Amicus Curiae Brief — Gulf States Util. Co. v. FPC

<a Page

PARGUMENT oacsccsscssscssssssssssssssecanessnsssnessnnsesnsesnesesne 2

PGONCLUSION oisssesscssssscssscsssssscssesssnssssnnsesnnsscesnsceennsee 22

4 CITATIONS

4 ASES:

“Boilermakers v. Hardeman, 401 U.S. 233 0... 2,4

> Br s Employees v. Missouri, 374 U.S. 74 .......cecessessesseseees 13

: * Galhoon i, TERPS, Bi Ue FOR acest reese 15

E Gharles S. Skura, 148 NLRB 679 ....ccccccssssessesen 6

on Workers v. Perko, 373 U.S. 701 ou... eeeeeeeee 2

Local 1424 Machinists v. NLRB, 362 U.S. 411 ..0. 18

os shinists v. Gonzales, 356 U.S. 617 oo... eeeeeeeee 2,4

© Minneapolis Star & Tribune Co., 109 NLRB 727 .... 4, 5, 10

* Motor Coach Employees v. Lockridge, 403 U.S. 274 .... 2,11

RB v. Allis-Chalmers, 388 U.S. 176 ...... 2, 3, 4, 5, 7, 8, 10,

11, 12, 18, 21, 22

NLEB v. C&C Plywood Co., 385 U.S. 421 weeeeecccn 14, 15

RB v. Granite State Joint Board, ...... US. ....,

41 U.S.L.W. 4074 (Dec. 7, 1972) ............ 2, 8, 15, 16, 18, 22

- NLEB v. Insurance Agents International,

BE RE, BET ation gests arenes 12, 13

BL TS 418 css sscsssssssssntnsneensesnsenerssssnerentse 2, 6, 20

NLEB v. Nabors, 196 F.2d 272, 275 (C.A. 5) cert

Be denied 344 U.S. 865 .....sccssssssssssessssesesssseesnnseeesnnseeenn 14

| NLEB v. UAW, 320 F.2d 12 (C.A. 1) ceecccccsssesssesseen 19

© National Maritime Union, 78 NLRB 971, enforced

ID We NG (CBD). ccs sscscecesesigsssiscsscesesiniorsvansstoteorsvsveves 5

ESAT TE EI EES TET PI ae IN GP

Porter Co. v. NLRB, 397 U.S. 99 ..........csssssssssescerececssenes |

Plumbers Union v. Borden, 373 U.S. 690

Ricci v. Chicago Mercantile Exchange, ...... b kone

41 U.S.L.W. 4097 (Jan. 9, 1973) wn. eeseseeseeceseeees

Scofield v. NLRB, 394 U.S. 423 0... 2, 3, 5, 6, 7, 10,

11, 13, 18, 21

Teamsters Union v. Morton, 377 U.S. 232 «ue. 13

Wisconsin Motor Corp., 145 NLRB 1097 ....... 8

STATUTES:

National Labor Relations Act 29 U.S.C. Section 151

et seq.

BD sacevesacesslicancpesevsuasvavesecauavaeenate heqsceapastspenersressaensescstvenssesys 14

RF sosccresseaesenes tenes fe speayansesseyseveesstesesssdeesepescenpsseuve 17, 18, 19, 20

CY ercacp case cscp sees eeneennnsstee sean ntnetecvearccenteercerees 14

§ 8(b)(1)(A) ...... 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 17, 19, 21

ROT) CZ) sp ccstscnsvnsaesssesarsecnscaseaesvanansanetassensserelencossecranacisy

SBD) 5) ska onnessncesenccntessncanpncntsnrsievnvesbncvabshactaunsantaraastexiecnsves

© CY: ccc sascesocoeuctcccossiayasnasvensueeasisuassaseonvenvsaisy sevens esayaseesteves

Labor Management Reporting and Disclosure Act of

1959, 29 U.S.C. Section 401 et seq.

RS TOL GAUDY: cececccicctioccconteservereeusseterssscetitsiensisscnceuns

TP RANG Ty waceesissarsncsstetusatssereessestanaeniesnssarsavyaessconemnrcsennvareis

THANG TY seccaesseamasnaotsascsnwsnnnrninnnniones

ii

Supreme Court of the United States

October Term, 1972

No. 71-1417

““Booster Lopce No. 405, INTERNATIONAL ASSOCIATION OF

MacHINIsts AND AEROSPACE Workers, AFL-CIO,

Petitioner,

v.

NationaL Laspor Reiations Boarp

AND THE BoEInc CoMPANY

No. 71-1607

NationaL Lapor Reuations Boarp,

Petitioner,

v.

