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

—

IN THE

Supreme Court of the Cini Sapte us

Ocroser TrEM, 1972.

MAR 26 1973

No. 71-1417

MICHAEL RODAK, JR.,CLERK

BOOSTER LODGE NO. 405, INTERMFHON*T

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

v8.

NATIONAL LABOR RELATIONS BOARD

AND THE BOEING COMPANY.

Petitioner,

No. 71-1607

NATIONAL LABOR RELATIONS BOARD,

> ste a

vs. Petitioner,

THE BOEING COMPANY AND BOOSTER LODGE

NO. 405, INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM.

BER OF COMMERCE OF THE UNITED STATES

OF AMERICA.

MILTON SMITH,

General Counsel,

Oo. F. WENZLER,

Labor Relations Counsel,

Chamber of Commerce of the

United States of America,

1615 H Street, N. W.,

Washington, D. C.,

GERARD C. SMETANA,

925 South Homan Avenue.

Chicago, Illinois 60607,

JERRY KRONENBERG,

120 South TaS8alle,

Chicago, Illinois 60603,

Of Counsel : Attorneys for the Amicus Curiae.

BOROVSKY. FHRLICH &

KRONENBERG,

120 South LaSalle,

Chicago, Illinois 60603,

COLE, ZYLSTRA & RAYWID,

; 2011 Eye Street, N. W.,

‘ rtG

ww

INDEX.

Interest of the Amicus Curiae ......................

Summary of Argument ..........................

DEE aie Sw Ra Renee sd oh os baba ean cb udisds dd

A.

Section 8(b)(1)(A) Proscribes the Imposition

of Fines Upon Employees Who Resign and

Demands the Determination of the ‘‘Reason-

ableness’’ of Fines Levied on Members ....

Union Discipline of Members Who Resign on

the Basis of an Implied Promise of Perpetual

Union Fealty Is Neither ‘‘Reasonable’’ Nor

Consistent with This Court’s Decision in

Granite State Joint Board ................

The Fact That an Employee Accepted a Union

Rule Against Employment in a Struck Estab-

lishment Upon Obtaining Union Membership

Is Not a Valid Reason for Limiting His Sec-

tion 7 Rights After Resignation and Such

‘‘Survival’’ of ‘‘Union Obligation’? Is Not

Necessary to the Union’s Institutional Needs

Creation of a Duty to Obey Union-Directed

Objectives After Resignation on the Basis of

Estoppel or Implied Obligations Is Neither

Consistent with the Act Nor Logical ......

Effectuation of the Act’s Policies Demands

the Board Exercise Its Function to Balance

Section 7 Rights by Determining the Reason-

ableness of Fines Under the Purposes of

WO OT von dic ccs Seb oh a

The Extension of Unions’ Disciplinary Power

to Non-Members Is Contrary to Congress’

Intent to Foster Free Collective Bargaining

and to Principles of Sound Policy ..........

WN eel

ii

AvuTHorItTies CITED.

Amalgamated Utility Workers v. Consolidated Edi-

ee ae ee ee ee %

Boy’s Markets v. Retail Clerks Union, 398 U. S. 235

ages Fe ee er ee ere oe 2

Communications Workers of America v. Maloney, 486

P. 3d 1276 (Ore.) >..........52-8 errr reer Tere 24

‘Communications Workers v. N. L. R. B., 215 F. 2d

835, 838 (2d Cir. 1954) ................ 5, 11, 16, 18, 10

Garner v. Teamsters Union, 347 U. S. 485, 489-491

CR RAN Sen 0 a0 seth ee nden eins sctearedaacees 5

~~International Longshoremen’s Local 1416, AFL-CIO

v. Ariadne Shipping Company, 397 U. S. 195, 200

CRE sare des eeasdennaes sey honpek baveceseesss 4

Jost v. Communications Workers of America, 91 Cal.

BU: FUE ae Shae es 5s kre cea en sna eee ten ness %4

Local 138, Operative Engineers, 148 NLRB 679, 682 11

Local 248, U. A. W. v. Natzke, 36 Wis. 2d 237, 153

i Fe Ser rer err eer re ere 4

Local 1912, I. A. M. v. United States Potash Co.,

270 F. 2d 496, 498 (10th Cir.), cert. denied, 363

Se NO ix bee nrc eecenesendeses exesess 12

Longshoremen, I. L. A., Local 1419, 186 NLRB No. 94 23

Morton Salt Co. v. N. L. BR. B., ......... i oe , 82

LRRM 2066 (1972) ............ bien elena eeteeees 7, 23.

Myers v. Bethlehem Shipbuilding Corporation, 303

Reg Ws EE 6 D0 ea 5 hos Sacco ne nnsecengesioss 24

N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S. 175

2, 4, 8, 9, 11, 17, 21,

iii

N. L. RB. B. v. Babeock & Wilcox Co., 351 U. S. 105

GD ee tekken steers ents oe edasevcesiavoron 23

N. L. R. B. v. Granite State Joint Board, ........... U. S.

sane , 34 L. Ed. 2d 422 (1972) soeedevenates eva, &, 12 17

N. L. R. B. v. Industrial Union of Marine and Ship-

building Workers, 391 U. S. 418 (1968)............ 8, 22

N. L. R. B. v. Mechanical and Allied Production

Workers, Local 444, 427 F. 2d 883 (Ist Cir. 1970).... 15

N. L. R. B. v. Nash-Finch Co., 404 U. S. 138 (1971)...14, 15

N. L. R. B. v. Pittsburgh Plate Glass Co., 404 U. S. 157

a) ee 2

N. L. R. B. v. Radio and Television Broadcast En-

gineers Union, 364 U. S. 573, at 583 (1961) ........ 23

N. L. R. B. v. Raytheon Company; 398 U. S. 25, 28

i) a re 24

(1931) 2... Se eeeyeceenes seca 22

i#LK. Porter Co. v. N. L. R. B, 397 U. § 99, 108

(1970) 0... 7, 8, 26

Quality Manufacturing Co., 195 NLRB No. 42.....__. 23

Retail Clerks Local 629 v. Christiansen, 67 Wash. 2d

» 79,406 P. 2d 287 2 24

San Diego Building Trades Council y. Garmon, 359

U.S. 236, 243, 245 ( | 24, 25

Scofield v. N. L. R. B., 394 U. S. 423 (1969)... ....2,4,8,11

Steele v. Louisville & N. R. R., 323 U. S..192, 202-203

aie LEE 14

United Glass Workers v. Seitz, 65 Wash. 2d 640, 399

Be MOTE: iaciews seinen cadena dscagecuuyescsat. 24

ay

iv

Walsh v. Communications Workers of America, 259

Bee, CO, ES Bc A kn 5 cin nc td rei isdennness %4

> . . o *

National Labor Relations Act, 29 U. S. C. 151, et seq. 2

a ge Re Re ge Oe er eee 9, 10, 11

Section 8(b)(1), 29 U. S. C. 158(b)(1) .......... 4

Section 8(b)(1)(A), 29 U. S. C. 158(b)(1)(A)

pekcashasadsscecaves 2, 3, 7, 10, 11, 12, 13, 14, 16, 17

Section 8(b)(5), 29 U. S. C. 158(b)(5) .......... 23

* * e. * »

