Amicus Curiae Brief — NLRB v. Textile Workers

Supreme Court brief1972

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TABLE OF CONTENTS

OF THE INTERNATIONAL ASSOCIATION oF

TS AND AgRospace Workers, AFL-CIO Le

Cea CORO H eee eee eee secede enesecesasn

IL The Internal Union Definition of Improper Con-

gee of a Member and the Internal Union Pro-

- cedure for Consideration of Alleged Offenses. ..

The Imposition of Fines for Strikebreaking ....

‘The Board’s Decision .....................

‘The Decision of the Court of Appeals for the

District of Columbia Circuit

i ee ee

' r’s Mid-Strike Resignation From His Union

Doe Free Him From His Union Obligation To

rain From Strike-Breaking In That Strike For

uration.

* \/ ‘embe

. 0

al i ee ee

ROSS HSHMOE OTC ES OEE OELs

Fine as a Discipline Against Strikebreaking. ..

A Union Constitution, Although Silent on the

mbject of the Effect of Resignation, Cannot

mably Be Interpreted To Authorize

Strike-Breaking Subsequent to a Mid-Strike

Resignation Where the dividual Was A Mem-

\ ber of the Union at the Inception of the Strike,

» for the Implied Obligation of Loyalty Binds

>»), Him Notwithstanding Resignation To Refrain

z" ing for the Duration of the

POS BE FOODS RHE OH 6 6 60 bed bce 5

PH)

Page

This Court’s Validation in Allis-Chalmers of .

_ the Imposition of a Court Collectible Union |

TABLE OF CONTENTS (Continued)

IV. The Rule That, Where A Union Constitution Is

Silent on the 15, “ee of Resignation, a Member

Is At Liberty To Resign at Will, Does Not Sup-

rt the View That the Mid-Strike Resigner

Free To Engage in Strikebreaking in the

Existing Strike

. The Board’s Mistaken Reliance on Expressions

in Opinions of This Court Said To Suggest the

View that Instant Freedom To Engage in

Strikebreaking Is the Necessary Consequence

of a Mid-Strike Resignation

VI. The Suggestion That a Member Is Bound To

_ Refrain From Strikebreaking for the Duration

of the Strike Notwithstanding Resignation Only

if at Its Inception He Individually Assented to

RRA SAR DR NER LI RS err pare ae

VII. There Is No ‘‘Statutory Policy’’ Which Mili-

tates Against Interpreting a Prohibition

Against Strikebreaking as Requiring a Mid-

Strike Resigner To Refrain From Strikebreak-

+ Bag the Future Duration of the Existing

Aprennrx I: Decision and Order of N.L.B.B. in Booster

Lodge No. 405, 185 N.L.B.B. No. 23

Arrsenvrx II: Lahne, Collective ining and Strike

Provisions of National Union Constitutions ....

AUTHORITIES CITED

Caszs:

Aeronautical Industrial District Lodge 751, 173

dia Ship Building C N.L.R.B., 380 U.S. 300 Pr

merican Ship 0. V. B., S.

Boeing Airplane Co. v. N.L.R.B., 85 U.S. App. D.C.116 2%

Booster Lodge No. 405, 185 NIR.B. No. 23 3

Booster No. 405, International Association of

~ Machinists and Aerospace Workers, AFL-CIO v.

. N.L.B.B.,79 LRRM 2448 , . 8, 13, 27, 37-38, 39, 41, 42, 44

TABLE OF CONTENTS (Continued ili

Page

Meee te tS O40 SS UEC AG 8 we eRe chs eb sees see

Electric Co.), 194 N.L.R.B. No. 163, 79 LRRM

Np Se 6x0 8a ig ek ons Vi ocas occ ee ccc. 2

FTC v. Sperry and Hutcheson Co., 40 USLW 4241.... 48

IAM v. Friedman, 102 U.S. Age. D.C. 988 ............ 7

Workers, Oakland Lodge No. 284 (Morton Salt

Co.), Case No. 20-CB-1776 ...................... 6

Int'l. Brotherhood of Boilermakers v. Hardeman, 401

seo eve iwic lie cc oycs ccs a. 28-29, 43

Int'l. Union, United Automobile Workers v. O’Brien,

ESRI SES eran palate 40

J, 1. Case Co. v. N.L.R.B., 321 U.S. 332... 42

Junker v. Plummer, 320 Mass 76................ 26

Lewis v. Benedict Coal Corp., 361 U.S. 459 ........... 24

Local 174, Teamsters v. Lucas Flour Co., 369 U.S.95.. 18

340, International Brotherhood of Operative Pot-

756

Local 1255, [AMAW v. N.L.R.B., 456 F.2d 1214 ... 2. 39, 47

Local 1912, 1.4.M. v. United States Potash Co., 270

Local Union No. 621, United Rubber Workers, 167 ,

N.LRB.B. 610.0... 30

Marrinan Medical Supply v. Ft. Dodge Serum Co., 47

BE TPT COS ees oc nc cen ccncccccccccc. 18

McComb v. Scerbo, 177 F.24137........... 45

Miler v. Miller, 134 F.24583.............. 19, 26

New Jersey Bell Telephone Co., 106 N.L.R.B. 1322 ..... 30

RB. v. Allis-Chalmers Mfg. Co., 388 U.S.175 .... 16,

3 20-21, 22, 32, 33, 34, 45, 46, 47, 48

+B. Vv. Brown, 380 U.S. 278 .................... 4u

iv TABLE OF CONTENTS (Continued)

Page

N.L.R.B. v. Granite State Joint Board, Textile Work-

ers Union of America, Local 1029, AFL-CIO, 446

VOR eeei5 ik i068 SN vweccees 16, 20, 35, 37, 39

N.L.R.B. v. Insurance Agents Int’l. Union, 361 U.S. 477 49

N.L.R.B. v. 1.0.G.W.U., 274 F.2d 376 ............ hans 2

N.L.R.B. v. International Union, United Automobile

Workers, 320 F.2d. 12 ........... cc cece eee eee 43

N.L.RB. v. Marine and Shipbuilding Workers of

America, 391 U.S. 418 «0... cece eee eae 35

N.L.R.B. v. Metropolitan Life Ins. Co., 380 U.S. 438 .. 48

N.L.R.B. v. Production Electronic & Aero-Dynamic

Lodge No. 1327, IAMAW, AFL-CIO, C.A. 9, No.

TR EM as Sis Vato cede stews acseecscescceces 2

N.L.R.B. v. Wooster Division of Borg-Warner Corp.,

SD TF Noa 5 ie Be ca Seca c cc ncccunnes 40

whee °c European Conference v. F.M.C., 439 F.2d ‘

Perry v. Sinderman, 40 USLW 5087 ............ 19, 24, 26

Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177 ........ 31

Polin v. Kaplan, 257 N.Y. 277 ........... Jistaceces 15, 19

Rocket Freight Lines Co. v. N.L.R.B., 427 F.2d 202... 21

Sawyers v. Grand Lodge, International Association of

Machinists, 279 F.Supp. 747 ................005.

Scofield v. N.L.R.B., 394 U.S. 423 ............... 33, 34, 35

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 ...... 0... cece eee

U.0.P. Norplex Division v. N.L.R.B., 445 F.2d 155 .... 21

Vestal v. Hoffa, 451 F.2d 706 ..................0000. 43

Wood v. Duff-Gordon, 222 N.Y. 88 .................. 18

Srarures:

National Labor Relations Act

DE 06d. UAW heble Pad ca cbc pon cvscccccecccccscescccces 45

§ 8(b)(1)(A) ......... 11, 12,16, 15, 32, 33, 44, 45, 46, 47

Labor Management Reporting and Disclosure Act of

1959, 29 U.S.C. §101(a)(5) .................0..

TABLE OF CONTENTS (Continued)

MISCELLANEOUS :

1 Corbin, Contracts, 2 (1950)

3 Corbin, Contracts, 276-355 (1950)

Developments in the Law, Judicial Control of Actions

of Private Associations, 76 Harv. L. Rev. 985 ....

Gellhorn, Limitations on Contract Termination Rights-

Franchise Cancellations, 1967 Duke L. J. 465 ....

Lahne, Herbert J., Collective Bargaining and Strike

Provisions of National Union Constitutions, pre-

pared for the use of the Federal Mediation and

Conciliation Service (unpublished)

Llewellyn, What Price Contract? An Essay in Per-

spective, 40 Yale L.J. 704

Meltzer, Labor Law, Cases, Materials, and Problems,

746 (1970)

Summers, Collective Agreements and the Law of Con-

tract, 78 Yale L.J. 525

Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.

Rel. Rev. 483

Summers, = Limitations on Union Discipline, 64

Harv. L. Rev. 1049

IN THE

Supreme Court of the United States

Octoser TERM, 1972

No. 71-711

NaTIonaL Lasor RELATIONS Boarn, Petitioner

Vv.

GRANITE State Joint Boarp, TextTrLe Workers UNIon

OF AMERICA, LOCAL 1029, AFL-CIO

On Writ of Certiorari to the United States Court of Appeals

for the First Circuit

BRIEF FOR THE INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,

AS AMICUS CURIAE

This brief amicus, in support of the position of

respondent, is filed by the International Association

of Machinists and Aerospace Workers, AFL-CIO,

with the consent of the parties, pursuant to Rule 42 of

the Rules of this Court.

INTEREST OF THE INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, AFL-CIO

The International Association of Machinists and

Aerospace Workers, AFL-CIO, (IAMAW), is a labor

organization composed Of. nearly 1,000,000 members

representing employees in collective bargaining

throughout the United States in numerous and varied

industries. In calling and conducting strikes in sup-

port of the economic goals of the workers it represents,

and in maintaining the strike solidarity essential to the

effective prosecution of a strike, it is vitally concerned

with the question whether a member of a union may

escape union discipline, exerted by the levy of a court-

collectible fine, for violation of his union obligation to

refrain from strikebreaking, by resigning from his

union subsequent to the commencement of a strike and

engaging in strikebreaking after his resignation. It

has therefore through its affiliates been heavily en-

gaged in the litigation of this question.

