Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO v. National Labor Relations Board

PETITIONER:Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO
RESPONDENT:National Labor Relations Board
LOCATION:Allegheny County District Court

DOCKET NO.: 71-1417
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 412 US 84 (1973)
ARGUED: Mar 26, 1973
DECIDED: May 21, 1973

ADVOCATES:
Bernard Dunau – for Booster Lodge No. 405, etc
Norton J. Come –
Samuel Lang –

Facts of the case

Question

Audio Transcription for Oral Argument – March 26, 1973 in Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO v. National Labor Relations Board

Warren E. Burger:

— This morning in 71-1471, Booster Lodge, No. 405 and others against the National Labor Relations Board consolidated with 71-1607, National Labor Relations Board against the Boeing Co.

Mr. Dunau, you may proceed whenever you’re ready.

Bernard Dunau:

Mr. Chief Justice and may it please the Court.

There are two questions in this case.

One, where a Union rule prohibits a member from engaging in strike making – strikebreaking, may that rule be fairly, reasonably and validly interpreted to require that an employee who was a member of the Union at the time the strike began is required to observe the existing Union obligation that he had to refrain from strikebreaking for the duration of that strike, notwithstanding his resignation in the midst of the strike.

The second question we have, is whether the Labor Board is empowered to determine the reasonableness of the size of a Union fine imposed against a member for engaging in strikebreaking.

These two questions arise in these circumstances.

Boeing and Booster Lodge have a collective bargaining agreement.

It expires on September 15, 1965.

No agreement is reached.

The next day a strike begins.

The strike lasts 18 days.

On October 3, an agreement is reached, the strike ends.

There were 1,900 employees in the unit that was struck.

Of these 143 returned to work during the course of the strike, 24 never resigned.

They retained their membership throughout the strike, but engaged in strikebreaking.

119 did resign.

Of these 119, 61 returned to work after their resignation and 58 returned to work before their resignation.

All, without regard to whether they resigned or when they returned to work, were found guilty after internal union proceedings of having engaged in misconduct in violation of the Machinist constitution, which defined as misconduct of a member accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this constitution without permission.

Those accused who appeared for trial apologized and pledged future loyalty to the Union, were in substance fined 50% of their strikebreaking earnings.

What they earned from the struck employer was the measure of their fine, one-half was the fine.

Those who did not appear for trial and were found guilty, were fined a flat sum of $450.

This case came before the National Labor Relations Board on a complaint which alleged that the imposition of the fines which were Court collectible, the Union sought, threatened to institute court proceedings and did institute court proceedings to collect these fines.

The claim before the Board was that the imposition of the fines constituted restraint and coercion of the employees in the exercise of their right to refrain from concerted activity for mutual aid or protection.

The claim is divided into two parts.

As to those employees who never resigned and as to those employees who resigned, but engaged in strikebreaking prior to the resignation.

It was said that the restraint and coercion resided in the unreasonableness of the size of the fine.

It was too large and therefore it was restraint or coercion.

The Board dismissed that part of the complaint.

It said given the validity of the Union rule against strikebreaking, the size of the fine was not its business.

Bernard Dunau:

It was the business of a State Court on a suit to collect or set aside that fine, the State Court would decide whether or not the fine was too large.

As to second claim, the complaint alleged that those who engaged in post resignation strikebreaking, no fine in any amount could be levied against them and so the restraint and coercion with respect to people who were engaged in post resignation strikebreaking was that any internal Union discipline by way of a court collectible fine was of itself restraint and coercion.

The Board held that it was, the Court of Appeals agreed with that determination.

The Court of Appeals disagreed with the Board’s determination that it had no power to determine the reasonableness of a fine and both questions are here on the Union’s petition and the reasonableness of fine issue on the Board’s petition as well.

Warren E. Burger:

Mr. Dunau?

Bernard Dunau:

Yes sir.

Warren E. Burger:

Does the Union has the right to discharge/dismiss from the membership of the Union an employee who doesn’t pay his fine or is their only remedy, the power to go into the State Courts to collect it?

Bernard Dunau:

With respect to a person who did not resign, the Union can do a number of things.

It can expel him.

It can fine him and say that the penalty or the sanction for not paying the fine will be expulsion or it can do as it did in Allis Chalmers and was validated in Allis Chalmers, it can sue in court for the collection of the fine.

With respect to a resigner, it can do virtually the same things.

It can say because you engaged in prior strikebreaking, you will never again be admitted to membership in this Union.

Or it can say, we will fine you and until you pay that fine, we will never again admit you to membership in this Union or it can do as it did in this case, it can sue in court to collect the fine.

Now no one as I understand it contests the Union’s power to debar the fellow who engaged in strikebreaking, notwithstanding resignation, to fine him if the sanction for enforcement of the fine is saying you will pay or never be readmitted to the Union.

The entire controversy centers here on the court collectibility of the fine and that it seems to us is the identical question which was before the Court in Allis Chalmers.

The sole difference being that in Allis Chalmers the worker retained his membership.

Here, he resigned in the course of the strike and our question is whether we can have a Union rule which says, if you are a member and the obligation to refrain from strikebreaking attached at the commencement of the strike, can we require as a conditional resignation, you can resign.

But the one obligation you cannot shed by resignation is your obligation to refrain from strikebreaking for the duration of the existing controversy.

Any —

Harry A. Blackmun:

Mr. Dunau?

Bernard Dunau:

Yes sir.

Harry A. Blackmun:

It may not be important, but I’m a little fuzzy on one or two facts here.

Do we know whether each fined member voted in favor of the strike as we did in Granite State?

Bernard Dunau:

No sir, we do not know and we can never know because under the Machinist constitution the decision whether or not the go on to a strike is taken by secret ballot.

At the time this can — this strike was called it required a three-quarters vote in favor of the strike by a secret ballot and the whole notion of a secret ballot is that we shall not know who voted for or against the strike.

Harry A. Blackmun:

Does the record show whether each person fined here, initially participated in the strike?

Bernard Dunau:

I believe the record will show that Your Honor.

Well, no I have to withdraw that.

I think the record will show that most did.

I am not sure whether all of them did.

Bernard Dunau:

There maybe a handful who returned to work on the first day of the strike, but without checking the record more closely that I now have a recollection, I could not say.

But most of them did go out and then resigned in the course for the strike, but I cannot say whether all participated in the strike.

Harry A. Blackmun:

One last question, I take it does show that that dates of the respective resignation?

Bernard Dunau:

Yes sir, it will show when the letter of resignation was sent.

It may show when it was received.

The Board holds that resignation is effective upon the Union’s receipt of the letter of resignation.

I don’t think there’s any question about the operative facts namely that as to a substantial number they’ve engaged in strikebreaking prior to resignation as to a substantial number they engaged in strikebreaking only after their resignation was effective.

Now, we have a preliminary question in this case of the interpretation of the provision in the Union constitution barring strikebreaking.

It says that a member shall refrain from strikebreaking.

It doesn’t say what happens when in the cause of a strike a member resigns.

You have two ways; one has two ways that one can interpret that prohibition.

It can say — one can say that a member is barred from strikebreaking notwithstanding resignation or one can say, a member is barred from strikebreaking except following resignation.

As between those two interpretations of a Union prohibition against strikebreaking it seems to us at least fair and reasonable to say, given if the fact that it is a Union prohibition against strikebreaking, given the fact that the whole purpose of a rule against strikebreaking is to keep the man from returning to work during the course of the strike that the fair and reasonable interpretation of that rule is that it means that a member who was a member when the strike began is required to refrain from strikebreaking for the duration of that controversy.

William H. Rehnquist:

Mr. Dunau, what is the nature of our review here?

I take it the Board found against you on that and the Court of Appeals found against you on that.

Is it simply your preponderance of the evidence or would you have to show that there was no substantial evidence to support that or do you treat it as a conclusion of law?

How do we get at it?