Christensen, Union Discipline Under Federal Law: In-

stitutional Dilemmas In An Industrial Democracy,

GB Wh, XT, Re, BOO 0 CD ev oss cvecestttes cess, 24

1 Contin, Combiidete, SIG-GG6oiiscc cans ccccccceccicacs 6, 22

Cox, Internal Affairs of Labor Unions Under the Labor

Reform Act of 1959, 58 Mich. L. Rev. 819, at 819-820

COMO 5k ¥ihs0 shun ca kk i 14

W. Leiserason, American Trade Union Democracy, 54

eaten ce 13

Oleck, Dameces, Sections 6, 8..............0........ 1]

_ Summers, Legal Limitations on Union Discipline, 64 ~

Harv. L. Rev. 1049, 1050, 1056 (1951) ............ 4,13 |

SE CAPE, Pn TI Bag 5 a Sik bins eke cc neces 11

93 Cong. Rec. 4023, II Leg. Hist. 1028 .............. 11

93 Cong. Rec. 4436, II Leg. Hist. 1207 .............. 11

93 Cong. Rec. 6859, IIT Leg. Hist. 1623 .............. 10

Comment, 80 Harv. L. Rev. 683, 687 (1967) .......... 19

" IN THE

Supreme Court of the Gnited States

Ocroser TERM, 1971.

No. 71-1417.

BOOSTER LODGE NO. 405, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD

AND THE BOEING COMPANY.

No. 71-1607.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

vs.

THE BOEING COMPANY AND BOOSTER LODGE

NO. 405, INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM.

BER OF COMMERCE OF THE UNITED STATES

OF AMERICA.

to

INTEREST OF THE AMICUS CURIAE.*

The Chamber of Commerce of the United States is

federation consisting of a membership of over thirty-seven

hundred (3,700) state and local chambers of commerce and

professional and trade associations, a direct business mem-

bership in excess of thirty-eight thousand (38,000), and an

underlying membership of approximately five million

(5,000,000) business firms and individuals. It is the largest

association of business and professional organizations in

the United States.

The Chamber has appeared in this Court as amicus curiae

in a broad spectrum of labor relations matters substan-

tially affecting the legitimate and vital interests of its

members. Examples of such cases in which the Chamber

has most recently participated include N. L. R. B. v. Granite

State Joint Board, ........... sa , 34 L. Ed. 2d 422 (1972);

N. L. R. B. v. Pittsburgh Plate Glass Co., 404 U. S. 157

(1971); Boy’s Markets v. Retail Clerks Union, 398 U. S.

235 (1970).

The issues presented here are particularly important to

the Chamber’s members, many of whom are engaged in

commerce and, together with their employees, are subject

to the provisions of the National Labor Relations Act. In

particular, the question raised in No. 71-1417—whether this

Court’s decision in Granite State Joint Board, supra, can

be avoided by an asserted ‘‘limitation’’ in the union consti-

tution against accepting employment. in an establishment

where a strike exists—poses serious concern to the balance

struck by this Court in Granite State Joint Board between

union disciplinary powers and employee rights to resign

union membership and refrain from strike action. Simi-

larly, the issue in No. 71-1607—whether the ‘‘reasonable-

* The instant brief is filed with the written consent of all parties

in both 71-1417 and 71-1607, pursuant to the rules of this Court.

att Ne

SRR

euay Mica ee sie

TORN MME RT ET ES oe

3

ness’’ of union fines can and should be determined by the

National Labor Relations Board within the operational

framework of Section 8(b)(1)(A)—is particularly signifi-

cant to articulation of the accommodation of conflicting

economic interests effected by this Court in Gramte State

Joint Board, Scofield v. N. L. R. B., 394 U. S. 423 (1969)

and N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S. 175

(1967). Both issues encompass the same underlying area of

inquiry—the extent to which unions can discipline and

enforce such discipline against their members.

Effectuation of the Act’s purpose and policy by striking

a proper balance between an individual’s freedom of choice,

a union’s interest in solidarity and adherence and an em-

ployer’s need to be free of the burden of coerced strike

conduct required the Chamber’s, participation in Granite

State Joint Board. This same necessity impels the Cham-

ber’s submission of its views to the Court here. For the

same reasons as most recently expressed in Granite State

Joint Board, the practical importance of these matters to

the Chamber’s members and the right of their employees to

refrain from engaging in union activities as guaranteed in

Section 7 of the Act, require and underline the Chamber’s

position before this Court.

SUMMARY OF ARGUMENT.

A. Enactment of Section 8(b)(1)(A) of the Act and

amendment of Section 7 to guarantee employees ‘‘the right

t refrain from any or all (union) activities’’, in the con-

eptual context of the ‘‘contract-constitution’’ rationale

spplicable to the relationship between union and member,

evidenced a Congressional purposé to prevent unions from

wercing employees to engage in strike or other such union-

directed conduct against their will. In allowing unions to

«pel those who disregard union-imposed requirements,

uch as by refusal to strike, Congress accommodated the

+

te

union’s ‘‘institutional’’ need to achieve solidarity in the use

of the strike weapon with the employee’s individual right

to refrain from strike activity without coercion. This

Court’s decision in N. L. R. B. v. Allis-Chalmers Mfg. Co.,

388 U. S. 175 (1967), permitting a union to levy ‘‘reason-

able’’ fines on its members, carefully extended the legisla-

tive balance of rights created by the Act recognizing at the

same time that ‘‘a few well-placed, sincere penalties can

mark the danger lines which cautious members will not

dare to cross’? (Summers, Legal Limitations on Union

Discipline, 64 Harv. L. Rev. 1049, 1050 (1951)). Any fur-

ther extension of union disciplinary power—through grant

of the right to fine non-members upon an ‘‘implied’’ con-

tractual agreement in a union constitutional rule as sought

by the petitioner in No. 71-1417 or disregard of the rule of

‘*good faith’? and ‘‘reasonableness’’ as demonstrated by

petitioner in No. 71-1607—would not only judicially repeal

the guarantees of Section 7 but undercut the very ‘‘con-

tract-constitution’’ principles upon which this Court has

explicated its decisions in the area of union-member rela-

tionships (e.g., N. L. R. B. v. Allis-Chalmers Mfg. Co., 388

U. S. 175 at 182).

B. Granting unions the power to impose unlimited fines

on members who resign or to so fine members for conduct

subsequent to resignation on the basis of an implied obli-

gation which survives resignation not only creates an

imbalance upon the Section 7 right not to strike but also

eviscerates this Court’s decisions in Scofield v. N. L. R. B.,

and N. L. R. B. v. Granite State Joint Board. In Scofield,

this Court’s accommodation of union discipline with indi-

vidual freedom turned upon the following lines between

permissible and impermissible union action against mem-

bers: ‘‘. . . Section 8(b)(1) leaves a union free to enforce

a properly adopted rule which . . . is reasonably enforced

against union members who are free to leave the union and

escape the rule... .’’? (emphasis added) In Granite State

4

5

Joint Board, this Court reaffirmed the principle of Scofield

and firmly established the precept that ‘‘when a member

lawfully resigns from the union, its power over him ends’’

