Appendix — Gulf States Util. Co. v. FPC

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APPENDIX

The following is a verbatim reproduction of pages

21-36 of the Union’s reply brief before the Court of

Appeals addressed to the particularities of Boeing’s

claim in that court that the fines levied by the Union

were excessive in amount and otherwise arbitrarily

imposed. The record references have been renumbered

to correspond with the pagination of the Appendix in

this Court, and the cross-references to unprinted parts

of the Union’s opening and reply briefs in the Court of

Appeals have been deleted.

2. The Particular Factors Said To Show That The

Fines Were Unreasonably Large In Amount.

We now turn to consider the particular factors said to

show that the fines were unreasonably large in amount.

(a) It is said that the fines were excessive because the

strikebreakers were ‘required to pay amounts exceeding

their earnings . . .”’ (Co. br. p. 14). The premise of this

argument is that a fine is ipso facto unreasonable if it is

larger than the gain which the wrongdoer realized from

working during the strike in violation of his duty to re-

frain from strikebreaking.

The argument is irrelevant to those strikebreakers who,

having appeared for trial, apologized, and pledged loyalty

to the Union, were fined fifty percent of their strikebreak-

ing earnings. Any. concept of gearing the size of the fine

to the amount of the earnings is surely satisfied by levying

the penalty at one-half of the wrongful gain. For if the

triterion is the sum that the strikebreaker earned in viola-

tion of the rule, it is clearly rational to divest the rule-

breaker of the entirety of the sum—not merely one-half—

that he made by reason of his breach. His fellows who did

tot work during the strike sustained the identical loss ; they

2a

sacrificed their pay from the struck employer. There is

no reason why the strikebreaker should be in a better mone-

tary position than the striker. In short, if measuring the

fine in relationship to earnings is the sole valid criterion,

it would hardly be unreasonable were a union to assess

the penalty at the entirety of the sum earned in violation

of the rule. The fine would do no more than equalize the

financial sacrifice of the strikebreaker and the striker. In

this case, therefore, levying the fine at one-half of strike-

breaking earnings in consideration of the strikebreaker’s

repentence and pledge of future loyalty is well within any

notion of reasonableness.

The Company’s excess-of-earnings argument, therefore,

is grounded in solicitude for the unrepentant strikebreaker

who did not appear for trial and who remains unregener-

ate. It is that strikebreaker, the Company contends, who

cannot reasonably be fined a flat sum of $450. Why? What

ineluctable moral imperative commands fixing the upper

limit of a strikebreaker’s fine to the maximum strikebreak-

ing pay that he earned during the period of his violation!

A fine is punishment. It is traditionally assessable at a

sum greater than the monetary benefit that the wrongdoer

derives from his offense. An antitrust violator pays treble

damages (Zenith Radio Corp. v. Hazeltine Research, 395

U.S. 100, 113 (1969) ) ; a Fair Labor Standards Act violator

pays twice the unpaid minimum wages or the unpaid over-

time compensation (Fair Labor Standards Act, § 16(b), 29

U.S.C. § 216); a tortfeasor or contract violator whose of-

fense is considered egregious pays punitive damages

(U.A.W. v. Russell, 356 U.S. 634, 646 (1958)); a thief who

steals less than $100 may be fined $200, in addition to being

ordered to make restitution. D.C. Code, § 22-2202 (1967).

In short, since a fine is punishment, there is nothing in

principle which limits a fair fine to the member’s mone-

tary gain from his rule-violation. Whether it should be

more, less, or the same is a matter for the union’s own

independent determination as part of its autonomous right

of self-government.

3a

Once shown that a fine need not be limited in its maxi-

mum size to strikebreaking earnings, there is nothing to

suggest that the $450 fine in this case is excessive in amount.

