National Labor Relations Board v. Allis-Chalmers Manufacturing Company

PETITIONER:National Labor Relations Board
RESPONDENT:Allis-Chalmers Manufacturing Company
LOCATION:Leon County Jailhouse

DOCKET NO.: 216
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 388 US 175 (1967)
ARGUED: Mar 15, 1967
DECIDED: Jun 12, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – March 15, 1967 in National Labor Relations Board v. Allis-Chalmers Manufacturing Company

Earl Warren:

Number 216, National Labor Relations Board, Petitioner, versus Allis-Chalmers Manufacturing Company et al.

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice, may it please the Court.

This is a review of a judgment of the Court of Appeals for the Seventh Circuit where that Court sitting en banc in a four to three vote, the National Labor Relations Board dismissed of unfair labor practice charged by the Allis-Chalmers Company against two locals of the United Automobile Workers Union.

This was based on the unions imposing fines upon union members who crossed the union picket lines during several two strikes.

The facts are as follows.

Locals 248 and 401 of the UAW for many years represented the employees of Allis-Chalmers, two plants in particular, the West Allis and the La Crosse both in Wisconsin plants.

In 1959 and again in 1962, each of these locals called economic strikes against the company in furtherance of its contract demands.

The 1959 strike lasted about two months, from February 2 to April 19 and during that strike, 175 employees out of a unit of some 7400 crossed the picket lines at West Allis, and two at La Crosse.

The 1962 strike lasted about a week and during that strike, 30 out of a unit of 5500 or so crossed the line.

In accordance with the procedure specified in the union’s constitution and bylaws, these strike working members were found by Union Trial Board to have engaged in “Conduct unbecoming a union member” and they were fined amounts ranging from $20 to $100 each.

Some members paid the fines and others refused to pay.

And the union commenced actions and to collect the fines in the state courts in Wisconsin, and one case was used as a test case, and the union obtained the judgment against a member who had crossed the line and had refused to pay the fine.

And the opinion of the Wisconsin intermediate appellate court which upheld this judgment of the trial court is set forth in the appendix to our main brief.

The opinion of the trial court is not in our record but it is in the record that’s deposited with the Court.

This particular case is now pending in the Wisconsin Supreme Court, and so far as I know it’s not yet been decided.

None of the strike-making members has been expelled.

None of them had been suspended from the union, nor if any of them resigned because of the fines.

On the other hand, the union has done nothing whatsoever in any way to affect the employment status of these members who were fined.

And so the question here is whether the union fining of these members for crossing the picket line and the subsequent attempt to collect the fines by court action constitutes a violation of Section 8 (b) (1) (A) of the National Labor Relations Act which makes it an unfair labor practice for a union to restrain or coerce employees and the exercise of a right guaranteed by Section 7 of the Act.

Section 7 in turn gives employees the right both to engage and to refrain from engaging in concerted union activities.

The Board itself where its member lead them dissenting, held that the union conduct complained of by the company did not violate Section 8 (b) (1) (A), and upon the company’s petition for review to the Seventh Circuit, a panel of judges, Judges Kiley, Judge Knoch and Judge Castle upheld the Board’s dismissal of the charges.

Upon rehearing on en banc, the Court withdrew the panel’s original decision and held with Chief Judge Hastings and Judges Kiley and Swygert dissenting that the union action did constitute an unfair labor practice under the Act.

The Court accordingly set aside the Board’s order and remanded the case for further proceedings.

Here, we are dealing with something that I doubt anyone will dispute is vital to the unions, vital to all unions, to their effectiveness as collective bargaining agents.

We think the legislative history of the Act makes clear that Congress did not intend to proscribe the union disciplinary conduct here involved.

And that the limited scope of Section 8 (b) (1) (A) is confirmed by provisions of the later labor management reporting in Disclosure Act of 1959, as well as by practical considerations of effective unionism within the context of the federal labor laws.

We also contend that no violation of Section 8 (b) (1) (A) was established because the fined union member employees were not deprived of any right protected by Section 7 since they had already opted against refraining from concerted activities by merely being members of — becoming members of the union.

We acknowledge of course that the fine —

Potter Stewart:

Well, how far does that go?

Potter Stewart:

Section 7 as you said gives all employees the right to engage in or to refrain from concerted activities.

And as I understood your argument you just made is once they joined the union, they opted to engage in all concerted activities.

This mean anything the union does and then on they’re stuck with, they’re stopped from objecting to it?

Thurgood Marshall:

Not anything, but they have agreed by joining the union to be governed by majority rule of that union.

And they had the choice of submitting the majority rule of the union or to take the other way and just pay their dues.

Did the union — did the union find these dissenters from going out and trying to persuade people who are not picketing in under some cases in view of the facts.

Thurgood Marshall:

I would think that under the provision, the provision says unbecoming to union activities, and in a period of a strike where everything is very sensitive, it would be up to the Union Board to decide as to whether that was within the provision of the union constitution.

But they could — could prevent a dissenter from going out and going to persuade any fellow who had been members of the strikes or —

Thurgood Marshall:

Which according to, Mr. Justice Harlan, by how they went about to persuading.

Well —

Thurgood Marshall:

If they in —

— by talking, by arguing.

Thurgood Marshall:

By arguing I see nothing wrong with that offhand, but if they interfered with the pickets —

Could they be fined for arguing the — for trying to persuade their fellow union members to quit the strike?

Thurgood Marshall:

It’s according to where they did the arguing.

If they argued in the home or if they argued in some place away from the plant, if they argued in the bar or the poolroom or any place else, I think that’s freedom of speech, but if they’re arguing and disrupting the picket line that will be distracting — disrupting the concerted action of the union.

They couldn’t argue on the picket?

Thurgood Marshall:

I should think not.

They couldn’t carry counter-pickets on them?

Thurgood Marshall:

I should think not.

— even with a strike.

Thurgood Marshall:

Well then, that point I don’t — we — we’ve been thinking about that and I couldn’t find any cases at all on that.

I don’t think that’s ever occurred, my devout and just never heard of that.

Thank you.

Thurgood Marshall:

There’s a difference between the freedom of speech and deliberately going through a picket line and going to work.

The difference is you are interfering with the majority rule.

Their point, their position should’ve been done on the floor of the union hall when the strike both was being taken.

That was where they should’ve used their freedom of speech, their power of persuasion and what have you.

But once you use your power of persuasion and use your power of speech within the union meeting and the majority votes to go on strike then it’s a union member’s duty to support that strike.

And there’s nothing in the Act that says to the contrary that I know of.

Potter Stewart:

Well, except Section 7.

Thurgood Marshall:

Section 7 says he has a right to refrain from engaging in it, but he does not —

Potter Stewart:

Any concerted activities —

Thurgood Marshall:

— and he also —

Potter Stewart:

— and I assume would be a strike.

Thurgood Marshall:

— and he also has a right to be fined for it, I submit.

Potter Stewart:

Well, that’s the issue.

Thurgood Marshall:

That’s —

Hugo L. Black:

What rights would — what — what good would the right do if one of them would upset the other, wouldn’t it?

Thurgood Marshall:

Not necessarily.

Not necessarily, I — I know of people who have exercised their right, knowing they were going to be punished for it.

Hugo L. Black:

By the state or by a private individual?

Thurgood Marshall:

Well either and I see nothing wrong.

The thing you’ve got to bear in mind in this is that when the Taft-Hartley Bill was being considered, they were not interfering with anything that was normal union procedure except what they specifically dealt with.

There’s not one word in there about interfering with the union’s right to maintain discipline within the union.

And a breakdown of discipline within a union destroys not only the union.

It destroys the balance of the labor management situation.

And indeed Congress wants to protect that rather than to cut down on it so I say that’s the balance that was struck.

They could very well have said that if you exert your right to work by crossing the picket line, the union can do nothing.

Indeed they did say that the union could not, if the man cross the picket line at work, the union could not destroy his — his employment status.

They said that.

William J. Brennan, Jr.:

But they also said that you might expel them.

Thurgood Marshall:

That’s what I’ve been saying, they can expel him.

William J. Brennan, Jr.:

Well I know.

Well if they said they might expel him maybe what Congress intended was that all they could do was expel him.

Thurgood Marshall:

Well the — I’m sure Congress didn’t mean that because number one from practice therefore —

William J. Brennan, Jr.:

Well the lang — the language of the proviso is its own rules with respect to the acquisition or retention of membership.

And I know the argument is that if they’re going to expel him, they can do the lesson.

Thurgood Marshall:

That’s — that’s one argument —

William J. Brennan, Jr.:

And that is when they — when they fine him.

Thurgood Marshall:

— and the other is I don’t know of any — find a way to destroy union than to expel members.

If you expel enough of them, you’re without a union.

So I mean the union is protected itself.

William J. Brennan, Jr.:

Well but what about — our problem here Mr. Solicitor General I gather is, as Justice Stewart pointed out of course, they may refrain from concerted activity.

Thurgood Marshall:

Right.

William J. Brennan, Jr.:

Except that if — if they do refrain and they’re members of the union, the proviso suggests they may be expelled.

And the issue is whether they can go beyond —

Thurgood Marshall:

Well, the difference —

William J. Brennan, Jr.:

— whether the union is left with any choice either to or but to expel if they do refrain.

Thurgood Marshall:

But Mr. Brennan, where we have a difference here is that the fine is beyond expelling to the contrary.