(emphasis added). Petitioner in No. 71-1417 advances no

constitutional or bylaw provision defining or limiting the

circumstances under which a member may resign—the only

issue left open by this Court in Granite State Joint Board,

but seeks to avoid both Scofield and Granite State Joint

Board through the extension of union power over a resigned

member and/or post-resignation conduct where such power

is ‘‘necessary’’. to enforcement of a ‘*just and reasonable’’

union rule against accepting employment in a struck place

of employment. Contrary to the assertion of petitioner in

No. 71-1417 this matter does not present the question re-

served in Granite State Joint Board (Pet. Brief, p. 57) but

instead constitutes the effort of petitioner to emasculate

Scofield and Granite State Joint Board. To permit unions

to extend power over non-members by the exercise of dis-

ciplinary action against post-resignation conduct contrary

toa union rule against “‘accepting employment’? (compul-

sory strike activity) disregards a basis of free institutions

—the right of the individual to join or to resign from

associations as he sees fit, subject only to financial obliga-

tions due and owing (at the time of resignation) Com-

munications Workers v. N. L. R. B., 215 F. 2d 835, 838 (2d

Cir. 1954)).

C. Satisfaction of the legitimate institutional needs of

mions neither requires nor supports the extension of disci-

plinary power over those who decide to resign membership

by the enforcement of a ‘union obligation”’ implied from

the member-union contract,—the constitution. Without such

an extension of power in derogation of the rights to join

and resign, the substantial weapons unions already possess

to expel and fine are sufficient for ‘‘enforcement’’ of the

majority’s will. To afford unions the further power to

compel obedience to union-directed conduct notwithstanding

oo

resignation would permit not just an effective strike wea-

pon but the means by which to coerce compliance with union

strike objectives. Neither the terms of the statute, its

legislative history, sound policy nor the principles appli-

cable and necessary to free institutions allow such a result.

6

D. Advancement and reliance on such concepts as

estoppel and ‘‘implied obligations’’ as analytical devices

to determine the statutory rights of strikers and foreclose

the associational rights of union members to resign are

neither appropriate nor logical. Such concepts presuppose

conduct knowingly and voluntarily undertaken notwith- —

standing the plain facts that union membership and the

duties and obligations imposed by the union’s constitution

and bylaws are not voluntarily assumed in any meaningful

sense. Thus, an employee desirous of a voice in the collec-

tive bargaining process conducted by a union as ‘‘exclu-

sive bargaining representative’’ has no choice but to join

—the terms on which the employee obtains membership are

not ‘‘bargainable’’ and the employee has no option as

to which or how many constitutional and bylaw obligations,

unilaterally imposed by the union as an institution, shall

be assumed. It is, therefore, unrealistic to contend that

any employee upon assuming union membership under-

takes an unqualifiable and non-terminable ‘‘union obliga-

tion’’ to strike for an unlimited time notwithstanding

resignation. Such ‘‘survival’’ of union power over an

employee after termination of the union-member relation-

ship can neither be ‘‘implied’’ from union rule nor derived

from the ‘‘good faith’’ and ‘‘reasonableness’’ standards

inherent in the ‘‘contract-constitution’’ doctrine.

E. The salutary principle that any contractual relation-

ship encompasses and rests upon the factors of ‘‘good .

faith’’ and ‘‘reasonableness’’ by implication of fact and

operation of law (1 Corbin, Contract, 276-355), transposed

into the area of union-member relationships through the

‘‘contract-constitution’’ doctrine (Local 1912, I. A. M. v¥.

4

ge

sgh

a

premmanecemne serge nce SOE

7

United States Potash Co., 270 F. 2d 496, 498 (10th Cir.

1959)), cert. denied, 363 U. S. 845 (1959), derives from

this Court’s decisions in Allis-Chalmers, Scofield and most

recently Granite State Joint Board. In each of these cases,

as in the decision of the court below and the parallel deci-

sion of the Ninth Circuit Court of Appeals in Morton Salt

ie ee A” , 82 LRRM 2066 (1972),

accommodation of the union’s institutional need to exer-

cise disciplinary power for the achievement of ‘‘union

objectives’’ with the Section 7 rights of individuals to

act without restraint or coercion turns upon the very

factors of ‘‘good faith’’ and ‘‘reasonableness”’. Where

the imposition of discipline is taken for causes not ‘‘rea-

sonably’’ related to the union’s institutional require-

ments, the restraint or coercion flowing from its imposi-

tion is violative of 8(b)(1)(A) (e.g. N. L. R. B. v. Indus-

trial Union of Marine and Shipbuilding Workers, 39 U. S.

418 (1968) ). Where, as here, the disciplinary action is not

“reasonable’’ to or in keeping with the ‘‘good faith’’ re-

quirements of the associational relationship between union

and member, the coercion inherent in ‘‘unreasonable’’ dis-

cipline similarly violates 8(b) (1) (A).

F. Granting unions the right to fine non-members for

refusing to strike would adversely affect Congress’ intent

to promote free collective bargaining in which “‘. . . the

results of the contest [are left] to the bargaining strengths

of the parties.”’ H. K. Porter Co. v. N. L. R. B., 397 U.S.

99, 108 (1970). Inherent in this concept is the premise that

the nature of the harm which a strike,—a_statutorily-

sanctioned form of economic warfare,—imposes on the

parties should affect their bargaining posture and the ulti-

mate terms upon which they resolve their dispute. To per-

mit unions to fine non-members, thus in effect preventing

them from responding to the economic pressures which

their strike set in motion, constitutes an artificial restraint

on the process of collective bargaining.

ARGUMENT.

Introduction: A Framework for Analysis.

In the course of ‘‘elucidating litigation’’ over the past

several years dealing with the accommodation of a union’s

institutional requirements to exercise disciplinary power

with the statutory right of employees to enjoy Section 7

rights without ‘‘restraint’’ or ‘‘coercion’’, this Court has

articulated the basic elements necessary to achieving the

proper balance of conflicting interests. N. L. R. B. v. Allis-

Chalmers Mfg. Co., 388 U. S. 175 (1967) and Scofield vy.

N. L. R. B., 394 U. 8. 423 (1969) mark out three (3) of the

fundamental areas of concern under Section 8(b)(1)(A):

(i) the union obligation sought to be enforced must

be one properly related to the union as an insti-

tution ;

(ii) ‘‘enforcement’’ by court-collectible fine must be

‘*reasonable’’—that is, the equivalent of the

union’s proviso-guaranteed right to expel from

membership through affording the member the

choice to escape discipline by resignation;

(iii) where fines are imposed, the amount must be

‘‘reasonable’’ under the circumstances.

