided, inter alia, that “where the individual employee has

freely chosen to exercise his legal right to abandon the privi-

leges of union membership, it is not for us to impose the obliga-

tions of continued membership.” 409 U.S. at 218 (Chief Justice

Burger, concurring. )

62a

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 en-

gages in conduct which the union rule proscribes,

the union commits an unfair labor practice when it

seeks enforcement 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.37

The Court then addressed the First Circuit’s conten-

‘ion that the employees had waived their Section 7

rights by the strike vote and the authorization of fines

for strikebreaking, stating: “We give that factor little

weight.”38 In this regard, and also in response to the

lower court’s reliance upon the union’s interest in strike

solidarity, the Court stated:

Events occurring after the calling of a strike may

have unsettling effects, leading a member who

voted to strike to change his mind. The likely dura-

tion of the strike may increase the specter of hard-

ship to his family; the ease with which the em-

ployer replaces the strikers may make the strike

seem less provident.... |WJe concude that the vi-

tality of § 7 requires that the member be free to

refrain in November from the actions he endorsed

in May and that his § 7 rights are not lost by a un-

ion’s plea for solidarity or by its pressures for con-

formitu and submission to its regime. [409 U.S. at

217-218. Emphasis supplied. |°®

37 409 U.S. at 217.

™

39 The oft-quoted “May to November” change-of-mind period

is somewhat inaccurate inasmuch as two of the fined employees

resigned within 6 weeks of the strike’s commencement and the

fines against them were found violative of Sec. 8(b)(1)(A).

63a

Finally, in Booster Lodge,*° a unanimous Court*!

found that the union violated the Act by fining employ-

ees who returned to work after resigning their mem-

bership. In large part, the Court simply applied its past

decisions in this area. Of significance, however, is the

Court’s disposal of the union’s claim that its rule had

been consistently interpreted to bind an employee to a

strike notwithstanding his resignation. After noting

that no such interpretation had been found by the

Board and the court of appeals, the Court stated:

But we are no more disposed to find an implied

post-resignation commitment from the

strikebreaking proscription in the Union’s constitu-

tion here than we were to find it from the employ-

ees’ participation in the strike vote and ratification

of penalties in [Granite State]. [412 U.S. at 89. |

From the foregoing, it is plain that there are certain

fundamental principles that must be applied in

evaluating a union rule restricting an employee-

member’s right to resign for a 30-day (or any other)

time period. First, the rule must be nonarbitrary and

aimed at advancing a legitimate union interest. Second,

there is inherent in the very fabric of our Act a bright

line distinction between internal and external union ac-

tions. So long as the union action is wholly internal in

nature, it may be lawful. When its reach become exter-

nal, it runs afoul of Section 8(b)(1)(A). Third, a union

rule can survive scrutiny only if it does not impair a pol-

icy Congress has embedded in the labor laws. Fourth,

union rules that have been found lawful in the past have

contained the implicit safeguard which provides that

the rule must be reasonably enforced against union

members who are free to leave the union and escape

the rule. Finaliy, once an employee becomes a union

member, he cannot be bound forever to the rules and

40 412 U.S. 84 (1973).

41 Justice Blackmun, who was the lone dissenter in Granite

State, rendered a concurring opinion.

64a

coercive force of the union, but must be allowed to

change his mind based upon subsequent developments.

We contend that, when measured against these stand-

ards, the 30-day rule espoused by our colleagues must

fall.

Unfortunately, however, before proceeding to what

we deem to be the appropriate analysis, we are com-

pelled to respond to the majority on its own terms be-

cause so many of the fundamental concepts enumerated

above are ignored by our colleagues. Instead of a mean-

ingful legal analysis, the majority presents what

amounts to a seemingly self-evident syllogism which

goes as follows: (1) employees have a Section 7 right to

refrain from concerted activities; (2) unions have a le-

gitimate interest in maintaining strike solidarity and

protecting the interests of employees who honor a

strike decision; (3) neither the employees’ rights nor the

union’s interests are absolute; (4) if the Board selects a

time period for restricting resignations, the conflicting

interests will be accommodated and justice will be

served. As is often the case with syllogistic arguments,

the conclusion only follows if all the premises are cor-

rect. We respectfully submit that some of our col-

leagues’ premises are fatally flawed and that purported

“balancing” is little more than a preemptive striking of

a compromise best left in the legislative arena.