William J. Brennan, Jr.:

I don’t suggest it’s beyond.

It may be — it maybe something less than an expulsion.

Thurgood Marshall:

It is.

William J. Brennan, Jr.:

That Congress Congress allow anything more under the proviso than the choice for the union of expulsion?

Thurgood Marshall:

I think so.

What we try to point out in our brief, if you’re expelled, you lose strike benefits, you lose this, you lose that.

As a matter of fact there’s nothing in the record —

William J. Brennan, Jr.:

But you don’t lose your job.

Thurgood Marshall:

— to show.

You don’t lose your job that you can not do.

That’s good.

Byron R. White:

And you don’t — and you don’t — and you aren’t subject to fines.

Thurgood Marshall:

Well, there’s nothing in there to say you’re not subject to fines.

Byron R. White:

Well, I know but if you’re expelled, you’re not subject to fines thereafter.

Thurgood Marshall:

No you wouldn’t be subject to fines thereafter.

Byron R. White:

Do you get that much more in your pocket too?

Thurgood Marshall:

Well I don’t know whether it’s enough from the pocket because I — I submit Mr. Justice White, let’s get to the original, the main thing.

When you go into the you — when you work in a plant that’s under a contract of this type, you know you have to pay union dues.

That’s — that you know.

And then you also know that without paying anything more, you have a right to go in and use your voice to how your money is going to be spent, namely join the union.

Thurgood Marshall:

And in return you take on these liabilities of being governed by the union constitution.

Abe Fortas:

Well, Mr. —

Thurgood Marshall:

So it’s a give and take all the way through.

Byron R. White:

But you don’t suggest that the — that the fining is not coercion?

Thurgood Marshall:

I say it is coercion and it’s specifically coercion for the purpose of maintaining the solidarity necessary for union to operate.

Byron R. White:

You just say it doesn’t happened to be the kind of coercion that Congress had in mind —

Thurgood Marshall:

Congress —

Byron R. White:

— citing 8 (b) (1).

Thurgood Marshall:

Yes sir, Congress was talking about the —

Byron R. White:

Some other —

Thurgood Marshall:

— fight and the violence and all of those.

That’s what Congress was talking.

That’s the type of coercion, I mean Congress —

Byron R. White:

But the language — the language covers this like a glove, doesn’t it, coercion?

Thurgood Marshall:

It covers all coercion like if you say — I guess it could be coercion to say “you know I wouldn’t do that if I were you”.

Byron R. White:

Coercive to expel them too, isn’t it?

Thurgood Marshall:

The union contract — the union constitution says if they don’t pay the fine they are subject to expulsion.

William J. Brennan, Jr.:

Do we have any legislative history which indicates that Congress meant in the circumstances that the union could do anything except to expel?

Do any legislation —

Thurgood Marshall:

Well, the language says that — no it doesn’t say it could do anything it says you can’t (Voice Overlap).

William J. Brennan, Jr.:

— to impose fines for example, is there anything —

Thurgood Marshall:

Fines in it — I’ll see if we can find it for you Mr. Justice Brennan.

Abe Fortas:

Well, Mr. Solicitor General, I wonder if the issue might be stated a little differently.

It seems to me that there are two questions here, one whether the union can impose and collect a fine and that’s being litigated in the state courts.

Thurgood Marshall:

Wisconsin Court.

Abe Fortas:

Now, assuming that the union can not — doesn’t have the power, as determined by the Wisconsin courts, say to levy and collect the fine, and this whole matter is disposed off, isn’t it?

Thurgood Marshall:

Well that’s a — I understand that that is the reason for filing the suit in Wisconsin, I understand that.

Abe Fortas:

Alright, and now let us assume on the other hand that the Wisconsin courts determine or that it’s finally determined that the union does have this right to assess and collect fines as a matter of contract law whatever it may be.

And the next question is whether the union may exercise if this contractual right has against its members without being guilty of an unfair labor practice.

Thurgood Marshall:

Whether they could coerce?

Abe Fortas:

Well, the only way they coerce here is by —

Thurgood Marshall:

Threatening.

Abe Fortas:

— they didn’t try to coerce by beating a fellow out, but trying to coerce him in a sense, if you want to use that word, by going into court and standing a lawsuit, isn’t that right?

Thurgood Marshall:

That’s exactly what was done and that was the reason for it.

Abe Fortas:

And not coercion in terms of beating them up or firing them from the union.

They went into Court and said, “We’ve got a legal right to collect these fines”.

And that’s being litigated.

Now, if you assume that the Court say that’s right, you have a legal right to collect these fines, and the question is whether the union’s exercise of that presumed legal right is an unfair labor practice.

Thurgood Marshall:

That’s exactly what it is.

Mr. Justice Brennan, we’re trying to find it but it was between 21 and 26.

I would like to now move over to the case of the National Labor Relations Board versus Drivers Local 639, the Curtis Brothers case, which is in our brief.

And in there the meaning of Section 8 (b) (1) (A) was decided — determined by this Court on the basis that you couldn’t do it by examining the language alone, and that’s really what happened in the Seventh Circuit.

In Curtis, you recalled, was held at peaceful recognitional picketing by a minority union.

It was not prohibited by that section, notwithstanding that such picketing tended in the literal sense to restrain or coerce Curtis’ employees in exercise of their Section 7 right.

And in so holding, this Court stressed the basic congressional purpose in the Labor Act, and the balance and compromise reflected in it intent which is not necessary made clear in the vague language.

Now, as to the particular action here, there are certain things that I believe there can be little disagreement with.

The membership in the union is not compulsory in this case.

Secondly, that the allegiance to a duly authorized economic strike is a very basis in any union activities.

And where reasonable fines are often made, there are much less rigorous, less coercive if you please than summary expulsion.

And then the policy of the Act in question here is to aid collective bargaining, and in aid to collective bargaining requires that the union maintain as much solidarity as it can do.

I say secondly that from the outset the Board has held that — that Section 8 (b) (1) (A) does not prohibit union disciplinary sanctions that are neither tinged with violence nor directed at employment status, and would seek to compel union members to comply with reasonable and legitimate union policies, or to use an old trite phrase as long as you use in legitimate means for the legitimate end.

The Board has been able to find that there is no violation.

Implicit in this gain is a principle of course as I’ve mentioned on majority rule, and we bear that the history of the bill when Senator Ball, which we set out in our brief at page 24, said.

As to what rights were being impaired and what rights were not being impaired?

Senator Ball said, “All we are trying to cover is the coercive and restraining action of the union in its efforts to organize unorganized employees”.

And he also said, “What we are talking about is threats of violence or reprisal and that sort of thing in an organizational campaign or perhaps in an organizational strike”.

Both of those statements emphasize they’re talking about organizational strikes and they’re talking about violence.

The meaning of the old point is that for example no one questions the propriety of fines for violations of a no-strike vote, similarly no one questions that a union might expel a member who violates a strike called by the union members, in any rational purpose served by permitting expulsion but still prohibiting fines.

We submit that there is no distinction between the two.

This means chosen a fine and collection of it in the Courts is a very antithesis of the type of oppression tactics that we were talking about.

Thurgood Marshall:

The issue may be approached on the other hand by saying that the union’s action did not violate Section 8 (b) (1) (A).

And our difference is with the court below that the court below says, “Read the statute and coercion means coercion”.

We prefer to rely upon the Board’s ruling and the decision of the original panel which seems to say this.

One, the NLRB Board’s opinion, that its holding was specifically restricted to an area involving the status of the member of the union rather than as an employee of the plant.

Secondly, the Board emphasized that the fine is restricted to its own members.

Third, the Board says, “The rule prohibiting crossing picket lines is certainly within the covenants of the union”.

It involves a loyalty of its members during a time of crisis for the union.

And finally the Board’s opinion says, “When the strike is lawful and the picket line is lawful, we cannot hold that a union must take no steps to preserve its own integrity”.

I submit that in the position of the Board in this case, it is one that there is no violation of 8 (b) (1) (A) and that insofar as Section 7 is concerned, it merely emphasizes that position.

And Mr. Chief Justice if I can hold my five minutes?

Earl Warren:

You may.

Mr. Silard.

John Silard:

May it please the Court.

On behalf of the union, we have the temerity to suggest that there are really four separate and conclusive reasons why we have — the union has not violated the statute.

The first is that union discipline of members is exempted from the Labor Board’s jurisdiction by the text on legislative history of Section 8 (b) (1) (A) and its proviso.

The second reason is that in Section 7 of the Act, every employee has the choice of abstention from or participation in concerted protected activity, but once the worker chooses to join the union, he is bound to his election of participation over former statutory right of abstention.

Thirdly —

Byron R. White:

What if the union rules were that there would be no strike codes, the officers just decided it?

John Silard:

Mr. Justice White, the common law courts have given relief in that situation for about a hundred years and they have been very rigorous and we cite many cases.

I will get to this.

Byron R. White:

Well that isn’t —

John Silard:

Where any exceeding of the union’s constitutional powers and the norm that’s applied in the fairness of the procedures is grounds, not only for setting aside fines, but for setting aside suspensions and expulsions.

And we would not stand here to defend —

Byron R. White:

Would you say there would — there could be a fine if there wasn’t a strike code?

John Silard:

There could be no fine which the courts — the common law courts would enforce under any property or con — contract theory whether you would have a violation of the statute here, there’s a different question that I would say not, and I will get to that if you permit it.

In a moment I would like to outline my four points and then I’ll certainly will cover this — this question.