The Board’s lead decision on the question, on which

its order in this case rests, is pending before this Court

on the petition for a writ of certiorari of an [AMAW

affiliate in Booster Lodge No. 405, International Asso-

ciation of Machinists and Aerospace Workers, AFL-

CIO v. N.L.R.B., No. 71-1417. Other cases of [AMAW

affiliates are either awaiting judicial determination’

or judicial proceedings have been withheld pending

the outcome of this case.” The LAMAW therefore

1N.L.R.B. vy. Production Electronic & Aero-Dynamic Lodge No.

1827, IAMAW, AFL-CIO, C.A. 9, No. 71-3068 ; see also, Local 1255,

IAMAW v. N.L.B.B., 456 F.2d 1214 (C.A. 5, 1972).

2JAMAW, AFL-CIO, and Local Lodge 598 (Union Carbide

Corp.), 196 NLRB No. 114, 80 LRRM 1079 (1972) ; District Lodge

No. 99, IAMAW, AFL-CIO (General Electric Co.), 194 NLRB

No. 163, 79 LRRM 1208 (1972).

* files this brief in order that it may be heard on the

question which its affiliates have in litigation and

which has pervading significance in making strike

decisions.

STATEMENT

The rationale on which the decision of the Nationa]

Labor Relations Board in this case rests was expressed

by it in its lead decision in Booster Lodge No. 405,

International Association of Machinists and Aerospace

Workers, AFL-CIO, 185 NLRB No. 23 (1970) (re-

printed infra, pp. 1a-13a). The Board’s order in that

case was in relevant part enforced by the Court of

Appeals for the District of Columbia Circuit in

Booster Lodge No. 405, International Association of

Machinists and Aerospace Workers, AFL-CIO vy.

V.L.R.B., 79 LRRM 2443 (1972). A petition for a

writ of certiorari to review the judgment of the Dis-

trict of Columbia Circuit is pending. Booster Lodge

No. 405, International Association of Machinists and

Aerospace Workers, AFL-CIO vy. N.L.R.B., No.

71-1417.

We believe that the underlying question is this case

will be better illuminated by viewing it in the cross-

light which is shed by the varying fact situations in

which it arises, Accordingly, in the statement which

follows, we set forth the facts as they appear in the

lead decision in Booster Lodge No. 405. In the ensuing

‘argument we confront the question with the perspec-

tive afforded by both this case and Booster Lodge No.

405

ey: I. The Strike

. The Boeing Company operates a plant at New Or-

Louisiana, known as the Michoud plant (A. 3).

‘Ame production and maintenance employees at this

‘4 *

plant are represented in collective bargaining by

Booster Lodge No. 405 (the Union) and its parent,

IAMAW (A. 3-4). A single employer-wide collective

bargaining agreement covers [AMAW-represented

units at the Michoud plant and at other facilities of

the Company located elsewhere in the United States

(ibid.) About 1,900 production and maintenance em-

ployees work at the Michoud plant (A. 67).

A collective bargaining agreement covering the

IAMAW-represented units at the Michoud plant and

other Company facilities was in effect from May 16,

1963 through September 15, 1965 (A. 66-67, 3). No

accord upon new contract terms was reached upon

expiration of the agreement (A. 67, 5). A lawful

employer-wide strike over the economic issues in dis-

pute, and picketing in support of the strike, began on

September 16, 1965 and ended on October 3, 1965 (A.

67, 5; 85-86).

The strike was preceded by a union ‘eudling at

which a strike vote was taken (A. 105, 184, Tr. 21).

The Constitution of the LIAMAW provides that ‘‘a

strike vote . .. shall be by secret ballot. In order to

declare a strike, such vote must carry by a three-

fourths majority of those present and qualified to

vote” (G.C. ex. 5, Art. XVIII, sec. 2, p. 54). The

Constitution further requires that no strike may be

declared without the approval of the Executive Coun-

cil of the L[AMAW, except that, ‘‘In an extreme emer-

gency, .. . the LP. [International President] may

authorize a strike pending the submission to and se-

curing the approval of the E.C. [Executive Council]”

(1d., Art. XVIII, Sees. 1, 2, pp. 53-54). The By-Laws

of the Union provide that, ‘The approval of a strike,

method of declaring a strike, and the settlement of a

strike shall be in accordance with applicable provi-

sions of the LAM Constitution’’ (G.C. ex. 6, p. 4).

_A new agreement was reached on October 3, 1965,

retroactive to October 2 (A. 67, 5; 85-86). The strike

and picketing, which lasted eighteen days, embraced

the Michoud plant (A. 67, 5, 25, n. 28).

‘The new 1965 agreement, like the old 1963 agree-

ment, contained a union security provision known as

maintenance of membership. Under this provision

employees who are or become union members are re-

quired to maintain their membership during the con-

tact term, but employees who are not members need

not join if they give timely written notice that they do

not desire to become members (A. 67, 4-5; 221-293),

The Constitution of the [AMAW defines ‘‘improper

conduct of a member” and establishes a full trial and

appellate procedure to determine the existence and

punishment of alleged offenses (A. 214-218),

Among the offenses defined as misconduct of a mem-

ber is ‘Accepting employment in any capacity in an

establishment where a strike or lockout exists as rec-

ognized under this Constitution, without permission’’

(A. 6; 214). The Constitution provides that this

» like other ‘‘actions or omissions”’ constituting

“misconduct by a member,’’ shall ‘‘warrant a repni-

fine, suspension and /or expulsion from member-

ship, or any lesser penalty or any combination of these

as the evidence may warrant after written

and specific charges and a full hearing . . .” (A. 68,

56; 214), Disqualification from holding office for a

period not exceeding five years is expressly enumer-

ated as & penalty (A. 216).

To institute a proceeding to determine the existence

aud punishment of alleged offenses, a member may

prefer written charges of misconduct against another

member, which shall be filed with the president of the

Local Lodge who in turn serves a copy on the accused

(A. 214). A trial committee is promptly convened,

and its first task is to ‘‘conduct an investigation of the

charges and decide whether there is sufficient substance

to warrant a trial hearing being held’’ (A. 215). If

trial is warranted, the accused is informed ‘‘of the

charges against him and when and where to appear

for trial,’’ and ‘‘a reasonable time . . . to prepare his

defense”’ is afforded (A. 215). ‘If a member fails to

appear for trial when notified to do so, the trial shall

proceed as though the member were in fact present”

(A. 215). ‘‘Both the plaintiff and the defendant shall

have the privilege of presenting evidence and being

represented either in person or by attorney (the attor-

ney being a member of the I.A.M.A.W.)’’ (A. 215)?

Full opportunity to be heard and defend is afforded

(A. 215-216).

After the conclusion of the trial, the trial committee

is required to ‘‘consider all of the evidence in the case

and thereafter agree upon its verdict of ‘guilty’ or ‘not

guilty.’ If the verdict be that of ‘guilty,’ the trial

committee shall then consider and agree upon its rec-

ommendation of punishment’? (A. 216). The trial

committee reports its determination and reasons at the

next regular meeting of the Local Lodge (A. 216). The

* Although not of record in the Booster Lodge proceeding, the

IAMAW’s settled interpretation is ‘‘that the word ‘attorney’ .

means any member of the IAM, and he does not have to be 8

licensed lawyer or the member of any bar association.’’ Record,

International Association of Machinists, Oakland Lodge No. 284

(Morton Salt Co.), Case No. 20-CB-1776, GC ex. 8, p. 2. See

Sawyers v. Grand Lodge, International Association of Machinists,

279 F. Supp. 747, 756 (E.D. Mo. 1967).

trial committee first. reports its verdict and reasons

with respect to guilt or innocence, and its verdict is

then ‘‘submitted without debate to a vote by secret

ballot of the members . . . in attendance”’ (A. 216). If

the members concur in a “ guilty’’ verdict, ‘the recom-

mendation of the committee as to the penalty”’ is sub-

mitted in a separate report and “voted on by secret

ballot of the members then in attendance”’ (A. 216).

“The penalty recommended by the trial committee may

be amended, rejected, or another punishment substi-

tuted therefor’’ by the members (A. 216). The mem-

bers may reverse a ‘“‘not guilty”’ verdict of the trial

committee, and impose the punishment they deem ap-

propriate (A. 216). '

The accused is promptly notified in writing of the

decision with respect to his guilt or innocence and of

the penalty imposed if found guilty (A. 216). The

accused or accuser may appeal to the International

President of the IAMAW, who is empowered ‘‘

affirm or to modify or reverse, in whole or in part, the

decision ... , or to remand the proceedings for further

trial... , or to impose any penalty or fine which he

deems to be required, including expulsion’’ (A. 217).

Successive appeals are provided from the decision of

the International President to the Executive Council

of the IAMAW, and from the decision of the Exec-

utive Council to the [AMAW convention, ‘‘or to the

membership at large by submission’’ of the appeal

“to... referendum .. .”’ (A, 217-218).

_-__

* The sufficiency of this procedure was examined and upheld by

the Court of Appeals for the District of Columbia Circuit in

LAM. y. Friedman, 102 U.S. App. D.C. 282, 252 F.2d 846 (1958),

cert. denied, 357 U.S. 926 (1958).

III. The Imposition of Fines for Strikebreaking

Some 143 production and maintenance employees,

who were members of the Union when the strike began,

crossed the picket line and worked at the Michoud

plant during all or part of the period of the strike

(A. 67, 5). Some 24 of these strikebreakers made no

attempt to resign from the Union during the strike

period (A. 67). The remaining 119 strikebreakers did

resign from the Union during the strike period (A.

67-68). Of these 119, 61 resigned from the Union and

returned to work subsequent to their resignation, and

58 resigned from the Union but returned to work

before their resignation (A. 67).

