Memorandum — NLRB v. Textile Workers

Supreme Court brief1972

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je Supreme Court of the United States

Bet OcTOBER TERM, 1971

No. 71-711

FIONAL LABOR RELATIONS BOARD, PETITIONER

a . BOARD, TEXTILE WORKERS

INION OF AMERICA, Local. 1029, AFL-CIO

PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR

ei THE FIRST CIRCUIT

'SUPPLEMENTAL MEMORANDUM FOR THE

_ NATIONAL LABOR RELATIONS BOARD

Lodge No. 405, IAM v. National Labor Re-

n Board, which was then pending before the

of Appeals for the District of Columbia Cir-

(Pet. 12, 5). On February 3, 1972, the court

~ 1

(1)

| 2 ?

of appeals handed down its decision in that case

The court’s opinion is set forth in the appendix here-

to.

Respectfully submitted.

APPENDIX

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24,687

_ Boosrzr Lopoe No. 405, InrERNaTIowaL ASSOCIATION OF

Macuinists anp Arrospace Workers, AFL-CIO, perrriower

— Narroxal. LABOR RELATIONS BoarbD, RESPONDENT

Te Boxixd Company, INTERVENOR

No. 24,744

Tae Bono Company, PETITIONER

Narroxal. Laon RxLATrioxs BoaRD, RESPONDENT

Booster Lopcr No. 405, IxTRnNATIONAI. ASSOCIATION OF

— Macumsts anv Aznospace Worxess, AFL-CIO, mvrervenor

Petitions for Review and Cross-Application for Enforcement

bol Order of the National Labor Relations Board

Decided February 3, 1972

Before MacKrswow and Wuxzyr, Circuit Judges, and

Gouszzr,° Senter District Judge for the Western District of

Pennayivania, .

MacKnrwox,. Circuit Jule: In this case, we are called

upon to examine the right of a labor organization, consonant

with the provisions of the National Labor Relations Act

(N.L.R.A.), to discipline those members who have crossed

its picket line to work during an authorized strike. We must

determine the effect which a member’s resignation from the

union, before, during, or after such conduct, has upon the

union’s disciplinary authority. We are also requested to con-

sider the legal implications of the ‘‘reasonableness’’ of the

fines imposed, where the union has threatened enforcement

thereof, or has actually sought collection through legal

tive bargaining agreement which was effective from May 16,

1963, through September 15, 1965." Upon the expiration of

; a ba designation purmant to 28 USC. ad

23 cilia: 0 sacs ole. Shek egeemn

Booster Lodge No. 405 was not yet in existence. Boeing's

ee ee eee

e contract, the Union commenced a lawful strike against

Being at its Michoud plant, as well as at various other loca-

tions, This work stoppage lasted 18 days. On October 2, 1965,

new bargaining agreement was signed, and the economic

kers returned to work the following day. Both the expired

t and the newly executed contract contained main-

ance-of-membership clauses, which required all new em-

ees to notify both the Union and the Company within 40

ys of their acceptance of employment if they elected not

become Union members. It also required those who were

n members to retain their membership during the con-

During the strike period, approximately 143 employees, of

“the 1900 production and maintenance employees represented

by the Union at the Michoud plant, crossed the picket line

aud reported to work. All of these persons had been Union

Members during the 1963-1965 contract period. Some of the

ployees who worked during the strike made no attempt

design from the Union during the strike. The remaining

submitted their voluntary resignations, in writing, to

both the Union and the Company. About 61 of the employees

‘Who resigned did so before they crossed the picket line and

turned to work. Another 58 resigned during the course of

he st but after they had crossed the picket line in order

te work. All resignations were submitted after the expiration

of the 1963-1965 contract, and before the execution of the

‘Rew agreement, and all were submitted prior to the imposi-

of any Union discipliné. Union members had not been

warned prior to the strike that disciplinary measures could,

or would, be taken against those who crossed the picket line

to work, nor had any such discipline been imposed on men-

ders by Booster Lodge 405 prior to this tima.

In late October or early November of 1965, the Union noti-

fied all members and former members who had crossed the

stitution, for ‘Improper Conduct of a Member’? due to their

having ‘‘accept[ed] employment. . . in an establishment

where a a strike exist{ed].’* They were advised of the dates

ber of the International Assogiation of Machinists and Aero-

space Workers. Pursuant to the International Union Consti-

tution provision which permitted the imposition of disci-

plinary measures, including ‘‘reprimand, fine, suspension, or

expulsion from membership, or any lesser penalty or combi-

nation,’’ where a member had been found guilty of miscon-

duct after notice and a hearing, fines were imposed on all

employees who had worked during the strike. No distinction

was drawn between those persons who had resigned from

the Union during the course of the strike and those who had

remained Union members.