THE Borrnc Company, AND Booster Lopce No. 405,

INTERNATIONAL ASSOCIATION OF MACHINISTS

anD ArERospacE Workers, AFL-CIO

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

This brief amicus, in support of the position of Booster

Lodge No. 405, International Association of Machinists

and Aerospace Workers, AFL-CIO, is filed by the American

Federation of Labor and Congress of Industrial Organi-

zations (AFL-CIO), a federation of 115 national and inter-

national labor unions having a total membership of ap-

proximately 13,500,000 working men and women, with the

consent of the parties, as provided for in Rule 42 of the

Rules of this Court.

bh ERLE RING ET MN TAY OI NL ANNE

5 Sam

2

ARGUMENT

I

The first of the two questions presented here is whether

§ 8(b)(1)(A) of the National Labor Relations Act em-

powers the National Labor Relations Board to review

union fines, enforceable in court, which have been imposed

upon members who violate a valid union rule (here a

prohibition on crossing a picket line during a strike), to

determine whether those fines are excessive in amount.

This is the fifth case in the line stemming from NZIRB y.

Allis-Chalmers, 388 U.S. 175, raising an issue as to the

scope of the Board’s authority to oversee the process by

which union members define the norms regulating the con-

duct of their affairs, develop procedures for the adjudica-

tion of alleged violations, and determine the scale of appro-

priate sanctions. See also NLRB v. Marine & Shipbuilding

Workers, 391 U.S. 418; Scofield v. NLRB, 394 US. 423;

NLRB vy. Granite State Joint Board, ...... US. ...., 41

U.S.L.W. 4074 (Dec. 7, 1972). Moreover, in delineating

the preemptive effect of the NLRA, this Court has re-

peatedly addressed itself to the interplay between

§ 8(b)(1)(A) and the state and federal (the Labor Man-

agement Reporting and Disclosure Act of 1959) law en-

forceable in court that regulates union discipline. See

Machinists v. Gonzales, 356 U.S. 617; Plumbers Union v.

Borden, 373 U.S. 690; Iron Workers v. Perko, 373 US.

701; Boilermakers v. Hardeman, 401 U.S. 233; Motor Coach

Employees v. Lockridge, 403 U.S. 274. This sustained at-

tention to the ramifications of § 8(b)(1)(A) requires, as

ws

3

the first step in analysis, an explication of the basic prin-

ciples developed in those cases.

1. Initially, there can be no doubt that every aspect of

the right to enact and enforce disciplinary rules is sharply

circumscribed. The inhibitions on union action designed

to assure that a member charged with an offense will be

dealt with honestly, fairly, and in accordance with public

policy, are comprehensive. The complex of public law,

which includes § 8(b)(1)(A) as one of its strands, only

“leaves a union free to enforce a properly adopted rule

which reflects a legitimate union interest, impairs no policy

Congress has imbedded in the labor laws, and is reason-

ably enforced against union members who are free to leave

the union and escape the rule.’’ Scofield, 394 U.S. at 430.

And the injunction against unreasonable enforcement finds

its major expression in the state law invalidating excessive

penalties. ‘‘[S]tate courts, in reviewing the imposition

of union discipline, find ways to strike down ‘discipline

[which] involves a severe hardship’.’’ Allis-Chalmers, 388

US. at 193, n. 32. Thus we acknowledge at the outset that

“a union rule * * * forbidding the crossing of a picket line

_ during a strike,’’ the subject matter here, must be ‘‘duly

_ adopted and not the arbitrary fiat of a union officer,’’ and

can only be enforced ‘‘against voluntary union members

by expulsion or a reasonable fine.’’ Scofield, 394 U.S. at 428.

To state the full range and breadth of the substantive

law both administrative and judicial, state and federal,

however, is not to fix the metes and bounds of the pro-

hibitions contained in § 8(b)(1)(A). The two are not co-

extensive. This Court, from the first, has recognized that

in enacting that section Congress intended to grant the

ERS SN EARLS BALIN GLY REPO PE ETP IL IE THEE BARE {METALS PA RT SEIN PO, RE I EI

4

Board a sharply restricted authority. ‘‘The protection of

union members in their rights as members from arbitrary

conduct by unions and officers has not been undertaken by

[the] federal law [embodied in the NLRAJ], and indeed

* * * [in] the proviso to §8(b)(1) * * * the assertion of

any such power has been expressly denied.’’ Gonzales,

356 U.S. at 620. Section 8 (b)(1)(A) and its proviso, in

the Board’s words, ‘‘precludes * * * [Board] interference

with [the] internal affairs of a labor organization.”

Minneapolis Star & Tribune Co., 109 NLRB 727, 729. Thus:

‘‘The fairness of an internal union disciplinary pro-

ceeding * * * can [not] be said to raise issues ‘within

the special competence’ of the NLRB. See NLRBB v.

Allis-Chalmers Mfg. Co., 388 U.S. 175, 181, 193-194

(1967). As we noted in that case, the 86th Congress

which enacted §101(a)(5) [of the LMRDA which

guarantees procedural due process] was ‘plainly of the

view’ that the protections embodied therein were new

material in the body of federal labor law. 388 U.S., at

194. And that same Congress explicitly referred claims

under § 101(a)(5) not to the NLRB, but to the federal

district courts.’’ Hardeman, 401 U.S. at 239.