In Scofield, the Supreme Court stated that it ‘essentially

accepted the position of the National Labor Relations

Board dating from Minneapolis Star & Tribune Co., 109

NLRB 727 (1954) .. . holding that a union could fine a

member for his failure to take part in picketing during a

strike .. .”’ (394 U.S. at 428). In Minneapolis Star the

Board found that ‘‘the imposition of a $500 fine on Car-

penter by the... Union is not violative of Section 8(b)(1)

(A) of the Act.’? 109 NLRB at 729. By approving refer-

ence to Minneapolis Star the Supreme Court did not blink

at a $500 fine. By what logic is a $500 fine for failure to

perform picketing duty acceptable but a $450 fine for

strikebreaking unreasonable, particularly since failure to

perform picketing duty results in no strikebreaking earn-

ings at all in contrast to the financial gain entailed in

working for the struck employer? Indeed, as Minneapolis

Star illustrates, there are many union offenses which do

not involve financial gain for the violator, so that the size

of the fine for the offense is often simply not measurable

in terms of a violator’s monetary profit from his wrong.

There is no reason, accordingly, why a fine for strikebreak-

ing should be implacably related to earnings derived from

the wrong when a fine for other offenses is not.

(b) It is said that, as the ‘‘normal financial obligation

of a member of the Union is discharged” by payment of

“dues of $5.50 per month or $66.00 per year,’’ a $450 fine

for strikebreaking is unreasonable as ‘“‘a major escalation

in fmancial obligation’’ (A. 21). If ever there were a com-

parison of incommensurables, this is it. Dues and_infitia-

tion fees are the contribution of each member to the sum

necessary to operate a union. A fine is a penalty imposed

for violation of a rule. One has nothing to do with the

other in the amount required to fulfill the relevant purpose.

One may agree that a member does not expect to pay $450

4a

as his contribution to defraying the expense of running a

union. That is very far from saying that it is not a penalty

fairly contemplated for violating a basic institutional obli-

gation to refrain from strikebreaking. Surely this dis-

tinction is within the reasonable range of the Union’s self-

governing discretion.

(c) It is said that the fine was unreasonable consider-

ing ‘‘the fact that employees in the New Orleans area had

been subjected to the devastating effects of Hurricane Betsy

a week before the strike began’’ (Co. br. p. 16). But this

act of God did not distinguish between the striker and the

strikebreaker. Both strikers and strikebreakers were alike

the victims of the hurricane; both endured the same priva-

tion it inflicted. By what standard of reasonableness should

the Union be expected to extend compassion to the strike-

breaker who abandoned the strike in order to escape the

identical distress that the steadfast striker equally suffered?

(d) It is said that the fine is unreasonable considering,

if suit is instituted against the strikebreaker to collect it,

‘‘the time lost from work in defense of the civil court action

and his respective attorney’s fees and court costs’’ (Co.

br. p. 15). Since the Company has undertaken the defense

of the collection suits against the strikebreakers (A. 7; 77,

99-100, 109), in this case at least the Company is pleading

its own litigation costs rather than the strikebreakers’.

Passing that, the plea is wide of the mark. When the Su-

preme Court decided in Allis-Chalmers that a fine could

validly be collected by court action, it surely did not mean

an action in which the strikebreaker incurred no expense

as a defendant. A reasonable fine does not become an un-

reasonable fine because of the cost to a strikebreaker in

resisting the payment of it. For a strikebreaker, no less

than for the rest of the community, ‘‘the expense and an-

noyance of litigation is ‘part of the social burden of liv-

ing under government.’ ’’ Petroleum Exploration v. Public

Service Commission, 304 U.S. 209, 222 (1938).

——

(e) Heavy stress is placed on the circumstance that in

one collection action instituted by the Union—and the evi-

dence shows only that one (A. 135, Tr. 48)—the Union in its

petition sought attorneys’ fees of $180 (Co. br. pp. 13, 14).

If Louisiana allows attorneys’ fees in that or any amount,

the quarrel is with Louisiana law, not with the reasonable-

ness of the fine. If Louisiana does not allow attorneys’ fees

in that or any amount, the quarrel is with an overstated re-

quest for relief—not a novelty in litigation—and again

not with the reasonableness of the fine.

5a

(f) We conclude with consideration of the standard of

reasonableness innovated by the examiner. According to

him, ‘‘a fine of 35 percent or less of a strikebreaker’s earn-

ings at his regular rate of pay”’ and of ‘‘80 percent or less

of overtime or premium pay’? is in totality ‘‘presump-

tively, a reasonable fine’? (A. 30). Every party to the

proceeding before the Board—the General Counsel (A.