Employees who did not appear for trial before the Union

Trial Committee and those who appeared but were found

guilty were fined $450.00 each, the amount determined by the

membership, and they were barred from holding a Union

office for a period of 5 years. The fines of about 35 employees

who appeared for trial, apologized, and pledged loyalty to

the Union, were reduced to 50 percent of the earnings they

VVV

%% „„

$2.38 and $8.68 per hour, or between $96 and $145 per 40-hour

. during which these persons were prohibited from

he Union office was decreased to a period based upon

te number of days of strikebreaking activity each respec-

” tive person had engaged in. None of the disciplined indi-

A als processed intra-Union appeals. ;

Along none of the $450.00 fines has been paid, reduced

on February 18, 1966, the Company filed a charge with the

NI ., alleging that the Union had violated Section 8(b)

Y of the N. L. R. A.., and a complaint was issued by the

sd. § 158(b) (1) (A) (1970), which provides:

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

USC. f 17 (1970) provides:

otherwise legal fines may be rendered violative of the

N.L.B.A. if unreasonably large. A cease and desist order

was issued, and the Union was ordered to refund any fines

collected from employees who had resigned before returning

Booster Lodge 405 challenges the Board’s conclusion that

a mid-strike resignation from a union relieves an individual

agreement

ration 188 (0) (8) of this title,

rt I of this opinion discusses the legality of the imposi-

m of the disciplinary fines by the Union in response to the

rikebreaking by the approximately 143 employees involved.

itt II considers the effect the reasonableness of the fines

upon their propriety under the N L. R. A., and the proper

tion of the N. L. R. B. in this area. Finally, Part III deals

th the propriety of the Board 's remedial order.

The Legality of the Disciplinary Fines

As early as 1954, in Minneapolis Star and Tribune Co.,

99 NLRB 727 1954), the Labor Board held that a union

not violate Section 8(b)(1)(A) of the Act by i

ring the course of an authorized strike. The Board de-

red that the proviso to 8(b)(1)(A)* precluded any inter-

rence by it with the internal affairs of a labor organization

such a situation. In V. L. R. B. „. Allis- Chalmers Manufac-

ring Co., 388 U.S. 175 (1967), a divided Supreme Court

hilarly determined that a union did not violate the N. L. R. A.

hen it imposed, and attempted to enforce through court ac-

n, reasonable fines against members for their failure to

mor an authorized picket line. Instead of relying upon the

press language of the provis6, however, the Supreme Court

a ally analyzed the entire legislative history of Section

Ab) (i) (A), and it concluded that Congress did not intend

“40 prohibit such internal union discipline by the prohibition

* eee N or ‘‘coercion.’’ Zee 388 U. S. at 183-195,

aps is

i :

215 ll

biti

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17 4h ff 33151 ge,

1355 i ate 11

8 1 7235 HEE 183

„ depeeegize 1151 i

1 fe ire 142

Bult 11 EH 1151

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11 al ttt 2211

i rule which reflects a legitimate union interest, im-

pairs no statutory labor policy, and is reasonably enforced

einst union members. See V. L. H. . „. Marine Workers,

.S. 418, 423 (1968). See also Rocket Freight Lines Co. v.

LR. B., 427 F.2d 202, 205-206 (10th Cir.), cert. denied, 400

g 942 (1970); Silard, Labor Board Regulation of Union

scipline After Allis-Chalmers, Marine Workers and Sco-

id, 38 Gro. Wasu. L. Rev. 187 (1969). In light of these de-

lopments,’ it is clear that the Union acted within the sphere

its lawful authority when it decided to impose fines on the

Pras.

5 fag * We

1 1

ployees who resigned from the Union during the strike pe-

ne Company has asked this court to overrule Allis.

/ Chalmers in order to force reconsideration of the union dis-

une area by the Supreme Court, but that is not our fune-

, fon. We recognize that “the Supreme Court should retain the

/ @xelusive privilege of overruling its own decisions, save per-

haps. when opinions already delivered have created a near

tertainty that only the occasion is needed for pronouncement

E the doom.” Salerno v. American League of Professiqnal

ball Clubs, 429 F.2d 1008, 1005 (2nd Cir. 1970), ‘cert.

emed, 400 U.S. 1001 (1971). In light of Scofield and Marine

) Workers, any argument for such reconsideration must be ad-

Mressed to the Supreme Court itself. See U. S. Gypsum Co. v.

workers, 384 F.2d 88, 42-44 (5th Cir. 1967), cert. denied,

1889 U.S. 1042 (1968) ; United States v. Ullman, 221 F. ad 760,

de (2nd Cir. 1955), affd., 350 U.S. 422 (1966).