Bernard Dunau:

I suppose since the Board tells us that what it is doing is interpreting a contract and the conventional formulation as I understand it is that the interpretation of a contract is supposed to be a question of law open to unrestricted judicial review that we are free here to decide whether the Union’s constitution is fairly and reasonably interpreted to bar strikebreaking.

None of us have focused on Your Honor’s precise question, namely, given the Board’s interpretation what is the scope of judicial review with respect to that interpretation.

And I suppose that none of us have focused on it because the Board has never said that this is not a fair and reasonable interpretation of the Union prohibition.

What it has said is that you cannot have such an interpretation.

That the Union’s authority over a member is limited to the time that he was a member and that ipso facto once he resigns the Union’s authority over him is at an end.

If that is correct, that is the way they read any Union constitution as I read their decision, if that is correct, one never reaches the question of how do you interpret this prohibition, no matter how reasonably and fairly it is interpreted as a matter of reading a prohibition.

You cannot have that interpretation because there is a superseding according to the Board rule of contract law that the authority of the Union over a member ceases on resignation.

Hence this rule even where it’s explicit, as explicit as the Machinist made it in September 1972, when it amended this prohibition to state in terms, “Resignation shall not relieve a member of his obligation to refrain from accepting employment at the establishment for the duration of the strike or lockout, if the resignation occurs during the period of a strike or lockout or within 14 days preceding its commencement.”

That gives us — no one any problems of interpretation.

It is now absolutely explicit.

As I read the Board’s decision, they would say as a matter of contract law you cannot have that kind of a restriction because your authority over the member ceases with the resignation.

Therefore, there can’t be no post resignation implications of continuing obligation to perform any part of the Union obligation.

And it is that on which this litigation has centered as a matter of how do you read a Union constitution.

Bernard Dunau:

Do you say that once resignation occurs, every obligation ipso facto stops, if that is the way you read it, then our prohibition can not apply.

Potter Stewart:

But it’s also almost a definition of the word member, isn’t it?

Once you resign, you’re not a member, you are former member?

Bernard Dunau:

Which presents the problem, whether you are — if you are a former member or put it rather this way, if during the period of membership, if the condition of acquiring and retaining membership is that on resignation, a particular obligation will — and you’re beyond your resignation, can that be —

Potter Stewart:

Beyond your membership?

Bernard Dunau:

That —

Potter Stewart:

Beyond your membership.

Bernard Dunau:

Beyond your membership, can a particular Union obligation subsist beyond your membership.

The Board says, “No, as a matter of Contract law, we think that has to be wrong as a matter of Contract law because if that is not wrong as a matter of Contract law, we could not in September ’72 have amended our constitution to say that following resignation, nevertheless the obligation to refrain from strikebreaking shall subsist.

It seems to us that as a matter of how one reads the relationship of a member to a Union,” it was said as well as I know it.

In Section 653 of the British Industrial Relations Act of 1971, “every member of the organization shall have the right on giving reasonable notice and complying with any reasonable conditions to terminate his membership of the organization at any time.”

We are saying that a reasonable condition on resignation is that a fellow who was a member of the Union at the time the strike began shall for the duration of that strike, respect his obligation that he had to refrain from strikebreaking.

Thurgood Marshall:

Regardless of how long strike goes on?

Bernard Dunau:

Yes sir, regardless of how long the strike goes on because the whole notion it seems to us of strike solidarity, is that the majority decides when to strike and the majority decides when to stop striking and that the whole point of strike solidarity and concerted activity for mutual aid and protection is that the unit as a unit determines its destining for good or ill, not any individual.

Potter Stewart:

That was the rationale of the, what was it, the First Circuit in Granite State that was rejected by this Court last December, wasn’t it?

Bernard Dunau:

On a basis of decision as we understand it which said, “we reject that where there is no limiting Union rule.”

We take it to mean therefore that when the Court decided to hear this case on the resignation issue, it wanted to decide a question of what do you do when there is an existing Union rule and that is what they have in this case.

We have a rule against strikebreaking which we think are reasonably and fairly interpreted to bar resignation, not to bar resignation, to bar strikebreaking by a resigner for the duration of the existing controversy.

What he does in any future controversy, we cannot treat him in any way except as a man on the street, but when we have a rule which says, that for the duration of an existing strike, he will respect the obligation he undertook as a member, that we think was the question reserved in Granite State, that we think is the question which is presented here.

And with respect to —

Warren E. Burger:

Would you make any distinction Mr. Dunau between members of Unions who are members as a matter of compulsion and those who are members as a matter of choice?

Bernard Dunau:

We make no such distinction, Your Honor.

In this case, it happens that every member was a member by a choice because the collective bargaining agreement explicitly stated that every non-member could join or could not join the Union has he saw fit.

Every person on employment was told, “You have free choice to join or not to join.”

Therefore, everyone who joined, joined because he wanted membership, but that is this case.

We make no distinction with respect to employees who are required under a Union security agreement to acquire membership even they are voluntary members in the sense of being full members because all a Union security agreement can do is obligate the person to pay his Union dues and initiation fees.

Every other obligation of membership is his to acquire if he wants it, there is no compulsion on him to acquire that membership.

Warren E. Burger:

Well, can he be a member, but reject this provision with reference to strikebreaking?

Bernard Dunau:

If the Union is willing to enforce against him the obligation of the contract to pay his dues and fees that is the limit of it.

If the Union is willing to say, “Okay, we will take you only on that basis,” the Union can do that or it can say to the fellow, “You will become a full member or not be a member at all.”

Bernard Dunau:

In that event, he doesn’t even pay Union dues or initiation fees, but it is his choice as to whether he adopts the full obligations of Union membership or does not.

Thurgood Marshall:

These men that resigned, are they, to use your phrase, men in the street?

Bernard Dunau:

I don’t know what the usual phrase means Your honor?

Thurgood Marshall:

You said that he is just like another man in the street?

Are these men who resigned in that category so far as the Union is concerned?

Bernard Dunau:

So far as the Union is concerned once they resign, subsequent to the termination of that strike they are like any other member in the street indeed in this case.

Thurgood Marshall:

Except that they can’t work.

Bernard Dunau:

They cannot work for that employer for the duration of the strike.

Thurgood Marshall:

But the man in the street can?

Bernard Dunau:

That was correct and that is the —

Thurgood Marshall:

The other man in the street can?

Bernard Dunau:

That is the precise difference Your Honor between being a Union member subject to the obligations of the Union membership and not being a Union member.

(Inaudible)

Bernard Dunau:

He was a former member and the question here is whether we can bind a former member for the duration of a strike to its obligation to refrain from strikebreaking.

Under the Machinist constitution, it takes a three quarters majority vote to call a strike.

If you want to terminate the strike, it takes a majority votes of the people who are participating in the strike.

That we think is the democratic means by which we achieve both freedom and unity, the majority rules.

William H. Rehnquist:

Is the termination vote a secret vote too?

Bernard Dunau:

Yes Your Honor, it appears on page 138 of the record.

A proposal to settle or declare of an existing strike must be presented at a regular or called meeting of a local lodge or a meeting of the members affected as the case maybe and decided by majority vote by secret ballot of the members involved.

Now, the executive council of the Union, of the international Union reserves the authority to discontinue a strike notwithstanding the wishes of the employees, but their authority is limited to say, “If we think the strike should be over, we will stop paying strike benefits, but they cannot otherwise affect the continuation of the strike,” but the men themselves can call it off by a majority vote, by secret ballot.

Now, if we are right, that we can interpret our prohibition against strikebreaking to pertain, to bind a member who resigns for the duration of the strike and if we are right, that as a matter of Contract law, the association of law – an association, a Labor Organization, any voluntary association can reasonably condition the circumstances under which resignation can be a effectuated.

We have only one other question left in this case.

Is that the violation of Section 8 (b) 1 (a) for a Union expressly or impliedly to say that fellow who was a member when the strike begins will stay, will respect his obligation to refrain from strikebreaking?

And as to that I think the best place to begin is the words of the proviso themselves.

The proviso excludes from restraint or coercion.

This paragraph shall not affect the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership.

And when we say that the condition of resignation is that you will refrain from strikebreaking for the duration of the existing strike.