48), the Company (A. 53), and the Union (Exe. 34, 36, 37,

not reprinted in the Appendix)—expressed its dissatisfac-

tion with this formula. It is a Procrustean solution, drawn

from thin air, utterly alien to the way in which any union

tribunal has ever determined what a proper fine should be,

and wholly foreign to the way in which any judge has ever

considered whether or not a fine was reasonable.

The examiner premises his formula on the proposition

that a ‘‘reasonable fine’’ must be ‘‘less than a total deter-

rent to working during a strike’’; as he sees it, a fine in an

amount that operates as ‘‘total deterrence’’ to strikebreak-

ing is unreasonable (A. 27). This premise is quite inexplic-

able. If the object of a fine is to secure observance of a

rule by penalizing violation of it, it passes understanding

why the fine should be fixed at a level which tempts viola-

tion by leaving a margin for profitable infraction. The

examiner compounds the incomprehensible by his further

assertion that a ‘‘total deterrent’’ interferes with an em-

ployer’s ‘‘right to protect and carry on his business”’ dur-

—

6a

ing a strike by blocking effective recruitment of a work

force from among the strikers (A. 28)! We had supposed

that it could at least be taken for granted that, whatever

an employer’s ‘‘right’’ to try to operate during a strike,

it was surely not a union’s duty to cooperate with him by

enforcing less than total observance of a rule against

strikebreaking.

The examiner’s tour de force demonstrates the incom-

patibility between NLRB inquiry into reasonableness and

the statutory bar against NLRB regulation of a union’s

internal affairs. The infelicity of the examiner’s solution

suggests that he and his colleagues, well-enough versed in

dealing with the NLRB’s staple business, do not have the

aptitude or experience requisite to the task of regulating

union self-government, an area outside the sphere of their

conventional concern. More fundamentally, whatever the

level of competence that would be brought to bear, there

can be no NLRB determination of reasonableness which

does not impose upon the union the agency’s judgment of

how union discipline should be administered. That regula-

tion of a union’s internal affairs is simply no part of the

statutory: design of the National Labor Relations Act or

of the job that Congress commissioned the Board to per-

form.

II.

Tue Company’s ApDITIONAL CLAIMS OF ARBITRARINESS BY

THE Union, OTHER THAN THE ALLEGED UNREASONABLE-

NESS OF THE SIZE OF THE F'1nE, WERE Not URGED By THE

GENERAL CoUNSEL; THEIR ADVANCEMENT Is THEREFORE

*PROCEDURALLY BarreD, BEstipks Beinc Devorm oF Svs-

STANTIVE WorTH.

Aside from the alleged unreasonableness of the fine, the

Company urges that the Union acted arbitrarily in other

respects. These additional claims of arbitrariness were not

advanced by the NLRB General Counsel. We therefore

consider them separately because, aside from their lack

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of substantive worth, the Company is procedurally barred

from presenting them in view of the General Counsel’s

refusal to tender thein to the Board.

A. Procedural Bar

By urging claims of arbitrariness not advanced by the

General Counsel the Company seeks to enlarge upon the

complaint that the General Counsel issued and litigated.

This is especially evident in that the General Counsel and

the Union stipulated, but the Company did not, that there

was no issue concerning the regularity and fairness of the

internal union proceeding eventuating in the imposition

of the fines (A. 80-81, 118-119).

Section 3(d) of the Act bars the Company’s attempt to

enlarge the issues tendered by the Gencral Counsel. That

section provides that the General Counsel “shall have final

authority ... in respect of the... issuance of complaints

under section 10, and in respect of the prosecution of such

complaints before the Board ....’? In obedience to this

command, it is the Board’s settled interpretation that

‘the decision whether to issue a complaint, the contents

of the complaint, and the management of the prosecution

before the Board is entrusted to the sole discretion of the

General Counsel ... . It follows that only the General

Counsel may move to amend a complaint to allege an ad-

ditional violation of the Act. Otherwise the management

of the cause would pro tanto be taken from the General

Counsel and entrusted to a private party, which is contrary

to the scheme of the statute and the specific provision of

Section 3(d).”’” This Court, as others, has uniformly ap-

* Sailors’ Union of the Pacific, 92 NLRB 547, n. 1 (1950).