The Union tried all employees who were members

of the Union when the strike began who were known

to have worked during the strike, and assessed a pen-

alty against each found guilty of strikebreaking, with-

out regard to whether the accused had resigned from

the Union during the strike period or had started to

work subsequent to his resignation (A. 3, 13 and n. 11;

198-200). In late October or early November 1965, the

appointed trial committee notified each accused (1)

that he had been charged with “‘Accepting employ-

ment . . . in an establishment where a strike . . . ex-

ists’”’ in violation of the IAMAW Constitution; (2)

that the trial committee ‘“‘has met and feel there is

sufficient evidence to hold a trial’; (3) that a trial

of the accused had been set for the time and place

specified in the notice; and (4) that “‘you have the

right to have an attorney (the attorney being a mem-

ber of the IAMAW) to defend you. Under the Con-

stitution, if you fail to appear when notified, the trial

shall proceed as though the member were in fact pres-

ent’’ (A. 68, 6; 228).

The ensuing proceedings resulted in a

verdict as to two accused, a ‘‘No Fine’?

to a third, and a “Mistrial”

fourth (A. 239, 127). Th

found guilty of strikeb

The members of Local Lodge No. 405, IAMAW,

have assessed the following penalty :

1. That you be fined $450.00. This fine to be sus-

pended providing you pay 50% of your earnings

while working during the strike, and agree to at-

tend all regular meetings of this Lodge during

the next twelve (12) months.

Local Lodge No. 405

. have assessed the following penalty:

1. That you be fined $450.00.

2. That you be denied the privilege of holding

office in the IAMAW for a period of five (5)

years.

The full $450 fine was assessed against 108 individ-

uals, and the 50-percent-of-strikebreaking-earnings

fine against 35 individuals (A. 67, n. 3). All were in-

formed of their right to appeal the decision to the -

International President of the IAMAW (A. 7, n. 4;

229-230). No appeals were taken (A. 7, n. 4).

Payments of the fines has followed a checkered

course. No $450 fine has been paid (A. 68). Reduced

fines have been paid in full in eighteen instances and in

_ part in three instances (A. 68; 238, 127). Payments

have averaged $40 (A. 68; 205-206), and payments in

full have ranged from a low of $10, a mid-point of

$54.80, and a high of $120 (A. 238-239, 127). On No-

vember 3, 1967, the Union wrote to some individuals

who had been ‘‘fined 50% of the wages’’; the Union

stated that ‘‘your fine has yet to be paid in full”, re-

quested that the individual contact the Union ‘‘to dis-

cuss payment since we are now in the process of

turning all fines over to our attorney for collection”,

and concluded that ‘‘ Failure to do so could cause your

fine to be increased to $450.00 as was noted at your

trial” (A. 68-69, 7-8; 231-232). On February 2, 1966,

the Union’s attorney had written to 91 individuals

fined $450 requesting ‘‘immediate payment in full”

and noting that ‘“‘Your failure to respond promptly

will require our filing suit against you ...’’ (A. 8; 233,

71, 72). Suit has been instituted against nine indivi-

duals in local courts to recover the $450 fine assessed

against each (A. 69, 8; 210-212, 240-241). The Con-

pany has undertaken the defense of these suits (A. 5).

The outcome of the suits has not been determined (A.

69).

IV. The Board's Decision

The claim before the Board was that the Union re-

strained or coerced employees in the exercise of their

right to refrain from concerted activity for mutual

aid or protection in violation of Section 8(b) ( 1) (A)

of the Act. The claim divided into two parts. First, al-

though the Union’s rule against strikebreaking is

valid, the Union violated Section 8(b) (1) (A) by fin-

ing its members in an unreasonably large amount for

violation of the rule, and by seeking or threatening to

seek collection of that Megedly unreasonable fine by

court action. Second, ind ndently of the reasonable-

ness of the fine, the Union violated Section 8(b) (1) (A)

by fining in any amount those persons who had re-

signed from the Union for that strikebreaking activi-

ty in which they engaged subsequent to their resigna-

tion.

The first claim—the reasonableness of the fine—was

dismissed by the Board (infra, p. 9a, 1: 16). It relied

for its rationale on its decision in David O’Reilly, 185

NLRB No. 22, 75 LRRM 1008 (1970), which it issued

on the same day as the opinion in this case. In David

O’Reilly, one member dissenting, the Board held that,

given the settled validity of a rule requiring members

“to honor an authorized picket line” and the settled

permissibility of punishing breach of the rule by

“union fines (or court-enforcement of same)’, @on-

- ress did not intend “to have the Board regulate the

size of these fines and establish standards with respect

to their reasonableness”’ (75 LRRM at 1010). Rather,

‘Telated as it is to “the fairness of union discipline

meted out to protect a legitimate union interest’ (id. at

1011), the issue of the reasonableness of a fine is to be

“determined by a court in a proceeding to collect or set

_ aside the fine. The “local courts are the more logical

tribunals for the establishment of standards of rea-

sonableness”’ (id. at 1010).

The Board, one member dissenting, decided the sec-

ond claim—pertaining to the situation of a person

who had resigned from the Union—in favor of the

view that the Union violated Section 8(b)(1)(A) by

fining a person who had resigned from membership

_ for engaging in strikebreaking subsequent to his resig-

nation. The premise of the Board’s decision is that,

while a member is bound to observe his union’s valid

rules during his period of membership, ‘‘the contract

between the member and the union becomes a nullity

upon his resignation. Both the member’s duty of fidel-

ity to the union and the union’s corresponding right to

discipline him for breach of that duty are extin-

guished’’ (infra, pp. 6a-7a). Accordingly, the Union

“‘violated Section 8(b)(1)(A) of the Act by imposing

disciplinary fines upon resigners from its ranks, for

acts committed after their resignations”’ (infra, p. 9a).

However, as to those resigners who engaged in strike-

breaking before their resignation, the Union retained

“the right to discipline the employees for prior strike-

breaking. The effect of these employees’ resignations

was only to extinguish the Union’s future authority

over them”’ (infra, p. 10a).

Member Gerald A. Brown dissented from this

branch of the Board’s decision (infra, p. 12a). He

would hold that resignation in the midst of a strike does

not free a member to engage in strikebreaking ; resigna-

tion should not be given effect to allow the member to

shed his obligation of union fealty at the very moment

that it matters most. He stated in part that (infra, p.

13a) : : /

Each of the employees involved here, and in all

other situations of which I am aware, was a mem-

gna

7. was already a disloyal action

from the standpoi

V. The Decision of the Court of Appeals for the District of

Columbia Circuit

On review, the Court of Appeals for the District of

Columbia Circuit, in agreement with the Board, af-

firmed its conclusion that “the Union violated Sec-

tion 8(b) (1) (A) of the N.L.R.A. by imposing fines

upon employees, and by threatening or attempting en-

foreement of such fines, because of those employees’

post-resignation conduct in working at the Company

plant during the authorized work stoppage’’ (79 LRRM

at 2450). However, in disagreement with the Board,

the Court of Appeals held that ‘‘it is clearly the obli-

gation of the N.L.R.B. to resolve the question of rea-

sonableness where such an issue is appropriately

raised” (id. at 2452), and it directed the Board on

remand to determine ‘‘the questions relating to the

reasonableness of the fines imposed by the Union”

(id. at 2455).

oar?”

VI. The Petition for a Writ of Certiorari

On May 1, 1972, the Union filed its petition for a writ

of certiorari to review the judgment of the District of

Columbia Circuit (No. 71-1417), and it presented the

following two questions (Pet. p. 2) :

1. Whether a member of a union may escape union

discipline, exerted by the levy of a court-collectible

fine, for violation of his union obligation to refrain

from strikebreaking, by resigning from his union sub-

sequent to the commencement of a strike and engaging

in strikebreaking after his resignation.

2. Whether the National Labor Relations Board is

empowered to determine the reasonableness of a fine

assessed by a union against a member for violating its

valid rule against strikebreaking.

Of these two questions, the first only is directly pre-

sented in this case, and the argument which follows is

therefore confined to it.

SUMMARY OF ARGUMENT

The Board holds that, in the absence of an explicit

contrary restriction upon the effect of resignation, a

member’s resignation from his union in the midst of a

strike frees him forthwith from his union obligation

to refrain from strikebreaking in that strike for its

future duration. It predicates this conclusion on its

view that, as a matter of contract law, the ‘“contract-

constitution’’ ‘‘becomes a nullity’? upon resignation,

and ipso facto the ‘“‘member’s duty of fidelity to the

union and the union’s corresponding right to disci-

pline for breach of that duty are extinguished” in-

stanter (infra, pp. 6a-7a). It’does not consider that

the duty to refrain from strikebreaking for the dura-

tion of the existing strike may be implied notwith-

standing resignation. It fortifies its rigid view of

contract law by drawing upon a so-called ‘statutory

policy’’ said to militate, against the implication.

The Board’s yiew of contract law is radically wrong.

Treating the union constitution as a contract, it is

elementary that ascertainment of the existence, mean-

ing and consequences of a promise depends as much

upon implications of fact and operation of law as it

does upon explicit terms. Fleshing out a contract so

as to supply the unexpressed but fair and reasonable

rule for the intentionally or inadvertently omitted sit-

uation is a commonplace in the interpretation of any

agreement.

Given this orientation the question is whether the

union constitution is justly interpreted to mean, where

it is silent upon the subject, that a mid-strike resigna-

tion frees the member forthwith from his existing

union obligation to refrain from breaking the very

strike which he was duty-bound to observe when it

began. In “every contract of association there inheres

a term binding members to loyal support of the society

in the attainment of its proper purposes....’? Polin

v. Kaplan, 257 N.Y. 277, 177 N.E. 833, 834 ( 1931). This

duty of loyal support finds its cardinal expression in

the obligation to refrain from strikebreaking. Every

member depends on every other to withhold his labor

from the struck employer in order to make the strike

effective. The least that each member is entitled to

expect of the other is that all who are pledged to the

common cause at the beginning of the struggle will ful-

fill their obligation to carry through for its duration.

Accordingly, a mid-strike resignation from a union,

“however efficaceous it may be to sever other member-

_ ship obligations, should not as a matter of the fair

interpretation of the relationship be given the effect of

relieving the resigner instanter of his duty to refrain

from strikebreaking at the very moment when its ob-

servance counts most. For ‘‘mutual reliance is im-

plicit in all strike votes; many employees would hesi-

tate to forego several weeks or months of pay if they

knew their cohorts were free to cross the picket line

at any time merely by resigning from the union.”