We would urge that it is not a violation of the statute, even if the — the unreasonableness in the enforcement of the internal union rules, procedural or otherwise, may be a basis of a Landrum-Griffin, a Griffin violation it is, it’s a procedural violation but not NLRA violation.

The third ground upon which we believe this Labor Board’s decision in this case was right, is that there must be some rule of reason in the application of the restraint or coerce clause.

There’s been a rule of reason in the restraint clause of the Sherman Act for many years.

We see no reason for denying one here, and if there’s any rule of reason in what constitute restraint or coercion under this statutory clause, we are within the most reasonableness of all the rules.

John Silard:

And fourth, and perhaps the most important point we would make is this.

This Court in American Ship Building rules that the employer can enforce a concerted work refusal on every member of the union and every employee as a bargaining device.

And the statute becomes incongruous and imbalanced if now labor unions can no longer enforce a concerted work refusal even on their own members.

The traditional strike weapon has then been taken from the unions and given to the employer.

Potter Stewart:

American Ship Building didn’t involve concerted action among employers, it was a single employer, wasn’t it?

John Silard:

I say — I say the — the American Ship held that the employer can invade the right to work under Section 7 of every single one of his employees as a warning device if he decides to lock them out, he — a concerted work stoppage denial of the right to work.

We say the imbalance here is created if the employer can lockout all the workers and deny them work, as a — as a bargaining device now, but the union can no longer affect the — a work stoppage even by its own members who have pledged that they would abide by the union norms.

It’s an imbalance and then an incongruity which we would say should be resisted.

Potter Stewart:

Well, I’m sure you’re going to develop this, but it seems to me there’s nothing here about the — anybody’s right to go out on strike if he wants to.

The question here is somebody’s right not to go out on strike if he doesn’t want to.

John Silard:

Well, the Section 7 would give the employees all of the right not to engage in a concerted work refusal, and prior to American Ship, that were meant not to be made parties to a consider work refusal whether initiated by the union, by a strike or by the employer by a lockout.

Let me get that in a moment.

And I — and I say this to Mr. Justice Brennan literalism in the construction of this statute is a trap.

And we think if we’re going to have literalism, the company has fallen into the trap because we believe we are literally excluded by the proviso of Section 8 (b) (1) from the coverage of 8 Section (b) (1) itself.

If the Court will indulge me by looking at page 3 of the blue brief, at the very top, the actual text of the proviso which is rarely looked at in these debates is reprinted.

And if we will mentally block out two words from the proviso, the words or retention for the moment, we have this left.

The statutes shall not impair the right of the labor organization to prescribe its own rules with respect to the acquisition of membership therein.

Now, why do I say that there’s a violation of this guarantee if we have violated the Act in this case?

It’s very simple.

The cardinal rule with respect to the acquisition of membership in this union is that you shall abide by the union norm and submit the union discipline if you go in.

And at page 36 of the record there is printed the — this actual requirement of membership which is then duplicated by the oath of membership, but it says expressly that every applicants shall sign upon this to abide by all laws, rules or regulations and the constitution of the international union.

And therefore, we say that there has been the most direct violation of this reserved right in the statute if now we can no longer prescribe the rule that someone who comes into the union shall support a strike and shall submit himself to traditional union discipline if he fails to support a strike.

And we don’t believe in their rules, but if we’re going to have it we’d say that we ae legally within this proviso.

William O. Douglas:

That provision for respect to the acquisition of membership certainly must have many, many limitations because it certainly wouldn’t enable the union to require solidarity on American foreign policies —

No, I think it would be —

— solidarity on politics, solidarity on —

John Silard:

It should obviously be read to mean the kinds of re — requirements for the acquisition of membership which unions have traditionally imposed, and this is the most traditional of all that has ever been imposed.

If you join the union you support the strike, and you submit to discipline if you don’t.

Obviously, it all limits to the — to the reading of every word.

I’m not arguing for literalism but if they’re going to have it, I’d say we have a little argument.

William J. Brennan, Jr.:

I gather in Machinist v. Street, well that was a railway labor case.

We indicated there very definitely also has limitations on it.

John Silard:

And we believe in that — and we believe in Street now and we believe it applies under National Labor Relations Act as well, though this Court has not yet so held.

And that is just another reason why the choice that Congress made in 1947 should be on it.

The choice was you cannot be compelled to be a member of the union, but if you are a union member then you must march with the union as unionists always have because it’s a cause which requires unanimity and concert of action, and not at the loose individualism on the liberal doctrine questions like the strike.

Let me get to the point to which is second argument is that there is an election by the union members to which he can be held when he joined.

This Court has long ago as Elgin, Joliet held that a union member may validly be deemed to have surrendered to the union his contractual and statutory right with respect to alleged violations of his contract and make the union — oe validly make the union his bargaining agents with power to waive away and bargain away and settle any individual agreements of his own.

We feel that the election that this Court permitted in Elgin, Joliet is a principle which can be applied equally here that one who chooses to join the union since 1947 at least, one who chooses to — to join the union when he not need the union, he may refrain from joining must be held to the union norm.

Now, union start as critical in this setting if the Court please.

In 1951 the Seventh Circuit which has jurisdiction in Wisconsin where this case arose, was presented with precisely the following situation.

A number of employees said, “Here are our union dues but we are not coming to the meeting to take the oaths of membership”.

And the Labor Board held that when they were then discharged by the employer for nonpayment of dues which the union refused to take, the Act was violated because it exceeded the power of the union to do anything more than to require them to pay the dues and requiring the oath of membership was not committed under the statute and no employment discipline could be imposed under the statute for failure to take the oath.

Since 1951 as this Court’s General Motors decision and Radio Officers decisions have also confirmed therefore, it is clear that no one must join the union on paying the union discipline.

And therefore we say there is no longer of a real difference in the case such before this Court and another case that might be here where there’s no union security clause at all.

The union just tells any member who decides to join and then imposes a fine on him.

And we think it’d be absolutely idiosyncratic to presume that Congress meant in a non-union security clause situation to bar unions from suspending or fining or otherwise disciplining their members or officers and we see no different result flowing here since 1947 when compulsory membership was barred by the Congress.

Now it is said that employees do not know that they need not join the union, but we think companies like Allis-Chalmers which has fought this case with bigger advice employees of their rights with respect to joining the union or not joining the union.

Furthermore, President Brewster of the United Automobile Workers has not made a secret of the fact that members or that employees need not join the union.

At page 12 of our brief, there’s a lengthy footnote of his public testimony some two or three years ago categorically affirming that no one needs to join the union and bind himself to its norm.

Finally, the contract here itself doesn’t require union membership as it might have under the strict readings of Section 8 (a) (3).

It says, “You shall be a member of the union to the extent of paying monthly dues and no more”.

So we think that the argument that people are losing their rights by ignorance has some way than some other context but not in this particular case.

Byron R. White:

Well, would you say the same rule applies to the wildcat strike?

John Silard:

We say that we have made an argument, Your Honor please, that at some length that if the unions may not use their disciplinary procedures over those who insist on working during a valid strike, they also may not use their disciplinary procedures in against those who insist on wildcat and we think that adds to the —

Byron R. White:

How about the reverse — how about the reverse?

You would say that you can fine them for — for working, you can also fine them for not working.

John Silard:

We can fine them for working and we can fine them for not working, and we have just had a case which is in our supplemental brief which came to public notoriety here last week in Mansfield, Ohio where the whole union was trustee and the officers were from removed from office because a wildcat strike was continuing.

And we said —

Byron R. White:

You can enforce a no-strike clause in effect that enforce it by fining members who walk off the job.

John Silard:

More than that Your Honor, we could — even if their on a no-strike clause.

Byron R. White:

I see.

John Silard:

No contract had yet been negotiated.

We believe that our constitution permits us under the clear provisions on this to fine and discipline a member for insisting on striking without the full authorization of the union and the international for insisting on striking when the rest of majority decides to work.

So we say it has to cut both ways and it’s in an added idiosyncrasy and incongruity if unions are now to be deprived of their traditional discipline with respect to the strike, whichever way it goes.

I’m not going to, in my limited time bear odd on the third point, our rule of reason argument which we have briefed in full, except to cite one case, Mr. Justice Stewart, at page 39 of our brief.

There is a reference to Mirror against the Detroit Musicians.

And I think it’s a very interesting case on the question you asked the — the Solicitor General.

There, the members of the union were fined $25 but the union constitution said that $10 was the maximum fine.

The Court, on the instance of the fined members, ordered the fines remitted and the members restored to full status, $15 more than the maximum of ten was enough to invoke the usual authority of the common law courts to bar any sanction against the member who had in fact violated the constitution.

We say the answer to your questions about excessive fines, unreasonable fines; unreasonable procedures are in the common law court.

And the non-enforceability of Mr. Justice Brennan suggested of the union norm which the union is trying to enforce.

They are not under this particular statute.

I’d like now to turn to our fourth and final point, American Ship Building.

We do really believe that this is the most persuasive of all our points.

We cannot see that now when the employer may deny work to every member of the union and every employee as a bargaining device.

As a bargaining device it can fairly be deemed the Congress — for Congress at the same time to have said in the statute that unions may not even with respect to their own members enforce a concerted work stoppage.

Why?

We would say, should the employer be able at his option to enforce — to deny work to all of the workers in the plant as a bargaining device to chastise the union, but now the union without Congress ever having expressly said so is to be denied the right to have an effective concerted strike even by its own members.