Indeed, even the LMRDA, the statute in which ‘‘Congress

did seek to protect union members in their relationship

to the union by adopting measures to insure the provision

of democratic processes in the conduct of union affairs and

procedural due process to members subjected to dis-

cipline’’ (Allis-Chalmers, 388 U.S. at 194), is ‘‘more

limited in scope than much state law’’ (Hardeman, 401

U.S. at 244, n. 11). While the LMRDA insures members

charged with an offense procedural due process, and pro-

hibits discipline for the exercise of freedom of speech or

5

assembly, it does not place any limitations on the sanctions

which may be imposed on a member who has been found

to have violated a valid union rule in a fair proceeding. It

is therefore true today, as it has been throughout the evolu-

tion of our federal labor policy, that, in general, ‘‘the regu-

lation of the relationship between union and employee is a

contractual matter governed by local law’’ which consti-

tutes a ‘‘federally unentered enclave.’’ Scofield 394 U.S.

at 426 n. 3.

2. The issue before the Court narrows then to deter-

mining the precise role § 8(b)(1)(A) was intended to fill

in the overall regulation of union discipline.

As such early decisions as Minneapolis Star & Tribune,

and National Maritime Union, 78 NLRB 971, 982-987 en-

foreed 175 F 2d. 686 (C.A. 2), demonstrate, it has been

understood from the outset that the primary function of

§8(b)(1)(A) is to prevent ‘‘the union from inducing the

employer to use the emoluments of the job to enforce the

union’s rules,’’ and to proscribe ‘‘union coercion, such as

physical violence to induce employees to join the union

or to join in a strike.’’ Scofield, 394 U.S. at 428 n. 4, 429.

And in Allis-Chalmers this Court:

‘essentially accepted the position of the National

Labor Relations Board dating from Minneapolis Star

& Tr#bune Co., * * * where the Board also distinguished

internal from external enforcement, * * * in holding

that a union could fine a member for his failure to take

part in picketing during a strike but that the same

rule could not be enforced by causing the employer

to exclude him from the work force or by affecting his

seniority.’’ Scofield 394 U.S. at 428.

RE EET IE RE Ey LE CPR TS PB POITIER OE

6

Thus, §8(b)(1)(A) interdicts ‘‘means unacceptable in

themselves, such as violence or employer discrimination,”

while leaving the regulation of ‘‘internal technique[s of

enforcement such as] union fines, collected by threat of ex-

pulsion or judicial action’’ to the courts. 7d. at 430-431,

There are two caveats, both necessary to preserve the

overall integrity of the NLRA, to the proposition that so

long as the union limits itself to ‘‘internal techniques’’ of

enforcement, the Board has no regulatory role to play.

As such recent cases as Charles S. Skura, 148 NLRB 679,

and NLRB v. Marine ¢& Shipbuilding Workers, 391 US.

418, demonstrate, even purely internal means of enforce-

ment, such as expulsion, are subject to Board review to

ascertain ‘‘the legitimacy of the union interest vindicated

by the rule and the extent to which any policy of the Act

may be violated.’’ Scofield, 394 U.S. at 431. Union rules

which interfere with the right of the Board to entertain

charges, thereby ‘‘frustrat[ing] the enforcement scheme

established by the statute’’ (1d. at 430), are, therefore,

beyond the ambit of ‘‘the internal affairs of the union”

protected by § 8(b)(1)(A)’s proviso (Marine & Shipbuild-

ing Workers, 391 U.S. at 425).

On the other hand, ‘‘as Allis-Chalmers and Marine

Workers made clear, it does not follow from * * * the fact

that the rule has and was intended to have an impact be-

yond the confines of the union organization * * * that the

enforcement of the rule violates § 8(b)(1)(A), unless some

impairment of a statutory labor policy can be shown.”

Scofield, 394 U.S. at 432. The NLRA is ‘‘not aimed at

completely internal union discipline of union members, even

though the discipline may result in the member’s refusal to

wn

7

accept work offered by the employer. Allis-Chalmers makes

this quite clear.’’ Id. at 435-436. The Act does not grant

union members a right to work for a struck employer in

violation of a union rule against strikebreaking. Internal

union discipline ‘‘to protect against erosion, its status’’ as

exclusive bargaining agent (Allis-Chalmers, 388 U.S. at

181) is permissible. While union-induced employer discrim-

ination for crossing a picket line during a strike in viola-

tion of a union rule is proscribed because that means of

securing the union’s ends is ‘‘unacceptable in [it]self’’

(Scofield, 394 U.S. at 431) ; union fines enforceable in court

for the same offense are lawful because both the end sought,

and the means utilized, comport with the letter and policy of

the Act. Thus, where the union rule in question is valid, the

‘policy of the Act is to insulate employees’ jobs from their

organizational rights’’ by assuring that as ‘‘an employee,

he may be a ‘good, bad, or indifferent’ member so long

as he meets the financial obligations of the union security

contract; * * * but as a union member, so long as he

chooses to remain one, he is subject to union discipline.”’