See also, Local 1012, UE (General Electric Co.) 187 NLRB No.

46, sl. op. p. 4, n. 2, p. 5, n. 10, 76 LRRM 1038 (1970); Sunbeam

Plastics Corp., 144 NLRB 1010, 1011, n. 1 (1963) ; Dallas Concrete

Co, 102 NLRB 1292, 1296-97 (1953); Crowley’s Milk Co., 88

NLRB, 1049, 1073 (1950) ; Times Square Stores Corp., 79 NLRB

361, 365 (1948).

>... PERE LED ORO AEE AEA SPOTS Ay

>,

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proved the construction that the Board ‘‘lacks power to

allow amendment of a complaint without consent of the

general counsel.’’ **

Furthermore, even were there power to adjudicate claims

at the instance of a private party which the General Coun-

sel does not allege, there is an insuperable procedural due

process objection to their entertainment in this case. For

there has been no adequate notice that the claims were at

issue, nor any fair opportunity to defend against them.

It is elementary that ‘‘the Board may not make findings

of fact and order related remedies op“tssues not charged

in its complaint or litigated in the ‘subsequent hearing,”

particularly where the notice that a respondent has been

given by the General Counsel is that the claim is not in

issue.”

Accordingly, the Company is foreclosed from presenting

the additional claims it seeks to tender, both because it —

would circumvent the General Counsel’s final authority

over the issuance, scope, and prosecution of the complaint,

and because of the fundamental unfairness of confronting

a party with a claim of which it had no adequate notice and

against which it had no sufficient opportunity to be heard

in defense.

21 International Union of Electrical Workers v. N.L.R.B., 110

U.S. App. D.C. 91, 289 F.2d 757, 761-762 (1960). See also, Steel-

workers v. N.L.R.B., 129 U.S. App. 260, 263, 393 F.2d 661, 664

(1968) ; National Maritime Union v. N.L.R.B., 423 F.2d 625, 626

(C.A. 2 1970); Wellington Mills Division, West Point Mfg. Co. v.

N.L.R.B., 330 F.2d 579, 590-591 (C.A. 4 1964), cert. denied, 379

U.S. 882 (1964); Piasecki Aircraft Corp. v. N.L.R.B., 280 F.2d

575, 588 (C.A. 3 1960), cert. denied, 364 U.S. 933 (1961) ; N.L.R.B.

v. Bar-Brook Mfg. Co., 220 F.2d 832, 834.(C.A. 5 1955).

22 General Teamsters Local 992 v. N.L.R.B., ——U.S. App. D.C.

——, 427 F.2d 582, 588 (1970). See also, Rodale Press v. F.T.C..

132 U.S. App. D.C. 317, 320-322, 407 F.2d 1252, 1256 (1968);

SS. Kresge Co. v. N.L.R.B., 416 F.2d 1225, 1234-1235 (C.A. 6

1969).

rT

B. Substantive Merits

The procedural bar aside, consideration of the merits

of the Company’s claims of arbitrariness shows that noth-

ing would be left of the design of the proviso to exclude a

union’s internal affairs from NLRB oversight were those

claims thought to present issues cognizable under section

8(b)(1)(A) of the Act.

1. The Company complains that ‘‘neither before nor

during the strike did the Union warn employees that fines

or any other action would be taken against those who -

worked during the strike’’ (Co. br. pp. 12-13). But the

IAMAW Constitution explicitly defines misconduct of a

member to include ‘‘ Accepting employment in any capacity

in an establishment where a strike . . . exists as recog-

nized under this Constitution, without permission”? (A. 5;

143). And the Constitution is no less explicit that com-

mission of this offense, like others, shall ‘‘warrant a rep-

rimand, fine, suspension and/or expulsion from member-

ship, or any lesser penalty or any combination of these

penalties as the evidence may warrant after written and

specific charges and a full hearing . . .”’ (Pet. 36a, A. 5;

142). There was, therefore, ample forewarning. More-

over, it beggars belief that any union member, or any per-

son living in today’s industrial society, can fail to know

that strikebreaking is a cardinal union offense. This

record shows actual knowledge (A. 60-61, 69-70, 73-74).