Clearly, we agree with the first premise. The text of

Section 7, by its very terms, grants employees the

right to refrian from union and other concerted activi-

ties.4 Nor can there be serious quarrel with the prem-

42 Specifically, two related Sec. 7 rights are involved

here—the right to resign membership in a union, and the right

to return to work during a strike. Booster Lodge, supra, 412

U.S. at 87-88; Granite State, supra, 409 U.S. at 217-218;

N.L.R.B. v. Machinists Local 1327, International Association

of Machinists and Aerospace Workers, AFL-CIO, District

Lodge 115 |Dalmo Victor], 608 F.2d 1219, 1221 (9th Cir. 1979);

N.L.R.B. v. International Association of Machinists and

65a

ise that unions have a legitimate interest in maintaining

strike solidarity and protecting the interests of striking

employees.

The third premise is another matter, however, since

there we find a fundamental flaw in the majority’s anal-

ysis. For when our colleagues adopt the proposition

that neither the employee rights at issue nor the union

interests being advanced are absolute, they implicitly

equate the express Section 7 rights of employees with a

union’s institutional interest in strike solidarity,

thereby setting the stage for their purported “balanc-

ing” of “conflicting interests.” Yet, such an equation ig-

nores the fact that it is not the mere existence of con-

flict between labor disputants that mandates and

justifies an “accommodation” or “balancing.” Instead,

the substantial diminution of express statutory rights is

warranted only when the statutory right collides with a

corresponding right of relatively equal import and legal

significance.42 We contend most strongly that the ex-

Aerospace Workers, Merritt Graham Lodge No. 1871 |General

Dynamics Corp.|, 575 F.2d 54, 55 (2d Cir. 1978).

The preservation of employee freedom in this sphere is also

manifested in Sec. 8(b)(2) and the second proviso to Sec. 8(a)(3).

For those provisions work to insure that no employee can be

compelled to become a full union member, thereby leaving an

employee who so chooses free to refrain from union or other

concerted activities. N.L.R.B. v. General Motors Corp., 373

U.S. 734, 742 (1963): ‘“Membership’ as a condition of employ-

ment is whittled down to its financial core.” Thus, the Board has

held, with court approval, that a union violates Sec. 8(b)(1)(A)

when it refuses to accept the resignations of employees on the

ground that full membership is a condition of employment.

United Stanford Employees, Local 680, Service Employees In-

ternational Union, AFL-CIO (The Leland Stanford Junior Uni-

versity), 2832 NLRB 326 (1977), enfd. 602 F.2d 980 (9th Cir.

1979).

43 There are, of course, rights of sufficient import and signifi-

cance to justify the imposition of some limitations on employees’

Sec. 7 rights. See, e.g., N.L.R.B. v. The Babcock & Wilcox

Company, 351 U.S. 105 (1956), which strikes a balance between

66a

press Section 7 rights of employees are surely more

than mere “interests” subject to limitation because

their operation somehow impinges upon the institu-

tional desires of a union. Conversely, a union’s institu-

tional interests, to our knowledge, have never been ele-

vated to the point where they stand on equal footing

with, and, indeed, override and negate the fundamental

protections of Section 7. Thus, under the banner of

“balancing,” our colleagues negate for 30 days the ex-

press employee protections afforded by one of the Act’s

most important provisions. One can only wonder what

other rights granted by the Act will be diminished or

eliminated upon the majority’s discovery that they too

conflict with a “legitimate interest” of a union or an em-

ployer. In short, by equating institutional “interests”

with statutory “rights” and utilizing the existence of

“conflict” between disputants to justify reduction of the

Act’s protections, we respectfully submit that our col-

leagues are engaging in legislating rather than inter-

preting our Act’s intent and objectives. This they may

not. do.

Even granting the premise that employees’ statutory

rights and the union’s institutional interests are subject

to balancing and mutual accommodation, we suggest

that the majority’s rule does not give sufficient consid-

eration to all of the relevant circumstances. Thus, it

seems to us that the majority underplays the signifi-

cance of the practical realities facing an employee in a

strike situation that the Court enumerated in Granite

State in support of the concept that a union member

must “be free to refrain in Novembr from actions en-

dorsed in May.”44 Indeed, as noted in footnote 39,

supra, this period is more accurately one of 6 weeks.

For nowhere in the majority opinion is there any mean-

ingful attempt to explain why a member would not be

employees’ Sec. 7 rights and the property rights of individuals

that are grounded in Common Law and the Constitution.

44 409 U.S. at 217-218.