N.L.R.B. v. Granite State Joint Board, Textile Work-

ers Union of America, Local 1029, AFL-CIO, 446 F.2d

369, 372 (C.A. 1, 1971), cert. granted, 405 U.S. 987

(1972).

There is no “statutory policy’? which militates

against implying a duty to refrain from strikebreaking

during the existing dispute notwithstanding resigna-

tion. This Court held in N.L.R.B. v. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 191 (1967), that Section 8(b)

(1)(A) of the Act does not embrace ‘‘a prohibition

against the imposition of fines on members who decline

to honor an authorized strike and attempts to collect

such fines,’’ And it does not precisely because the ‘‘eco-

nomic strike against the employer is the ultimate

weapon in labor’s arsenal for achieving agreement

upon its terms, and ‘the power to fine or expel strike-

breakers is essential if the union is to be an effective

bargaining agent ...’’’ (id. at 182). This necessary

maintenance of strike solidarity embraces within its

natural scope disallowance of a mid-strike resignation

to justify breaking the very strike which the member

was duty bound to observe at its inception. The intrin-

sic nature of a strike commits a union member to stick

with it for its duration, and it offends every concept of

loyalty and duty to permit mid-voyage defection. The

statute does not require a union to permit a mid-strike

resignation to be used as an escape hatch to break the

strike. The statute is no more hospitable to the strike-

breaker-resigner than it is to the strikebreaker-member.

In short, a union constitution, faithfully interpreted

in keeping with its fair purport, bars treating resigna-

tion in the course of a strike as a license to engage in

strikebreaking for the future duration of the existing

strike, and ‘statutory policy’’ does not militate against

this implication but is instead quite in harmony with it.

ARGUMENT

L. Preliminary Statement

The Board holds that, in the absence of an explicit

contrary restriction upon the effect of resignation, a

member’s resignation from his union in the midst of a

strike frees him from his union obligation to refrain

from strikebreaking in that strike for its future dura-

tion. The premise of this conclusion is that the obliga-

tions assumed upon the acquisition of membership

subsist only during the period of membership and

therefore terminate forthwith upon resignation. At

the heart of this premise is the Board’s concept of the

“membership relationship”’ established by ‘‘a contract-

constitution” to which the. individual ‘‘becomes a

party” upon “‘joining the union”? (infra, p. 6a). In

the Board’s view the contract-constitution ‘“‘becomes a

nullity’’ upon resignation, and ipso facto the ‘“mem-

ber’s duty of fidelity to the union and the union ’s cor-

Tesponding right to discipline for breach of that duty

_ are extinguished”’ forthwith (infra, p. 7a). To fortify

its view as to the meaning of a union constitution as a

matter of contract law, the Board draws upon the

“statutory policy to prevent coercion of employees for

exercising Section 7 rights’’ safeguarded against union

encroachment by section 8(b) (1) (A) of the Act (infra,

pp. 8a-9a).

It is thus the Board’s thesis that, absent an express

contrary stipulation, resignation results in blanket

nullification of the applicability of the union constitn-

tion to govern the former member’s future conduct for

any purpose, and requires absolute and abrupt extine-

tion of all existing obligations in total disregard of any

circumstances. It is this thesis which we contest as

fundamentally fallacious. Treating the union constitu-

tion as a contract, it is elementary that ‘‘the law of

contracts attempts the realization of reasonable expec-

tations that have been induced by the making of a

promise,’’* and that ascertainment of the existence,

meaning and consequences of a promise depends as

much upon implications of fact and operation of law as

it does upon express terms.* Thus, although wanting in

explicitness, a promise may nevertheless be “fairly ...

implied”’, for ‘‘the whole writing may be ‘instinct with

an obligation’, imperfectly expressed.”’" And so, in

“construing contracts, courts must look not only to the

specific language employed, but also to the subject mat-

ter contracted about, the relationship of the parties, the

circumstances surrounding the transaction, or in other

°1 Corbin, Contracts, 2 (1950).

*3 Corbin, Contracts, 276-355 (1950).

7 Cardozo, J., in Wood vy. Duff-Gordon, 222 N.Y. 88, 90, 118 N.E.

214 (1917). See also, Marrinan Medical Supply v. Ft. Dodge

Serum Co., 47 F.2d 458, 463-465 (C/A. 8, 1931) ; Local 174, Team-

sters v. Lucas Flour Co., 369 U.S. 95, 104-106 (1962).

words place themselves in the same position the parties

occupied when the contract was entered into, and view

the terms and intent of the agreement in the same light

in which the parties did when the same was formulated

and accepted,’’ *

This Court just last term gave forthright expression

to the indispensability of implication in determining

the existence and meaning of a contract. “.. . [T]he

law of contracts in most, if not all, jurisdictions long

has employed a process by which agreements, though

not formalized in writing, may be ‘implied.’ 3 Corbin

on Contracts, §§ 561-672A. Explicit contractual provi-

sions may be supplemented by other agreements im-

plied from ‘the promisor’s words and conduct in the

light of the surrounding circumstances,’ J d., at § 562.

And, ‘[t]he meaning of [the promisor’s] words and

acts is: found by relating them to the usage of the

past.’ Ibid.” Perry vy, Sinderman, 40 U.S.L.W. 5087,

5090 (‘S. Ct., 1972).

Given this orientation the question is whether the

union constitution is justly interpreted to mean, where

it is silent upon the subject, that a mid-strike resigna-

tion frees the member forthwith from his existing union

attainment of its proper purposes... .’’* This duty of

loyal support finds its cardinal expression in the obli-

_ gation to refrain from strikebreaking, Every member

depends on every other to withhold his labor from the

_ “Miller v. Miller, 134 F.2a 583, 588 (C.A. 10, 1943).

_ * Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833, 834 (1931).

struck employer in order to make the strike effective,

The least that each member is entitled to expect of the

: other is that all who are pledged to the common cause at

the beginning of the struggle will fulfill their obligation

to carry through for its duration. Accordingly, a mid-

strike resignation from a union, however efficaceous it

may be to sever other membership obligations, should

not as a matter of the fair interpretation of the rela-

tionship be given the effect of relieving the resigner

instanter of his duty to refrain from strikebreaking at

the very moment when its observance counts most. For

“mutual reliance is implicit in all strike votes; many

employees would hesitate to forego several weeks or

months of pay if they knew their cohorts were free to

cross the picket line at any time merely by resigning

from the union.” N.L.R.B. v. Granite State Joint

Board, Textile Workers Union of America, Local 1029,

AFL-CIO, 446 F.2d 369, 872 (C.A. 1, 1971), cert.

granted, 405 U.S. 987 (1972).

We turn to an elaboration of this position. We shall

show, in essence, (1) that a union constitution, faith-

fully interpreted in keeping with its fair purport, bars

treating resignation in the course of a strike as a license

to engage in strikebreaking for the future duration of

the existing strike, and (2) that “statutory policy”

does not militate against this implication but is instead

quite in harmony with it.

Il. This Court's Validation in Allis-Chalmers of the Imposition

of a Court-Collectible Union Fine as a Discipline Against

Strikebreaking.

We begin with this Court’s decision in N.L.R.B. v.

Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). The

Court answered ‘‘no”’ to the quéstion ‘“‘whether a union

which threatened and imposed fines, and brought suit

for their collection, against members who crossed the

union’s picket line and went to work during an author-

ized strike against their employer, committed the unfair

labor practice under §8(b)(1)(A) of the National

Labor Relations Act of engaging in conduct ‘to restrain

or coerce’ employees in the exercise of their right guar-

anteed by §7 to ‘refrain from’ concerted activities,’”

388 U.S. at 176." Underpinning this holding was rec-

ognition that strikebreaking was fundamentally offen-

sive to union solidarity essential to effective economic

action (id. at 180, 181-182) :

National labor policy has been built on the: pre-.

mise that by poo their economic strength and

acting through a labor organization freely chosen

by a majority, the employees of an a propriate

unit have the most effective means of aining

for improvements in wages, hours, and working

conditions. .. .

* om *

Integral to this federal labor policy has been the

tions governing membershi . That power is par-

ticularly vital when the mem in strikes.

gainst the em co is the

te weapon in labor’s arsenal for achieving

agreement upon its terms, and ‘the aed to fine

or expel strikebreakers is essential the union ‘is

: an effective -..” Provi-

sions in union constitutions & , Ue for

~. and expulsion of recalcitranta, including strike-

breakers, are therefore commonplace and were

commonplace at the time of the Taft-Hartley

amendments,

Bee also, Rocket Freight Lines Co. v. NLRB 437 F.34 202,

Bay C4: 10, 1970) ; U.0.P. Norples Diviatan ¢. NLRB, 445

P24 155 (C.A. 7, 1971),

The ‘‘history of congressional action does not support

a conclusion that the Taft-Hartley prohibitions against

restraint or coercion of an employee to refrain from

concerted activities included a prohibition against the

imposition of fines on members who decline to honor an

authorized strike and attempts to collect such fines,

Rather, the contrary inference is more justified in the

light of the repeated refrain throughout the debates

on § 8(b)(1)(A) and other sections that Congress did

not propose any limitations with respect to the internal

affairs of unions, aside from barring enforcement of a

union’s internal regulations to affect a member’s em-

ployment status’’ (id. at 195).

trikebreaking Subsequent

Resignation Where the Individual Was a Member

of the Union at the Inception of the Strike, for the

Obligation of Loyalty Binds Him Notwithstan R .

Duratign of

tion To Refrain From Strikebreaking for the

the Existing Strike.

Given the duty confirmed by Allis-Chalmers to re-

frain from strikebreaking, which every member as-

sumes upon acquisition of membership, the question is

whether resignation in the midst of a strike forthwith

terminates that duty with respect to that very strike.

The answer turns on whether the union constitution

contemplates that a mid-strike resignation authorizes

instant conversion of the duty to refrain from strike-

breaking into a freedom to break the existing strike.