We say as this Court said in Curtis Brothers in the last sentence of Mr. Justice Brennan’s opinion, the cardinal principle in construing the statute is we need a coherent national labor policy.

This should be a non-coherent national labor policy giving to the employer the traditional union weapon of the concerted strike and now taking it away from the union which you always had it, by the way that the employer has gained it fairly recently only.

I want to say one last thing about the basic question before this Court.

In 1947, Congress was presented with a difficult choice.

The dual rigors of union allegiance and compulsory union membership were deemed by the Congress to go too far.

Congress had a choice.

It could’ve gotten into the internal network of union allegiance and union norms and sought to deal with the problem there.

It rejected that choice.

Instead, in 1947 Congress said, “The part of this equation we will effect is compulsory union membership”.

What we’re going to do henceforth is to knock out the close shop of any more compulsion than the payment of support moneys to the union.

That’s the choice that Congress made.

Instead of interfering with the internal options of the union its solidarity and its strength in situations like the strike, what the Congress said was, “We’ll start on this other side of the equation and we’re going to say that compulsory unionism must go”.

John Silard:

Now, we say this is a delicate balance between four competing rights, the public’s rights, the employer’s rights, the union’s rights and the individual workers rights.

That delicate balance cannot possibly, in our opinion, be upset by the meat cleaver which the majority of the Seventh Circuit employed on this sensitive question.

It’s a wholesale rewriting of the statute we say.

Now, to squeeze into the 1947 statute rather than the Landrum-Griffin Act, which really dealt with the problem of union’s relationship to its own members, to squeeze within the interest of this 1947 statute these rigorous limitations you may no longer have strike solidarity enforceable by a $20 or $100 fining.

You can’t go to Court to enforce your contract rights with your own members.

This we say goes too far.

The right equation was the one that Congress struck.

Compulsory membership is barred but the union strength, solidarity and internal allegiance rules are left intact and enforceable until Congress acts, we say it is not for the Courts to upset that delicate balance.

Byron R. White:

Mr. Silard, would you say that the union could perhaps bring a court action against the recalcitrant employees who are working instead of striking?

John Silard:

To force them not to work, Your Honor?

Byron R. White:

In an injunction.

I suppose maybe Norris-LaGuardia didn’t bar that.

John Silard:

Well —

Byron R. White:

I don’t know.

John Silard:

I suppose — I suppose the — the answer to that question may have to wait the answer to the question that’s here, because if —

Byron R. White:

That’s right.

John Silard:

— if they’ll —

Byron R. White:

If they can find — if you win here, could you go to Court against them?

John Silard:

I think I wouldn’t want to say categorically that there might not be a defense, but I would say that if one of the lines of — if there are number or arguments before the Court, on which this decision concur.

If it turned on the — on the 8 (b) (1) issue, I’d like very well to say no because Section 7 right in that case might still be in fact even though 8 (b) (1) doesn’t reach this particular right to work rather than to strike.

Then you would say common law courts are preempted from jurisdiction to deal with an effort to enjoin a kind of activity which Section 7 protects even though no 8 (b) (1) sanction attaches to it.

If on the other hand, our argument that there’s been an election of waiver of Section 7 by the member of the union were to be the one that this Court rather adopt, I would say that then you might in fact be presented with a situation where there’s no room for a preemption argument anymore just as in Elgin Joliet, I think they were statutory —

Byron R. White:

And you would, I suppose you would say that — that if you win the question of whether how large the fine can be is, this is irrelevant to 8 (b) (1), I mean maybe there’s some other ways that you wouldn’t have to pay too large a fine.

John Silard:

Now, Congress meant to leave fines and discipline within the ambit of the union’s discretion, and the power of the common law courts to — to control.

And that power has been used in — with great rigor, I may so Mr. Justice White, to affect every single jot and title of the union’s disciplinary action.

$15 is too much, if $10 — if $10 is what your constitution prescribes.

If the norm you’re enforcing is not expressly in your constitution, the courts will set aside any discipline.

If the procedures are not —

Byron R. White:

Well, maybe you’ve never fined anybody more than $100, but I supposed that literally read — does it permit $100 a day?

John Silard:

No, literally read, our constitution permits no more than $100 day — $100 a day, page 37 of the record.

Byron R. White:

No, no more than $100 a day.

John Silard:

No, it permits no more than $100 against any charged member, and we have found not a single case anywhere, never mind in our own union in which this theory which one of the two locals in this case misguidedly suggest but then it really only suggested it.

That they always use the word may, it didn’t say you’re going to be fined $100.

There was — somebody thought it up and wasn’t sure about it, but the most that one of these two unions said was maybe you can made to be — made to pay $100 a day, but people who work to six weeks they’re still fined only $100 in total.

And that’s where our union constitution is always rigorously set as the maximum against an offender.

Not for one day the one hour of offend — offending.

Byron R. White:

But it needn’t be that way.

John Silard:

It needn’t be that way —

Byron R. White:

But you haven’t argued there.

John Silard:

— there have been cases in which very large fines have been set and there are cases in the courts in which such fines, not only are not enforced, but in which members who are suspended or discharged from the union for not paying such fines have been reinstated by the common law courts on the ground that property and contract rights were involved and that courts could take protective action.

Thank you.

Earl Warren:

Mr. Seham.

Martin C. Seham:

Mr. Chief Justice, members of the Court.

I represent 23 individual employees of the New York Times who under circumstances similar to that involved in this case, were fined four weeks wages, in some cases as much as $1500 each, for having crossed the picket line, and in that sense violated the constitution and bylaws of the union to which they belong.

I’ve been granted ten minutes to argue to the Court by Allis-Chalmers, and I want to take advantage of those ten minutes to reply to the arguments which have been made by the Solicitor General, which have been made by the union, to the effect that and I’m paraphrasing the words of the Solicitor General, the Section 7 rights do not exist here for these employees or employees in these circumstances because they have opted out of those rights.

They have made a choice to submit themselves to union discipline and to the union requirements and consequently these statutory rights which Congress has enacted for them are set aside and put to naught.

Now, I think the point of departure has to be the source of the initial obligation or the initial impetuous to membership and that source is a collective bargaining agreement.

It is a collecting bargaining agreement which is entered into and which is negotiated by a corporate management on one hand and a union representative on the other hand.

The individual employees, the man who has a crisis of conscience, the man who has an individual point of view is not sitting at that table when that bargain is reached, when that provision is included in the contract.

Now, some argument has been made that there is a difference in language in the Allis-Chalmers contract that perhaps the contract itself indicates a limitation on the type of membership which the man is obligated to submit himself to.

This may or may not be, in point of fact, the record stipulates that all the employees involved became members pursuant to that clause.

The language itself talks in terms of becoming a member to the extent of — of payment of dues and intiation fees.

And of course, in the New York Times situation and — and in most situations in — in industrial relations context, the clause is a much broader clause.

It’s a typical union job provision which says you must become a member within 30 days of your employment of 30 days of the contract.

William O. Douglas:

As I read your brief, you’re trying to draw a line between those who voluntarily joined union and those who are forced in by reason of that clause?

Martin C. Seham:

Well I — I don’t think I necessarily have to draw that line Your Honor.

It seems to me that there is a distinction.

On the other hand, it seems to me that there is a distinction which should be or can be the basis of the decision in this case.

William O. Douglas:

Your clients are not voluntary members.

Martin C. Seham:

And that’s — that’s true Your Honor, and I would submit that the employees in the Allis-Chalmers case are not in fact voluntary members, and I would submit that it is very difficult to conceive of any situation in which an employee is a voluntary member when we think of voluntarism in the sense of a knowing a free, an unimpeded waiver surrendered of a statutory right.

William O. Douglas:

Well, that’s pretty legalistic, isn’t it?

Potter Stewart:

Perhaps I — excuse me.

Martin C. Seham:

I’m sure it’s not to be le — legalistic.

I think the practical compulsions here are determined to be expanding.

Potter Stewart:

Perhaps I missed part of your argument, but I — I understood the statute can’t have involuntary membership.

All that you can have involuntarily is the duty to pay dues.

Martin C. Seham:

I think that is so, but again if we’re to — the — the argument that I am trying to respond to is that there has been a voluntarily waiver of a statutory right.

And I think when you try to evaluate that argument and decide whether there has in fact then a voluntary waiver, you have to look at the practicalities of the situation, what has in fact happened in this case whether there was a disclosure to the employee of what his alternatives were whether he did not receive.

And in this — this is in fact the case here, and in fact the case in 99.9% of industrial relation situation, the employee gets a notice and he gets a card to get what’s in the contract because he didn’t negotiate that contract.

He gets a card and it says, “You must join the union within 30 days, sign this card or you lose your job”.

Now, maybe he could go to his lawyer and say, “Well is this so and — and how would I protect my rights and is there some other card I can sign and maybe there’s some other way of doing it?”

But I think we all recognize as a practical matter, number one is lawyers not likely to know, number two an employee who is working on an assembly — assembly line and making $100 a week or $110 a week, is not going to have the time or the resources to solicit that kind of legal advice and to so carve out the restrictions and the reservations to his union membership, so that he’s — he’s just confined it to the obligation to pay dues.

So he signs the card.

He signs the card which says, I apply for membership and then the union argues, in this case and then in the case that I’m handling in New York, he has assumed all the obligations of the constitution and bylaws of that union.