Id, at 429 n. 5. »

Finally, since its proviso only serves to carve Board

regulation of the union-member relationship out of

§8(b)(1)(A), enforcement of union rules against former

_ members who have lawfully resigned is an unfair labor

practice:

“The Scofield case indicates that the power of the

union over the members is certainly no greater than

the union-member contract. Where a member lawfully

resigns from a union and thereafter engages in con-

ERAS PLR PE LOPES ITN AGE LOE OES SELENE BEEN SE BP

8

duct which the union rule proscribes, the union com-

mits an unfair labor practice when it seeks enforce-

ment of fines for that conduct. That is to say, when

there is a lawful dissolution of a union-member rela-

tion, the union has no more control over the former

member than it has over the man in the street.”

Granite State, 41 U.S.L.W. at 4075.

In sum, under the present regime, the Board is em-

powered to protect members from discipline through em.

ployer discrimination or violence, to assure that union

discipline is not predicated on rules inconsistent with the

NLRA’s policies, and to preclude discipline of non-mem-

bers. But that agency’s mandate ends where the union

acts against a ‘‘member as a member rather than as an

employee’’ (Wisconsin Motor Corp., 145 NLRB 1097, 1104),

to vindicate a rule which is consistent with the NLRA’s

policies.

3. The central lesson of the legislative history of

§ 8(b)(1)(A), and the language of its proviso, is that ‘‘it

was not the intent of the sponsors in any way to regulate

the internal affairs of unions.’’ Allis-Chalmers, 388 US.

at 191-192. The law as summarized above is consistent

with that intent. Section 8(b)(1)(A), as it has been in-

terpreted thus far, interdicts ‘‘external’’ means of enforce-

ment, measures union rules against external standards

embodied in the NLRA, and prohibits the imposition of

union sanctions against non-members, 1.e. individuals ex-

ternal to the organization. On the other hand, the great

bulk of union disciplinary proceedings are not subject to

Board regulation. So long as the union confines itself to

enacting rules which do not conflict with the NLRA, alleged

we

defects in the trial and punishment of a member as a mem-

ber are solely for the courts.

If the phrase ‘‘internal union affairs’’ is to be given any

content, it must include the processes designed to adju-

dicate alleged violations of valid union rules. It follows

that if this core area is opened to Board review on a

case-by-case basis, nothing is left of the Congressional in-

tent to leave significant aspects of the union-member rela-

tionship unregulated by the NLRA. And it is plain from

the list of criteria proposed by the court below’ that a

reading of §8(b)(1)(A) which would require the Board

to review the judgments reached by union trial boards to

ascertain whether they have acted properly in assessing

a fine enforceable in court does entail supervision of union

discipline on a case-by-case basis. The factual combinations

and permutations which must be considered under this

standard are limitless and are all but impossible to cap-

tare in per se rules.

Nor is there any rational way to limit Board intrusion

into union affairs to the review of the validity of the

sanction imposed. There is nothing in the Act, and no over-

all scale of values, which justifies the conclusion that an

1 “<The reasonableness of a fine would necessarily have to be

determined in light of the circumstances leading to its imposi-

tion. Such factors as the compensation received by the strike-

breakers, the level of strike benefits made available to the

striking employees, the individual needs of the persons being

disciplined for strikebreaking upon the effectiveness of the

strike effort, the length of time of the work stoppage, the

strength of the particular union involved, the availability of

other less harsh union remedies, and many other similar con-

siderations would clearly be relevant.’’ Pet. App. 29.

\

PIO LILLIE AP BIEL SEN GE PERSE IIE TERS LW MLO PRR TERTIN? NID Se A ES Gt

10

‘*excessive’’ fine imposed after proper procedures is more

subject to censure than a ‘‘reasonable’’ fine imposed with-

out procedural due process. Indeed, the guidance Congress

has given in Title I of the LMRDA indicates that while

preservation of procedural due process is a federal concern,

the scale of the sanctions imposed after a fair trial is not.

By the same token, there is no principled distinction

which would draw the line at Board regulation of discipline

in picket line cases. In Allis-Chalmers this Court was

unanimous in recognizing ‘‘the validity of the union rule

against its members crossing picket lines during a properly

called strike * * *.’’ 388 U.S. at 198 (Mr. Justice White,

concurring). The argument for Board regulation of the

size of a fine imposed for a violation of that rule must,

therefore, proceed on the theory that ‘‘excessive’’ fines

violate §8(b)(1)(A) even though the union’s ultimate

object is entirely compatible with the policies of the Act.

