Memorandum — Boeing Co. v. National Labor Relations Board

_—_

Ju the Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-1417

BoosteR LODGE No. 405, INTERNATIONAL ASSOCIA-

TION OF MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

and THE BoEING COMPANY

No. 71-1563

THE BOEING COMPANY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

and

BoosTER LODGE No. 405, INTERNATIONAL ASSOCIA-

TION OF MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR

THE NATIONAL LABOR RELATIONS BOARD

(1)

2

These two petitions seek review of the same judg-

ment of the court of appeals of which the Board has

sought review by its petition in National Labor Re-

lations Board v. The Boeing Company, No. 71-1607.

The court of appeals upheld the Board’s rulings (1)

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

National Labor Relations Act by fining employees

who, following their resignations from the Union

during a strike, returned to work and (2) that the

Union did not violate that section by fining members

who returned to work during the strike either with-

out or before resigning. The court held, however,

that, contrary to the Board’s ruling, the agency was

required itself to determine, before it could uphold

the Union fines, whether they were reasonable. The

latter ruling is the subject of the Board’s petition in

No. 71-1607.

1. The Union’s Petition. The Union’s petition

(No. 71-1417) challenges the rulings that the fines

imposed for returning to work after resignation were

unlawful and that the Board is required to deter-

mine the reasonableness of the fines. The former

issue is the same as that on which the Court granted

the Board’s petition for certiorari in National Labor

Relations Board v. Granite State Joint Board on

March 20, 1972 (No. 71-711), and the decision of

the court of appeals on this point conflicts with that

of the First Circuit in Granite State (446 F. 2d 369).

The latter issue is the one on which the Board itself

has petitioned. Accordingly, the Board does not op-

pose the petition in No. 71-1417.

3

2. The Company’s Petition. The Company urges

this Court to reexamine and overrule National Labor

Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S.

175, which held that a union’s fining of ee

who crossed a union picket line during a strike does

not violate Section 8(b)(1)(A). This Court, how-

ever, reaffirmed the rationale of Allis-Chalmers as

recently as 1969 (Scofield v. National Labor Rela-

tions Board, 394 U.S. 423), and the Company points

to nothing that warrants re-examination of Allis-

Chalmers. Accordingly, the Company’s petition (No.

71-1563) should be denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

PETER G. NASH,

General Counsel,

National Labor Relations Board.

JUNE 1972.

® o.s. GOVERNMENT PRINTING OFFICE; 1972 469300 849