There is thus an explicit written rule and ample evidence

that the standard of conduct it requires was known. This

ismore than enough. International Brotherhood of Boiler-

makers v. Hardeman, 39 U.S.L.W. 4275, 4278-79 (S. Ct.

Feb. 24, 1971). It is therefore unnecessary to invoke the

view that ‘‘where asmember’s act is clearly in derogation

of an obvious group interest, either because the group’s

dedication to particular ideas or goals is clear or because

the member’s act is especially hostile to more general

group interests, the association could properly expel un-

Ty

10a

der a very vaguely worded rule, or indeed without any

rule.’’* Nor is it necessary to remind that the ‘‘rule that

‘ignorance of the law will not excuse’... is deep in our

WW ice

This answers the Company’s insistence that the IAMAW

constitutional ‘‘provisions had not been effectively com-

municated to the employees’”’ (Co. br. p. 14). We add the

NLRB General Counsel’s own refutation of the Company’s

claim made in his brief to the Board (p. 5):

Members may reasonably be expected to be aware of

the duty of loyalty, even absent general provisions

therefor commonly found in union constitutions ....

Moreover, it would be manifestly unfair to require a

union to warn its members about conduct in which

they have not yet engaged and which the union could

not reasonably be expected to anticipate. Indeed,

where tlie amount of the fine turns out unreasonable,

the warning could be interpreted as a threat which

itself may constitute a violation of Section 8(b) (1) (A).

A final variant is the Company’s assertion that ‘‘[n]o

consideration was given”’ to ‘‘whether or not... [an in-

dividual] knew he was in violation of the Union’s rules”

(Co. br. pp. 15, 26). The short answer to this plea in

mitigation is that there is no sufficient evidence of individ-

ual ignorance. Those who did not appear for trial can

hardly complain that they did not receive the benefit of a

plea that they did not make. Those who appeared for

trial, apologized, and pledged loyalty to the Union received

the benefit of a reduced fine of fifty percent of strikebreak.

ing earnings. Finally, whether an individual plea of igno-

rance if made should be believed, and the effect to be given

to it if credited, are surely matters within a union’s self-

23 Note, Developments in the Law, Judicial Control of Actions

of Private Associations, 76 Harv. L. Rev. 985, 1018 (1963).

24 Lambert v. California, 355 U.S. 225, 228 (1957).

wn

governing discretion. A plea of ‘‘individual circumstances’

(Co. br. p. 15) cannot be, as the Company would have it,

the subject of a mass claim unrelated to a particular per-

son; it must be a pinpointed personalized inquiry directed

to a specific individual, a course the Company does not take

and for which the record would be quite inadequate.

lla

,

2. The Company asserts that ‘‘Fines had never been

levied on members of the Union before for any reason’’

(Co. br. p. 13). But the Union had been in being only about

two years when the strike took place (Pet. 35a, n. 1, A. 4;

78-79), so that“it did not have a long history. It was em-

powered by the IAMAW Constitution to levy fines, and

_there is utterly no basis for an implied claim that the power

had evaporated by desuetude.

3. The Company complains that ‘‘trials were held even

if the employee did not appear’’ (Co. br. p. 13). The

IAMAW Constitution provides (A. 145), and each accused

was informed that (Pet. 36a, A. 5; 163), ‘‘if you fail to

appear when notified, the trial shall proceed as though the

member were in fact present.’’ Accordingly, each accused

was afforded the opportunity to be present, and an ac-

eused’s failure to appear was his own voluntary act. ‘‘The

right to be present may be waived by a party or his counsel

by voluntary absence from the courtroom at a time when it

is known that proceedings are being conducted or are about

to take place, and in that event the trial may proceed

..’*% Section 101(a)(5) of the LMRDA provides that

no member may be disciplined unless ‘‘afforded a full and

fair hearing’’, but this obviously does not mean that an

accused may defeat the administration of discipline by

voluntarily absenting himself from the hearing which is

afforded him.

4. The Company complains that ‘‘[t]here is no evidence

that anyone was found not guilty’’ (Co. br. p. 13). This

255 Moore’s Federal Practice { 39.14, p. 748 (2d ed. 1969).

12a

is erroneous in fact and irrelevant in law. The record

shows a ‘‘Not Guilty’’ verdict as to two accused, a ‘‘No

Fine’’ disposition as to-a third, and a ‘‘mistrial’’ without

retrial as to a fourth (A. 174, 81-82, 126). In any event,

if all accused are guilty there is no reason why any should

be found innocent. .