That is a rule with respect to the acquisition or retention of membership.

That is all it is and that is the expressly reserved to the Union and carved out from any notion of restraint or coercion.

Warren E. Burger:

Now you’re placing this as I take it as a matter of Contract law?

Bernard Dunau:

No sir, at this point I am placing it as a matter of what the statute allows us to do.

If as a matter of Contract law, we cannot do it, then, that is a question of our lack of authority under state law to have this kind of restriction.

Warren E. Burger:

Well, is it not the combination of the section of the statute you just preferred to and the contract that’s made pursuant to that, that is that when a member joins the Union he has a contract obligation at least I have understood that to be your argument, a contract obligation to comply with those provisions of the Union about not breaking strikes?

Bernard Dunau:

Yes sir.

Warren E. Burger:

So that is it then not, coming back to my original question, at least the combination of the statute and the contract made pursuant to that statute?

Bernard Dunau:

Yes and if one wants to look it at that way the first question that we have to answer is do we have with respect to the contract between the Union and the member, a contract which says that the member on resignation will refrain from strikebreaking.

If we have that the next question is, is there anything on the National Labor Relations Act which bars that kind of a contractual restriction on that kind of a contract?

And for us the answer seems to be right in the words of the proviso namely that we can prescribe our own rules with respect to acquisition or retention of membership.

It seems also to us to be quite in keeping with the rationale of Alas Chalmers with the whole notion of Union solidarity namely that the reason you can collect, impose a court collectible fine against a member for engaging in strikebreaking is that that is necessary in order to maintain the cohesion of the Union as an effective organization as an organization which can prosecute strikes that is the whole meaning of majority rule, centering your economic powers of the majority controls.

If in order to further that end we can collect, the court collect — we can impose a court collectible fine against the member, what is the difference in rationale in terms of preserving strikes solidarity when we are reaching out for the defector.

Either case where there is a resigner, a strikebreaker or a resigner member, our concern is identical, namely that a fellow who is a member when he starts out on this enterprise shall at least respect his obligation to refrain from strikebreaking.

Potter Stewart:

Well then if this a rule then as to acquisition or retention of membership to use the statutory language, then what the rule really amounts to is that you cannot resign during a strike?

Bernard Dunau:

No.

Potter Stewart:

That’s what it has to be or else it doesn’t have anything to do with acquisition or retention of membership?

Bernard Dunau:

It means that you can resign, but that obligation of membership which inheres in being a member you cannot shed.

It’s the same thing —

Potter Stewart:

I have very great difficulty in seeing that that has to do with acquisition or retention of membership, within the meaning of the statute unless, you argue that what you may say is that you cannot resign during a strike.

What it has to do with retention and acquisition of membership?

Bernard Dunau:

We are putting it then the same thing I think in inverse order.

You are free to resign every obligation of membership except that which inheres in respecting or obligation to refrain from strikebreaking or if one wants to put it the other way, if one wants to say that you cannot resign during a strike then surely one can say you can resign during a strike, but you cannot shed that part of your obligation which is —

Potter Stewart:

The greater includes the less?

Bernard Dunau:

The greater includes the less, if we can say you cannot resign at all.

We can surely say, you can resign, but you’re required to observe the preexisting obligation to refrain from strikebreaking.

Warren E. Burger:

Would this apply in a situation where a member is outside of this case because where a member is permitted not to join the Union if he pays the equivalent in a contribution for dues?

He then has no obligations under the constitution I take it?

Bernard Dunau:

That’s correct.

If the only thing that in undertaking to do is to pay his Union dues and fees.

He has not undertaken any obligation of Union membership and therefore we cannot enforce against him any obligation of Union membership.

So, for the fellow who wants in the words that we used in Alas Chalmers, who wants to be a limited member to pay only dues and fees as to that kind of a fellow, the Union has no claim with respect to his fealty.

Bernard Dunau:

He has not undertaken any obligation of Union membership.

He can engage in strikebreaking fairly well because he has not undertaking to refrain from strikebreaking.

Warren E. Burger:

Do the employees have that option under this contract?

Bernard Dunau:

Under this contract, they have the option not to join at all.

If they join, they have the option that every member in this country has every employee to pay only dues and fees and undertake no other obligation of Union membership.

Now, that did not happen in this case.

There is nothing in this case to show that every employee who joined did not join and become a full member.

But anyone who wants to limit his obligation, is free under the statutes of this country to limit his obligation.

The Union in turn is free to say, “Sorry, we don’t want limited members in which case that person pays neither dues nor undertakes any other obligation.”

But if the Union says, “We want your money but you don’t have to have any other obligation of membership that is possible.”

What is the obviously the most overwhelming situation in this country is that the person who pays his dues also acquires full Union membership.

In that event, we think he is subject to entirety of Union obligations and that means we think that for the duration of an existing strike, he is required to refrain from strikebreaking.

Warren E. Burger:

Thank you Mr. Dunau.

Mr. Come.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

The Board is in the middle in this case in the sense that we agree with the Union that the reasonableness of the fines that were levied on members is not for the Board, but for the State Court.

But we agree with the company that with respect to the fines that were imposed on the resignees being violative of 8 (b) (1) (a).

Let me turn to that issue first.

We’re now talking about the fines that were levied on employees who resigned from the Union for what done after their resignation.

We believe that Granite State which this Court decided in the December requires a conclusion that those fines violate Section 8 (b) 1 (a) of the Act.

In Granite State, the Court held that the Unions authority to impose a court collectible fine on a member for breach of a valid Union rule is conterminous with the contract of membership between the Union and its members.

And thus when a member lawfully resigns and thereafter engages in conduct which the rule proscribes, the Union commits a violation of 8 (b) 1 (a) to levy a Court enforceable fine on him.

Finding no provision in the Union’s constitution or by laws which limited the circumstances under which a member could resign, the Court in Granite State concluded that the Union members were free to resign at will.

And that they are right, thereafter their return to work was protected by Section 7 of the act which gives the employees including Union members not only the right to engage in Union activity, but the right to refrain from engaging in such activity.

Now, the Board found here and the court below agreed, the Union’s constitution and bylaws in the present case like those in Granite State contain no express provision limiting the circumstances under which a member could voluntarily resign from the Union.

And Union business agent Higgins, confirmed this at page 111 of the appendix when he pointed out that there was no provision in the Union’s constitution whereby a man could resign by a letter.

The only way that he could resign was involuntarily in the sense that if he fell in arrears and dues, the Union could suspend them or he could get a withdrawal card as he left the industry or by death.

But there was no provision by which he could voluntarily resign and as a matter of fact consistent with that, the Union as Higgins acknowledges in his testimony, ignored the letters of resignation when they came in, treated these employees who sought to resign just as though they continued to remain members of the Union.

Now, the Union contends, however, that unlike in Granite State, here they have a constitutional provision which obligates a former member notwithstanding his resignation to refrain from abandoning a strike which was called, while he was a member.

Now, whether or not a constitutional provision which expressly prohibited a member from resigning during a strike or which expressly committed him to adhere to a strike notwithstanding a mid-strike resignation, would be valid for purposes of such a —

William J. Brennan, Jr.:

The Board I gather hasn’t dealt with it?

Norton J. Come:

The Board has not passed on that question and we do not think that it is presented in this case.

That will be the third case, Your Honors after this case in Granite State —

Harry A. Blackmun:

And it may come up under the —

Norton J. Come:

New constitutional provision of the Machinist contract which being enacted in 1972 obviously could not have served notice on the employees here in 1965 that this was the obligation that they were assuming when they joined the Machinist in 1965.

Harry A. Blackmun:

Of course the Court in Granite State just spoke generally of a constitutional provision, did it not, generally?

Norton J. Come:

That is correct Your Honor.

However, let’s take a look at this constitutional provision here which is set forth at page 142 to 143 of the appendix.

It talks about improper conduct of a member.

It says the following actions or omissions constitute misconduct by a member and then you get down to accepting employment in any capacity in an establishment where a strike or lockout exists.