AROS Degman Pm

67a

free to refrain from an action he agreed to 30 days

earlier but is free to do after 42 days.* Nor does the

majority appear to take into account the Court’s con-

cern for an employee who initially supports the strike

but later undergoes a change of mind because of family

hardship or the relative ease with which the employer

is able to secure permanent replacements.** Again, if

we are to balance employee rights against union inter-

ests, substantially more consideration of the dilemma

faced by an employee who cannot continue to adhere to

a strike without placing himself and his family in dire fi-

nancial straits is surely required.4?

45 Indeed, apart from stating the need for a “salutary” rule

that eliminates confusion, we are at a total loss in perceiving the

significance of 30 days as a benchmark. Why is 10 days too short

a period? Why is 31 days too long? We would hope that our col-

leagues have some nonarbitrary basis for the selection of this

time period. For if they do not, their action is nothing more

than an arbitrary act of legislative compromise.

46 It should not be forgotten that an employer can and often

does hire replacements immediately after a strike commences.

While a 30-day waiting period, enforceable by substantial fines,

may appear to some to be “reasonable,” the real life dilemma

created for an employee subjected to the rule is that his job may

well be long gone by the time he is able to take any meaningful

steps to retain it.

47 When viewed in the context of the potentially severe hard-

ships visited on employees who are precluded from refraining

from a strike for 30 days, one questions the majority’s willing-

ness to adhere to the Court’s admonition that, in balancing con-

flicting rights, any accommodation must be achieved “with as

little destruction of one as is consistent with the maintenance of

the other.” Babcock & Wilcox, supra at 112. Surely a union is

vested with sufficient lawful means of persuasion and peer pres-

sure to preserve strike solidarity without requiring suspension

of the Act’s fundamental protections. In fact, if a union is unable

to preserve strike solidarity through less restrictive means than

sanctions that override the Act’s protections, perhaps it should

reconsider its decision to strike in the first place.

68a

Apart from the fact that the 30-day rule fails in its

own “balancing” premise, it also fails to withstand scru-

tiny under the relevant Court decisions discussed

above. Initially, in this regard, it is clear that, by

promulgating a 30-day restriction on resignations, this

Board is seeking to redefine the internal/external di-

chotomy which the Supreme Court has found to be

embedded in our Act’s very fabric. As discussed in de-

tail above, the Court has consistently interpreted the

Act and its underlying purposes to prohibit a union

from exercising its coercive power in external matters.

A primary basis for defining external versus internal

matters has been the fact of the employee’s union mem-

bership. Yet, by allowing a union to compel an em-

ployee to remain a member subject to the union’s rules

and authority for 30 days beyond an expressed desire to

resign, the majority has effectively altered the

internal/external distinction which Congress has so

carefully embedded in the Act. And the majority has

accomplished this end by creating the fiction of contin-

ued full membership.*® Thus, unions will be able to ex-

pand substantially their domain of authority and to reg-

ulate conduct heretofore beyond its control merely by

adopting a “rule” that establishes a facade of full mem-

bership for 30 days. In other words, by a mere conven-

48 It bears emphasis that this fiction of continued membership

arises not out of the employees’ expressed desires or the practi-

cal realities of the situation but, instead, is the creation of a

union rule. Thus, a boilerplate provision in a union’s constitu-

tion or bylaws that can be adopted and operate in an inflexible

manner, oblivious to the circumstances facing the member in a

strike situation, can serve to circumscrvibe dramatically an em-

ployee’s statutory rights and potential economic livelihood.

Such “agreements” that result from union membership have ac-

curately been termed contracts of adhesion. See Summers, Le-

gal Limitations on Union Discipline, 64 Harv. L. Rev. 1049;

Gould, Some Limitations Upon Union Discipline Under the

NLRA: The Radiation of Allis-Chalmers, 1970 Duke L.J. 1137

(1970).

i ls Seti Nae an ARS dros ma bi ee a

69a

tion vote, a union can transform a plainly external ac-

tion into an internal one and thereby insulate itself from

the intended scope and objectives of the Act.*9

The 30-day rule also fails to pass muster under the

Scofield test, reiterated in Granite State and Booster

Lodge. Under that test, a union rule must (1) serve a

legitimate union interest; (2) impair no policy Congress

has embedded in the labor laws; and (3) leave members

free to leave the union and escape the rule. We respect-

fully submit that to the extent the majority opinion

even seeks to apply this test, it, once again, confuses

the applicable concepts and distorts the appropriate

analysis.

Plainly, a union’s interest in maintaining strike soli-

darity is a legitimate one that satisfies the first part of

the Scofield test. As for the second part of the test,

however, the 30-day rule runs directly afoul of at least

three policies Congress has embedded in the labor laws,

i.e., the right of employees to refrain from

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