*See Part II. infra, regarding the effect of the “reasonable-

be of the fines imposed on their legality under § 8 (b) (i)

B. The Employees Who Did Resign

As the Supreme Court recognized in Allis-Chalmers, when

Section 8(b)(1)(A) was enacted, Congress was operating

. elle hue “aay 8 Hoa ae

prevailed at that time.”

NL. R. B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 192.

See International Association of Machinists v. Goneales, 356

U.S. 617, 618 (1958). Under this theory union membership

was deemed in effect to create a ‘‘contract’’ between the labor

organization and the imposed certain obliga-

tions on the member, and the

"In Allie-Chalmers, all of the persons disciplined by the

status. Thus

recognized this indispensable prerequisite in Scofield, 145

NLEB 1097, 1104 (1964), where it noted that „a] union

rule that a member is subject to a fine if he [violates a valid

union rule] does not mean that he is subject to such a fine

e an employee. (emphasis in original) This membership

requirement for union disciplinary authority was affirmed

by the Supreme Court in Scofield v. V. L. R. B., 394 U.S. 423,

4 n. 5: g

is As an employee, [an individual may. be a ‘‘good,

or indifferent’ Ct so long — the 1

obligations of the union security contract. * * But

a d union member, so long as he chooses to remain one,

de is subject to union discipline. (emphasis supplied)

See 394 U.S. at 435. Thus the Court recognized that union

members.. are free to leave the union and escape the

lumion] rule. Id. at 430. It is therefore apparent that

Booster Lodge 405 only had the authority to discipline those

employees who were in fact Union members at the time they

engaged in the complained of activity.

_. Approximately 58 of the employees who worked during the

strike submitted their resignations to the Union after they

No employee is subject to union rules if he chooses

do forego the privileges and duties of union membership.”

"Rev. 187, 190 (1969). See International Association of Ma-

cChinists and Aerospace Workers, Local Lodge 504, 185 NLRB

+ No. 22, 75 LRRM 1008, ( 1970).,Since unions are only author-

wed to impose discipline where legitimate internal affairs

tre concerned, N. L. R. B. v. Allis- Chalmers Mfg. Co., supra;

Scofield v. N. L. R. B., supra; N. L. R. B. v. Marine Workers, 391

8. 418, 424 (1968) ; Local 188, International Union of Oper-

Engineers, 148 NLRB 679, 682 (1964), it is clear that

y effort to fine non-members would constitute an attempt to

ect external activities, an area in which Congress did not

a to permit such union regulation. This was correctly

nized by the N. L. R. B. in this case.

ee proscribed by the

International D

cussion. regarding union authority over action undertaken

by full members, we must concur in the Board’s determina-

negated the authority of the Union over these persons with

respect to these acts, as the N.L.R.B. properly recognized.

Booster Lodge No. 405, International Association of Ma-

chinists and Aerospace Workers, AFL-CIO, 185 NLRB No.

23, 1970 OCH NLREB { 22,259, at p. 28,693 (1970).

d. Finés Imposed for Post-resignation Conduct

755 An extremely difficult question is presented with respect

to the fines which were imposed upon employees for their

™ A resignation acts to terminate the existing relationship

ation. See GA Con, Contracts § 1229, pp. 508-510

_ pest-resignation conduct. Booster Lodge 405 has made a

sophisticated argument which would expose persons who

Vers members at the commencement of a particular strike

t union discipline with respect to any strikebreaking action

_. «ndertaken during that specific work stoppage. Although it

ebnosdes that such a restriction is not contained in any of

_ the express language of the International Union Constitution

or By-laws, the Union urges this court to ‘‘flesh out’’ such

documents by imposing such an obligation by implication.

We must decline this invitation.