On its face, this provision is applicable only to a member.

It does not provide that the obligation to refrain from strikebreaking continues even after the member has resigned from the Union.

Nor is there any indication that the Union ever informed its members that it interpreted this provision as being applicable even after the member resigned nor is there any indication that the employees ever thought when they joined the Union that they were bind to this kind of an obligation.

As I indicated earlier, the Union simply ignored the letters of resignation because in its view you couldn’t resign from this Union.

As a matter of fact, it was not until after this Court decided Granite State that the Union begin to really argue that it had a specific provision in its constitution which obligated a member to refrain from strikebreaking even after he resigns from the Union.

Because if you look at the Union’s petition at page 12 in the case, the issue which the Union poses in the petition is whether a member is bound for the duration of the strike, by group decision to strike irrespective of whether he was individually opposed to that group decision.

And the distinction that they try to draw between this case and Granite State was that in Granite State, you could show that each of the employees individually voted to strike.

Whereas here since there was a secret ballot strike, you couldn’t show that they — that each one voted but nonetheless, whether he voted for it or not he was bound by the group decision to strike and what was the reason for this?

The reason was because in a strike situation, it is only reasonable in view of the reliance factor that each employee who goes to strike depends upon the support of his fellow employees.

It’s only reasonable in view of these reliance considerations to imply a commitment on the part of one and all to see the strike through.

Now, that’s essentially, a very same sort of reliance considerations which this Court in Granite State said is not enough to constitute a waiver of the employee’s Section 7 right to forgo abandoning the strike if he finds that he cannot stick it out.

Now, there are sound reasons for this Court’s Granite State view, which I submit is controlling here.

The basic reason is that Section 7 of the Act gives employees the right to resign from the union and thereby avoid union obligations and a waiver or qualification of a statutory right must be clear and unmistakable.

The contract between the member and the union, the union constitution, is analogous to a contract of adhesion in the sense that the member really has no choice as to the terms that are presented and therefore if he is going to be deemed to have waived his Section 7 rights, the provisions of the constitution or the bylaws must be clear and unmistakable and we submit from the terms that I have read to you that is not the situation here.

And thirdly, there is the consideration that this Court pointed out in Granite State.

The events after the calling of a strike may have unsettling effects leading a member who voted to strike to change his mind.

We submit that a member should not be deemed to have given up his freedom to protect against these serious hardships unless at least there is clear evidence that he knowingly waived that right and we submit that on this record, a board — the Court below were justified in finding that there had not been such waive.

Now, with respect to the fines that were levied on the members who either did not resign from the union or that portion of the fines that it is electable to the pre-resignation work activity of those who did resign.

We submit that those fines are not violative of Section 8 (b) (1) (A) and the authority of this Court’s decision in Allis-Chalmers to be sure the fines in Allis-Chalmers were conceded to be reasonable in amount.

So therefore, this Court did not specifically pass upon the reasonableness point that we have presented in this case, but we submit that the logic and reasoning of the Court’s decision in Allis-Chalmers supports the Board’s conclusion that the reasonableness of the amount of the fine is not a matter of the Board, but for the state courts.

Norton J. Come:

It does not go to the question as to whether or not the fines which apart from reasonableness would not violate 8 (b) (1) (A) are brought within the ban of 8 (b) (1) (A).

Warren E. Burger:

Do you have any idea of what percentage of these situations are dealt within the suit in the state court as compared with making a reinstatement in the union conditioned upon payment of the fine?

In other words, in most of the situations does not the union simply say, if you want to be reinstated, you pay your fine and therefore, there is no state court jurisdiction action in most of them or is that evaluation wrong?

Norton J. Come:

Well, I think that Court collectible fines are not the major form of union discipline.

Warren E. Burger:

Well, as a practical matter why would a union go through the trouble of bringing an action in the state court when they have such a simple remedy for collection, namely to say, we won’t reinstate you till you pay the fine — no lawyer’s fees, no delay, no problems?

Norton J. Come:

Well, —

Warren E. Burger:

That’s really a hypothetical route, isn’t it?

Norton J. Come:

Well, — no, it’s not a hypothetical route because there are enough of the cases so that you cannot say that it is an academic matter and as this Court pointed out in Allis-Chalmers with respect to some unions where membership rights don’t mean very much, expulsion is not a very effective remedy for breach of a union rule.

So, I can’t say that it is an academic matter, although it is not the major form of discipline.

Warren E. Burger:

What if the — what if the union rules required a fine of five times the amount of the wages earned, would you think the Board should not concern itself with that?

That’s hypothetical at first because no union does so, but I’m addressing myself to your argument?

Norton J. Come:

Well, I think the Board’s position is that Congress did not give it that power.

Now, it might make a good policy for the Board to handle it — this is a judgment that —

William J. Brennan, Jr.:

Mr. Come, didn’t we at the time Allis-Chalmers was argued, am I not right there was an amicus who argued in connection with a fine of $20,000?

Norton J. Come:

Now, that is correct.

There was an amicus brief that was filed by, I think, someone in the entertainment field that was bringing to the Court’s attention a fine of that amount.

But, let me explain briefly why I think that Congress at least up to now has kept the Board out of this field.

Of course, Congress is free to amend the statute if it wants to change his mind on this Court.

Harry A. Blackmun:

Mr. Come, it’s your position then that it is a matter of power and not of expertise in the Board?

Norton J. Come:

That is correct, I think —

Harry A. Blackmun:

The Labor Board could handle this if it had the power so to do?

Norton J. Come:

Well, I think that the Courts are more experts in this matter than the Board because they have been handling it for years.

It also turns on the kind of equitable considerations that the Courts are better equipped to handle than the Board but — so from that standpoint, I think that the Courts are better suited to do it.

I don’t want to say that it’s impossible for the Board to handle this thing because we all know that there is a genius in administrative innovation.

If we had to deal with it, we’d have to assume the burden, but I believe that Congress kept the Board out of the field, because, for several reasons, one of which is that they thought that the Courts were better equipped to handle it.

Potter Stewart:

Now, Mr. Come, the only reason as I understand that these fines are alleged to be unreasonably high is that they violate 8 (b) (1) (A) of the Act, isn’t that right?

Norton J. Come:

That is correct.

Potter Stewart:

Now, what criteria would you suppose that a State Court would apply engaging the reasonableness build on these fines?

Norton J. Come:

Well —

Potter Stewart:

The criterion is, whether or not the whole claim is that they were so unreasonable that they violated 8 (b) 1 (A) of the National Labor Relations Act as amended and doesn’t the Labor Board know a good deal more about that Act and the — your — the mind run of state trial courts?

Norton J. Come:

That is correct, if the question were, whether it was a violation of 8 (b) (1) (A).

Potter Stewart:

That is the only question, isn’t it?

Norton J. Come:

But if I am correct in my submission that Congress did not intend the reasonableness of the amount of a court collectible fine to be a relevant consideration in determining whether the fine is violative of 8 (b) (1) (A), then the fact that it is unreasonable in amount doesn’t make it violate 8 (b) (1) (A))?

It may violate —

Potter Stewart:

What?

Norton J. Come:

State common law —

Potter Stewart:

What — what possibly could violate in the law if the — if after due process or the union procedures, a fine of X dollars was levied and under Allis-Chalmers that could be collected in a state court.

What possible criterion could a state apply to say, it’s unreasonable when the only claim that’s ever been made in this case is that it is unreasonable by reason of and only by reason of 8 (b) (1) (A) of the National Labor Relations Act as amended?

Norton J. Come:

But if we are sustained in our view that this does not violate 8 (b) (1) (A), it will then have to go to the state court in —

Potter Stewart:

What criterion?

Will they be asked to apply the measure whether it’s reasonable or unreasonable?

There is no claim that it’s unreasonable except in terms of 8 (b) (1) (A)?

Norton J. Come:

Well, but the defense that the employees are — will be asserting in the state court cases or suits that have been brought to collect the fine, will raise the issue that it — that the fine is inequitable or usurious or unreasonable while under state —

Potter Stewart:

That has nothing to do with usury?