Both N. L. R. Bi y. Industrial Union of Marine and Ship-

building Workers, and N. L. R. B. v. Granite State Joint

Board, further refine and delineate these three (3) areas

of inquiry: the former concluded that insulation of the

union from the proper scrutiny of unfair labor practice

charges is not an objective properly related to or ‘‘rea-

sonably required’’ for the unions’ existence as an institu-

tion; the latter determined that the union’s power to dis-

cipline for a ‘‘reasonable’’ objective, being co-extensive

with its ability to expel, terminates upon the member’s

exercise of that alternative by resignation; both decisions,

implicitly and expressly, demanded that where discipline

9

is channeled into fine imposition, the fine must be ‘‘reason-

able’? to withstand 8(b)(1)(A) violation. j

Each of these cases involved a union’s leveling of fin@s”

against members and non-members (after resignation) and

required a structured accommodation of unions’ institu-

tional needs to compel obedience with the rights of em-

ployees to. take action disapproved by the union, as guar-

anteed by Section 7 of the Act. In effecting this balance

of conflicting statutory rights, giving due consideration

to Congress’ purpose to promote free collective bargaining

determinative by bargaining strengths alone (H. K. Porter

Co. v. N. L. R. B., 397 U. S. 99, 108 (1970)), the Court has

stressed the ‘‘contract’’ basis of the union-member rela-

tionship (N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S.

175 at 182). The implication of this contractual basis de-

scribes a fourth area of concern in the articulation of the

boundaries set by Section 8(b) (1)(A)—that is:

(iv) whether the disciplinary action imposed is within

or outside the standards of ‘‘good faith’’ and

‘*reasonableness’’ inherent in the contract-con-

stitution.

Where, as in the instant case, the discipline imposed

is asserted to be outside the standards of ‘‘good faith”’ and

“reasonableness’’, adjudication by the administrative body

charged with labor relations expertise is required under

Section 8(b)(1)(A). In requiring the National Labor Rela-

tions Board to assess and determine ‘‘reasonableness”’’ as

a part of its administration of Section 8(b)(1)(A), the

court below has given effect to the content of Section 7

as applied to dissenting employees through the parameters

of 8(b)(1)(A) as drawn by this Court. This result satis-

fies the will of Congress, the design and structure of the

Act and the practical needs of employees in their asso-

ciational relationships with their union and their fellow

employee-union members.

A. Section 8(b)(1)(A) Proscribes the Imposition of Fines

Upon Employees Who Resign and Demands the Deter.

mination of the ‘‘Reasonableness’’ of Fines Levied on

Members.

The legislative history of Sections 7 and 8(b)(1)(A),

and the course of judicial construction with respect to the

interaction of those sections, illustrate the propriety/of »

the decision of the court below. Congressional concern with

the right of employees to a reasoned choice with respect to

strike participation was evidenced in the enactment of

Section 7 providing that ‘‘employees shall have the right to

BARN ner to form, join or assist labor organizations

. and... to refrain from any or all of such activi-

vied: . The | purpose behind incorporation of the ‘‘right to

refrain’’ language in the 1947 amendments to the Act

vis a vis Section 8(b)(1)(A) was directed to:

“+ ae oe prohibition contained in Section

8(b) (1) apply to coercive acts of unions against em-

ployees who do not wish to join or did not care to par-

ticipate in a strike or picket line.’”

Congressional objectives to free employees from coer-

cion to engage in strike activity are demonstrated by the

inclusion of such individual rights in Section 7, their pro-

tection in Section 8(b)(1)(A) and the legislative debates

which preceded enactment. In structuring the interplay

of these provisions of the Act, legislative discussion cen-

tered upon the individual worker’s right to make effective

individual choices with regard to union-directed activities

and the correlative need to be free from union coercion to

act contrary to such individual choice. . At the same time,

Management Relations Act of 1947, 1623 poms cited Leg.

Hist.).

2. This purpose is evidenced in the statements of Senator Taft

throughout the course of the legislative debates. For example:

‘*Tf there is anything clear in the development of labor union

history in the past ten years, it is that more and more labor

nae

2.3 ates

scat pales ae

x

ll te a es NE OW, et EN, |

11

recognition of the institutional requirements of unions to

maintain the effectiveness of strike activity’ and implicit

acknowledgment of the coercive impact of fines in as-

suring obedience to union directives‘ were parts of the

context within which these legislative deliberations oc-

curred. This recognition took into account the fact that

provisions defining punishable conduct were considered

to be ‘‘part of the contract between member and union.’®

Accommodation of the structure of Sections 7 and

8(b)(1)(A), given this legislative history and taking. into’

account the law applicable to free institutions and associa-

tions, is reflected in the decisions of this Court. The power

of a union to impose reasonable fines upon its members to

compel obedience to union directives and objectives as set

out in NV. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S.

175 (1967) and Scofield v. N. L. R. B., 394 U. 8. 423 (1969)

is counterbalanced by the right of the member, under neces-

sary standards of associational law, to resign from the

union and escape the rule whose enforcement is sought

by fine (Communications Workers v. N. L. R. B., 215 F.

union employees have come to be subject to the orders of labor

union leaders, The bill provides for the right of protest

against arbitrary powers which have been exercised by some

of the labor union leaders.’’ (93 Cong. Rec. 4023, IT Leg.

Hist. 1028.)

3. Thus, Senator Taft explained,

“IT ean see nothing in this pending measure which . . . would

outlaw strikes... It would not outlaw anybody striking who

wanted to strike .. . all it would do would be to outlaw such

restraint and coercion as would present people from going to

work if they wished to go to work.’’ (93 Cong. Ree. 4436,

II Leg. Hist. 1207.)

4. It was, and remains, axiomatic that ‘‘a fine is by nature

coercive’’ (Local 138, Operative Engineers, 148 NLRB 679, 682).

The distinctive nature of a fine, as a sum ‘‘fixed in terrorem’’, was

well settled in the common law at the time of the legislative de-

bates. See, e.g., Oleck, Dameces Sections 6, 8: 36 CJS, Fines,

Section 1.

5. N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S. 175 at

182 (1967).

12

2d 835 (2d Cir. 1954)). Once resignation is effective, power

to compel obedience to associational rule ends, the attempt

to enforce such obedience, necessarily falling outside the

confines of internal union structure, constitutes statutorily

proscribed coercion. This is the lesson of N. L. R. B.

v. Granite State Joint Board. Such post-resignation power

to force conformance to union directive cannot, as_peti-

tioner seeks in No. 71-1417, be created by an implied promise

made while a member to refrain from accepting employ.

ment with any struck employer. Thus, this -Court has

made clear the fact that only financial obligations existing

at the time of resignation can be enforced after resignation

—no ‘‘obligation’’ of fealty to union directive survives

membership termination. In this connection the Court

stated-in NV. L. R. B. v. Granite State Joint Board, at 426:

‘*We have, therefore, only to apply the law which

normally is reflected in our free institutions—the right

of the individual to join or to resign from associations,

as he sees fit ‘subject of course to any financial obliga-

tions due and owing’ the group with which he was

associated.’’

Concommitant to the ‘‘associational-contract’’ principles

underlying the issue of union power over those who resign

are the implied covenants of good faith, fair dealing and

reasonableness ‘‘which inhere in every contract’’ (Local

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

498 (10th Cir. 1959), cert. denied, 363 U. S. 845 (1959)).

The law normally applicable to free institutions,—which

includes the right to resign free of prospective adherence

to association rule,—marks the line between permissible

and impermissible union action under Section 8(b) (1) (A)

and thus delineates’ the ambit of Section 8(b)(1)(A)’s

operation with respect to union action against members.