It must be emphasized that in situations like this, while

_ “the function of the court is o determine, as far as is pos-

“sible, the intention of the contracting parties and to give

gal effect thereto, ™ it is generally recognized that courts

Wil not usually imply offenses not specified in a union’s

99 Constitution or by-laws." We believe. that this latter con-

a is controlling with respect to the instant case. As

the Union recognizes, there is nothing in the record which

~ evidences any intention on the part of the approximately 119

who resigned during the strike in question that their

acceptance of Union inembership would impose upon

ats the type of continuing obligation which Booster Lodge

~ 405 now asks this court to impose. Furthermore, the vory fact

that they resigned during this period, in an obvious attempt

do escape the disciplinary authority of the Union, belies this

_ Proposed line of reasoning.

would, of course, include the approximately 61“ fer-

resigned from the Union before engaging in any

ting activity, as well as the 58 persons discussed

ily, who resigned during the period of their strike-

1 Corsin, Contracts § 95, p. 896 (1968).

Summers, Legal Limitations on Union Discipline, 64

anv. L. REV. 1049, 1069-1061 (1951), and see cases cited

In addition, an extremely important national labor policy

militates against the imposition of such an implied obligation.

neee ee ee ee

post-resigna’

expressly Fe otherwise. The Supreme Court

the right of a union to enforce a properly

rule which reflects a legitimate union interest, im-

no Congress has imbedded in the labor laws,

reasonably enforced against union members who are

¢ the union and escape the rule. Scofield v.

„ supra, 394 U.S. at 430 (emphasis su om As the

concluded below, after resigna ‘*TbJoth

du let and the union's corre ding

e eee Heeech, of thet duty are xtin-

”? Booster Lodge No. 405, International Association

of . ser and Aerospace Workers, AFL-CIO, supra,

1970 CCH NLRB { 22,259, at p. 28,692.

The Union has relied heavily upon the First Circuit's

holding in V. L. R. B. v. Granite State Joint Board, Textile

Workers Union, Local 1029, 446 F. 2d 369 (1st Cir. 1971),

but we believe that the decision is inapposite to the present

fact situation. Although the court in Granite State upheld

the right of the union involved to impose fines on strike-

breakers for post-resignation activity, it emphasized that a

specific set of facts. was present which it believed rendered

such u result equitable, and it specifically recognized that

these considerations were not present with respect to the

iff

. “29 U.S.C. § 157 (1970). See n. 4, supra.

5 15

" instant Booster Lodge 405 dase. - In Granite State, the Board

_ gonoeded that all of the fined employees had voted in favor

adhs strike in question." It is also important to note that

_ the fines had not been imposed pursuant to a general provi-

don in the union constitution, as here, but rather in accord-

" Mously adopted by the membership after the work stoppage

om See 446 F. ad at 370, 372 n. 5. Furthermore, all

Of those who were disciplined in Granite State had been

ax _pre-warned of possible punishment for strike-

_ tationale of Granite State to the instant factual situation.”

We strong equities which weighed in favor of the union

_ there, are clearly not present here. In fact, their very absence

| powerfully supports the result which we have accepted.

d resign at will, subject only to their being bound by any

permissible collective bargaining agreement provision limit-

ing this right. Local Union 621, United Rubber, Cork, Lino.

Teum and Plastic Workers of America, 167 NLRB 610

(1967) ; Communications Workers v. NL. R. B., 215 F.2d 835

( Cir. 1954) ; N.L.R.B. v. Mechanical and Allied Produc.

% Ses 446 F.2d at 872 u. 5, wherein the First Circuit’ dis-

446 F.2d at 870 n. 2 In the present case, there is no evi.

e that the disciplined strikebreakera voted. to. strike.

1157

8(b)(

[to §

its

the

1115

Warten HERD, ep, Fda 8

make

—

1711

“correctly determined that the Uni

on’s right to

discipline employees terminated upon the employees’ sub-

116 0

9 pais

mission of their letters of resignation [, thus t]he attempted

imposition of discipline for subsequent conduct was beyond

the: powers of the Union.’’ Booster Lodge No. 405, Inter-

_ national Association of Machinists and Aerospace

Kolo, supra, 1970 CCH NLRB ¢ 22,259,

We therefore affirm the Board’s finding

_ Isted Section 8(b)(1)(A) of the N.LRB.A. by imposing fines

tening or attempting enforce-

NLRB 804 (1

Systems Co., 311 F.2d 782,

. bpb... NA SE Rae ee SO ee ee

TO HEHE

See N. L. R. B. v. Marine Workers,

District 50, Local 12419, 176 NLRB

No. 89, 71 LRBM 1311 (1969); Local 138, International

Union: of Operating Engineers, AFL-CIO, 148 NLRB 679

128, 178 NLRB 208, 72 LRRM 1049 (1969), enfd., 442

F. ad 92 (7th Cir..1971).” Wo thus grant enforcement of the

ith.

12 710

N. LAB. cease and desist order so far as it concerns the

imposition.of fines for post- rosiguation conduct.”

(1964). See also International Molders and Allied Workers

ing of Section Sb) (I) (A).