He signed the card.

In point of fact in the Allis-Chalmers case, just as in our case with the New York Times, the employees did not get a copy of the constitution and bylaws until they were charged with the offense.

When the charges came — came to them and said, “You are being hold up on charges”.

You are subject to a fine.

Here is a copy of the constitution so you can find out what it’s all about.

Abe Fortas:

Is this what you mean by the phrase in your brief compulsory labor membership?

Martin C. Seham:

Well —

Abe Fortas:

Do you say that people not knowing that they don’t have to join the union joined anyway?

Martin C. Seham:

I think that’s right, I think that’s —

Abe Fortas:

That’s what it comes down then?

Martin C. Seham:

I think that is right and I think it is certainly applicable in our situation.

For instance again in the Times situation, the employer actually sent out a letter accompanying the union’s letter which said, “The union’s letter is coming along”.

You have to join the union.

And we also want to inform you that you have to join the union within 30 days.

Abe Fortas:

That’s not really before us now, is it?

Martin C. Seham:

No, but — but it is in part responsive to a suggestion which was, I think, made by Mr. Silard to the effect that well, Allis-Chalmers, you know, knew what the obligations of the employees were and he assumes or he thinks or they — they would’ve informed them of their — of their rights under the situation.

Abe Fortas:

What you’re saying is perhaps Justice Douglas did inquire it is that this is not really a matter of the union membership who fines applicable to people who voluntarily join unions because there are some other people like these Times — New York Times advertising salesman, whoever is involved here, who sort of inadvertently and lack of knowing any better, seduced him to join the union, is that what you’re saying?

Martin C. Seham:

I think that’s one way of putting it Your Honor, but I think another way of putting it is to emphasize the fact that what we are dealing with is a statutory right.

It’s a statutory right which is, it seems to me, is a very fundamental right which is the one to go to work or not go to work, and before it can be suggested that there is a surrender of that statutory right, that there has to be some very persuasive if you will, overwhelming showing that the employee waive that statutory right, gave up that right with full knowledge —

Abe Fortas:

That might be a defense — that might be a defense in the action to collect a fine.

Why is that relevant to an unfair labor practice?

Martin C. Seham:

Well, it may not be relevant except to the extent that I believe the solicitor’s and the union’s primary argument is, and again I paraphrase Mr. Marshall, to the effect that the Section 7 right does not exist in this situation because they opted to surrender it.

Well, I don’t see any — if that is — is what they have done, if they have done something so critical to their industrial life, I think that option has to be a very clear and very intelligent one, and a showing has to be made that they voluntarily do it.

I want to just touch on one more point, I’m probably past my ten minutes now, but the — the single further point I would like to address myself to is the question of the coercive effect of these fines.

Now, the union in its brief and I believe on its argument said that certainly if there — if there was a threat for and I have it right here — that by threatening them with physical harm or with the loss in employment benefits after the strike ended, the union would’ve violated Section 8 (b) (1) (A).

This they concede would’ve been coercion and as a matter of fact under the circumstances they — they concede that this would’ve been a violation of Section 8 (b) (1) (A).

Well, I submit to the Court that for a man working on an assembly line who maybe work– who maybe making $100 a week or $110 a week or $125 a week, if you say to him.

We’re going to take away the equivalent of a week’s earnings from you, the equivalent of a week’s wages from you that this is no different then and perhaps worst in a way than saying, “You’re suspended for a week”.

This is the typical industrial relations discipline.

You’re suspended for a week.

You can’t come into work.

But in fact in this case it’s even worse because they have said to the man, “Sure you can come into work”.

You can consume your time.

You can inhibit and prevent, incapacitate yourself from doing other gainful employment, and then when it’s all over, we’re going to take that week’s wages away from you.

Now, I — I can’t conceive of any — of any other kind of penalty unless we increase the dollar amount that could be more coercive than that very kind of punishment.

Earl Warren:

Suppose the — suppose the union fined these men for conducting wild — wildcat strike instead of for the conduct that’s complained up here, would you say that that is permissible?

Martin C. Seham:

It might be Your Honor, because when we’re talking about a wildcat strike, we are talking about the — an infringement on the authority which the union does in fact have and has in fact been taken away from the employees.

That is the ability to negotiate and fix upon the terms and conditions of a collective bargaining agreement.

So if during the term of a contract, the employees go out on a wildcat strike, they have violated the obligation which the statute imp — imposes upon them to grant to the union the right to make the agreement and concurrently to respect the terms of that agreement.

But we’re talking about a different body of rights.

Earl Warren:

I wonder if we are talking about different things.

I thought you said that one of the reasons that they couldn’t fine them was because these men were not previewed to the — to the making of the contract.

That they came into the — came into the thing without knowing what the contract was, without having anything to do with the bargaining for it, and therefore they should not be held responsible for — for the — for those terms.

So — and isn’t that exactly the same thing we would have in this situation?

Martin C. Seham:

Well I — I do have an answer to that Your Honor.

Earl Warren:

Well, that’s what I’m asking.

Martin C. Seham:

But I’ve also gotten a note which reminds me that Mr. Equitz also has an answer.

He’s going to —

Earl Warren:

I know but I think both of you are arguing, I’d like to have the argu — argument of both of you to find out if there’s any disagreement between you.

Martin C. Seham:

Well, I — a — as I say, I — I do not think that — well let me — let me put it in another way.

If the employee, let’s say, comes in late to work, the hour —

Earl Warren:

No, no I’m not talking about that.

I’m — I asked you the precise question if the union finding or were conducting a wildcat strike is — is that permissible or not under your argument that you do now?

Martin C. Seham:

In my argument I would say, in face of the no-strike clause during the term of the contract, yes.

Earl Warren:

Suppose there’s no-strike clause in it?

Martin C. Seham:

There’s not any — I — I would think then that the union could not fine them.

Earl Warren:

Very well.

Martin C. Seham:

Thank you, Your Honor.

Earl Warren:

Mr. Equitz.

Howard C. Equitz:

Mr. Chief Justice and may it please the Court.

I might address myself first to the last question that the Chief Justice asked in order to explain what the significance of any union authority to impose discipline in a so-called wildcat situation is in this case.

First of all, a union would have authority over employees only if they were members.

Earl Warren:

Yes.

Howard C. Equitz:

It may be in a situation where there was an exclusive, even where there was an exclusive agency that not all the employees in the unit may be members.

So we concern ourselves first only with that group.

It is from the membership relationship that any authority which does exist arises.

Earl Warren:

And these people were members?

Howard C. Equitz:

Yes, we are speaking now of members.

Earl Warren:

Yes.

Howard C. Equitz:

The question then whether the union may take action is in two parts.

They may do so if authority of this type arises out of the membership relationship, and this is a question of common law.

In many common law jurisdictions or in the common law in many jurisdictions, the right of the union to have certain disciplinary authorities over its membership has been recognized over the years.

Now, the question whether in a particular instance the union may impose a fine which is the specific subject of discussion here would depend upon whether there is some other law forbidding it and that is the issue in this case.

And the question is would the imposition of such a fine violate the statute?

The answer is no, because wildcat activity is not a Section 7 protected right and therefore Section 8 (b) (1) (A) which forbids coercions of the exercise of those rights simply does not apply.

Abe Fortas:

I thought Section 7 protected the right not to work as well as the right to work.

Howard C. Equitz:

Yes, if the Court please, the distinction is this.

Leading up to the passage of this Act in 1947, it had already become established under Section 7 of the Wagner Act that unauthorized strike activity was not an action of a concerted bargaining activity through a representative of the employee’s choosing.

This is the only kind of activity which Section 7 concerns itself with at all.

In the House Bill, it was proposed that there’d be some references to the authority of unions in wildcat strike situations.

This was expressly not included in the Act as passed and the conference report explicitly states this because it was already established that it was not the concern of either — it had not been the concern of the Wagner Act and it was not being the concern of the Taft-Hartley Act to cover activities that were not —

Earl Warren:

We’ll recess then now.

Mr. Equitz you may continue your argument.

Howard C. Equitz:

Thank you, Your Honor.

To — finally to dispose of this question which the respondent looks on as a spurious comparison of the question of union authority with respect to wildcatting in relationship to union authority if any, in the case of employees who desire to work during a strike, I would like to make just two citation references.

In the legislative history of the Labor Relations Act of 1947, at pages 542 to 543 with copious citations to the law as it had developed under the Wagner Act, it is explicit that wildcatting or unauthorized strike activity is simply not a subject of the coverage of the Section 7 of the Act.

Byron R. White:

Do you think that’s true whether or not there’s a no-strike clause in the agreement?

Howard C. Equitz:

Yes Your Honor, I do.

Byron R. White:

Even if there’s a no-strike — even if there’s not a no-strike clause?

Howard C. Equitz:

Yes Your Honor that is correct.

Byron R. White:

No group of employees has a protected right not to work unless the union authorizes it?

Howard C. Equitz:

Where there is an established bargaining agency, the right that employees have is to pursue affirmatively collective bargaining activity only through that bargaining agency.

Byron R. White:

And you don’t think — but you don’t think the reversal?

Howard C. Equitz:

Well, the other proposition is not the reverse of that proposition.

Abe Fortas:

Well, why not?

Why isn’t it?

Howard C. Equitz:

The reason for it is this.

It was the purpose of the law and it was the primary concern of the Congress to pass this law to minimize interruptions to commerce.

Abe Fortas:

Yes.