This delineation explains this Court’s express and implicit

requirements in Allis-Chalmers, Scofield and Granite State

Joint Board that 8(b)(1)(A) is not called into play where

13

the fine is ‘‘reasonable’’, Where, however, the fine is ex-

cessive or unreasonable, the ordinary contract principles

applicable to free institutions cannot insulate union action

against members from the operation of Section 8(b) (1) ( A)

without also repudiating the structure of the Act and the

historic matrix surrounding enactment of Sections 7 and

8(b)(1)(A). Thus, the concepts of ‘‘fairness’’ and ‘‘rea-

sonableness’’ are inherent to the constitution-contract be-

tween union and member.* When those concepts are trans-

gressed by the imposition of an excessive fine, for example,

the disciplinary power is thus no longer ‘‘internal’’ to the

union within the boundaries of the constitution-contract

but ‘‘external’’ and within the standards of Section

8(b) (1) (A).

“The effects of unionism are undoubtedly to demo-

cratize industrial management in the sense that auto-

cratic powers of employers are restricted by rules and

regulations negotiated with representatives of the

workers . . . If labor organizations also exercise

autocratic powers over their members, their workers

may merely be substituting dictatorial rule of union

officials for the arbitrary authority of the employer

or his managers.’

Petitioner in No. 71-1417 seeks to create a power over

employees who resign through the medium of an obliga-

tion to obey union directives or rules implied upon the

concepts of ‘‘fairness’’ and ‘‘good faith’’ inherent in the

contract-constitution. Such a contention not only would

6. The dependence of ‘‘realistic’’ interpretations of union

constitutions upon the standards of good faith and reasonableness

is stressed by Summers, Legal Limitations on Union Discipline,

64 Harv. I. Rev. 1049 (1151) who notes at 1056:

“Membership in a union contemplates a continuing relation-

ship with changing obligations as the union legislates in a

monthly meeting or in annual conventions. It creates a com-

plex cluster of rights and duties expressed in a constitution.

In short, membership is a special relationship. ’’

cis ‘i Leiserason, American Trade Union Democracy, 54

59).

a

*

14

vitiate “os decision in Granite State Joint Board

but also wguld destroy the fundamental principles of law

applicable to free institutions upon which Granite State

Joint Board, Scofield and Allis-Chalmers have been estab-

lished. At the same time, petitioner in No. 71-1607, by

disclaiming the Congressionally-placed authority to deter-

mine the ‘‘reasonableness’’ of union fines, would have this

Court cireumscribe the intended operation of Section

8(b)(1)(A) from its reach of matters outside the structure

of the union-member (contract) relationship to the narrow

area of improper union rules. This Court’s continued em-

phasis upon the ‘‘reasonableness’”’ of the fine amount in

Allis-Chalmers, Scofield and Granite State Joint Board

illustrates the misdirection of petitioner’s effort in No.

71-1607 and the necessity that the National Labor Relations

Board determine under 8(b)(1)(A) whether the fine ex-

ceeds the limits of the contract-constitution on the same

bases normal te any free institution. The necessity of such

a determination is even more evident in view of the in-

creasing recognition that unions, having been clothed by

Congress with extraordinary powers in a field of vital public

importance, must be restricted by a corresponding duty to”

their members.* The decision of the Court below properly

accomplishes such a restriction in accord with the purposes

and policy of the Act and the decisions of this Court.

B. Union Discipline of Members Who Resign on the

Basis of an Implied Promise of Perpetual Union Fealty

Is Neither ‘‘Reasonable’’ Nor Consistent with This

Court’s Decision in Granite State Joint Board.

Prior to its decision in Granite State Joint Board. this

Court emphasized the predominance of Section 7 in the

statutory scheme by empowering the N. L. R. B. to enjoin

8. Steele v. Louisville & N. R. R.. 323 U.S. 192, 202-208 (1944):

and see, Cox, Internal Affairs of Labor Unions Under the Labor

Reform Act of 1959, 58 Mich. L. Rev. 819, at 819-820 (1960).

esr RE

15

state action which impinges upon rights granted in the

Act NV. L. R. B. v. Nash-Finch Co., U. S. 138 (1971). Con-

sistent with this emphasis, and consonant with the lines

drawn in Scofield v. N. L. R. B., this Court held in Granite

State Joint Board that ‘‘when a member lawfully resigns

from the union, its power over him ends’’ (34 L. Ed. at

425). An essential aspect of this Court’s decision in Granite

State Joint Board was the subsidiary conclusion that union

members possess the same associational rights as applicable

to any other free institution,—the right to join or resign as

the member sees fit subject only to any financial obliga-

tions then accrued to the group. Although petitioner in

No, 71-1417 argued in the court below that its members

could only resign “‘by death’’, petitioner has changed its

contentions before this Court in apparent response to the

Court’s Granite State Joint Board decision. Petitioner now

maintains that regardless of the fact of resignation or the

effectiveness of such resignation, the power of discipline

survives termination of the associational relationship and

can be exercised on the basis of an implied ‘‘good faith’?

promise to abide a union rule against employment at any

establishment on strike (Brief for Petitioner in No. 71-

1417, pp. 57-90).

Contrary to petitioner’s contention that this question of

“survival’’ of the power of discipline presents the ques-

tion reserved in Granite State Joint Board (Brief for Peti-

} tioner, p. 57) the facts show the issue to be nothing other

than an attempt to relitigate and dismember the holding

in Granite State Joint Board. Thus, the union‘ constitu-

tional provision in question here does not ‘*define or limit

the circumstances under which a member could resign’?

and, in fact, the relevant contract-constitution contained no

Provision whatever concerning ‘‘resignation’’. Absent such

&provision with respect to ‘‘the right to resign’’, members

can resign at any time (N. L. R. B. v. Mechanical and Allied

Production Workers, Local 444, 427 F. 2d 883 (1st Cir.

16

1970); Communicatioins Workers v. N. L. R. B., 215 F

2d 835 (2d Cir. 1954)).

Extension of union disciplinary power over members who

resign, via a theory of survivorship of the ‘‘contractual”

obligation to refrain from working for a struck employer,

may not be implied from the requirements of ‘‘good faith”

and ‘‘reasonableness’’ inherent in the contract-constitu-

tion; rather, such 4n extension is diametrically opposed to

the rationale and intendment of the Act and this Court's

decisions. In Allis-Chalmers, this Court emphasized that

coercion through reasonable fines was tolerated, within the

confines of contract-constitution, by virtue of a subsisting

union-member relationship and, therefore, did not fall

under the scrutiny of 8(b)(1)(A). However, in Scofield,

the Court clarified the import of Allis-Chalmers and its

meaning in achieving a balance between individual free.

dom to resist union-directed activities and the union’s in-

stitutional need to compel adherence to its objectives:

‘‘reasonable’’ enforcement was sanctioned only where

‘‘ynion members .. . are free to leave the union to escape

the rule’’ (394 U. S. 423, at 430). The import of Scofield,

—that union discipline cannot reach an employee who

resigns from membership before committing the act for

which the union seeks to exercise disciplinary power,—is

made clear in Granite State Joint Board. Thus, ‘‘when a

member lawfully resigns from the union, its power over

him ends’’ (34 L. Ed. at 425); acceptance of union con-

stitutional provisions or bylaw restrictions upon acquir-

ing membership, no more than acquiescene in a strike vote,

cannot subsequently form a basis for post-resignation dis-

cipline. The court below so held as should this Court in

conformance with its concise holding in Granite State Joint

Board that,

«|. [Whhere, as here, there are no restraints on the

resignation of members, we conclude that the vitality

17

of Sec. 7 requires that the member be free to refrain

in November (after resignation) from the actions

(union rule) he endorsed in May (upon joining the

union) and that his Sec. 7 rights are not lost by a

union’s plea for solidarity or by its pressures for con-

formity and submission to its regime’’. (34 L. Ed. 2d

at 426).