It is to the last degree unimaginable that the union

constitution is fairly capable of that interpretation.

The constitution is the union’s charter of govern-

ment. It orders the relationship of the union and its

members to preserve and promote organizational effee-

tiveness. A prominent organizational need is the ability

of the union to prosecute a strike. It is impossible to

suppose, from the viewpoint of either the union as an

institution or of any member as part of that institution,

that the constitution allows desertion from the ranks in

the midst of a strike. ‘. .. [N]egotiations are carried

on with the préspect of an immediate or possible break

of diplomatic relations and a resort to force. If the

break comes, the union goes to war and the need for

discipline is obvious. The employer is the enemy; giv-

ing him any aid or comfort is treason. To supply him

with labor is to furnish him the weapon with which the

battle is fought and is clear treason.’? ”

It is plain that the union constitution as the govern-

ing instrument cannot be reasonably interpreted to

mean that a mid-strike resignation has the expected

effect of authorizing the defector to break the existing

strike. On the contrary, ‘‘derived from implied cove-

nants of good faith and fair dealings” which inhere in

_ every contract,” the least that the constitution contem-

plates is that the obligation to refrain from strike-

breaking, undertaken before the strike and activated

by it, shall endure for the duration of the strike.

The obvious escapes understanding only because the

constitution is silent upon the effect of a mid-strike

resignation. But silence presents the interpretative

question ; it does not decide it. Silence simply puts'the

trier to the task of extrapolating the probable meaning

of the constitution based on the subject matter, rela-

"™ Summers, Disciplinary Powers of Unions, 3 Ind. & Lab. Rel.

Rey. 483, 489 (1950).

2 Local 1912, I.A.M. v. United States Potash Co., 270 F.2d 496,

498 (C.A. 10, 1959), cert. denied, 363 U.S. 845 (1959).

tionship, and interests to be served in the light of the

circumstances from which the problem emerges.

Fleshing out a contract so as to supply the unex-

pressed but fair and reasonable rule for the intention-

ally or inadvertently omitted situation is a common-

place in the interpretation of a collective bargaining

agreement.” This interpretative function is no less a

necessity, if perhaps less forthrightly recognized, in the

interpretation of other contracts." ‘Parties to a con-

tract may, either intentionally or by oversight, omit

certain terms or leave them to be determined in the

future. When litigation ensues, the court, if it is not to

frustrate the parties’ dominant intent to make a con-

tract, must often fill the gaps ‘if it is possible to reach a

fair and just result.’ Although courts declare that they

will not make a contract for the parties, they must fre-

quently complete the contract by filling in the omitted

terms. Such completion is, in a very real sense, an act

of creation.’’ * :

This approach is indispensable to the realistic read-

ing of a union constitution. ‘‘Membership in a union

8 United Steelworkers of America v. Warrior & Gulf Navigation

Co., 363 U.S. 574, 578-582 (1960). See also, Perry v. Sinderman,

40 U.S.L.W. 5087, 5090 (8. Ct., 1972).

Summers, Collective Agreements and the Law of Contract,

78 Yale L.J. 525, 529-530 (1969).

18 Id. at 551. ‘‘... [A] sound judicial tradition stresses concern

for context, purposes, needs, and consequences in resolving the

ambiguities and the gaps that exist in all agreements. See,

Llewellyn, What Price Contract? An Essay in Perspective, 40 Yale

LJ. 704, 746 n. 86 (1931) ; Lewis v. Benedict Coal Corp., 361 U.S.

459, 475-476 . . . (1960) (dissenting opinion).’’ Meltzer, Labor

Law, Cases, Materials, and Problems, 746 (1970).

short, membership is a special relationship.”’* We are

required to ask whether that special relationship has

ship than there would be for a cognate claim that di-

voree must automatically end all obligations flowing

from the marriage contract.

The perspective which the Board lacks is provided by

looking to what courts do when dealing with the ter-

mination of a contractual relationship. Thus, ‘‘where

credit in establishment of a costly distribution facility

for the supplier’s product, and the supplier thereafter

unreasonably terminates the contract and dealership

_ without giving the dealer an opportunity to recoup his

investment, a claim may be stated.’’ "” So too, a “‘provi-

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

Rey, 1049, 1056 (1951).

"Clausen & Sons vy. Theo. Hamm Brewing Co., 395 F.2d 388,

391 (C.A. 8, 1968). See also, Gellho Limitations on Contract

sion which would limit the termination rights of a party

may be implied into the bargain under some circum-

stances,’’** Similarly, an agreement of indeterminate

duration is terminable, but only after a reasonable lapse

of time and upon reasonable notice.” Likewise, the

liberty to quit employment is subject to the disability

that in future employment the employee may not ex-

ploit the use of confidential information acquired in

the former employment to the disadvantage of the for-

mer employer.” Similarly, resignation of a carrier

from a shipping conference does not bar the conference

from trying the carrier for preresignation infractions

in accordance with changed procedures instituted sub-

sequent to resignation.” Finally, just last term, in con-

sidering the status of a teacher whose employment was

not protected by ‘“‘an explicit tenure provision’’ and

who had not been rehired for the next school year, this

Court observed that ‘‘there may be an unwritten ‘com-

mon law’ in a particular university that certain em-

ployees shall have the equivalent of tenure”’ despite the

absence of an ‘‘explicit tenure system ... .”?

In all these situations the courts implied, or asserted

the power to imply, just and reasonable conditions

upon the termination of the relationship which the

18 Clausen & Sons v. Theo. Hamm Brewing Co., 395 F.2d 388,

391, n. 3 (C.A. 8, 1968).

%® Miller v. Miller, 184 F.2d 583, 588-589 (C.A. 10, 1943);

Boeing Airplane Co. v. N.L.R.B., 85 U.S. App. D.C. 116, 174 F.2d

988, 991 (1949).

20 N.L.R.B. v. 1.L.G.W.U., 274 F.2d 376 (C.A. 3, 1960) ; Junker

v. Plummer, 320 Mass. 76, 67 N.E.2d 667 (1946).

21 Pacific Coast European Conference v. F.M.C., 439 F.2d 514

(C.A.D.C., 1970). /

2 Perry v. Sinderman, 40 U.S.L.W. 5087, 5090 (S. Ct., 1972).

agreement did not in terms express. No less is re-

quired in this case. Given the crucial expectation of

utter membership solidarity during the critical period

of a strike, and the rightful reliance of every member

on every other to withhold his labor for the duration of

the strike, a mid-strike resignation does not justly and

reasonably comprehend lifting the existing duty to re-

frain from strikebreaking in the current controversy.

The duty antedated the strike; observance of it was ac-

tivated by the strike; performance mongd be required

for the duration of the strike.

To meet this showing all that the Board states in its

brief in this case ( Pp. 16), echoing the view of the Dis-

trict of Columbia Circuit in Booster Lodge (79 LRRM

at 2448), is that “‘it is generally recognized that courts

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

constitution or bylaws.’’? But this is a poor crutch.

First, as the author whom the District of Columbia Cir-

cuit cites to support its view makes clear, this stricture

is limited to the innovation of a prescript in a situation

where no rule at all exists; it does not apply to the in-

terpretation of the Scope of a rule which is in being.”

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

Rev. 1049, 1060-61 (1951) :

The prevailing rule that a member may not be punished

for implied offenses cannot be justified on the ground that it

protects a member from being disciplined for conduct which

he believes to be proper. i

by such

vague catchalls as conduct detrimental to

the best interest of the union.’”’ Union resolutions are made

enforceable by including the offense, ‘‘disobedience to regu-

Second, even as so limited, the author disapproves the

approach, observing that it permits a member to es-

cape discipline although he “‘is fully aware that he has

acted improperly”’, ‘‘gives little practical protection to

union mem ™, and serves instead merely to relieve

judges of the task of judging.* Third, this Court has

discredited the approach as a matter of federal law, as

it emphasized in International Brotherhood of Boiler-

makers v. Hardeman, 401 U.S. 233 (1971). This Court

concluded, upon an examination of the legislative his-

tory of section 101(a)(5) of the Labor-Management

Reporting and Disclosure Act, that Congress delib-

erately declined to limit permissible discipline to vio-

lation of ‘‘a previously published, written union rule’,

or to miscreant conduct that ‘‘the union had proscribed

prior to the union member having engaged in such ac-

tivity”’ (td. at 242-244). The federal approach instead

is to entrust unions with self-governing autonomy (id.

at 242, 244-245) :

We find nothing in either the language or the

legislative history of §101(a)(5) that could jus-

tify. ...4 substitution of judicial for union author-

ity to interpret the union’s regulations in order to

determine the scope of offenses warranting disci-

pline of union members.

* * *

. - - §101(a) (5) was not intended to authorize

courts to determine the scope of offenses for which

lations, rules, mandates and decrees of the Local or Interna-

tional,’’ and difficulties with penalties are eliminated by mak-

ing all offenses punishable by fine, suspension, or expulsion.

The function of the rule against implied offenses is not

nearly so much to protect the members, as it is to protect the

courts. If the courts recognized implied obligations, they

would have to determine what constituted a ‘‘serious offense.’’

** See preceding note.

a union may discipline its members. And if a union

may discipline its members for offenses not pro-

seribed by written rules at all, it is surely a futile

exercise for a court to construe the written rules in

order to determine whether particular conduct falls

within or without their scope.

Lastly, the discredited approach invoked by the Board

and the District of Columbia Circuit is dubious even as

properly

or indeed with-

he Law, Judicial

Control of Actions of Private Associations, 76 Harv. L,

Rev. 985, 1018 (1963).

In short, if a union is to be faulted for construing its

prohibition against strikebreaking to apply to a mid-

strike resigner for the duration of the existing strike,

it should be on a better basis than the invocation of an

interpretative crutch which either refrains from exer-

cising judgment or conceals the basis for it. Federal

law is better served by candid confrontation of @ prob-

lem than by seeking refuge in rote.