391 US. 458 (1068) ;

Loon

_ The Board’s Duty to Determine the Reasonableness of Fines

In its decision below, the N. L. R. B. relied upon a com-

panion case, International Association of Machinists and

Aerospace Workers, Local 504 [Arrow Development Co.],

_ 185 NLBB No. 22, 75 LRRM 1008 (1970),* in concluding

that a fine’s ‘‘reasonableness”’ has no effect upon its legality

mier the N.L. R. A. This conclusion was based upon the

Board's belief that Congress did not intend ta empower the

Labor Board with the authority to examine severity of

union discipline when ascertaining its legality, and it indi-

_ ¢ated that it thonght that local courts were the most logical

~ tribunals for the establishment of standards of reasonable-

ness. The Board therefore refused to examine the question

ek reasonableness in the present case, despite an express

determination by the Trial Examiner that the imposed fines

vero impermissibly excessive. We reject the position of the

Board.“ and remand the case for further proceedings in

_ tonformity with the views set out below.”

‘tthe

1501 HEE

3 13

. 2 388 US. at 191-192

ah. supplied).” This implicity recognised that, for a

of the fines imposed, due

the

that they have not exhausted all availabie internal

a remain, wo reject tie contention. An individual eo

The Board’s belief that it does not have the obligation

1115

„FFC

NA v, Allie-Chalmers Mfg. Co., supra, 388 U.S. at 183

na >

11 iy 1

| Misciplinary fine to be less coercive than expulsion from the

~gnion, the fine imposed must be a reasonable one, for it is

intuitively obvious that enforcement of a grossly excessive

~ fine might visit a far greater burden upon an individual

: ban would mete expulsion.” The Supreme Court also ex-

at ie

_ Pressly recognized this fact in its recent Scofield decision,

wherein it concluded that the enforcement of a proper union

rule by reasonable fines does not constitute the restraint or

- Soercion proscribed by 68b) (1) (A). Scofield v. V. L. R. B.,

bdupr Us

rule, duly adopted and not the arbitrary fiat of a union of-

oer, forbidding the erossing of a picket line during a strike

lis] . . . enforceable against voluntary union members by

_ @xpulsion or a reasonable fine.” 394 U.S. at 428 (emphasis

~ Supplied). In light of the Court’s emphasis on the require-

went of reasonable fines” if a union is to avoid a violation

5 “ot the Act in these circumstances, we must conclude that the

~ imposition of an unreasonably large fine, at least where the

mion threatens or actually attempts court enforcement of

We recognize that ‘state courts have been adjudicating

internal union disputes for more than 60 years.’’ Summers,

The Law of Union Discipline: What the Courts Do in Fact,

70 1a . 175 (1960). We further acknowledge the fact

**the state courts, in reviewing the imposition of union

discipline, find ways to strike down ‘discipline [which] in-

volves a severe [monetary] hardship.’ ’’** However,

" gonsiderations do not relieve the NLRB. of its duties under

not permit enforcement of excessive fines in a collection

m by the union, does not detract from their coerciveness,

the need for N. L. R. B. action. V.L.R.B. v. American B

ud Confectionery Workers, Local 300, 411 F. ad 1122, 1126

> Guild, Local 178 v. Rakos, 110 N.J. Super 77, 74 LRRM 2487

I. Sup. Ct., App. Div. 1970) ; L.A. Newspaper Guild, Local

IIR j ‘

= eration of Musicians, Local 294, 26 LRRM 2804 (Pa. Ct.

im. Pls. 1950).

' Although the Union has cited in U. O. p. V

(7th Gr. 1969). See Local Union No. 167, Progressive Mine

Workers of America v. N. L. R. B., 422 F 2d 538, 542 (7th

Cir.), cert. denied, 399 U.S. 905 (1970).

Other factors also support the conclusion that Board inter-

we exaghesine the fact that “{tJhe function of striking

that balance to effectuate national labor policy is often a dit.

responsibility

related area. Under Section 8(b)(5)," it is required to

_ determine whether initiation fees required by a labor organi-

_ gation under a union-security agreement are excessive.” The

last that Section 8(b)(1)(A) does not provide the Board with

"specific standards to be applied in determining the reason-

ahleness of a union fine, while Section 8(b) (5) does include

- geveral express standards, does not detract from the

NLBB.’s authority under 8(b)(1)(A). See N.L.R.B. v.

adio and Television Broadcast Engineers Union, 364 U.S.