Norton J. Come:

All I know Your Honor is that there are a number of state court cases in which the question of the reasonable — unreasonableness of the fine has been raised as a defense to suits to collect fines —

Potter Stewart:

What measure — what measure is the Court and we are assuming by hypothesis, by assumption, this was a due process union, internal union procedure that resulted in the imposition of a fine of X dollars.

The only attack upon its amount has been under the Act, under the Act.

Now, a state court is not, certainly with all the preemption cases on this book you say, a state court has the expertise to decide that question under the Act and that the Labor Board does not?

Norton J. Come:

Your Honor, I hate to be repeating myself, but —

Potter Stewart:

Well, I’m repeating myself too.

Norton J. Come:

I submit that the state court would not be deciding this question under the Act.

Potter Stewart:

Well, what would it be deciding it under that?

Norton J. Come:

It would be deciding whether or not to fine a man, to use the Chief Justice’s example, were five times his —

Potter Stewart:

His what?

Norton J. Come:

Strike earnings violates —

Potter Stewart:

What, violates what?

Norton J. Come:

State law —

William H. Rehnquist:

(Inaudible) consideration, its own notions of labor policy in making that determination?

Potter Stewart:

Yes.

Norton J. Come:

With respect to this issue, it would if it is not a matter that is for the Board to consider under section 8 (b) (1) (A) of the statute —

Warren E. Burger:

I find it’s hard to square with prior arguments the Board has made on preemption in this Court when we have state court’s undertaking to restrain a union on even grounds that it’s necessary to control violence and damage to property.

The Board I thought consistently takes the position that the federal — the Congress has preempted this whole relationship?

Norton J. Come:

Not with respect to violence Your Honor, it depends upon whether or not —

Warren E. Burger:

We are confronted with the arguments frequently even in claims of violence?

Norton J. Come:

Well, let me see if I can just outline very briefly the considerations that we think leads to the conclusion that we do not have power to get into the reasonableness of the amount of the fine.

This Court recognized in Allis-Chalmers that the Taft-Hartley prohibitions against restraint and coercion have to be interpreted in the light of the repeated refrain throughout the debates on 8 (b) (1) (A) and other sections that Congress did not propose any limitation with respect to the internal affairs of unions aside from borrowing enforcement of a union’s internal regulation’s effect —

William J. Brennan, Jr.:

That’s so Mr. Come, but didn’t we also cited, looking at 195 of the Allis-Chalmers opinion, whether 8 (b) (1) (A) proscribes arbitrary imposition of fines or punishment for disobedience of a fiat of a union leader are matters not presented by this case on which you express no view.

Wasn’t — didn’t we put the one side perhaps of very question that’s presented in this case?

Norton J. Come:

I thought I indicated that the Court did not decide that question, I’m just trying to show you and explain why —

William J. Brennan, Jr.:

Perhaps I misunderstand — I thought the Board was relying primarily on Allis-Chalmers — the Court its position.

Norton J. Come:

We’re relying on the reasoning of Allis-Chalmers.

The fine in Allis-Chalmers was conceded to be reasonable in amounts, so you did not have that problem.

William J. Brennan, Jr.:

Well, that suggests that the use of the word reasonable perhaps suggested that if we are unreasonable we might have had a different case, didn’t we, under 8 (b) (1) (A)?

Norton J. Come:

You left it open as we read it.

I’d like to explain why the considerations that were advanced in Allis-Chalmers, however, would read to the same conclusion with respect to the open question.

Now, the fines here were levied for breach of a union rule against strikebreaking a rule which the Court in Allis-Chalmers that was not only served the legitimate union interest, but it was compatible with the policies of the National Labor Relations Act.

They were imposed for working while the employees were members of the union so you don’t have the Granite State problem, that you have on the first part of this case.

They were not sought to be enforced by unacceptable means, namely, violence or affecting the man’s job rights.

The only means used was a court suit, a means which the court in Allis-Chalmers and in Scofield recognized was a legitimate means in which we submit or provide the member a full opportunity to contest the reasonableness of the fine.

Now, to require the Board to determine whether the amount of the fines is reasonable would bring it inevitably, deeply into the area of internal union affairs much more deeply and Congress entered it with Landrum-Griffin because in Landrum-Griffin in 1959, enacted a provision that said that you can fine and suspend and expel a member and enacted only procedural safeguards that limit the use of that power.

Now, the court below here at 29 (a) of the appendix directed the Board to take into account such factors as a compensation received by the strikebreakers, the level of strike benefits made available to the striking employees, the individual needs of the persons being disciplined, the detrimental effects of the strikebreaking upon the effectiveness of the strike effort, the length of time of the work stoppage, the strength of the particular union involved, the availability of other less harsh union remedies and other similar considerations.

William J. Brennan, Jr.:

Well, what you’re saying I gather Mr. Come is that Congress wanted the Board to stay out of the internal affairs of unions and to get into the question of the reasonableness of a fine is to get your neck into the question of union — internal union affairs not violates the Congressional policy?

Norton J. Come:

That is correct, Your Honor.

Warren E. Burger:

But it’s alright for a state court to get its arm into that?

Norton J. Come:

Because Congress and this Court too in both Allis-Chalmers and Scofield pointed out that the extent that Congress has not gotten into this area and it was a very limited intrusion, the matter of union discipline is a matter for the state courts where it was traditionally and has been traditionally handled.

So, we have a very —

William J. Brennan, Jr.:

State courts often when they thought union membership discipline was too harsh, they’ve taken steps to set it aside, is that it?

Norton J. Come:

That is correct Your Honor and I submit that if you get in on the reasonableness of the fine, there is no way that you can rationally stop getting, having the Board inquire into the fairness of the procedure followed in imposing the fine.

You have to get into similar questions as to whether or not the member should have exhausted his union remedies which gets you even further into internal union democracy.

And it is —

Harry A. Blackmun:

Mr. Come in this case as I recall, the trial examiner did determine what he felt were factors entering into the reasonableness of these fines, did he not?

Norton J. Come:

The trial examiner did and he came up with the conclusion that a fine that was more than 35% of straight-time earnings and more than 80% of overtime earnings would be unreasonable.

And the Board, of course, did not pass on the propriety of his evaluation because they found that they were not empowered to do so, but I submit that examining his opinion indicates — perhaps better than anything else, the reason as to why this matter should be left in the first instance to the state courts, because to come up with a standard is going to be very likely to give you a situation that is divorced from the realities of the particular strike situation.

He made the judgment, for example, that the fine had to be less than total deterrence.

Now, these are the very essence of internal union democracy, Your Honor, whether forgiveness should be a factor, the union here, for example, are reduced to $450 fine to 50% of strikebreaking earnings which the court below found was reasonable.

For those who appeared and begged forgiveness as it were, whether there is particular hardships that warrant special adjustments, these are things that have to be handled on a case-by-case basis and to promulgate a broad rule, we submit that there is a little relation to reality.

Warren E. Burger:

Mr. Come, if it appeared and apparently we haven’t anything in this record and perhaps none of us have any means of knowing, at this time, but if it appeared that 80% to 90% of all the fines were collected by a restriction that there would be no reinstatement of the union member to membership until he paid his fines leaving only 10% or so to collection in the state courts.

Then all of this discussion about state courts recedes in importance, doesn’t it, because in the 80% to 90% of these hypothetical situations no one is revealing the reasonableness?

Norton J. Come:

Oh I don’t — I wouldn’t agree with that Your Honor, because I think that even where the only penalty is expulsion from the union or suspension from union membership for failure to pay the fine, you will find suits where the individual would contest the reasonableness of the fine or the fairness of the —

Warren E. Burger:

Where would he contest it?

Norton J. Come:

In the state court because if he is being deprived of his membership in the union, that is a valuable right, and in many cases may affect his job and I didn’t mean to suggest that the only court suits attacking the fairness of union discipline are those where the union seeks to enforce a fine, that bring suits to contest the other forms of discipline as well.