_ T&support its view that a mid-strike resigner is free

the subject, members are at liberty to resign forthwith

at will (infra, p. 7a and n.11). But invocation of the

rule to support strikebreaking is quite inapt. For the

situation in which that rule has been applied is utterly

different from the present situation, and regard for

the difference bars application of the rule to sanction

strikebreaking.

In ‘all situations in which the Board has applied the

rule, the question has been whether under a union »

security agreement known as maintenance of member-

ship, by the terms of which a nonmember need not join

the union but an existing member must retain his

membership in the union, membership is required on

the part of a person who had resigned from the union

before the effective date of the agreement.” To that

question the Board has answered that, as the union

constitution did not limit the time or manner of resig-

nation, a person ceased to be a member on resignation

and therefore the agreement did not require member-

ship of that person because he was a nonmember when

it became effective.

Accordingly, all that the rule apparently invoked by

the Board stands for is that, in the application of a

maintenance of membership agreement, a person be-

comes a nonmember on resignation in the absence of a

contrary specification in the union constitution. This

rule means that a member who resigns during a strike

5 Aeronautical Industrial District Lodge 751, 173 NLRB 450,

452 (1968); Local 340, International Brotherhood of Operative

Potters, 175 NLRB 756 (1969); Local Union No. 621, United

Rubber Workers, 167 NLRB 610 (1967); New Jersey Bell Tele-

phone Co., 106 NLRB 1322, 1324 (1953), enforced sub nom. Com-

munication Workers of America v. N.L.R.B., 215 F.2d 835, 838

(C.A. 2, 1954).

is not obligated to join a union under the terms of a

maintenance of membership agreement entered into at

the end of the strike because he had become a nonmem-

ber before the effective date of the agreement. But it

means no more.

Considered in the context of its application, there-

fore, neither the rule nor any rationale supporting it

persuasively relates to the question this case presents,

namely, whether a mid-strike resignation frees the erst-

while member to engage in strikebreaking in an existing

strike. It is one thing to say that a person becomes a

nonmember on résignation so that an ensuing mainte-

nance of membership agreement is not applicable to

him. Or that a person becomes a nonmember on resig-

nation so that he is no longer under a financial obliga-

tion to pay future dues and assessments to the union.

It is quite another thing, however, to say that liberty

to engage in strikebreaking in the current controversy

is the reasonable and expected consequence of a mid-

strike resignation. Only an either-or mentality, requir-

ing that things must be all one or all another, can fail

to consider whether the same act may not entail a di-

versity of consequences. Moderate interpretative

sophistication encounters no strain in finding that a

particular status may have different attributes for dif-

ferent purposes.”* Accordingly, to say that a mid-strike

resignation renders a subsequent maintenance of mem-

bership agreement inapplicable to the resigner is not to

begin to say that it frees the resigner to engage in

strikebreaking in the existing strike.

—_*Ey., Phelps Dodge Corp, v. N.L.R.B., 313 U.S. 177, 190-193

(1941).

The Board apparently takes the position that cer-

tain expressions in opinions of this Court suggest the

view that instant freedom to engage in strikebreaking

is the necessary consequence of a mid-strike resigna-

tion. We turn to this claim. ;

1. The Board states that’ this Court in N.L.R.B. v.

Allis-Chalmers Mfg. Co., 388 U.S. 175, 196-197 (1967),

“expressly refused to pass on the legality of the imposi-

tion of a fine upon ‘limited members’ of the union”’,

from which the Board deduces that “in this reservation

there was the implication that such a fine when levied

against nonmembers constitutes a form of restraint and .

coercion proscribed by Section 8(b)(1)(A)”’ (infra,

p. Ta). The Board deduces too much from too little.

In Allis-Chalmers, under one type of union member-

ship available in that case, “an employee is required

only to become and remain ‘a member of the Union...

to the extent of paying his monthly dues ...’”’ (388

US. at 196). As to that type of limited member—one

who has undertaken only to pay dues to the union—this

Court stated that whether the prohibition of Section

8(b) (1) (A) of the Act “‘would apply if the locals had

imposed fines on members whose membership was in

fact limited to the obligation of paying monthly dues

is a question not before us and upon which we intimate

no view”’ (id. at 197).

To intimate no view as to whether a member whose

obligation is limited to paying dues may be disciplined

for strikebreaking is to intimate no reservation relevant

to this case. A member whose union obligation is lim-

ited to paying dues is by negative implication a mem-

ber who has not undertaken to fulfill any other obliga-

tion of membership; and it is surely arguable that a

person who has not bound himself to refrain from

strikebreaking cannot be fined for it. But we deal in

this case, as the Court did in Allis-Chalmers, with per-

sons who had full membership status (id. at 196-197) ,?”

and full membership embraces the obligation to refrain

from strikebreaking (id. at 181-182, supra, pp. 20-22).

The question in this case, not presented in Allis-Chalm-

ers, is whether a mid-strike resignation frees the ful]

member ‘to engage in strikebreaking in the existing

strike. We have shown that it does not, and nothing in

this Court’s reservation concerning a limited member

whose union obligation is confined to paying dues re-

motely suggests that it does.

2. In Scofield v. N.L.R.B., 394 U.S. 423 (1969), this

Court held that Section 8(b)(1)(A) of the Act did not

bar a union from fining a member for violating a valid

union rule against ex ing a production ceiling. In

reaching this conclusion the Court noted inter alia that

the rule was enforced against ‘union members who are

free to leave the union and scape the rule”’ (id. at 430).

According to the Board, “ [b]y observing that members

could ‘leave the union and escape the rule,’ the Court

seems to have envisaged the possibility that union

Members could, indeed, resign membership and ayoid

discipline” (infra, p. 8a).

Since in Scofield the violation of the rule occurred

during the term of a collective bargaining agreement,

—_—_—_——_

required to establish that a member

less than full membership status. As the Court stated,

“‘Allis-Chalmers offered no evidence in this proceeding that any of

the fined employees enjoyed other than full union membership. We

_ - Mill not presume the contrary.”’ Allis-Chalmers, 388 U.S. at 196.

and since the union security clause in that agreement

obligated an existing member to remain a member for

the duration of the agreement (394 U.S. at 424, n.1),

presumably the Court meant, when it said that ‘union

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

rule,’’ that the member was free to renounce all union

obligations except the payment of union dues. For a

union security agreement, while it may do no more,

may indubitably bind a person to pay union dues and

initiation fees at the risk of losing his job if he does

not. ‘‘Under § 8(a) (3) the extent of an employee’s ob-

ligation under a union security agreement is ‘expressly

limited to the payment of initiation fees and monthly

dues. ... ‘Membership’ as a condition of employment

is whittled down to its financial core.’ ” *

Accordingly, when the Court states that ‘“‘union mem-

bers ... are free to leave the union and escape the rule,”

it envisages the member’s exercise of his option during

the contract term to convert from a full member (sub-

ject to all union obligations) to a limited member (sub-

ject only to the obligation to pay dues). But the option

to convert to limited membership in Scofield, like the

status of limited membership reserved in Allis-Chalm-

ers, has nothing to do with the question that the instant

case presents. Granted that a member may change

from full to limited membership during the contract

term, or may resign his membership altogether upon

expiration of the contract, the question still remains of

the fair effect to be given to a mid-strike resignation as

it relates to the rule against strikebreaking. The mem-

ber by resigning of course escapes the rule against

%* N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 197, n. 87

(1967), quoting from N.L.R.B. v. General Motors Corp., 373 US.

784, 742. (1963).

strikebreaking rule, and therefore a world of difference

in the time when leaving the union may fairly abrogate

observance of the one rule but not the other. And it is

just the demands of a strike situation, which the Court

did not at all address in Scofield, which make the dif-

ference.

Accordingly, this Court ’s phrasal reference to “union

members who are free to leave the union and escape the

escape the rule at any time and under all circumstances,

Indeed, we do not see how that interpretation could be

correct since in Scofield itself the Court recognized that

a valid union security clause was in effect at the time

of the alleged unfair labor practice.”’ 52

legitimate internal affairs are concerned.” The Board

‘then states that “‘the imposition of discipline upon non-

_Members can hardly be deemed an internal affair”’

(infra, p. 8a). The Board begs the question,

The effect to be given to a mid-strike resignation on

enforcement of a rule against strikebreaking is surely

part of a union’s “legitimate internal affairs.” If the

union constitution had in terms stated that a mid-strike

resignation does not relieve the member of his existing

duty to refrain from strikebreaking in the current con-

troversy, the union could hardly be faulted on the

ground that it was legislating on a matter which was

none of its internal business (infra, pp. 43-49). Just

and reasonable regulation of the terms on which a mem-

ber may resign is an obvious function of any member-

ship association. 3

The Board’s error lies in its unparticularized use of

the word ‘‘nonmembers.’? The Board packages as

“nonmembers” persons who have never been union

members with persons who seek to resign their existing

membership and assumes that both are to be treated

alike. But the two are obviously not the same in fact,

and whether for particular purposes they should be

treated differently in law is the question presented.

That question cannot be satisfactorily answered by

question-begging assumptions as to the content of “in-

ternal affairs’’ or the fungibility of ‘““nonmembers.”

4, The upshot is that the quotations which the Board

snips from the Court’s opinions simply do not answer

the present question. The present question is new.

There is no point to the pretense that the answer has

already been given.

VL The Suggestion That a Member Is Bound To Refrain From

for the Duration of the Strike Notwith-

standing Resignation Only if at Its Inception He Individ.

ually Assented to the Strike.

The First Circuit held, in disagreement with the

» that in the circumstances of this case a mem-

ber’s mid-strike resignation did not free him to engage

in strikebreaking subsequent to his resignation. In

Booster Lodge No. 405, the District of Columbia Circuit

held, in agreement with the Board, that in the cireum-

ase a member’s mid-strike resignation

did free him to engage in strikebreaking subsequent to

his resignation.