And if the substantive validity of the rule does not preclude

Board jurisdiction in the instant cases, it follows that the

Board also has the obligation to scrutinize the reasonable-

ness of fines for wildcat activity, for participation in a

breach-of-contract strike, and as Minneapolis Star ¢

Tribune indicates (109 NLRB at 737), even for refusals

to attend union meetings.

Thus, the rationale of the decision below completely

undermines the distinction between ‘‘internal and external

enforcement’’ of union rules developed by the Board, and

‘‘essentially accepted’’ by this Court (Scofield, 394 U.S. at

428), to express the congressional judgment that ‘‘ ‘purely

internal union matters’ [are] a subject the National Labor

Relations Act leaves principally to other processes of law”

>

|

|

¥

11

(Lockridge, 403 U.S. at 296). The closest the lower court

came to providing a statutory predicate for this novel

expansion of the Board’s jurisdiction was the suggestion

that ‘‘[w]here a disciplinary fine is unreasonably excessive,

it may possibly affect the employee’s employment status

as adversely—and possibly even more adversely—as an

illegally obtained employment suspension’’ and that such

a result is contrary to the ‘‘protective policy of the Act’’

against penalties which would ‘‘impare the members status

as an employee,’’ Pet. App. 30a. But this is to misstate

the policy of the Act. Allis-Chalmers squarely holds that

the Act does not protect an employee against internal

union discipline—including court-enforced fines—designed

to ‘‘result in the member’s refusal to accept work offered

by the employer’’ (Scofield, 394 U.S. at 436). The policy

of the Act this Court has deemed to be controlling is that

“It]he power to fine or expel strikebreakers is essential

if the union is to be an effective bargaining agent * * *.’’

Allis-Chalmers, 388 U.S. at 181. This power plainly encom-

passes court-enforced fines for strikebreaking sufficient to

secure complete compliance with the union’s rule. For

nothing less will achieve the objective sanctioned in Allis-

Chalmers—the maintenance of strike solidarity through

internal union discipline. To be sure the union is not

permitted to achieve the same objective through union-

induced employer actions against employees. But this lim-

itation is not based on the view that union members who

work for a struck employer despite their union’s contrary

tule are to be assured of a profit for their violation. Rather,

it finds its roots in ‘‘the explicit wording of § 8(b)(2)”’

which was intended to ‘‘limit union power to compel an

{MONRO ESN NN ONE AS ES LOE RSME ML TALE SS TF LS LE SSL BTR IIA I AE IS EMG LIL 5 I

12

employer to discharge a terminated member,’’ but was not

intended ‘‘to interfere with union self-government or to

regulate a union’s internal affairs.’’ Allis-Chalmers, 388

U.S. at 195.

Allis-Chalmers is instinct with the proposition that

internal union discipline to preserve strike solidarity

is an ‘‘economic weapon’’ which ‘‘is part and parcel of

the system’’ and which ‘‘acts as a prime motive power for

agreements in free collective bargaining’’ (NLRB v. Insur-

ance Agents International, 361 U.S. 477, 489). And the

critical role played by ‘‘the presence of economic weapons

in reserve’’ in the bargaining process has caused this Court

to stress the point that neither the Board nor the courts

are empowered to strike such weapons from the parties’

hands without a specific warrant from Congress. Any other

rule would allow an administrative agency, or the judici-

ary, to exercise a ‘‘considerable influence upon the sub-

stantive terms on which the-parties contract’’ since ‘‘nego-

tiation positions are‘apt to be weak or strong in accordance

with the degree of economic power the parties possess.”

Id. at 490. The right acknowledged in Allis-Chalmers, for

example, would be rendered meaningless if, as proposed

by the court below, it could be whittled down to the point

where union members would be assured that they will be

better off if they violate the union’s rules than if they obey

them. Such ‘‘influence’’ is, therefore, forbidden because

‘‘our labor policy is not presently on a foundation of gov-

ernment control of the results of negotiations.’’ Insurance

Agents, 361 U.S. at 490. The national labor policy does not

allow the Board, or the courts, ‘*to introduce some standard

of properly ‘balanced’ bargaining power, or some new

distinction of justifiable and unjustifiable, proper and

wn

13

F

‘abusive’ economic weapons into * * * the Act.’’ Jd. at

497-498; see also, Porter Co. v. NLRB, 397 U.S. 99, 102-104,

107-108. Thus, the statutory content the lower court would

provide to elucidate the concept of excessive fines is based

on a misunderstanding of what the NLRA is all about.

Neither the state courts, if they are to regulate union fines

on their own, or those courts and the Board in the exercise

of concurrent jurisdiction, may disregard the paramount

policy of the Act precluding the invalidation of a fine

merely sufficient to secure ‘‘the membeT’s refusal to accept

work offered by the employer’’ (Scofield, 394 U.S. at 436).