William H. Rehnquist:

Mr. Come, you said a moment ago that you thought this matter should be left in the first instance to the state court.

That suggests there is a second instance somewhere else?

Norton J. Come:

If I did Your Honor, I misspoke myself.

I meant to say in the first instance to the union in the sense that may — would be empowered, I believe, to imply or require exhaustion of internal union remedies and then if after those who have been exhausted, the courts would have the right to review what the union has done.

William H. Rehnquist:

But the question of exhaustion, I think, would be a matter of state law?

If the state didn’t want to follow that doctrine, it wouldn’t have to?

Norton J. Come:

That is correct, that is correct.

Potter Stewart:

Mr. Come, is it then basically your position that an extremely high fine, an unreasonably high fine, however, one might define, let’s begin with the assumption that it’s an unreasonably high fine, would simply not be a violation of 8 (b) (1) (A), is that it?

Norton J. Come:

Yes, Your Honor.

I would like to point out —

Potter Stewart:

A hundred thousand dollar fine on somebody who worked for two days would not be a violation of anything in the National Labor Relations Act, is that right?

Norton J. Come:

Yes Your Honor.

Potter Stewart:

Is that your position?

Norton J. Come:

Yes it is Your Honor and I would like to if I might — you know I’m going over for a moment, point out that everyone seems to agree that if that $10,000 fine is merely enforced by suspension or expulsion from union membership the proviso, the Section 8 (b) (1) (A) would clearly take it outside of the —

Potter Stewart:

On acquisition or retention?

Norton J. Come:

That is correct.

So that the only point for bringing the Board into the picture is because it’s going to be court enforceable and that is the point that which the court, I submit, certainly has more expertise than the Board has in this area.

Potter Stewart:

But I still would not —

Norton J. Come:

Not as a violation of 8 (b) (1) (A).

Potter Stewart:

But that was the only claim in this case?

Norton J. Come:

That is right, but all that means is that if we win here, they will not be able to charge it’s a violation of 8 (b) (1) (A).

They’ll have to charge it is a violation of something else.

William J. Brennan, Jr.:

Oh yeah.

Norton J. Come:

It might violate the Landrum-Griffin I don’t —

Potter Stewart:

And it’s your — well, it’s — I’ve understood you just say that it’s your position that an extremely, grossly, unreasonably high fine by assumption violates nothing in the National Labor Relations Act as amended.

Is that your position?

Norton J. Come:

Nothing in, it does not violate Section 8 (b) (1) (A), yes.

Potter Stewart:

Well, you say the Board has no jurisdiction?

Norton J. Come:

That is correct.

I —

Potter Stewart:

So it must mean that doesn’t violate anything in the act that Board is charged with enforcing?

Norton J. Come:

I just wanted to point out that when I talked about the Landrum-Griffin Act, I’m talking about Title I which gives you remedies —

Potter Stewart:

In court.

Norton J. Come:

In court —

Potter Stewart:

Right.

Norton J. Come:

— the Board has no connection.

Byron R. White:

A suit by the union against a member or the former member, in state court as a member, raising to the defense.

This might have been collected because it violates the National Labor Relations Act.

The Court is supposed to say — the Court supposed to rule on that defense by saying, by striking it?

Norton J. Come:

Well, if the Board is sustained here in our position here —

Byron R. White:

What then is power to rule on that?

Norton J. Come:

As to whether or not the matter would be preempted or not, yeah.

Byron R. White:

Does it have power to rule?

I think if you don’t have the power to rule, the court has.

Norton J. Come:

Yes.

Byron R. White:

So it’s supposed to rule that this does not violate the 8 (b) (1) (A).

Norton J. Come:

That’s right, but, of course, it would be applying a decision why this Court which would define what the rules are that govern the application of 8 (b) (1) (A).

Byron R. White:

Very comfortably —

Norton J. Come:

Well, if we don’t —

Byron R. White:

You don’t (Inaudible)

Norton J. Come:

If we have access —

Byron R. White:

— the rule that — if the Board decides this case in so many words that doesn’t make any difference under the (Inaudible) it ever violated 8 (b) (1) (A).

Norton J. Come:

Yes, though, what the Board did was —

Byron R. White:

You say it didn’t have any power?

Norton J. Come:

Well, it said that it had no power to determine and a fine was violative of 8 (b) (1) (A) merely because of —

Byron R. White:

What if we disagree with that and that the state we do think has the power, couldn’t we send it back and ask it to decide?

Norton J. Come:

Oh, yes, I think — well, what the Court of Appeals —

Byron R. White:

(Inaudible)

Norton J. Come:

Well, I don’t know that we are talking about the same thing here.

I don’t – [Attempt to Laughter] — the Board’s position, they applied the rationale of their Arrow Development case in here, is that they do not have the power to determine that a fine violates 8 (b) (1) (A), a fine levied on them, just because of its excessive amount.

The Court of Appeals disagree —

Byron R. White:

Is that a piece of statutory instructional to the Board of what is that —

Norton J. Come:

Yes.

Byron R. White:

The Board’s instruction of the act or you would say, is it something, the ultimate power?

Norton J. Come:

It’s the Board’s construction of the Act reached for the reasons that Mr. Justice Brennan summarized a moment ago that in order to effectuate Congress’ intention to keep the Board out of the area of internal union affairs.

The Board —

Byron R. White:

How about the Board?

If the Board can’t get in — can the Board get in?

Norton J. Come:

Yes —

Byron R. White:

If you’re supposed to stay out and not decide what would violate 8 (b) (1) (A)?

Norton J. Come:

The Court can stay in it as it was before 8 (b) (1) (A) was enacted, not determining whether it violates 8 (b) (1) (A), but whether it violates state law, that would be the question.

Lewis F. Powell, Jr.:

Mr. Come.

Norton J. Come:

Yes Your Honor.

Lewis F. Powell, Jr.:

As the Board consistently adhere to the position you take the today?

Norton J. Come:

Yes, Your Honor —

Lewis F. Powell, Jr.:

Would it get in its administrative adaptation of the Act?

Norton J. Come:

Yes, it has Your Honor.

This has been the Board’s position since 8 (b) (1) (A) was first enacted in the 1947.

Lewis F. Powell, Jr.:

Could you give any rough estimate of how many opportunities that it had to take that position, can you tell me in terms of two, three or four or dozens?

Norton J. Come:

Well, there have been dozen of cases.

Lewis F. Powell, Jr.:

And the Board has simply said, we have no jurisdiction?

Norton J. Come:

No power.

Lewis F. Powell, Jr.:

No power.

Warren E. Burger:

Mr. Lang.

Samuel Lang:

Mr. Chief Justice and may it please the Court.

The individual employee who is not specifically represented by counsel here, would ask whether the words refrain from concerted activity in a strike situation should be so narrowly construed as to put him completely at the mercy of the power struggle between the employer and the union, which may last for 18 months or more as frequently as it could.

It seems to me that in the realistic world of this individual employee and his union, which is often as powerful or more powerful than his employer, unless the statutory language refrained from concerted activity gives him some freedom of reign, then when he and some of his fellow employees make an attempt to bring the strike to an end, that is, when they engage in concerted activity to refrain from continued participation in the strike.

And a fine is levied of $1,000, $2,000, $5,000 and these are commonplace and not only not unusual that commonplace.

After the admonition, if you try a back-to-work movement, we’ll get you.

He and his fellow employees in that movement are fined $1,000, $2,000 or $5,000 for that concerted activity that is a violation of the Act in the very plainest terms.

Warren E. Burger:

What evidence Mr. Lang, do you point to in the record other than the fact that a 119 more or less employees went back to work?

What evidence of concerted activity other than that you have?

Samuel Lang:

There is none in this record here sir, but the jurisdiction attaches with the allegation.

Once it is alleged that the fines were levied for this concerted activity of returning to work of opposing the union, of strikebreaking, then it is the Labor Board’s ballgame.

It’s a Labor Board’s province and it may not be disturbed by any other tribunal.