5. The Company complains that there ‘‘was no notifica-

tion to employees by the Union that it had reduced or

would reduce the fines under some circumstances’’ (Co,

br. p. 13). The accused employees would have known of

the availability of reduced fines for repentant strikebreak-

ers had they appeared for trial or at the ensuing union

meeting at which their penalty was determined. Any igno-

rance by the employees—if indeed they were ignorant—re-

sulted from their own failure to participate in the proceed-

ings, and is their own fault for which they have no one

to blame but themselves.

6. The Company complains that the ‘‘notification to the

employees of the charge against them did not advise them

of the penalties which might be imposed upon them’’ (Co.

br. p. 13). Section 101(a)(5) of the LMRDA provides that

a member be ‘‘served with written specific charges.’’ This

requires that the elements of the alleged offense be set

forth, but it does not require a statement of the potential

range of discipline in the event that guilt is found. The

object of a charge is to give ‘‘an accused member .. . suf-

ficient notice to enable him to prepare his defense,’’ ** and

fulfillment of this object does not require apprisal of the

potential penalty in the charge itself.

7. The Company complains that the ‘‘amount of $450.00

was determined before any of the hearings or trials were

held ...’’ (Co. br. p. 15). All that the record suggests is

that the officers of the Union recommended the size of the

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

Rev. 1049, 1079 (1951).

13a

fine to the trial committees (A. 123). But there is nothing

to show that each trial committee did not, as required by

the IAMAW Constitution, retain full power to ‘‘consider

and agree upon its recommendation of punishment,’’ and

that the members at the ensuing union meeting to consider

the recommendation did not retain full power to decide

what the punishment should be (A. 146-147). And that the

power was in fact exercised is shown by the fifty-percent-

of-strikebreaking-earnings fine assessed against the repent-

ant strikebreakers.

8. According to the Company, a “‘request was made to

the Company by the Union that certain of the fined em-

ployees be discharged, and it waited until J anuary 8, 1968,

to withdraw the request’’ (Co. br. p. 14). The-Company’s

thought must be that the Union attempted job discrimina-

tion, and that an otherwise unobjectionable fine becomes

tainted with illegality if job discrimination is attempted at

the same time.

The claim is baseless. The ‘paradigmatic situation ex-

isted in Minneapolis Star and Tribune Co., 109 NLRB 727

(1954). There the Board remedied the discriminatory

deprivation of work sustained by the employee (id. at 728),

but declined to interfere with the fine imposed upon him

for violation of the union rule (id. at 729). The Supreme

Court in Scofield approved Minneapolis Star in terms, ob-

serving that it ‘essentially accepted the position’’ of the

Board exemplified by Minneapolis Star ‘“‘“where the Board

... 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 the same rule

could not be enforced by causing the employer to exclude

him from the work force or by affecting his seniority with-

out triggering violations of §§ 8(b) (1), 8(b) (2), 8(a) (1),

8(a)(2), and 8(a)(3).’’ 394 U.S. at 428.

Accordingly, assuming that the Union attempted job dis-

crimination in this case, it has nothing to do with the con-

14a |

tinuing vitality of the Union’s independent right to fine for

strikebreaking and to collect the fine by means other than

job discrimination.

9. The Company complains that the Union in its news-

paper castigated the strikebreakers (Co. br. pp. 15-16),

Strikebreaking is not an endearing activity and the expres-

sion of resentment against it is the exercise of freedom of

speech.

10. The Company contends that the Union could not fine

even those members who did not resign from the Union.

The basis of this contention is the claim that ‘‘some or all”’

of the strikebreakers who ‘‘did not resign’’ failed to do so

‘“because they were told they could not do so or were not

aware that they could do so’’ (Co. br. pp. 18-19). Accord-

ingly, the argument runs, their membership was ‘‘involun-

tary,’’ and an ‘‘involuntary’’ member is not subject to

union discipline (Co. br. pp. 18-19, 26-27).