In denying enforcement of the Board’s order, the

First Circuit suggested that the circumstances in this

case may be different from those in Booster Lodge (also

known as the Boeing case) (446 F.2d at 372, n. 5):

Union had not warned

imposition of disciplinary measures.”’ ,

deing opinion did not consider whether any of

the che who crossed the picket line had

originally voted to support the strike. '

In Booster Lodge, the District of Columbia Circuit

embraced the distinctions suggested by the First Cir-

cuit, and in reliance on them stated that ‘“‘we believe

that the [Granite State] decision is inapposite to the

present fact situation,” reasoning that (79 LRRM at

2449) ;

_.. Although the court in Granite State upheld the

_. Tight of the union involved to impose fines on

strikebreakers for post-resignation activity, it em-

phasized that a specific set of facts was present

which it believed rendered such a result equitable,

and it specifically recognized that these considera-

tions were not present with respect to the instant

Booster ee 405 case. In Granite State, the

Board conceded that all of the fined employees had

voted in favor of the strike in question. tt is also

important to note that the fines had not been im-

posed pursuant to a general provision in the union

constitution, as here, but rather in accordance with

a specific proclamation which had been unani-

mously adopted by the membership after the work

stop commenced. See 446 F.2d at 370, 372 n. 5.

ermore, all of those who were disciplined in

Gramite State had been expressly prewarned of

possible punishment for ebreaking, while the

employees with whom we are herein concerned

received no such pre-strikebreaking notification.

Because of these distinguishing facts, we refuse to

apply the rationale of Granite State to the instant

factual situation.

The First Circuit thus holds, and the District of Co-

lumbia Circuit does not disagree, that a member despite

his resignation is at the least bound to refrain from

strikebreaking for the duration of a strike when at the

outset of the strike he made his own individual decision

to go out on strike. But the District of Columbia Cir-

cuit holds, unlike the First Circuit which reserves deci-

sion on that question, that a member by resigning may

renounce the institutional decision to strike at least in

the absence of a showing that he individually assented

to the decision initially.

This difference suggests the possibility that a mem-

ber is bound notwithstanding resignation to refrain

from strikebreaking for the duration of the strike only

if at its inception the member individually supported

“39

the decision to strike. The Board does not agree, nor

do we, that the legal consequence of resignation can

turn on whether or not the member at the inception of

the strike individually supported or opposed the group

decision to strike. But our reasons sharply differ.”

1. The essence of the solidarity indispensable to ef-

fective strike action is that a member is bound by the

institutional decision: to strike whether or not he was

individually opposed to that group decision. A member

is required to refrain from strikebreaking despite his

dissent from the decision to strike. A member does not

by his dissent create a personal option to refrain from

striking by resigning. Membership is not divided into

two classes, one class composed of those members who

by individually assenting to strike are bound to that

choice for the duration of the strike, and another class

* Although the First and District of Columbia Circuits mutual-

ly acknowledged ditinctions between Granite State and Booster

Lodge, it is apparent that the underlying rationale of the two

courts is in conflict. While the First Circuit suggested the distinc-

tions between Booster Lodge and Orenlle Bate it explicitly stated

that ‘‘ [w]e express no opinion, however, as to whether these distine-

tions are determinative’’ (446 F.2d at 372, n. 5, see also id. at 374,

n. 8). The District of Columbia Cireuit in Booster Lodge, while

purporting to rest on the distinctions that the First Circuit identi-

fied, nevertheless noted that ‘“ [t]o the extent that the First Cir-

cuit’s decision in Granite State may be read to support Booster

Lodge 405’s position here, we respectfully decline to follow it”’ (79

LRRM 2449, n. 19). Subsequent to both decisions the Court: of

A for the Fifth Circuit rejected the Board’s application of its

postresignation holding to the levy ‘of a fine in which the sole

for nonpayment was debarment from union membership.

5, TAMAW v. N.L.R.B. 456 F.2d 1214 (1972). The Fifth

AGireuit noted that ‘‘[t]o the extent that [the District of Columbia

it’s decision in] Boeing may be read to suport the Board’s

- “position that all forms of discipline for postresignation picket-line-

_ ‘@fessing are barred by the Act, we respectively decline to follow

composed of those members who by individually dis-

senting from the strike are free to abandon the strike

when and as they choose by resigning. The meaning of

a union is that the contrariety of individual choice is

forged into a single will once the group decision is

taken. The reality of unified action is that each mem-

ber is bound for the duration of the strike by the group

decision to strike, whatever his own original personal

choice, which he cannot escape by resigning.

2. To turn the allowability of strikebreaking subse-

quent to resignation on a showing of a member’s in-

dividual original dissent from the strike decision is

incompatible with the variety of means by which unions

make strike decisions. Federal law does not, and state

law cannot, prescribe the means by which unions make

strike decisions (International Union, United Automo-

bile Workers v. O’ Brien, 339. U.S. 454 (1950) ) ; indeed,

federal law ‘‘does not require majority authorization

for any strike’’ (id. at 458). Instead, the means by

which strike decisions are made within a union are ex-

clusively a matter of union self-government and inter-

nal organization. N.L.R.B. v. Wooster Division of

Borg-Warner Corp., 356 U.S. 342, 349-350 (1958).

There are three principal methods by which strike

decisions are made within a union: (a) by open vote of

the members; (b) by secret ballot of the members; and

a strike committee or similar body. Only where the de-

cision is made by open vote is it at all ascertainable

what the member’s original choice may have been, and

even then the evidentiary problems of reliable after-the

fact determination would be formidable. Where the

dcision is by committee, the niember’s only formal par-

ticipation in the process is to designate the constituency

of the committee ; he does not himself vote. Where the

decision is by secret ballot, the whole point of that

method is that the member’s individual vote shall not

beknown. Accordingly, when two of the three principal

means by which strike decisions are made do not and

cannot disclose the member’s original individual choice,

it is a practical impossibility to make the legal conse-

quence of resignation turn on whether at the inception

of the strike the member supported or opposed the

strike decision.

3. The predominant means by which strike decisions

within a union are made is by secret ballot.” The

method required of its subordinate units by the

IAMAW is typical. Thus, in Booster Lodge, in order

toauthorize the strike, a strike vote by secret ballot was

mandatory, a three-fourths majority vote in favor of

the strike was necessary to call the strike, and the strike

call was further dependent on having the sanction of

the Executive Council of the International Union

(supra, p. 4).™

As thus presented in the typical posture of the

TAMAW’s method of calling a strike, the heart of the

question is whether the minority is bound by the major-

ity’s choice to strike made in a secret ballot election.

The answer rests in the indispensability to effective

labor action of binding the entirety of the members for

the duration of the strike to the institutional decision

See the unpublished study, Collective Bargain ing and Strike

Provisions of National Union Constitutions, prepared for the use

of the Federal Mediation and Conciliation Service by Herbert J.

“Lakne, a Department of Labor economist, reprinted infra, p. 15a.

_, tlt 1970, the IAMAW amended its Constitution to require

“Wtwo-thirds rather than a three-fourths majority vote to call

to strike that the majority has made. And the essence

of a secret ballot is its secrecy, a secrecy which must be

broken if effect is to be given to the notion that a mem-

ber is bound by the institutional decision only if he him-

self individually favored it when it was made. In short,

“the majority rules’? (J. I. Case Co. v. N.L.R.B., 321

U.S. 332, 339 (1944) ), and within the compass of effee-

tive strike action there is no room for individual defee-

tion from the collective decision, whether or not the ;

member was personally for or against the strike at its

inception.

VII. There Is No “Statutory Policy” Which Militates Against

Interpreting a Prohibition Against Strikebreaking as Re-

quiring a Mid-Strike Resigner To Refrain From Strike-

for the Future Duration of the Existing Strike.

We return to our starting point. In Booster Lodge,

the provision of the [AMAW Constitution pursuant to .

which the resigners were disciplined proscribed “ac-

cepting employment .. . in an establishment where a

strike . . . exists” (supra, p. 5). This provision does

not specify whether or not it applies to bar strikebreak-

ing in an existing strike subsequent to resignation. The

Board would read the prohibition as a bar against ‘‘ac-

cepting employment .. . in an establishment where a

strike . . . exists” except following resignation. The

Union interprets it as a bar against “‘aecepting employ-

ment ...in an establishment where a strike . . . exists”

notwithstanding resignation. As between the two rival

interpretations of a union constitutional provision—

one barring strikebreaking except following resigna-

tion and the other barring it notwithstanding resigna-

tion—the choice is obvious. A union constitution pre-

mised on maintaining strike solidarity simply cannot

be rationally read to allow strikebreaking. We need

hardly add that ‘Courts are reluctant to substitute

their judgment for that of union officials in the inter-

pretation of the union’s constitution, and will interfere

only where the official’s interpretation is not fair or

reasonable.’’ Vestal vy. Hoffa, 451 F.2d 706, 709 (C.A.

6, 1971), cert. denied, 40 U.S.L.W. 3543, May 15, 19792.

See also, International Brotherhood of Boilermakers v.

Hardeman, 401 U.S. 233, 241-245 (1971).

Insight may be afforded by looking at the issue as if

the result for which we contend had been incorporated

in the constitution in so many words. The constitution

would then read substantially as follows: resignation in

anticipation or in the course of a strike shall not relieve

the member from his duty to refrain from strikebreak-

ing in the upcoming or existing strike. Such an explicit

restriction would doubtless be given effect. A constitu-

tion may limit resignation to the manner and on the

conditions prescribed, so long as the restrictions are just

and reasonable. To require that a present member

refrain from strikebreaking in an existing or impend-

ing strike is obviously a just and reasonable restriction

upon resignation.

In the absence of such explicitness, then, the ques-

tion is whether the implication of that restriction better

a just and reasonable expectation of

oes the implication that resignation

| € erstwhile member to engage in

_ ‘Strikebreaking. Since it is a union constitution that we

_ are interpreting, and the imperative of a membership

-‘elationship which is at issue, it is perfectly patent that

‘the implied terms on which the relationship may be dis-

_ “‘Rolved fairly and reasonably contemplate that the exist-

_—

. N.LRB. v, International Union, United Automobile Work-

rs, 320 F.2d 12 (C.A. 1, 1963).

ing obligation of loyalty to the union politic to refrain

from strikebreaking shall at the least endure for the

duration of the current controversy in which the en-

tirety of the membership is engaged and in which utter

unity is indispensable. oe

But, says the Board, “statutory policy”’ is opposed

to that implication (infra, p. 8a). The District of

Columbia Circuit similarly says that ‘‘an extremely im-

portant national policy militates against the imposition

of such an implied obligation’? (79 LRRM at 2448).