See Insurance Agents, 361 U.S. at 489-490, 497-498; Bus

Employees v. Missouri, 374 U.S. 74; Teamsters Union v.

Morton, 377 U.S. 252.

4. The legal analysis contained in the decision below is,

as we have attempted to demonstrate, inadequate to sustain

the result reached. That decision is, however, fully adequate

in revealing the concerns that animated the court below.

The arguments developed therein make it plain that the

lower court believed that there should be a uniform federal

law enforced by the Board which regulates all forms of

union discipline that touch the employment relationship,

and that this law should be grounded in a policy of protec-

tion for members who wish to work in violation of the

union’s rules.

‘But Congress’s policy has not yet moved to this point’’

(Insurance Agents, 361 U.S. at 500). The substantive law

of § 8(b)(1)(A), as it stands, does not grant union members

the right to violate union rules against crossing picket

lines or exceeding production quotas, free of internal union

discipline effective to secure ‘‘the members refusal to accept

work offered by the employer’’ (Scofield, 394 U.S. at 436).

Congress chose instead to simply prohibit enforcement of

ee Sa ae EN al BA i i Ra

14

valid union rules by union induced employer discrimination

or violence. See pp. 5-8 supra.

Moreover, the decision to exclude Board oversight of

internal techniques of enforcing union rules even though

they relate to the employment relationship is no isolated

anomaly. A case can be made for centralizing all aspect of

labor law in a single federal statute enforced by a single

tribunal staffed by government prosecutors. But Congress

has chosen to provide the Board with a narrower range of

questions to answer. The scope of unreasonable employer

action detrimental to employees untouched by the NLRA is

vast. It is captured in the rubric that employer discipline is

not an unfair labor practice if imposed for good reason,

bad reason, or no reason at all so long as it is not an anti-

union reason. See, e.g., NLRB v. Nabors, 196 F.2d 272, 275

(C.A. 5) cert. denied 344 U.S. 865. And it is, of course,

equally well settled that the parties are free to utilize

‘‘economically harassing’’ bargaining tactics not spe-

cifically prohibited without running afoul of the Act. See

pp. 12-13 supra.

The foregoing are instances in which federal law does

not condemn that which might well be condemned. But

even where Congress chooses to interdict conduct logically

related to that regulated by the NLRA it has not invariably

chosen to entrust enforcement to the Board, even where the

contrary decision entails the drawing of lines more nice

than obvious. The classic example is the enforcement of

collective agreements. The ultimate purpose of the NLRA,

in the words of § 1, is to ‘‘encourag[e] the practice and pro-

cedure of collective bargaining.’’ And §§ 8(a) (5), 8(b)(3)

and 8(d) impose substantial continuing responsibilities on

-

15

the Board during a contract term. See NURB v. C&C Ply-

wood Co., 385 U.S. 421. But in passing § 301, and rejecting

the proposed § 8(a)(6) of S. 1126, 80th Congress, 1st Sess.,

“Qongress determined that the Board should not have gen-

eral jurisdiction over all alleged violations of collective

bargaining agreements and that such matters should be

placed within the jurisdiction of the courts.’’ C&C Ply-

wood, 385 U.S. at 427 (footnotes omitted).?

In short, both the specific language and legislative his-

tory of §8(b)(1)(A) and the overall pattern of the Act

support the Board’s conclusion that:

‘“‘The Board has long recognized that, as a practical

matter, ‘virtually all union rules affect a member’s

employment relationship.’ However, given the legiti-

macy of the rule, the only question of relevance to the

agency enforcing this Act is ‘whether, in enforcing the

rule, the Union goes outside the area of union-member-

ship relationship and enters the area of employee-

employer relationship.’ The Union has not done so

here, nor has it sought to vindicate a policy in conflict

with the National Labor Relations Act, and the Act

does not authorize this Board to evaluate the fairness

of union discipline meted out to protect a legitimate

union interest.’’ .

II

In Granite State Joint Board, this Court recognized that

* This pattern of fragmenting responsibilities that might well

be unitary is not confined to the allocation of jurisdiction between

the Board and the courts. It is also a prominent aspect of the

LMRDA. For example, regulation of union elections procedures

is divided between Title I, enforceable by private suit, and Title

IV enforceable solely by the Secretary of Labor. The resulting

— problems were explored in Calhoon v. Harvey, 379 U.S.

- Re wR Se See ee

16

‘funder §7 of the Act the employees have ‘the right to

refrain from any or all’ concerted activities relating to

collective bargaining or mutual aid and protection;’’ and

that so long as ‘‘no problem of construing a union’s con-

stitution or bylaws defining or limiting the circumstances

under which a member may resign from the union’? js

presented, the Board is “to apply the law which normally is

reflected in our free institutions—the right of the individual

to join or to resign from association, as he sees fit ‘subject

to any financial obligations due and owing’ the group with

which he was associated.’’ Thus ‘‘where, as [in Granite

State], there are no restraints * * * [stemming from] the

contractual relationship between union and member * * * on

the resignation of members,’’ the Court concluded that ‘‘the

vitality of § 7 requires that the member be free to refrain in

November from the actions he endorsed in May.’’ 41

U.S.L.W. at 4075.