0. The Fact That an Employee Accepted a Union Rule

. Against Employment in a Struck Establishment Upon

Obtaining Union Membership Is Not a Valid Reason

for Limiting His Section 7 Rights After Resignation

and Such *‘Survival’’ of ‘‘Union Obligation’’ Is Not

Necessary to the Union’s Institutional Needs.

As the progress of this Court’s decisions make clear, the

union’s right to discipline its members outside the ambit

of Section 8(b)(1)(A) turns upon the contract between

member and union (N. L. R. B, v. Allis-Chalmers Mfg. Co.,

388 U. S. at 182). Where, as here, the ‘‘contract-constitu-

tion’’ contains no limitations on the right to resign, there

is no warrant for reading into it an implied obligation to

remain a member to the extent of being subject to union

disciplinary control to enforce obligations allegedly as-

sumed upon obtaining membership (N. L. R. B. v. Granite

State Joint Board). Whether such an implied obligation is

urged to derive from participation in a strike vote, as was

the case in Granite State Joint Board; or from acceptance

of a union constitutional provision against working for a

struck employer as now urged here, the same policy con-

siderations expressed in Section 7 reinforce ordinary con-

tract principles against implying a contractual obligation

to engage in specific union activities after the termination

of membership. Thus, the court below properly concluded

that ‘‘it is generally recognized that courts will not usually

imply offenses’? and that ‘‘extremely important national

policy militates against the imposition of such an implied

obligation’’ (Pet. App., p. 16a-17a).

18

In balancing the interest of the union in preserving soli.

darity during a strike against the interest of the individual

employee who no longer wishes to remain a member of or

support the union, the court below properly concluded

that Section 7 reflects a focal principle of national labor

policy weighing the balance in favor of the individual,

The court below, after emphasizing that Section 7 “ex.

pressly protects the right of any employee to refrain from

any or all of the concerted activities guaranteed to em.

ployees under the Act’’ (Pet. App., p. 17a), concludes that

the ‘‘voluntariness’’ characteristic of union membership

carried with it the fact that the member was free to leave

the association when its policies were no longer acceptable.

Upon leaving, the member does not carry with him a per-

petual obligation to obey a union’s constitutional directives

and is subject only to any ‘‘financial’’ obligations ‘‘due and

owing’’ the association at the time membership terminates

Communications Workers v. N. L. R. B., supra.

Although an employee may ‘‘accept’’ a union rule upon

acquiring membership and becoming subject to the ‘‘con-

tract-constitution’’, subsequent events may lead the em-

ployee to exercise his individual choice and disregard the

rule. A reasonable accommodation of the competing in-

terests involved, particularly where the rule precludes

working during the course of a strike for any struck em- |

ployer, allows the employee to change his mind without the

risk of disciplinary action, provided the employee is will-

ing to resign from the union before abandoning the rule.

It would be incompatible with this reasoned accommo-

dation to interpret the union’s constitution and bylaws as

imposing, by implications of ‘‘good faith’’ and ‘‘reason-

ableness’’, a surviving obligation of union fealty not to

work during an authorized strike under any circumstances

which may arise or change.

The power of unions to fine ‘‘members’’ together with

the right to expel them from membership provide suf-

19

ficient bases upon which to compel obedience to union ob-

jectives. To further extend this power by creating a base

for disciplinary action against members who accept the

burdens of resignation by implying the ‘‘survival’’ of union

obligations is neither necessary nor sensible to the ‘‘con-

tract-constitution’’ rationale upon which the union’s dis-

ciplinary powers are found to operate outside Section 8(b)

(1)(A). To afford unions coercive disciplinary power to

compel obedience not freely given by subjecting non-mem-

bers to ‘‘continuing’’ obligations of union obedience after

resignation is contrary to the institutional interests of

unions as such’ and destructive of the purpose and policy

of the Act. Thus,

‘Balancing the interests involved, it is ‘likely that

whereas genuine pro-strike morale among the~bulk

of the membership is a factor crucial to the union’s

ability to call a successful strike, the union has not

argued and shown a serious need to substitute for

that morale the power to coerce recalcitrants; absent

clear need, the NLRB’s bias against coercion and in

favor of persuasion as the technique of union cohe-

sion seems dispositive. Against the union’s interest in

an artificial solidarity must be weighed the member’s

7 interest in freedom from restraint. . .’’.®

Section 7

Creation of a Duty to Obey Union-Directed Objectives

After Resignation on the Basis of Estoppel or Implied

Obligations Is Neither Logical Nor Consistent with

the Act.

The court below properly determined that employees

who exercised their individual choice to resign member-

ship effectively escaped the rule against working in a struck

establishment following the date of resignation. No work-

able reason for upsetting this determination, which is fully

consistent with this Court’s decisions in Allis-Chalmers,

9. Comment, 80 Harv. L. Rev. 683, 687 (1967).

20

Scofield and Granite State Joint Board, is advanced by

petitioner in No. 71-1417. On the contrary, and in direct

disregard of the described principles of associational law

applicable to free institutions, petitioner contends that al-

though the individual may resign he is estopped to disre-

gard the rule against working at a struck establishment on

the basis of an obligation implied from ‘‘good faith’’ and

‘‘reasonableness’’ inherent in the ‘‘contract-constitution”’,

This theory for avoiding the Court’s decision in Granite

State Joint Board is unsound as a matter of contract law

and federal labor policy.

No member accepting membership and thereby the ‘‘con-

tract-constitution’’ knowingly accepted a post-resignation

effect of any constitutional provision or union rule. While

a member’s acceptance of a union rule may estop the mem-

ber to disregard the rule while he remains a member and

the union-member contract remains intact, such acceptance

cannot reasonably be viewed as a commitment to remain a

member or to be obedient to the rule after resignation.

For example, while a member may agree to be subject to

assessments during the period of his union membership,

such an agreement neither commits him to remaining a

member nor to remaining subject to assessments after resig-

nation. Similarly, while a member may agree to a union

rule against working in a struck establishment, it does

not follow that he intends thereby also to commit himself

to remain a union member for the duration of any strike

or to remain subject to the rule after resignation of his

union membership. To imply such post-resignation suscep-

tibility to union disciplinary authority wreaks havoc with

the ‘‘contract-constitution’’ principles upon which union

immunity from 8(b)(1)(A) is premised and eviscerates

the careful balancing of Section 7 rights in which this Court

has engaged, as noted above.