Now, the Board may find that there is no violation of 8 (b) 1 (A) because of the evidence.

It may find that the fines were uniformly imposed, that they were regularly handled, that due process was accorded to all the parties.

All of the criteria which it may establish and which may stand the test of time and which maybe uniform for all fines and there it is a in a peculiar position to establish uniformity.

The Board may dismiss the 8 (b) 1 (A) charge as it has dismissed thousands of 8 (a) (1) and 8 (a) (3) charges, but it hears the evidence.

It considers the case when the allegation is made and that is the thing of paramount importance here.

Until the Board hears the evidence once a charge of 8 (b) 1 (A) has been filed, it cannot tell whether it is a violation of the Act.

It cannot tell whether the fine is a excessive for the concerted activity that is the crux of the matter which I believe has to be decided by the Court.

My reading of Allis-Chalmers and the problems it presented to the Court which was somewhat divided in its analysis of the legislative history of 8 (b) (1) (A) leads me to believe that were it not for a special factor in that situation and which is here present also, the case would’ve been decided differently.

That special factor is quite relevant to the decision in this case.

In weighing the balances — in balancing the interests between the employees as a whole and the individual employees, both having interest and rights under the Act, the Court decided that the erosive effect of permitting members to escape penalty, whole sale, any time they desired to go back to work would operate against the purposes of the statute.

That one single thought pervades the majority opinion in Allis-Chalmers.

Were it not for that, I believe that the plain language which gives the employee the right to refrain as well as to engage in concerted activity, would have been interpreted to allow him to refrain at anytime.

But I believe Allis-Chalmers should be limited to that interpretation.

It should be limited to that narrow rule and it should be limited to the period of membership.

Samuel Lang:

Otherwise, Unions would be able to subvert the plain meaning of the statute by writing 8 (b) 1 (A) virtually out of it insofar as strikebreaking situations are concerned, despite whatever hardship may come to an employee.

In fact, the language by which the Union in this case sought to repel its constitution by a subsequent amendment would freeze the employee forever since he couldn’t effectively resign and I don’t care what words are used; whether it is resignation or obedience to a rule which carries the same effect as continued membership.

But the amendment to this constitution would not allow this employee to go back to work without severe penalties, penalties which might destroy his opportunities for employment because he might be discharged for garnishment or he might lose his home, he might lose all his possessions, he might be replaced in the meantime and lose his job entirely.

This amendment would prohibit him during the period of the controversy for foreseeable period prior to the strike from going back to work and then when the controversy ended if it were a Union shop contract he would be frozen again to the duration of the contract.

And I don’t read the statute or the practicalities of Labor Relations the way that my brother representing the Union does.

I read Section 8 (a) to provide that an employer may without violating the statute, enter into a contract which requires Union membership for the duration of that agreement.

That is the language of Section 8 that provides all section 8 (a) 3.

And while we don’t have it in this particular case, in this case we have a very unusual type of provision from my long experience in Labor Relations, which instead of requiring the employee to join within 30 days as is usually the case is, allows him not to join and to remain free of Union membership.

But except in right to work states the contracts are legion, almost universal, requiring membership with all of the concomitant of membership and all of the requirements of membership.

I can’t conceive of any freedom of action on the part of an individual who frequently, much less frequently than we redefine print of insurance policies is totally ignorant of what is going on between his employer and his employee and matters of this kind and his Union and matters to this kind and it’s totally ignorant of the fine print of Union constitutions which often contained a hundred and more pages of fine print.

In fact, it is notorious that Unions have an extremely difficult time obtaining attendance at meetings.

I can’t conceive of the individual caught up in this world having any freedom at all under the statute, any freedom under the statute, in strike breaking situations which are the most crucial to him unless he has the right to get out from under when the going gets tough.

And I cannot conceive of a rational rule which allows the Union by hocus-pocus and fancy language that keep this employee under it’s thumb no matter how meritorious, no matter how much credence we should give to the terms solidarity.

There must be is 8 (b) 1 (A) means anything at all, if the statute means anything at all and Taft-Hartley was adopted in 1947 primarily for the benefit of the individual, I can’t conceive of he is not being allowed to get out anytime after a contract expires just as he has the right anytime a contract expires to go to the Board and file a petition for this certification to get rid of the Union.

So far as interference for the internal affairs of Union is concerned, the Union complaints on the one hand that the Board shouldn’t do it and on the other hand ask that the courts to be allowed to do it.

That poses the question since we all agree that somebody should do it to the extent of protecting this individual and poses a question who is the best qualified to do it.

And if the Labor Board, with all of its expertise in thousands of strike situations, has any business in this field at all, that is if it has any authority to entertain the question of whether or not an employee maybe fined then it has the business to decide all of it.

In case after case, the Board does not get only those cases, only those situations where employees have not resigned, and therefore, can follow Allis-Chalmers.

In case after case, there will be employees who have resigned and employees who have not resigned.

Moreover, as to those who have resigned there will be problems requiring interpretation of the language even to this amendment in this case as to what it means so that the Board cannot escape dealing with the problem of fines.

The question is, is it going to deal with that problem piecemeal, is it going to handle just this little bit and say the rest belongs to the courts or is it going to be required to do what I think is his duty to handle the whole ball of wax and dispose of the all ball of wax one way or the other.

That seems to be the rational of this Court running from Garner against Teamsters, through Garmon against San Diego and all the other preemption cases.

I don’t say that this is a case of preemption.

I say, it as a practical matter tied to a clear legal right that all of this belongs to the Board including the decision as to whether or not fines are reasonable.

William H. Rehnquist:

Mr. Lang, under your theory supposing a court were to agree with you and after we decide the case, a Union brings an action to collective fine in the state court, can the state court entertained that action?

Samuel Lang:

I think that as in — I’m not sure of the answer, but I would say that at the very least once the Board decides that the fine is reasonable, it could be enforced in the same manner in which a — well, that decision would be binding upon the state court for collections since the Board itself has no collection powers, it can’t, it can’t tell an employee to pay the fine, I don’t know maybe it has very broad remedial powers.

Perhaps the Board could say, the fine is reasonable, pay it, but even if it couldn’t do that, once it decided that the fine was not unreasonable and that’s the way I prefer to put it that the Board’s power should be limited to finding that the fine is not excessive because it would be the excessive nature to fine for discriminatory reason, for discriminatory purpose that wouldn’t cause the violation.

Once the Board found that the fine was not excessive then the collection if it had to go to the state court, it would be automatic.

The state court would have no power except to enforce a judgment as it would a judgment in another jurisdiction.

William H. Rehnquist:

So, Union would almost be forced to first bring an action before the Board to get a kind of a declaratory judgment that the fine was reasonable before it could go into state —

Samuel Lang:

It wouldn’t be the Union that would bring the action, it would be the individual who is fined, who could go counsel free without the heavy expense of having to go into court.

He could go to the Board and file the 8 (b) 1 (A) charge on the basis that the fine was discriminatory —

William H. Rehnquist:

But supposing he doesn’t do that, supposing the Union simply brings the action in state court without any prior proceedings on the point before the Board —

Samuel Lang:

Then I think that the Court would have to say, we don’t have jurisdiction it must go to the Board.

William H. Rehnquist:

Well, so then as a practical matter if the Union wants to collect its fine, it’s got to first go to the Board and then to the state court?

Samuel Lang:

In one way or another, yes sir.

Warren E. Burger:

The Court of Appeals of course dealing with the discriminatory situation you have mentioned with all who has have review power.

Samuel Lang:

Yes sir.

Warren E. Burger:

And I suppose when you refer to a discriminatory situation that if out of the 119 people involved here, they had admittedly reasonable fines as to 110 of them, but picked out nine and had much larger fines, then Board should review a claim that they were being subject to a discriminatory fine because they were the leaders of the Return To Work movement or something of that kind.

Is that the kind of discrimination you are talking about?

Samuel Lang:

Yes sir.

The trial examiner dealt with it, the Board didn’t.

The Board said, it didn’t have the power or authority to deal with the question of reasonableness of the fines.