_ 878, 582-583 (1961). Experience and common sense will

upply the grounds for the performance of this job,“ which

vs have concluded was implicitly entrusted by Congress to

the Board, 364 U.S. at 583.

de Board must remember that à fine imposed for the

vip of a legitimate union rule should be viewed as

_ presumptively protective, and therefore privileged, when the

amount of the fine, taking into account the character and im-

= Z

sc. f; 158 (b) (5) (1970), which provides:

00 It shall be an unfair labor practice for a labor or.

9 @anization or its agents

Pe 0 0 — „ „

SPR * 4

eee 00 to require of employees covered by an agreement

_»< tuthorized under subsection (a) (8) L. Le., a

* Provision,] the payment, as a condition precedent to be.

2 . of such organization, of a fee in an

mm fee the Board finds excessive or discrimingtory

“Under all the circumstances. In making such a finding, the

Jee, 6.9., JL. 4., Local 1419, 186 NLRB

15 Lie ant Got, whens vat oe FERS

‘was found. See also V. L. R. B. v. Television & Radio

Studio Employees, Local 804, 815 F.2d 898 (ard

along with others the Board may consider to be ap-

The reasonableness of a fine would necessarily have to be

of the work stoppage, the strength of the particular union

involved, the availability of other less harsh union remedies,

and many other similar considerations would clearly be

One additional consideration is worthy of mention, In its

fg. Co., supra, 388 U.S. at

195; Scofield v. N. L. R. B., supra, 394 U.S. at 423, 428. While

this principle clearly prohibits a union from seeking the sus-

pension or termination of an employee by his employer due

to his strikebreaking,” its implications may have further ap-

~ plication which might be relevant to the present case. Where

2 adiseiplinary fine is unreasonably excessive, it may possibly

affect the employee’s employment status as adversely—and

_ possibly even more adversely—as an illegally obtained em-

ployment suspension. On remand, the Board might also

eonsider this protective policy of the Act in determining

the reasonableness of the fines in question under Section

~ (b)(1)(A).”

— U.S.C. § 158(b)(2) (1970), which provides, inter

(b) It shall be unfair labor practice for a labor orgami-

sation or its agenta—

* * 2 * „ „ *

(2) to cause or attempt to cause an employer to dis-

TG) wninat an employee in violation.of subsection

a 3

US. § 158(a) (8) (1970), provides, inter alia:

(a) It shall be an unfair labor practice for an em-

td *

(8) by discrimination im regard to hire or tenure of

Labor Board Remedy

Although we.are remanding this case to the N.LE.B. for

* Congress has given the Board

remedies to effectuate the policies

r Act. So long as the Board exercises responsi-

its judgment, courts should not interfere with its

4 74 6

— Ap 3

e of any fines paid by employees who effec-

_ fively resigned before engaging in any strikebreaking

The utilization of remedial formulas has been approved

by the Supreme Court. V. L. R. B. v. Seven · Up Bottling Co.,

ion, we are unable to conclude that the order is a

attempt to achieve ends other than those which can

said to effectuate the policies of the Act.“ Virginia

s employees a better position . the Board can hardly

b said to be effectuating policies beyond the purposes of the

et by resolving the doubt against the party who violated the

Act." Leeds & Northrup Ca. v. V.LR.B., 391 F.2d 874, 880

bord Cir, 1968). We therefore must affirm this portion of

‘Board’s affirmative reimbursement egdter,

Se n. 24, supra, for further discussion of the remedy

to these ~

1 ve are cognizant of the fact that the Union's $450.00 fine

mpc i upon all strikebreakers—except those who apol-

The case is remanded to the Labor Board for further con-

sideration of the questions relating to the reasonableness of

the fines imposed by the Union.

So Ordered.

1 and pledged loyalty—regardless of the number of days

in by each. Although the Union

‘indicates that no pro rata reduction

required by the Board with

respect to these

obvious desire to

we recognize the N. L. RB.

MAR 1 1972

E. ROBERT SEAVER, CLERK

4 8 ]

Supreme Court of the Anited States

Ocroszr TxnNM, 1971

No. 71-711

NATIONAL LABOR RELATIONS BOARD,

PETITIONER

GRANITE STATE JOINT BOARD,

TEXTILE WORKERS UNION OF AMERICA,

LOCAL 1029, AFL-CIO,

RESPONDENT

RESPONSE TO PETITIONER’S PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT |

Haron B. Rorrman

| 11 Beacon Street

: Boston, Massachusetts 02108

| Attorney for Granite State Jojnt

Board, Textile Workers Union of

America, Local 1089, AFL-CIO

Of Counsel:

Dowax J. SRI.