To argue that a member’s acceptance of union constitu-

tional provisions or bylaws commits the individual to par-

21

ticipate in union activities after resignation overlooks the

fact that a union’s right to compel participation in union

activities, in derogation of the language in Section 2

contingent upon the existence of the contract of member-

ship. To permit a union to discipline a member on the basis

of a union rule, after the individual’s contract of member-

ship as terminated, destroys the individual’s Section 7

right to refrain from engaging in union activity by ‘‘escap-

ing the rule through resignation’’. In sum, the court below

properly concluded that under the circumstances present

here, the NLRB arrived at a fair balance “6f legitimate

union and member interests by deciding that, upon resig-

nation, the union’s disciplinary power over the member

ends. Such a determination constitutes a proper and nec-

essary exercise of the Board’s ‘‘function of striking that

balance 4o effectuate national policy (which) is often a

dificult and delicate responsibility” (N. L. R. B. v. Truck

Drivers Union, 353 U. S. 87, 96).

E. Effectuation of the Act’s Policies Demands the Board

Exercise Its Function to Balance Section 7 Rights by

Determining the Reasonableness of Fines Under the

Purposes of Section 8(b)(1)(A).

As the legislative history reflects and as this Court has

observed, Sections 7 and 8(b) ( 1)(A) were enacted in the

context of the concept that the union-member relationship

subsisted upon and was measured by a ‘‘contract-con-

stitution’? (N. L. R. B. v. Allis-Chalmers Mfg. Co., 388

U.S. at 182). The principles of contract law applicable to

free institutions and particularly voluntary associations

have been predominant in this Court’s accommodation of

individual Section 7 rights with the institutional needs of

unions to compel obedience to union rules. Thus, the right

and effect of resignation and the necessity of ‘‘reasonable

enforcement’’ form a common thread throughout the balanc-

22

ing process which underlies Scofield, Industrial Union of

Marine and Shipbuilding Workers and now Granite State

Joint Board. Implicit in this decisional history and now

presented for determination here are the facts that ‘‘good

faith’’, ‘‘reasonableness’’ and ‘‘fair play’’ are factors

inherent in any contractual relationship (1 Corbin, Con

tracts, 276-355 ; Local 1912, 1. A. M. v. Umited States Potash

Co., supra.) Where union conduct exceeds or is in deroga-

tion of that ‘‘good faith’’, ‘‘reasonableness’’ or ‘‘fair

play’’ imbedded ‘‘in every contract of association”’’ (Polin

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

contract-constitution does not insulate it from the operation

of 8(b)(1)(A) and cannot logically do so. Thus, where

the exercise of disciplinary power, although ostensibly with-

in the framework of internal union relationships, is not

‘‘reasonably related’’ to the union as an institution, the

imposition of a fine is violative of 8(b)(1)(A), as the

Court found in N. L. R. B. v. Industrial Union of Marine

and Shipbuilding Workers. Similarly, where the discipli-

nary power takes the form of a fine which is not ‘‘reason-

able’’ in amount, such transgression of the ‘‘fair play”

and ‘‘good faith’’ standards of the ‘‘contract-constitution”’

is not and cannot be insulated from the reach of 8(b) (1) (A);

on the contrary, once union disciplinary power in the form

of excessive fines goes outside the area of ‘‘reasonableness”’

circumscribed by the contract-constitution, that contractual

basis of exemption from 8(b)(1)(A) is no longer logically

available and the Section, which bars coercion of members

is applicable. This construction of Section 8(b)(1)(A)

in the reasoned accommodation of union disciplinary power

with individual Section 7 rights is evident in the Court’s

continued insistence that only ‘‘reasonable fines’’ and ‘‘rea-

sonable enforcement’’ upon members are excluded from the

operation of Section 8(b)(1)(A), and constitutes the bed-

rock upon which the court below properly concluded that the

J

23

NLRB, in striking that delicate balance in national policy,

must determine the reasonableness of fines.

As the court below and the Ninth Circuit in Morton Salt

+. &, an B.S... | » 82 LRRM 2066 (1972)

correctly observed, where the existence of an unfair labor

practice is in issue and particularly since the ‘‘reasonable-

ness’’ of a fine draws the line between ‘‘contract-constitu-

tion’” immunity and 8(b)(1)(A) operation, the Board

can and must make that determination. Drawing upon an

area of experience in the application of Section 8(b) (5),

(e.g., Longshoremen, I. L. A., Local 1419, 186 NLRB No.

94), the Board can and must develop affirmative standards

of ‘‘reasonableness’’ to provide the individual and the

union with uniform guidance concerning the interplay of

the contract-constitution and the Labor Act in the same

way such standards were developed by the Board in juris-

dictional dispute matters after this Court made clear that

“the Board need not disclaim the power given it for lack

of standards’’ (N. L. R. B. v. Radio and Television Broad-

cast Engineers Union, 364 U. S. 573, at 583 (1961)).'° Nor

would the development and application of such standards

bring federal and state interests into conflict since the

state courts, in strictly construing union disciplinary ac-

tion-against unions and to afford the individual every pos-

10. ‘It is no bar to the adoption of the principles urged herein

that the Board would be required to determine the ‘* reasonable-

ness’’ of unions’ conduct.—an admittedly imprecise criterion. The

expertise of the Board is regularly called upon to draw difficult

lines and even to define what is ‘reasonable.’ In NLRB v. Bab-

cock & Wilcor Co., 351 U. S. 105 (1956), this Court directed the

Board to determine whether unions’ use of private property

should be required because of the absence of ‘*reasonable’’ al-

ternative means of communication. In Quality Manufacturing

Co., 195 NLRB No. 42. the Board itself adopted a rule under

which the existence of employees’ rights depended upon whether

they had a ‘‘reasonable’”’ basis to fear discinline. Indeed, in

Section 8(b)(5) of the Act Congress created on unfair labor

practice whose gravamen is a union’s imposition of an ‘‘excessive’’

—hence ‘‘unreasonable’’—fee.

sible leeway to the exercise of free choice,’ look to pro-

cedural and substantive elements not involved in the deter-

mination of the ‘‘reasonableness’’ of a fine. Further, and

even in connection with the determination of whether a fine

is excessive, the state courts assess the fine against the

needs of the union and state labor law policy,” and do

not deal with the delicate balance of Section 7 rights against

the institutional needs of the union within the statutory

matrix of Section 8(b)(1)(A) and the standards of the

‘‘contract-constitution’’ doctrine; Only the Board can make

these latter accommodations and such balancing by an

expert agency is fully consistent with the congressional and

judicial scheme of administration of labor laws and poli-

cies.

24

Congress’ purpose to name one central agency for the

adjudication of the intricate issues of labor relations mat-

ters’® is evidenced in this Court’s insistence that these

‘‘delicate balances’’ be, struck by the Board. Insistence

upon the Board’s ‘‘primary responsibility’’ to guide the

development of national labor policy,’ reflected in the pre-

emption doctrine,’* is equally applicable where, as here,

11. Christensen Union Discipline Under Federal Law: Insti-

tutional Dilemmas in an Industrial Democracy, 43 N. Y. U. L. Rev.