The Machinists Constitution now expressly provides, ina

provision which took effect January 1, 1973:

‘Resignation shall not relieve a member of his obliga-

tion to refrain from accepting employment at the estab-

lishment for the duration of the strike or lockout if

the resignation occurs during the period of the strike

or lockout or within 11 days preceding its commence-

ment.’’

Moreover, at the time the instant case arose the Union’s

Constitution prohibited a member from ‘‘[a]ccepting em-

ployment in any capacity in an establishment where a

strike * * * exists.’? And the Union has consistently inter-

preted this prohibition as requiring a member to abstain

SP tf Lt al ah lh Ys Son

17

from strikebreaking for the duration of an existing strike

notwithstanding a mid-strike resignation.

The statutory question presented here is, therefore,

whether a constitutional provision conditioning the right

to resign union membership on a continuing commitment

not to break a strike in progress (or in immediate con-

templation), is valid under the proviso to 4 8(b)(1)(A).#

Section 8(b)(1)(A) prohibits restraint and coercion of

employees in the exercise of 47 rights, and its proviso pre-

serves ‘‘the right of a labor organization to prescribe its

own rules with respect to the acquisition or retention of

membership therein * * *.’’ The provision in the Machinists

Constitution conditioning the right of members: to resign

during a strike on the continued commitment to the obli-

gation, undertaken during membership, to respect the

strike, is squarely within the proviso’s language—it is a

“rule with respect to the * * * retention of membership.’’

Thus, to the extent that it can be said that this inhibition on

resignation at will and free of all continuing obligations,

restrains and coercises union members in the exercise of

§7 rights, it is precisely ‘‘[s]uch restraint and coercion

[that] Congress permitted by adding the proviso to

§8(b)(1)(A)’’ (Allis-Chalmers, 388 U.S. at 198, Mr. Jus-

tice White concurring.)

The following question as to the proper construction of the

Machinist’s Constitution is also presented—whether, assuming

arguendo that such provisions are valid, the provision in the

Union’s Constitution in force at the time the instant case arose,

was sufficiently express to impose a restraint on post-resignation

strikebreaking. This latter question is treated in detail in the

Machinist’s brief, and we incorporate the Union’s discussion in

this brief at this point as if it were our own.

18

Moreover, the Union’s rule is one which can survive the

most searching scrutiny as to ‘‘the legitimacy of the union

interest vindicated by the rule and the extent to which any

policy of the Act may be violated’’ (Scofield, 394 US.

at 431).

The interest vindicated is that specified in Allis-Chal-

mers, 388 U.S. at 181; ‘‘to protect against erosion [the

union’s] status’’ as collective bargaining representative

during the ‘‘vital [juncture] when the members engage in

strikes.’’ For:

‘‘To say that Congress meant in 1947 by the §7 amend-

ments and § 8(b)(1)(A) to strip unions of the power to

fine members [who resign during a strike] for strike-

breaking * * * is to say that Congress limited unions in

the powers necessary to the discharge of their role as

exclusive statutory bargaining agents by impairing the

‘usefulness of labor’s cherished strike weapon ° * *

[w]here the union is weak, and membership therefore

of little value * * *.’’ Zd. at 183.

And the method chosen to vindicate that interest is per-

fectly consistent with the policy of the Act. Gramite State

holds that where the union’s constitution is silent, the 47 |

right to refrain from concerted activity protects the right

to resign. But as Allis-Chalmers and Scofield demon-

strate, the §7 ‘‘right to refrain’’ does not grant union \

members the freedom to disregard the union’s rules at

will. It is not a license to join a union as a full member

under one’s own terms. For, §7 also provides an equal

right ‘‘to form [and] join * * * labor organizations.’’ And

an organization with rules that all may disobey is a con-

tradiction in terms. It is an anarchy. The right to asso-

19

ciation to further common goals presupposes the right to

enact and enforce membership obligations. ‘‘The Act

clearly contemplates a membership organization and hence

the existence of criteria for the acquisition, transfer, and

loss of membership.’’ Cf. Ricci v. Chicago Mercantile Ex-

change, ...... US. ....... 41 U.S.L.W. 4097, 4102 (Jan. 9, 1973).