Well —

Howard C. Equitz:

Striking does this.

Abe Fortas:

— here the labor — labor union though says, “Alright fellows, we’re going — we’re not going to enter in the bargaining agreement, we’re going out on strike”.

Now, your reasoning with respect to the wildcat situation depended upon the fact that the union is the exclusive bargaining agency.

Now, doesn’t that hold equally where the union as the exclusive bargaining agency says, “We’re not going to make a contract, we’re going out on strike”.

And what’s the difference?

Howard C. Equitz:

I would say it does not hold to —

Abe Fortas:

Justice White has asked you.

Howard C. Equitz:

I would say it does not hold true because it was so plainly the reason for protection that employees be given a choice whether to participate in or to refrain from participating in concerted union activities that the law was drafted with that purpose precisely.

They do have that right and —

Byron R. White:

Does it state concerted view — concerted act?

Howard C. Equitz:

Yes, it says concerted activity or collective bargaining activity through representatives of the choo — choosing of the employees, I believe is the full text of Section 7.

The other references that I would make to the legislative history are those which are cited at pages 16 and 17 of the respondent’s brief which could not be more explicit.

For example, on page 16, Senator Taft, the principal proponent of this legislation and sponsor of it in the Senate stated explicitly in his analysis of the Act as passed, and I quote, “The prohibition contained in Section 8 (b) (1) applies to coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line”.

This language —

Byron R. White:

Do you have the words that to be one of the — one of the — these collective bargaining agents are certified members?

Howard C. Equitz:

Not with respect to the right of employees to refrain from collective bargaining activity.

Byron R. White:

Yes, but where they held — where there are union members in a — in a bargaining union, there’s no place of bargaining contract.

There is no certified bargaining agents as yet.

Can there be any protection of the welfare in there?

Howard C. Equitz:

Well then perhaps there can be one only with respect — it would have significance only with respect to the employees exposing themselves to employer action.

If there is no bargaining agent then there is no question of the employees engaging in collective bargaining through representatives of their choosing.

Byron R. White:

So they have protective rights under Section 7, isn’t that one of these protective rights still unless there’s a — there is a bargaining agent to — then he loses his right to — to go to work when the union says don’t go to work.

Howard C. Equitz:

No, that is not correct.

He loses his right not to go to work if the union has not declared a strike.

This is — it’s true, it’s difficult to express this but that is the analysis of this that the respondent would make.

Byron R. White:

If the bargaining agent is certified, he — he loses half of that, one side of that but not the other.

Howard C. Equitz:

Yes that is, I think, a fair way of expressing it.

Now, the facts are substantially as the Solicitor outlined them.

There are, however an aspect or two, of the facts which deserve some notice.

First of all, there has been, in view of the respondent, an undue concentration and again a spurious one, on the precise amount of the fine which ultimately came to be imposed.

I think the simple response to this is that it is undisputed.

The threat was of a fine for each offense of working during the progress of the strike and it was explicit in the threat that each day could constitute a separate such offense.

I think it’s an elementary proposition that the scope of — it is the scope of a threat which is relevant to coercion.

Some employees did work during the strike.

There has been some concentration on the relative proportion of those who did contrasted with those who did not.

But we must remember that this strike occurred in the context of defined threat and in that context, the respondent believes that it is frankly surprising that there were not more who did so.

Howard C. Equitz:

It is not surprising that there were not more who did so.

Earl Warren:

Suppose these — suppose these men instead of going to work had set up a counter picket line saying “We believe this — this strike is wrong and we believe that it should not be maintained”.

And they carried those pickets those on a — on a picket line of their — of their own.

Would you think that that is not subject to a disciplinary proceeding on the part of the union?

Howard C. Equitz:

The right — there might be a question of this kind.

As I outlined in the case of the distinction between an unauthorized strike and the refraining from a strike which is authorized, the right that employees have is to refrain from certain activities, certain union activities.

If an employee were affirmatively to participate in a counter union activity, there might be some question whether this was or was not within protected right of the employee.

I would say broadly that giving the widest reasonable scope to the protected right of free speech, and picketing being an expression, peaceful picketing being an expression of the right to free speech that there would certainly and should be wide latitude on the part of employees to express themselves as opposed to a strike.

As the Board has observed on many occasions, when an employer is sought to rely on the fact that employees did work during a strike as an indication of a loss of majority support, this is a normal and expectable sort of thing, and the Board, however, does not give it the credit that employers in some instances had sought to give it.

The Board has said that this is merely a vote of no confidence in this particular strike activity.

It is not necessarily an indication of a desire not to continue being represented by that bargaining agent.

I think that this line of cases is particularly noticeable for the Board’s recognition that there is by no means anything unusual or in its nature impermissible about employees working while a strike is in progress.

Hugo L. Black:

Suppose they were to stop belonging to the union?

They just to resign their membership claim the right of the union under the alternative provision, what would happen then?

Could they do that?

Howard C. Equitz:

If an employee were not a union member had in some fashion validly placed himself in the status of nonmember, the union would simply have no authority by any approach to impose discipline of this fine type on the individual.

Hugo L. Black:

And could he stop right at the time they called a strike?

Howard C. Equitz:

No, Your Honor.

In fact one of the practicalities of this business of leaving membership is that this particular union that is involved in this case has a constitution which provides the right to escape as it were, that is to resign membership once undertaken only in the ten-day period at the end of the calendar year.

If a strike were to take place in —

Hugo L. Black:

Would that be consistent with the statute?

Howard C. Equitz:

Yes, it is consistent for a union to prescribe its own rules with respect to the acquisition and retention of membership, yes Your Honor it would be.

Hugo L. Black:

But that would deprive them of advantage which I thought many claimed to consider much weight, like values to get out when there won’t be.

Howard C. Equitz:

Exactly so.

The fact is that while it is easy to say that an employee may divest himself of membership and whatever the obligations are that in here in membership as he will, this is not at all true.

The practicalities are contrary.

Hugo L. Black:

Practicalities, but what does the law provide for that?

Howard C. Equitz:

The law provides that rules of this type are not within the prohibition of the 8 (b) (1) (A).

Hugo L. Black:

What Section says this?

Howard C. Equitz:

The proviso to Section 8 (b) (1) (A), accepts from the scope of that prohibition the rules with respect to the acquisition and retention of union membership.

Howard C. Equitz:

A union is left with the authority and it is recognized as valid and permissible for a union to adopt such rules.

Hugo L. Black:

Left with authority to require people to belong to the union who do not want to and hold their job?

Howard C. Equitz:

Yes it’s —

Hugo L. Black:

So long as it’s put in the form of a rule or what?

Howard C. Equitz:

Yes, the union is left with the authority to make provision that once individuals have become members of the union that that union membership may become terminated only on the terms of the existing union rules.

There is for example a case, a Court of Appeals case First Circuit which is cited in various of the briefs and is reported in Volume 320 of F.2d reports in which an employee or several employees sought during a no-contract period to resign from membership that had once been undertaken and because they missed the statute as it were, they missed some —

Hugo L. Black:

They what?

Howard C. Equitz:

They failed to provide with one single detail that the union rules required be followed in order that membership be terminated.

They were held not effectively to have terminated their membership in the union and they became subsequently subject to a maintenance of membership provision, a variety of union security provision that was subsequently negotiated.

These were people who —

Hugo L. Black:

So it is not true that that law provides that a person need not belong to a union or remain a union member if he wants to get out?

Howard C. Equitz:

I agree with Your Honor entirely about that in the — in the regard which we are presently discussing and in one other which I will discuss which is the requirement of an employee covered by a union shop agreement to become a member in the first place.

The balance of this discussion that we have just undertaken covers the re — the remaining portion of the relationship.

Once undertaken, then the membership may be continued as the union rule requires.

Earl Warren:

Well, neither that rule nor one on fines is specifically mentioned.

How do you say that the one is more implicit than the other?

Certainly, they’re both coercive, and if it’s coercive to fine a man $20, it certainly is coercive to say to him, “You must remain in this union for one year and ten days and you have no right to — to get out and pursue your life in another — in other — in another way”.

It seems to me that the one is far more coercive than the other and — and that — that you think is implicit in rules and regulations.

Why isn’t equally as implicit to — to say that if they — if they don’t follow the majority and don’t — don’t do what the majority has voted to do in regard to strikes that — that they can be — they can be fined?

Howard C. Equitz:

The point is quite correct Your Honor that both actions, that is rules with respect to the acquisition and retention of union membership are or may be coercive as well as fines are coercive.

The distinction between them is that the statute does not imply but expresses that that particular coercion which may in here in union membership rules that is rules determining when a person is and when he has ceased to be a member is not covered by the prohibition of the statute.

This was —

Earl Warren:

Well, where does this specifically say so?

Howard C. Equitz:

It says so in the proviso to Section 8 (b) (1) (A).

Earl Warren:

Which reads as how?

Howard C. Equitz:

Which reads lastly, I’ll read the whole section because it’s very brief.

It shall be an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 provided.

And this is the proviso.

That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.

And the legislative history is replete with paraphrases of that — of that language as the sponsor of that legislation, Senator Holland, stated on more than one occasion in the legislative history.

Howard C. Equitz:

What he is talking about are union rules that determine when membership begins and when it stops.

Byron R. White:

And not about discipline.

Howard C. Equitz:

Discipline — discipline of —

Byron R. White:

That proviso doesn’t speak of discipline.