And I think that the Board should do in this case what it does in 8 (a) (3) cases; what it does in cases of unfair labor practice against employees; they should draw inferences from all the facts.

It should reach out as broadly to find an unfair labor practice against a Union particularly in a situation of this kind where it were there is very sensitive problems involved, it should reach out to find out whether or not there is an unfair labor practice just as broadly as it reaches out in cases involving employers.

Warren E. Burger:

Thank you Mr. Lang.

Mr. Dunau, you have run out of time but we extended Mr. Come’s time here even though he was hitting and abating your position, but I have a question or two to put if you don’t mind.

Bernard Dunau:

I will be delighted Your Honor.

Warren E. Burger:

I suppose there are somewhere between 1000 and 2500 courts of general jurisdictions in the systems of the 50 States, but in any event it’s a very large number.

Doesn’t your position and that of Mr. Come’s to open this whole area to very great disparity of evaluating and reviewing fines in those cases which would get into the state courts?

Bernard Dunau:

It doesn’t open the area Your Honor.

The area has been opened ever since the Unions have been administering Internal Union discipline.

As a matter of the right of the Union member under this constitution with the Union as a matter of state law, every state court in this country has been from the time a Union has imposed discipline and a claim has been made that the discipline has been arbitrarily imposed, state courts have been deciding just these questions —

Warren E. Burger:

How many of your particular Union here, your clients in the past year or in any year, how many cases got into the state courts on strikebreaking fine?

Bernard Dunau:

I can’t say Your Honor, I have no idea how many got in.

I know one fact which we ascertain because we wanted to know in view of the Court of Appeals’ determination that not only was the Board in this business, but that you could not have a rule which eliminate — you could not have them at exhaustion, or you could not require the member to exhaust this Internal Union remedies.

We wanted therefore to find out how many times in the course of a two-year period we have had Internal Union Appeals.

We found out that we had have 42 Internal Union Appeals of which 15 pertained to strikebreaking or picketing activity and that with respect to those Internal Union Appeals, we reversed about half of what the local laws did.

So that if the Board is in this business, it’s either going to have to decide, you don’t have to exhaust your Internal Union remedy, in which case you throw away the whole body of all which we have always taken for granted or it decides you had no excuse for not exhausting your remedy or you had an excuse for exhausting your remedy in which case you’re completely within the — into species of Internal Union Affairs.

In other words, there is no way of considering an issue of the reasonableness of a Union fine without getting into the Internal business of the Union.

Bernard Dunau:

Well, if that’s what section 8 (b) 1 (A) requires, fine, that’s what it requires.

So we’re required really to confront the question, is it a violation of Section 8 (b) 1 (A) to impose an unreasonably large fine.

Now, there are only two places in this statute that one can look to for an answer to that question.

One, the words restrain and coerce.

Are you restraining and coercing by imposing an unreasonable fine?

Well, we know you are not restraining and coercing when you impose a reasonable fine because that’s what Allis-Chalmers was all about.

But what does a reasonable fine do?

The whole purpose of the reasonable fine is to compel a total restraint from strikebreaking during the cause of a strike.

There is no point to a fine which does not completely restrains strikebreaking.

So, the restraint exist by virtue of a reasonable fine, you don’t add anymore restraint by making the fine unreasonable.

What you do when you say the fine is unreasonably large, is not that it restraints or coerces any fine restraints or coerces and there is not point to what if it doesn’t restraint or coerce.

What you say when a fine is unreasonable, if you tell a man it’s $2000, you’re going to pay because you engaged in strikebreaking and a state court has pointed out that this man has got take home pay of $50 and 10 children, no state court is going to enforce that fine because no state court is going to allow the collection of a $2000 fine against a man who has $40 and take home pay or a $100 and 10 children.

But that has nothing to do with the fact that you are enforcing a rule against strikebreaking.

Exactly, the same result you would obtain whether you were enforcing any Union rule.

Potter Stewart:

What body of law will the court apply to do what you say it inevitably will do?

State law is saying what?

Bernard Dunau:

That in the interpretation of the constitution between a Union and his member part of that constitution says, that a Union will not arbitrarily impose discipline and unreasonably large fine is the arbitrarily imposition of discipline.

It is therefore forbidden as a matter of state law.

Potter Stewart:

Equity or —

Bernard Dunau:

Certainly, Your Honor, equity.

Potter Stewart:

Would this going to be suit for money damages, it is not inequity (Voice Overlap) —

Bernard Dunau:

I suppose that most courts have combined equity in lower courts, but I don’t care about that.

Thurgood Marshall:

But isn’t the answer as exact saying common law that that state applied before the enactment of the federal law?

Bernard Dunau:

Exactly, Your Honor and the whole purpose aside from saying, you can’t have any restraint or coercion out of an unreasonable fine that you don’t have out of reasonable fine because the whole purpose of a reasonable fine is to say, you will not engage in strikebreaking.

You don’t add restraint and coercion by an unreasonable fine, you go to the proviso.

The proviso deliberately says, you will not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership.

Now, what does it mean to say, you will be able to prescribe your own rules?

It means that if you have a rule and it’s violated, you can impose internal union discipline to enforce it and that part of the game is no part of the Board’s business.

Warren E. Burger:

Do you think then it’s better — it’s more cohesive and consistent with the whole history of the Labor Act to have the courts of 50 different states doing this instead of one policy by the Board itself?

Bernard Dunau:

Let me answer that question Your Honor by telling the Court precisely what happened in David O’Reilly which is the case in which the Board said, it had no power and that has no power because it’s not a violation of Section 8 (b) 1 (A).

Bernard Dunau:

There were violations of Section 8 (b) 1 (A) all the power in the world.

In the David O’ Reilly, the man engaged in strikebreaking.

He was a member and he remained a member so we have no resignation issue in that case.

He was fined $500 for engaging in strikebreaking.

The fine of $500 was equivalent to his take home pay from a strikebreaking earnings.

So the fine said, you are engaged in strikebreaking violation of the rule, your penalty is give up your strikebreaking earnings.

That case was taken by the Union — the local Union there into a California Court to seek a judgment to recover the $500 fine.

In that Court, the issue presented by the employee the fine is unfair and unreasonable.

There were two proceedings in Nisi Prius Court in California and two appeals.

We finally got a judgment which said, the fine for $500 is reasonable.

The judgment became final and un-appealable and it was paid.

That is the situation in the state court.

It had a state suit to collect, it had a defense the fine was unreasonable, it rejected defense the judgment was entered and the judgment was satisfied.

What does the Labor Board do now with that situation?

The Ninth Circuit says, go back and determine reasonableness.

There are only three alternatives; one, the state court had no power to consider the issue of reasonableness because that is preempted to the Labor Board.

If that’s what you have, you have a totally impossible situation.

If the question is before the Board, it cannot render judgments in favor of the Union for the collection of the fine.

You want to collect the fine, you have to go to a state court and you tell you’re sorry.

The state court has no power to determine an issue critical essential to your recovery of the fine. Conceivably then what you could have is that first, you got to determination out of the Board that the fine is reasonable that will take you five years and then you’ll institute a suit in the state court to recover and then you’ll have additional defenses in the state court.

That makes no sense as a matter of dealing with the specific subject.

There is an alternative, you can have concurrent jurisdiction.

The Board can decide it, the state court can decide it.

Fine, if you have concurrent jurisdiction, ordinarily it ends by the proceeding, the proceeding which ends sooner and the determinative disposition by collateral estoppel or res judicata, that’s it.

If that’s what we have, then in the California case the Board has no business in it anymore because there has been a final, un-appealable, collective judgment, it’s res judicata.

So, whether the Board decides the issue or the Court will depend on the happenstance, the other happenstance of who’s proceeding ends first or you can have it as we think we should have it.

It’s a state court matter, it was decided by the state court in David O’ Reilly that’s where it begins, that’s where it ends, that’s the way we have been administering Union discipline in this country since we had Unions and Union discipline.

Warren E. Burger:

Thank you gentlemen.

The case submitted.