The Company first advanced this theory to the Board in

a ‘‘supplemental and reply brief’’ served May 2, 1969, four

months after the trial examiner’s decision issued. This is

too late. The ‘‘time for giving notice of the matters of

fact and law asserted is prior to the hearing, not in...

[a] ‘post-complaint theory of the case’ unveiled in a post-

hearing brief.’’ ”

On its merits, the claim of ‘‘involuntary’’ membership is

singularly untenable. Under the terms of the union secur-

ity agreement between the Company and the Union (A.

154-158), no employee who is not a member of the Union

need join the Union, so that all employees who did become

members did so because they wanted union membership.

Furthermore, even if it could be said that membership was

27 N.L.R.B. v. Majestic Weaving Co, 355 F.2d 854, 861 (C.A. 2,

1966) ; Boyle’s Famous Corned Beef Co. v. N.L.R.B., 400 F.2d

154, 164-165 (C.A. 8, 1968) ; 8.8. Kresge Co. v. N.U.R.B., 416 F.2d

1225, 1234-1235 (C.A. 6, 1969).

15a

constrained, the Supreme Court in Allis-Chalmers ruled

that, so long as an individual was a full member, regardless

of the reason for his status, he was subject to union disci-

pline to require his observance of union rules. The Court

explained that (388 U.S. at 196) :

The majority en banc below nevertheless regarded full

membership to be ‘‘the result not of individual volun-

tary choice but of the insertion of [this] union secur-

ity provision in the contract under which a substantial

minority of the employees may have been forced into

membership.’’ 358 F.2d, at 660. But the relevant in-

quiry is not what motivated a member’s full member-

ship but whether the Taft-Hartley amendments pro-

hibited disciplinary measures against a full member

who crossed the union’s picket line. It is clear that

the fined employees involved in these cases enjoyed

full union membership. ... Allis-Chalmers offered no

evidence in this proceeding that any of the fined em-

ployees enjoyed other than full union «nembership.

We will not presume the contrary.

The Company seeks to finesse the Allis-Chalmers ruling

by arguing in effect that, even though it does not matter

whether or not membership was initially compelled, the

member must have and be told that he has a wholly uncon-

strained opportunity to resign at will at any time. At this

point the Company’s position and the Union’s position are

in full collision. For it is the Union’s position that, what-

ever right to resign that a member has and exercises, a

mid-strike resignation does not free a member from his

existing obligation to refrain from strikebreaking for the

duration of the current controversy.

Finally, even were the Company’s legal position tenable,

there is no factual predicate for its assertion. The record

shows—the evidence having come in on another issue—that

any member who wanted to resign knew that he could and

how to go about it. The examiner found that ‘‘in the past,

16a

in 1963,’’ the Company ‘‘believed and so advised personnel

when such matters arose, that, in a no-contract period, an

employee, who wished to resign from the Union and to dis-

continue authorization for check off of dues, could do so by

writing to the Company and to’’ the Union (A. 8; 92, 107),

and ‘‘the Company had no reason to believe that its under-

standing of the procedure was disputed’’ (A. 8). Based

on its understanding, the Company during the current con-

troversy advised its labor relations personnel that, if they

were asked by union members about resignation, they

should tell the member that ‘‘in the past, the procedure

has been to send a registered or certified letter to the

Union and to the Company .. . stating he wishes to termi-

nate his membership in the Union and to cancel his payroll

authorization for Union dues deductions”’ (A. 9; 90-92, 187,

102-103). Supervisors and other management people did

tell members that resignation could be effected by writing

to the Union and the Company (A. 9-10; 104, 68-69, 73, 116,

129). As one witness stated, ‘‘It was general all over the

plant that you ... just had to send the letters...’ (A. 68).

And 119 members did resign (Pet. 35a), a number which

graphically confirms ample knowledge that resignation

could be effected. Accordingly, there is simply no factual

basis for the Company’s assertion that strikebreakers who

did not resign failed to do so ‘‘because they were told they

could not do so or were not aware that they could do so”

(Co. br. pp. 18-19).

In sum, we have explored the merits of the Company’s

claims of arbitrariness, not because their decision is prop-

erly the office of this proceeding, but to show by their char-

acter that they are simply not the business of the Board.

Review of the administration of union discipline to enforce

a valid rule is a field foreign to the Board.