Saal, Rorruan & Coneman

11 Beacon Street

Boston, Mass. 02108

Blanchard Press, Inc., Boston, Mass. — Law Printers

Question Presented sss sss tw

Statutes Involvet

Statement of the Case 5

A. The NLRB’s Decision and Order

B. The Court of Appeals’ Decision

Beasons for Denying the Writ

Taklx or Crrarioxs

Cases

Booster Lodge No. 405, LAM (The Boeing Company)

185 NLEB No. 23 5, 6, 8

Booster Lodge No. 405, IAM v. National Labor Rela-

tions Board, D.C. Circuit, Docket Nos. 24,687, 24,744,

decided February 3,1972,._F.2nd_ 7, 8, 9

National Labor Relations Board v. Allis-Chalmers

Manufacturing Company, 388 U.S. 175 6, 7

_ Scofield v. National Labor Relations Board, 394 U.S. 423 7

Statutes

- National Labor Relations Aet, as amended (61 Stat.

156, 73 Stat. 519, 29 U.S.C. 151 et seq)

Oe Section 8b) (1) (A)

v8.0. 12540)

No. 71-711

___ .. NATIONAL LABOR RELATIONS BOARD,

5 PETITIONER

ee GRANITE STATE JOINT BOARD,

4» TEXTILE WORKERS UNION OF AMERICA,

a LOCAL 1029, AFL-CIO,

. RESPONDENT

__ ~, RESPONSE TO PETITIONER'S PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED

Frs COURT OF APPEALS FOR THE FIRST

CIRCUIT

„

= The Granite State Joint Board, Textile Workers Union

e America, Local 1029, AFL,CIO, respectfully urges the

met to deny the Petitioner's Petition for a writ of

in reproduced in Appendix A of, the Petitioner's

Petition. The NLRB’s desision in this case is reported at

reproduced in Appendix C, Pp. 13a-

. ble Pain

The judgment of the Court of Appeals (Appendix B of

Petitioner’s Petition) was entered on June 29, 1971. On

September 20, 1971, Mr. Justice Brennan extended the time

for ' filing a petition for a writ of certiorari through Novem-

ber 26, 1971. The Solicitor General flled a petition for a

writ of certiorari on November 26, 1971. On January 31,

1972, the Chief Deputy Clerk of the Supreme Court wrote

to Harold B. Roitman, attorney for the Granite State Joint

Board of the Textile Workers Union of America, Local

quested that a response to Peti-

of Certiorari be flled with the

Court on or before March 1, 1972. The jurisdiction of this

Court was originally invoked pursuant to 28 U.S.C. 1254(1).

ae -- Question Presented

WOME AoA SG ee e

strike, thay ‘escape his obligation to refrain from strike-

breaking by submitting a'resignation to his union and then

ee 2

nit 5 281 dg en “Searutes Involved A

“Sections 7 Nene of the National Labor Rela-

tions Act (61 Stat. 136, 73 Stat. 519, 29 U.S. C. 151 et seq.)

are involved in this ande “fn Yéleviint part, section 7 of th

4 des, ‘Employees shall have the right to self-

n or Assis labor ations

* r Concerted activities for be?

Purpose of collective ba

‘The pertinent parts of section 8(b)(1)(A) are as follows:

fb) It shall be an unfair labor practice for a labor

rganization or its agents— (1) to restrain or coerce (A)

mplo in the exercise of the rights guaranteed in

: 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;

e Statement of the Case

The International Paper Box Machine Company and the

ranite State Joint Board, Textile Workers Union of

merica entered into a collective bargaining agreement on

tember 20, 1965. The term of the agreement was three

bars. On September 14, 1968, six days before the scheduled

diration of the 1965 agreement, the union membership

e agreement was reached by the

3 Mine and a strike commenced on September 20, 1968.

A few days after the strike began, the union membership

a providing that anyone aiding

ring the strike would be sub-

On November 5. and 25, 1968 while the strike was still in

Progress two employees‘ sent letters of resignation to the

Union.“ The Union refused to accept these mid-strike resig-

nations and warned both employees of -their liability to

fines for strike-breaking: The two employees filed unfair

labor practice charges against the Union and shortly here

of fines in these circumstances violated Section 8(b) (1) (A).

