# Petition for Writ of Certiorari — National Labor Relations Board v. Machinists Local 1327, International Ass'n of Machinists & Aerospace Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0080%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 1032 ## Text 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 Vw / - --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) II 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. ae 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) IV 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 v. 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) 2 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. 3 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 4 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 5 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. 6 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). 7 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. 8 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. 9 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). 10 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). 11 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). 12 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). 13 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. 14 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). 15 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 la 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, v. 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, v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT, and ROBERT C. FERGUSON, INTERVENOR. 2a 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. 3a 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. 4a 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. 5a 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. 6a 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. Ta 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) 8a 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- 9a 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. a 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. (c) Mail to the Regional Director for Region 20 signed 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- a 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 ee 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 refrai [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0080%3A1. Public record. Not legal advice.