Howard C. Equitz:

The proviso does not speak of discipline.

Earl Warren:

Well then, if it doesn’t, how is the — in implicit in the — in the Act that wildcat strikes can be — you can fine them for engaging in a wildcat strike?

Howard C. Equitz:

The reason for this is not because of Section 8 (b) (1) (A) or the proviso to 8 (b) (1) (A), it is because Section 7, which is the Section that enumerates the rights which are protected in Section 8 (b) (1) (A) does not include wildcatting.

That has covered explicitly in the two pages of legislative history to which I referred and has subsequently as well.

Both post Taft-Hartley as well as pre-Taft-Hartley in the uniform holding of every Court that has — had occasion to review it, such activity is simply not a protected right.

Not subject — not covered by the Act at all.

Byron R. White:

What’s the citation of that legislative history?

Is that in you brief?

Howard C. Equitz:

This particular citation is not in the brief.

It is pages 542 and 543 of the legislative history of the Labor Management Relations Act 1947.

Hugo L. Black:

I thought the basic reason for the law in this field of the argument whether good or bad that a man should not be forced to join a union or to remain a member of a union, to stay a member of a union in order to get a job if he ought to have the right to keep that job otherwise without that, and that that carried with it the idea that the two — two alternatives.

One, a man could pay his dues and have that freedom or not pay his dues and not have that freedom, but what you say now is it actually leaves it open to the union to control whether he shall remain a member or whether he should get out and exercise what they claim to be the right of a free foreign man to work without belonging to a union.

Howard C. Equitz:

Yes, Your Honor.

Hugo L. Black:

It seems to me like you say that the union got power to take that away from him from that proviso, and I wouldn’t have thought that was right.

Howard C. Equitz:

The proviso itself merely governs the rule, for example in the case of an employee who has become a member, how long he must retain that membership and by what procedures — by what procedures exclusively he may resort to terminate that membership.

This is quite correct.

I might just speak at this moment about this question of the beginning of membership and whether it is or can be required by a union shop agreement.

There has been a great deal argued in this case and it is explicitly argued that the particular union shop provision that was in effect covering the employees involved in this case did not require anything more than financial support of the union.

Yet this Court in the General Motors Agency Shop case contrasted an agency shop agreement which requires only financial support, and as this Court’s decision states leaves the option in the employee whether to apply for or not to apply for union membership with and as union shop agreement which in that case was identical in terms to that involved in the Allis-Chalmers contract which this Court’s decision, I believe, quite correctly and patently from the nature of the statute leaves the option if indeed there is any in the union.

The employee covered has the obligation to apply for or request membership and then his sole obligation however, which in the default of which the union may have the man’s job under the union shop contract provisions, is to continue financial support extending to initiation fees and dues.

But this Court’s decision explicitly contrasts like the identical union shop provision that is involved in this case, the Allis-Chalmers within the agency shop, and yet the union in this case would argue that there is no distinction between them.

And I might point out this as well it was the same union in that case.

Byron R. White:

Well, with respect to losing the job that if he pays there is —

Howard C. Equitz:

That’s correct Your Honor, but with respect to the obligation to apply for to request membership and with respect to whose option it is on that subject —

Byron R. White:

Yes, but what sanction is there on that?

Howard C. Equitz:

Well the — the sanction is that as this Court stated in General Motors, in other contexts the question of the union — of the employee having the obligation to become a member may have great significance.

Howard C. Equitz:

What this Court was speaking about was in other context than one in which the union may seek to obtain the man’s job for failure to give financial support.

The respondent in this case submits that this case represents just such a context that the employee having become a member, but having assumed with the protection of the statute no obligations beyond those of making the financial support has now become subjected to just such another consequence.

And the question is, is he subjected to it?

Hugo L. Black:

Irrevocable?

Howard C. Equitz:

Apparently, if the union were to adopt a very restrictive rule as, indeed the UAW rule is quite restrictive on terminating, it becomes virtually irrevocable.

William J. Brennan, Jr.:

Well, I suppose about your speaking of the validity of the provision that you can’t terminate except for the last ten days of the calendar year.

You’re speaking of the validity of that and the context of whether or not enforcement of that rule under 8 (b) (1) (A) would be an unfair labor practice.

Howard C. Equitz:

I was speaking only of the practical restrictive —

William J. Brennan, Jr.:

I know but you’re speaking of it as an unfair labor practice, it — it’s not clear is it, that if one were to attempt to resign from the union at the time of the strike, and then this provision were applied against him insisting that he was still a member for purposes of a fine, then it would necessarily follow that in a lawsuit the common law would sustain the right of the union to enforce that provision against him.

Howard C. Equitz:

Well, the — what might be the holding of a case at common law is genuinely problematical.

William J. Brennan, Jr.:

But you’re only — you’re only speaking of it in all that the proviso got is to say that whatever the rules are as to acquisition and retention of membership, the union is free to adopt them and whatever the coercion or restraint that may be involved in that, that type of coercion or restraint is not an unfair labor practice.

That’s all what that section says.

Howard C. Equitz:

There is available to the Court a recorded and existing and current and most relevant practical example of just what happens.

The employee against whom the pilot collection suit was brought rising out of this situation in the State of Wisconsin, testified that he had done nothing more than was required of him by the union shop contract provision.

And yet because of a conflict of evidence, the evidence from the union side being that he was a member because he had to become a member, the Court made findings, the lower court —

William J. Brennan, Jr.:

But there was no evidence there that he tried to get out?

Howard C. Equitz:

No, that’s correct.

William J. Brennan, Jr.:

Right.

Howard C. Equitz:

There was no evidence —

William J. Brennan, Jr.:

If there had been, I’m only suggesting that might be a very different case.

Howard C. Equitz:

We might get to the basic reason why the protection of Section 7 ran to union members as well as to nonmembers.

Abe Fortas:

Before you get there, can I ask you one question?

Suppose that the Wisconsin courts hold that the union may not collect this fine, would you still believe that you have a labor board case?

Howard C. Equitz:

I would say this in an answer.

The case, the collection pilot suit arising out of this case truly is pending in the Wisconsin courts, but there has been a case of this kind already decided by the Wisconsin courts and it is the established precedent in the jurisdiction of Wisconsin that union fines are collectable.

Abe Fortas:

Well apparently, somebody believes it’s worth litigating.

Howard C. Equitz:

Yes, there plainly could be in any situation a certain contract defenses of course, regardless whether the principle that a union member is liable to a fine might be advanced.

Abe Fortas:

Well, what about my question to you?

Suppose after Wisconsin courts should hold that the fines here are not collectable?

Howard C. Equitz:

I would say —

Abe Fortas:

Would you still believe that you had a labor board unfair practice?

Howard C. Equitz:

Yes Your Honor, and I would refer by analogy to a recent decision of this Court in which in reviewing the Civil Rights Act of 1964 which endows defendants with the right not to be prosecuted for non-forcible presence in certain establishments covered by the Act that it was a violation of the Act for even a prosecution that was doomed to failure to be in the error.

The burden of having to defend even an invalid prosecution or one inevitably bound not to succeed itself is a threat.

And in the practicalities of industrial life for members of industrial union bargaining units, this is the most formidable threat.

They would be left first of all to wonder what the decision of the Court might be, and even if they were confident of what it might be, the —

Abe Fortas:

Well, your position then is that even if the labor union has no power, no right to levy a fine, if the labor union merely talks about levying a fine that that’s an unfair labor practice.

Howard C. Equitz:

If the union threatens to levy a fine, yes it would be an unfair labor practice.

Byron R. White:

But I suppose you would agree that even if this isn’t an unfair labor practice then that the union could, as far as 8 (b) (1) is concerned, levy to fine the — that doesn’t necessarily mean it can be collected?

Howard C. Equitz:

Yes, I think I would agree with that.

It certainly is not definite that the common law on a subject to voluntary associations in each jurisdiction would permit collectability, I would agree with that.

Byron R. White:

Well, you don’t — but do you think we have to know in this case?

Is it relevant enough that we should know whether this fine is collectable under the laws of Wisconsin?

Howard C. Equitz:

I would say that frankly, in most jurisdictions, this issue has never arisen in the common law, so just is not known what the fact is.

But in Wisconsin we do know that it is one of the few jurisdictions in which fines levied by unions against employee members who did not participate in action of the type involved in this case are in general collectable.

Byron R. White:

Have you got those — are those in your brief, those cases?

Howard C. Equitz:

That case is cited in several of the briefs.

It is the decision reported at 11 Wisconsin 2d it is cited in —

Byron R. White:

Was there any congestion?

Is there any argument on the other side?

I don’t remember whether to the effect of this fine is not collectable in Wisconsin?

Howard C. Equitz:

I don’t believe there is any such argument.

I think it is conceded.

William J. Brennan, Jr.:

Well now, what kind of argument if I correctly remember the opinion of the intermediate Wisconsin Court, for example one of them is that this is a kind of a strike that the union was not authorized to call.

As I remember the opinion of the Court, and therefore the refusal of the worker to go along with it was — should not have subjected in the fine.

Howard C. Equitz:

Well that — that issue arose in the Court collection suit because the defendant asserted a contract defense.

He submitted that the union had itself not discharged the union side of the contractual obligation to call a strike in a certain fashion.

William J. Brennan, Jr.:

No suits were brought to collect these fines, were there?

Howard C. Equitz:

The fines involved in this case, Your Honor?