And to the extent this is not plain from §7 itself, it is made

explicit in the proviso to §8(b)(1)(A). The §7 right to

refrain from concerted activity can not, therefore, be ex-

panded to the outer limits of its logic; for if it were, it

would render. the $7 right to engage in concerted activity,

as amplified by the proviso to § 8(b)(1)(A), a nullity. This

portion of the Act, like others:

‘‘represented the Congressional response to com-

peting demands * * * Had Congress thought one or

the other over-riding, it would doubtless have found

words adequate to express that judgment. It did not

do so; it accommodated both interests, doubtless in a

manner unsatisfactory to the extreme partisans of

each, by drawing a line it thought reasonable.’’ Local

1424 Machimsts v. NLRB, 362 U.S. 411, 418 n. 7.

That line has been marked out with precision in NLRB v.

UAW, 320 F.2d 12, 15-16 (C.A. 1) where the court upheld

a requirement, which limited resignation to a specified

period during each year, intended to insure ‘‘uniform prac-

tices to preserve [the union’s] financial standing by estab-

lishing reasonable times for resignations by those who

were in good standing:’’

“‘Under Section 7 * * * the employee has indeed the

unfettered right to abstain from indulging in union

activity. He need not ‘form,’ ‘join’ or ‘assist’ a labor

_,

organization and * * * this inactivity cannot be the

source of recriminations. It is by now too clear for

citation that this facet of Section 7 was designed to

prevent forcing the unwilling worker into a union.

‘‘However, we believe that it is quite another thing

when the employee eschews his ‘reluctance’ and volun-

tarily joins a labor organization. At this point, under

our view, the employee takes off the protective mantle ©

of Section 7’s ‘refraining’ provision and renders him-

self amenable to the reasonable internal regulations

of the organization with which he chooses to cast his

lot. * * *

‘‘In short, we believe that the Union’s Constitution and

By-laws—here relevant—were valid and viable pro-

visions with which the employees had to comply if they

desired to effectively sever their relationship with the

Union. It is true that under section 7 of the Act * **

the subject employees need not have joined the Union.

However, once they voluntarily took that step, they

embraced not only the benefits but also the burdens

which flowed from their union membership. One of

those ‘burdens’ was the duty of comporting with the

Union’s reasonable internal regulations * * *.’’

In contrast, then, to the right to file charges with the

Board, which is an absolute (Marine & Shipbuilding Work-

ers, 391 U.S. at 425), the §7 right to refrain from con-

certed activity, and the right to resign, which is derived

«therefrom, are qualified. While employees who voluntarily

assume full membership, and by so doing subject themselves

to the ‘‘ provisions defining punishable conduct and the pro

cedures for trial and appeal [that] constitute part of the

contract between member and union’’ (Allis-Chalmers, 38

U.S. at 182), ‘‘are free to leave the union and escape the

-—

rule’’ (Scofield, 394 U.S. at 430), that freedom is subject to

reasonable union rules. And there can be no doubt that it is

reasonable to condition resignation during, or in imme-

diate contemplation of, a strike, on continued adherence to

the union’s rule against strikebreaking.

As already noted (p. 19 supra), the end sought—pres-

ervation of strike solidarity—is legitimate under Allis-

Chalmers. And the restriction imposed on the members

freedom of action is precisely attuned to the exact achieve-

ment of that end and no more. The individual’s opportunity

to determine whether he will engage, or refrain from engag-

ing, in concerted activity takes precedence up to the point

at which its exercise would destroy the group’s opportunity

to evaluate its true strength in making its final calculation

as to whether to capitulate to the employer or commit itself

to utilization of ‘‘the ultimate weapon in labor’s arsenal for

achieving agreement upon its terms,’’ (Allis-Chalmers,

388 U.S. at 181). Even after that point the individual

may dissolve all his ties to the union except the one essen-

tial to permit it to prosecute the strike. And, of course, the

union’s reservation of authority terminates at the end of

the strike—the point at which the member’s prior failure to

resign can no longer be said to have induced a justifiable

reliance on the continuing ability to discipline him for

breaches of loyalty in the face of the enemy.

In sum, the Machinists rule conditioning the right to re-

sign is an internal union rule within the literal language of

the proviso to § 8(b)(1)(A) which is entirely compatible

with the NLRA’s policies. Under the principles developed

in this Court’s decisions from Allis-Chalmers to Granite

State it is therefore lawful.

22

CONCLUSION

For the reasons stated above, as well as those stated by |

the Union, the judgment below should be reversed and the”

case remanded to the Court of Appeals with directions to ;

affirm that part of the Board’s order dismissing the por. |

tions of the complaint which rests on the alleged unreason- ”

ableness of the fines, and to set aside that part of the

Board’s order granting relief which rests on the conclusion |

that the Union may not discipline post-resignation strike.

breaking by imposition of a court-collettible fine.

Respectfully submitted,

J. ALBERT WoLL

General Counsel, AFL-CIO

Rosert C. Mayer

Laurence GoLp

736 Bowen Building

815 Fifteenth Street, N.W.

Washington, D.C. 20005

Tuomas E. Harris

Associate General Counsel, AFL-CIO.

815 Sixteenth Street, N.W.

Washington, D.C. 20006

4 February, 1973