But neither is willing to commit itself to the view that

an explicit restriction against strikebreaking in an

existing strike subsequent to resignation would violate

Section 8(b)(1)(A) of the Act. The Board on brief

contents itself with the statement that it ‘has not yet

had occasion to consider whether a different accom-

modation would be warranted where the union’s con-

stitution or bylaws expressly limited the right of a

member to resign during an ongoing strike” (p. 17,

n.14). The District of Columbia Circuit similarly ex-

‘presses ‘‘no opinion . . . concerning the legality”’ of

such a provision, and it likewise ‘‘intimate[s] no view

regarding the legality of any such provision expressly

imposing a continuing obligation on any resigning

member to refrain from strikebreaking during a work

stoppage which was properly commenced prior to the

time of the resignation’ (79 LRRM at 2449, n. 20).

This straddle will not do. The statute either does or

does not allow a union to bind a mid-strike resigner to a

duty to refrain from strikebreaking in an existing

strike. If it does, no ‘‘statutory policy” is offended

because the restriction is implied rather than express.

A statute which countenances’an express restriction

does not permit the invention of a “‘statutory policy”

which condemns an implied restriction. The Board and

the District of Columbia Circuit cannot shelter their

ambivalence ‘‘in that circumambient aura, so often

euphemistically described as ‘the policy of the

statute.’ ’”*

It is therefore necessary to face up to the question

that the Board insinuates but does not choose to con-

front. And the answer is clear. An implied restriction

against strikebreaking by a mid-strike resigner does

not, any more than an explicit restriction would, run

afoul of the bar of Section 8(b)(1)(A) against re-

straining an employee in the exercise of his right to

refrain from strike activity conferred by Section 7 of

the Act. This is inherent in the teaching of Allis-

Chalmers. The Court held in Allis-Chalmers that Sec-

tion 8(b)(1)(A) does not embrace “a prohibition -

against the imposition of fines on members who decline

to honor an authorized strike and attempts to collect

such fines’’ (supra, p. 22). And it does not precisely

because the “‘economic strike against the employer is

the ultimate weapon in labor’s arsenal for achieving

agreement upon its terms, and ‘the power to fine or ex-

pel strikebreakers is essential if the union is to be an

effective bargaining agent...’ ” (supra, p. 21). This

necessary maintenance of strike solidarity embraces

within its natural scope disallowance of a mid-strike

resignation to justify breaking the very strike which

the member was duty bound to observe at its inception.

The intrinsic nature of a strike commits a union mem-

ber to stick with it for its duration, and it offends every

concept of loyalty and duty to permit mid-voyage de-

fection. The statute does not require a union to permit

_"L. Hand, J., concurring in McComb v. Scerbo, 177 F.2a 137,

“M41 (C.A. 2, 1949).

a mid-strike resignation to be used as an escape hatch

to break the strike.

This conclusion is demonstrable by returning to the

specific statutory premise on which Allis-Chalmers

rests. The predicate of that decision is that imposition

of a fine for violation of a valid union rule is not under

any circumstances open to contest under section 8(b)

(1)(A) if the fine is enforceable only by debarment

from union membership for nonpayment. Writing for

the majority, Mr. Justice Brennan. stated that (388

U.S. at 191-192) : :

At the very least it can be said that the proviso pre-

serves the rights of unions to impose fines, as a les-

ser penalty than expulsion, and to impose fines

which carry the explicit or implicit threat of expul- —

sion for nonpayment.

The dissenters appear to share this view. Mr. Justice

Black wrote for them, and while first seeming to reserve

this matter (388 U.S. at 203), he finally stated that (id.

at 214):

. .. I have already indicated that the proviso to

§8(b)(1)(A) may preserve the union’s right to

impose fines which are enforceable only by expul-

sion and that expulsion was the common mode of

enforcing fines at the time the section was adopted.

The issue which divided the Court in Allis-Chalmers

was, not whether section 8(b):(1)(A) prohibited a fine

that was enforceable solely by debarment from union

membership, but whether court action to collect the fine

was a permissible added sanction. The Court of course

held that it was. ‘‘A lawsuit is and has been the ordi-

nary way by which performance of private money obli-

gations is compelled”’ (id. at 192).

The identical analysis is applicable to the strike-

breaker-resigner as to the strikebreaker-member. If

the penalty imposed on the resigner were a fine, but if

enforcement of the fine were limited to debarment of

the resigner from reacquisition of membership in

the union until the fine were paid, the sanction for

nonpayment would be expressly privileged by the pro-

viso to section 8(b)(1)(A), for it would be confined to

“the right of the labor organization to prescribe its

own rules with respect to the acquisition or retention

of membership therein . . . .”’ In this situation, as the

Court of Appeals for the Fifth Circuit has held, the -

“sanction for nonpayment of the fine was . . . con-

fined to the ‘acquisition or retention of membership,’ a

domain which is reserved to the Union under the Act”’

Local 1255, IAMAW v. N.L.R.B., 456 F.2d 1214, 1217,

(1972). The Fifth Circuit explained that (ibid.):

We believe the Union’s right to expel a member,

or deny readinission to an ex-member, for not pay-

ing a fine is clearly protected by the proviso to

8(b)(1)(A). The proviso makes no distinction

tween acts done while a member and those done

while not a member. Either may be taken into con-

sideration in determining who is to be admitted

to membership or retained as a member. There

is no doubt that the Union could have expelled ...

[the defector] unconditionally for strikebreak-

ing. It seems that if the Union may absolutely

bar him from membership it may conditionally

bar him subject to the payment of a fine.

In summary, we hold only that a union member

who resigns during a strike and crosses his union’s

_. Picket line to return to work may be fined by the

union for his postresignation strikebreaking when

st ae fine is enforceable only by expulsion from the

on.

,, At this juncture we reach the same point in the analy-

mame that the Court confronted in Allis-Chalmers. As

a fine for strikebreaking, enforceable by debarment

from the union until the fine is paid, may be levied

alike against the strikebreaker-member and the strike.

breaker-resigner, the only question which remains ig

whether court action to collect the fine is a permissible

added means’ of enforcement. The Court in Allis-

Chalmers held that court enforcement of the fine was

allowable against the strikebreaker-member, and there

is no slightest reason why it should not also be allow-

able against the strikebreaker-resigner. In either case

the “‘efficacy of a contract is precisely its legal en-

forceability. A lawsuit is and has been the ordinary

way by which performance of private money obliga-

tions is compelled” (388 U.S. at 192).

But, we are told on brief, as a constituent of a mem-

ber’s “right” to refrain from strike activity, a mem-

ber should be free to abandon the strike without risk-

+ ing union discipline for his defection, whenever the

hardship of striking becomes greater than he cares to

bear, so long as he is willing by resigning to give up

the benefits of union membership; this is called ‘“rea-

sonable accommodation’’ (Bd. br. pp. 17-18, 21). We

call it strikebreaking. We are “accommodated” out

of the means of enforcing discipline to maintain the

strike solidarity essential to effective strike action.

We are in the name of a “‘fair balance’’ required to

favor the summer soldier and the sunshine patriot to

the detriment of the steadfast striker who rightfully

relied on group unity when the strike was undertaken.

And we are gifted with this cost-benefit analysis, not

by the Board whose opinion will be searched in vain

for it, but by “‘appellate counsel’s post hoc rationali-

zations for agency action’, a wholly impermissible

basis on which to sustain administrative decision.

NLRB. v. Metropolitan Life Ins. Co., 380 U.S. 438,

442-444 (1965) ; see also F.T.C. v. Sperry and Hutche-

son Co., 405 U.S. 233, 245-250 (1972).

Indeed, were the Board to say that a mid-strike

resignation must be given effect to allow subsequent

strikebreaking, it would arrogate to itself a role which

is statutorily denied it. A union’s refusal to counte-

nance a mid-strike resignation as an excuse for strike-

breaking is a union’s use of one part of its economic

weaponry to secure Satisfactory contract terms. To

maintain that a union is required by law to tolerate

mid-strike desertion through resignation%is thus to as-

‘sert the statutory power to divest the union of one

means of waging economic warfare. Yet it is central

to'this statute that the Board has no such power. It is

not to function ‘‘as an arbiter of the sort of economic

weapons the parties can use in seeking to gain accept-

anee of their bargaining demands’’; it is not “to sit

in judgment upon every economic weapon the parties

toa labor contract negotiation employ ....”? N.L.R.B.

v.Insurance Agents’ International Union. 361 U.8. 477,

497-498 (1960). The Board has no authority to ‘“bdal-

ance”’ away the union’s or the employer’s means of

self-protection. American Ship Building Co. v.

VI.R.B., 380 U.S. 300, 316-318 (1965); N.L.R.B. v.

_ Brown, 380 U.S. 278, 290-292 (1965).

In short, when a union reads its prohibition against

“accepting employment ... in an establishment where

astrike .. . exists” to bar strikebreaking in an existing

strike subsequent to resignation, it is making an in-

“erpretation of the prohibition which is in utter har-

‘Mony with its underlying purport. And when it is said

fiat such an interpretation runs afoul of “statutory

‘Poliey,”’ the assertion bespeaks ignorance of what strike

larity means and disrespects the limitation on the

Board’s power against tnltenieiling j in the econontl in”

weaponry employed to wage economic warfare.

CONCLUSION

For the reasons stated the judgment below should |

be affirmed.

: 3

Bsr

Respectfully submitted,

Piato E. Papps

Louis PouLton

1300 Connecticut Av enue, N.W.

Washington, D. C. 20036

Brernarp DuNaAU

912 Dupont Circle Building, N. Ww.

Washington, D. C. 20036

Attorneys for International

Association of Machinists &

‘ Aerospace Workers, AFL-CIO

July 1972

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.