William J. Brennan, Jr.:

Yes.

Howard C. Equitz:

Yes sir.

William J. Brennan, Jr.:

Oh, there were?

Howard C. Equitz:

There is one such pilot suit which was brought to confirm the precedent and the union has been scrupulous in preserving its rights so that the statute of limitations does not —

William J. Brennan, Jr.:

Was a judgment entered against the employee?

Howard C. Equitz:

Yes sir.

William J. Brennan, Jr.:

And just one of the suits?

Howard C. Equitz:

Just against the one employee.

Byron R. White:

Is that final?

Howard C. Equitz:

The judgment is appealable.

It’s final and appealable to the Wisconsin Supreme Court and has been appealed and is pending on appeal in that Court now, according to the Court expressly pending the decision of this Court on the question of federal law.

Byron R. White:

What’s the argument — what’s the argument by the employees in the — in the Supreme Court of Wisconsin?

That it isn’t collectible?

Howard C. Equitz:

Well, the employees have a variety of arguments.One of them concerning a variety of contract defenses to the collectability of the suit, but the one relevant to this case and the reason why the Court is holding it is that it is a cont — it is contrary to public policy as expressed in the prohibition of Section 8 (b) (1) (A) of the Federal Act that — that such a fine should be enforceable.

And of course then, implicit in this is the argument of preemption which is that the state courts preempted.

All of those arguments are very vitally and vigorously presented.

Hugo L. Black:

You referred to them in Wisconsin, the work stoppage.

Howard C. Equitz:

Yes, Your Honor.

Hugo L. Black:

Before you cite in the page, would you mind giving the —

Howard C. Equitz:

Yes Your Honor.

Hugo L. Black:

11 Wisconsin 2d?

Howard C. Equitz:

That’s correct.

The — I think I miss cited, if the Court please?

It was 5 Wisconsin 2d, the — the precedent of the Wisconsin Supreme Court which establishes the collectability of fines in a comparable situation is 5 Wisconsin 2d at page 528, 93 N.W 2d at 336.

This is at the top of the index on III for example in the brief of the union and in several of the other briefs.

It’s the Woychik case, UAW versus Woychik.

Hugo L. Black:

U what?

Howard C. Equitz:

UAW, the United Automobile Workers Union versus Woychik.

William J. Brennan, Jr.:

What you say was the page number of 93 N.W.?

Howard C. Equitz:

93 N.W.2d page 336.

William J. Brennan, Jr.:

Thank you.

Earl Warren:

Mr. Equitz, you — you may take three minutes more to sum up if you desire to do so.

Howard C. Equitz:

The point of this case which has been a point of astonishment with the respondent is that actually every element of the offense which is charged in the unfair labor practice complaint here has long since and in a multitude of cases been established.

The union and the Board, however, find themselves incapable of assembling these separately established elements so as to result in the conclusion that there is an unfair labor practice here.

It has been established for example long since indeed as long ago as 1952 in the Bell Aircraft case that work — that returning to work during a union called strike was a protected right and the union was forbidden and prohibited by 8 (b) (1) (A) from visiting any coercive reprisal against that — against that member.

The question which unions argument principally revolves around is the — is the argument that membership in itself inherently implies waiver.

And the cases are legion in which 8 (b) (1) (A) violations have been found with respect to union action, coercive action vis-à-vis a member.

And this Court has decided a number of such cases.

For example, in the Radio Officers case so cited, it was several cases consolidated.

In both of them, in both the Radio Officers Union, one of those consolidated cases and in the Teamsters one of those consolidated cases, the individuals who were coerced in — in violation of 8 (b) (1) (A) were not only members of the union, but in the Teamsters case, the coercion was pursuant to a standing written union rule providing for the coercion.

The question only being, was the action of the union coercive?

Was the act for which the coerce — the coercion was applied a protected right?

Now, the fact is that it is virtually indisputable that it is a right for an employee to refrain from working during a strike, and the only question really remaining, indeed the Solicitor concedes this in — in the brief for the Board, concedes this, and says that there is only one question really.

Is the action of the union coercive in the meaning of the statute?

This the Board itself has also answered.

In the Roberts and Skura line of cases in which the Board found 8 (b) (1) (A) unfair labor practices when unions impose fines against employees for exercising their protected right to resort to Board process stated that not only were fines within a co — coercion, but they were in their nature coercion and it was plain.

It was an indisputable fact.

Now, when all of these precedents are assembled the conclusion inevitably follows that — that the imposition of a fine is coercion, and it is coercion directed specifically to an inherently employment matter.

And despite —

William J. Brennan, Jr.:

And not within the proviso for what reason?

Howard C. Equitz:

And not within the proviso because the rule applied has nothing to do with — with rules of the union with respect to the acquisition or retention of membership.

It has to do with the fact of holding and hitting if you will, and the union rules may well provide for that holding by making it difficult or virtually impossible to get out of the union.

Thank you.

Earl Warren:

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice, may it please the Court.

I think there’s one thing we should get straight on because there’s so much that there’s been argued that’s not in the record, and for example this question of these men being dragooned into the union.

We have in the appendix to our main brief, the opinion of the intermediary court in Wisconsin.

And I understand from Allis-Chalmers that that case is being completely and thoroughly litigated.

And in that you’ll see on page 41 of our brief the facts that show that this particular man, the test case on the question of not being able to get out of the union, and granting that you can only get out of the union in the last ten days of the year.

He was taken into the union in 1955.

He could’ve left in 1956 or 1957.

And the strike both was made in August of 1958, and of all these things that are being charged that these members didn’t know about, the Court of Appeals in Wisconsin found that he was present at the meeting where the strike vote was taken — vote was taken.

Thurgood Marshall:

And it was taken in August of 1958.

He could have gotten out December 21 of 1958, because the strike wasn’t called until 1959.

So I think that I have to add that to the other points and bring about what we are not talking about, or rather what this case is not about.

This is the Allis-Chalmers case.

It doesn’t involve the high exorbitant fines on anybody.

Fines range from $20 to $100 per man.

It doesn’t involve freedom of speech, and it doesn’t involve involuntary membership.

There is not one word in this record to support any argument about involuntary membership.

There is not one word that I’ve been able to find in this record that supports a statement that the man never even got a constitution of the union.

I don’t know where that comes from maybe it’s in one of the other records.

But he did attend the strike meeting.

Now, I say there’s nothing in this record as to any of the other men except the stipulation that they were all union members.

And finally, I would like to make it clear because so much adversary seems to say that the National Labor Relations Board takes the position about 7, we don’t.

We think 7 is a part of 8 and we take the position you don’t have to get to 7 or the proviso in order to uphold the Board in this particular case.

We rely of course on 8 and we view 7 as a part of the 8 provision.

And unless there are other questions, we will submit urging the Court to reverse —

Byron R. White:

Well, Mr. Solicitor General.

Thurgood Marshall:

Yes sir.

It may be that the — it may be that — that it’s not a violation of 8 (b) (1) the unfair labor practice to it, but Section 7 might still nevertheless prevent the collection of the fines that goes, I mean logically might.

Might prevent the collection of the fine, you mean in the common law Court?

Byron R. White:

Well, in any Court — in any court just because if it — if it were held that — that the right to work during a strike was one of the protected elements covered by Section 7 may be to the fine — wouldn’t it be possible?

Thurgood Marshall:

I can’t conceive of it.

All of the fines I’d known that had not been collected had been for other reasons, not for that.

Reasons that was outside the scope of the constitution that was unreasonable or unprecedented or that the union had not afforded the necessary due process, those I want to know about.

William J. Brennan, Jr.:

Mr. Solicitor, I just want to be sure.

You said that 8 is part of 7.

Is the focus of the Board’s argument that a proviso of 8 —

Thurgood Marshall:

It’s not req —

William J. Brennan, Jr.:

— affects this?

Thurgood Marshall:

It —

William J. Brennan, Jr.:

I mean —

Thurgood Marshall:

— you don’t need —

William J. Brennan, Jr.:

— who leaves it of the — of any unfair labor practice to it?

Thurgood Marshall:

We don’t need the proviso in order to find that this is not an 8 (b) (1) violation.

William J. Brennan, Jr.:

Did you say that —

Thurgood Marshall:

The reason being that this was left to the union and there was nothing in the Act —

William J. Brennan, Jr.:

Well, this is Mr. Silard’s argument that the whole structure of the Act contemplated that internal affairs of the unions were to be the unions concern at least until the Landrum-Griffin Act amendments in 1959, is that it?

Thurgood Marshall:

Well it’s — it’s our position, it’s much the same, but our position is that there’s whether or not the man be voluntarily a member of the union or went in there automatic whatever it is, has nothing to do with provision that it’s alright for the union to do this.

It might be a violation of something else.

William J. Brennan, Jr.:

Well, what provision of the statute says it’s alright for the union to do this?

That’s what I’m trying to get.

Thurgood Marshall:

No, I don’t know of any statute wherein the statute says it’s alright.

William J. Brennan, Jr.:

Well, let me ask it this way —

Thurgood Marshall:

I mean it’s not a violation.

William J. Brennan, Jr.:

— isn’t that the government’s argument does not rely on the proviso of Section 8?

Thurgood Marshall:

Yes sir.

We rely on it to say that in addition to the fact that this — this Section 8 was never intended to prevent this apart of that reason that we say it wasn’t intended to prevent it is the proviso.

Thank you sir.

Earl Warren:

Very well.