After a bearing the Trial Examiner found no violation.“

During the months that followed the June, 1969 decision,

twenty-nine more employees submitted mid-strike resig-

nations; the Union.responded to these resignations in the

same manner it responded to those of Radziewicz and Kim-

ball. Later charges were brought against the strikebreakers

by Union members. All thirty-one were properly notified,

tried and found guilty by a duly constituted Union tribunal,

and varying fines were imposed. When the strikebreakers

failed to pay the fines and other amounts due to the Union,

the Union brought suit in the New Hampshire Court to

oolleet on its contracts.” At this point, the fined employees

filed unfair labor practice charges with the Board. A com-

se fines violated Section 8(b)(1)(A). The Trial Ex-

ne #0 found? and the Board sustained his findings

1 order.“

bes bai ‘The NLRB Decision and Order

‘The Board held by a 2.1 margin that the mid-strike

gnation of the thirty-one employees effectively severed

» #uy.comnection they might have had with the Union. Relying

on its decision in Booster Lodge No. 405, PAM (The Boeing

% the Board held that the fining of these strike-

sakers and the attempted collection by judicial process

‘those fines violated Section 8(b)(1)(A) of the NLRA.

me Board ordered the Union to rescind the fines and with-

aw the state court suits.

The Court of Appeals’ Decision

8 2

eder. In its decision of June 29, 1971, the Court applied

ide mutual reliance principle to the participants in this

We can imagine a case involving three hypothetical

ee employees whom we shall call Jones, Smith and Parks.

~ “Initially Jones is anxious to strike but Smith and

Parks hesitate, finally aequiescing on the condition that

all agree to stick it out for the duration of the strike.

We suggest that this kind of mutual reliance is implicit

zn all strike votes; many employees would hesitate

oe. to forego several weeks or months of pay if they knew

= — of the Trial Examiner reproduced st

13 also p. 13a of Petitioner's Petition.

‘ed see

wee cohortis were free to cross the picket line at any

Rho c hepsi Sey ae sere eee (empha-

alti e eee the 1947

amendment to Sestion 7 to authorize mid-strike resigna-

tions. Its interpretation was based on the meaning of the

term refrain and the legislative history of the amend-

ment. Additional support for the Court of Appeals’ decision

was found in NLRB v. Allis Chalmers Manufacturing Co.,

88 — we er |

‘Reasons for Denying the Writ

The ‘weit ‘should be denied ‘because the decision of the

8 Dou cl-tegnabia tet ween The mutual

reliance of each striking member upon the representations

of his fellow strikers more than justifies the Court’s de-

cision. Briefly stated, the Court of Appeals holds that

fic. resolution. of the local union authorized these fines.

apt to exhaust internal union remedies was made

decision is consistent with Allis-Chalmers, supra.

the’ Court held that Section 8(b)(1)(A) did not apply

ial enforcement of union strikebreaking fines. The

ile of Allis-Chalmers certainly mandates its extension

e thirty-one strikebreakers, At 388 U.S. 181, this

> “Integral to this federal labor policy has been the

power in the chosen union to protect against erosion

lari vital when the members engage in strikes. The

eoonomie strike against the employer is the ultimate

weapon in labor’s arsenal for achieving agreement

under its terms and It Ihe power to fine or expel

strikebreakers is essential if the union is to be an

‘effective bargaining agent. (Emphasis added;

“footnotes omitted).

Further, the writ should be denied becanse there is no

al conflict between the Circuit Courts of Appeal on the

estion presented. On February 3, 1972, the Court of

is for the District of Columbia Circuit decided

the fae eee ee eee,

in th then pending Boring car, The Court nota, d

Bootsy ease, supra, may. be distinguishable

ots ao „ were. autho-

Poarc E ee had not

s about the possible imposition of dis-

measures. Also the Boeing opinion did not

r whether any of the employees who crossed

cket line had originally voted to support the

j 9918

. 57

ee e beser ber, fora Dit of b

Mia eee eee Nocte kram Granite State in

— —

: — ae

of the union involved to impose fines on strikebreakers

for post- -resignation activity, it emphasized that a

set of facts was present which it believed ren-

such a result equitable, and it specifically recog-

that these considerations were not present with

to the instant Booster Lodge 406 case.“ In

Prt the Board conceded that all of the fined

employees had voted in favor of the strike in question.”

I is also important to note that the fines had not been

_ | ‘imposed pursuant to u general provision in the union

ressly pre- warned of possible punishment for

saking, v while the employees with whom we

concerned received no such pre-strikebreak-

se to apply the rationale of Granite State to the

factual situation.” The strong equities which

d in favor of the union there, are clearly not

mt here. In fact, their very absence powerfully

the result which we have accepted.

Conclusion

the reasons set out above, the petition for a writ

iorari should be denied.

Attorney for Granite State Joint

Board, Textile Workers Union of

America, Local 1029, AFL-CIO

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