1 (1968).

12. E.g., Jost v. Communications Workers of America, 91 Cal.

Rptr. 722; Walsh v. Communications Workers of America, 259

Md. 608, 27 A. 2d 148; Communications Workers of America v.

Maloney, 486 P. 2d 1275 (Ore.) ; Local 248. U. A. W. v. Natzke, 36

Wis. 2d 237, 153 N. W. 2d 602: see also, United Glass Workers v.

Seitz, 65 Wash. 2d 640, 399 P. 2d 74; Retail Clerks Local 629 v.

Christiansen, 67 Wash. 2d 29, 406 P. 2d 327.

13. Amalgamated Utility Workers v. Consolidated Edison, 309

U. 8. 261 (1940) ; Myers v. Bethlehem Shipbuilding Corporation,

303 U. S. 41 (1938).

14. N.L. R. B. v. Raytheon Company, 398 U. S. 25, 28 (1970).

15. International Longshoremen’s Local 1416. AFL-CIO v.

Ariadne Shipping Company, 397 U. S. 195, 200 (1970) ; San Dtego

Building Trades Council v. Garmon, 359 U. 8. 236, 245 (1959).

25

the ‘‘power and duty of primary decision lies with the

Board’’.'® Once that duty is properly assumed within the

framework of development of standards of ‘‘ reasonable-

ness’’ marking out the boundaries of Section 8(b)(1)(A)’s

applicability to fines, ‘‘diversities and conflicts likely to

result from a variety of local procedures and attitudes’!

S as institutions will be avoided. Develop-

standards will, therefore, benefit the union

as an institution as much as the member himself in the rea-

soned exercise of his Section 7 rights within the framework

of the ‘‘contract-constitution’”’. The court below so held.

F. The Extension of Unions’ Disciplinary Power to Non-

Members Is Contrary to Congress’ Intent to Foster

Free Collective Bargaining and to Principles of Sound

Policy. .

To grant unions the right to discipline non-members

would violate the Federal scheme whereby the result of

economic warfare between the parties should depend upon

the will of the parties to continue the conflict. The logic

of a strike involves a test of the combatants’ resolve to

withstand the harm to which such economic warfare neces-

sarily and intentionally subjects the parties ; the employer’s

loss of present and anticipated income is contrasted with

employees’ loss of salary and fear of replacement. It is

at least arguable that Allis-Chalmers has already effected

an unwarranted dislocation of this play of economic forces

in compelling union members, through fear of fine as well

a8 expulsion, to continue a strike beyond their desire and

ability to withstand its consequences. To permit unions ~

to exercise the same control over those who renounced their

membership in order to avoid the continuing harm imposed -

16. Garner v. Teamsters Union, 347 U. S. 485, 489-491 (1953).

17. San Diego Building Trades Council v. Garmon, 359 U. 8.

236, 243 (1959).

—y

26

by this statutorily recognized form of warfare constitutes

clear intervention on one side of the dispute.

The bargaining equality in which Congress sought to

leave the parties to a labor dispute has been recognized by

this Court which has held that ‘‘. . . the results of the

contest [are left] to the bargaining strengths .of the par-

ties’. H. K. Porter Co. v. N. L. R. B., 397 U. S. 99, 108

(1970). And in Gramite State Joint Board itself, the Court

recognized that it is entirely appropriate that the effects

of the parties’ knowingly undertaken economic struggle

should affect the results of that struggle. Thus, Justice

Douglas acknowledged, in speaking for the Court, that

‘‘Events occurring.after the calling of a strike may

have unsettling effects, leading a member who voted

to strike to change his mind. The likely duration of

the strike may increase the spectre of hardship to

his family; the case with which the employer replaces

the strikers may make the strike seem less provident.”

And the Act’s legislative history supports the view that

artificial hindrances to the unfettered play of relative eco-

nomic strengths inhibits free collective bargaining. Accord-

ing to Senator Taft:

‘‘Our aim should be to get back to the point where,

when an employer meets with his employees, they have

substantially equal bargaining power, so that neither

side feels he can make an unreasonable demand and

get away with it.’’ (I Leg. Hist. 1007).

The effect of granting to unions the right to fine non-

members would be to promote situations in which unions

can make and secure such demands, since it practically pre-

vents the affected employees from ceasing their strike

activity, no matter the economic consequences which their

strike produced. Such a result would not merely permit

unions the exercise of such disciplinary: power as to render

their strikes effective, but would grant the power virtually

to guarantee their success.

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That result, apart from its inherent inequity, frustrates

the purpose of the Act in that it interferes with’ the free

play of economic forces. It inhibits collective bargaining

by placing a restraint on the ability of adverse economic

consequences to produce a settlement."®

27

‘*Collective bargaining works because the parties know

that if they didn’t move towards an agreement they

will get hurt. A strike to be effective must hurt both

sides. It is the strike and fear of a strike that causes

compromise and agreements .. .’”” '

According to this Court’s decision in H. K. Porter, col-

lective bargaining is a system of economic tension based

on the parties’ respective strength. Artificial supports to

one side or the other,—as by governmental subsidies to

management, welfare payments to strikers, or the fines in-

volved here, produce results which are unrelated to the

parties’ strength, their will or resolve, and are thus incon-

sistent with the legislative design.

18. In the Granite State case the play of economic forces led a

number of employees to return to work, a factor whose impact on

the ultimate terms on which the parties would resolve their dispute

was both natural and consistent with the idea that the effect of the

strike’s harm—on one party or the other—should affect thei: baz-

gaining posture. The communicated threat of fines whic’ surely

inhibited other employees in that case from resigning un‘o1_mem-

bership and returning to work created an artificial bargaining

posture inconsistent with free collective bargaining.

19. Affidavit of Dr. Herbert Northrup, Director of the Indus-

_ trial Research Unit of the Wharton School of Finance and Com-

merce, p. 41 (presented to the court in Francis, et al., v. Davidson,

ete. et al. (unreported, D. Md., 1972), and referred to in the

Jurisdictional Statement in this Court in U. 8. Chamber of Com-

merce Vv. Francis, et al. (No. 71-1554).

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28

CONCLUSION.

For the reasons stated above, together with those addi-

tional arguments and authorities raised by the Board in

No. 71-1417 and by the Boeing Company in No. 71-1607,

it is urged that the Court. affirm the decision below.

Respectfully submitted,

MILTON SMITH,

General Counsel,

oO. F. WENZLER,

Labor Relations Counsel,

Chamber of Commerce of the

United States of America,

1615 H Street, N. W.,

Washington, D. C.,

GERARD C. SMETANA,

925 South Homan Avenue,

Chicago, Illinois 60607,

JERRY KRONENBERG,

120 South LaSalle,

Chicago, Illinois 60603,

Attorneys for the Amicus Curiae.

Of Counsel:

BOROVSKY, EHRLICH &

KRONENBERG,

120 South LaSalle,

Chicago, Illinois 60603,

COLE, ZYLSTRA & RAYWID,

2011 Eye Street, N. W.,

Washington, D. C.