Pattern Makers' League of North America, AFL-CIO v. N.L.R.B.

• Decision Date: 21 December 1983
• Docket Number: AFL-CIO,No. 83-1045,83-1045
• Citation: 724 F.2d 57
• Parties: 115 L.R.R.M. (BNA) 2264, 99 Lab.Cas. P 10,715 PATTERN MAKERS' LEAGUE OF NORTH AMERICA,, and Its Rockford and Beloit Associations, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Rockford-Beloit Pattern Jobbers Association, Intervening Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 57

724 F.2d 57

115 L.R.R.M. (BNA) 2264, 99 Lab.Cas. P 10,715

PATTERN MAKERS' LEAGUE OF NORTH AMERICA, AFL-CIO, and Its Rockford and Beloit Associations, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Rockford-Beloit Pattern Jobbers Association, Intervening Respondents.

No. 83-1045.

United States Court of Appeals Seventh Circuit.

Argued Sept. 27, 1983.

Decided Dec. 21, 1983.

Laurence Gold, Washington, D.C., for petitioners.

Barbara Atkin, Assoc. Gen. Counsel, Elliott Moore, N.L.R.B., Washington, D.C., for respondent.

Edward J. Fahy, Fahy & Cheney, Ltd., Rockford, Ill., for intervening-respondent.

Before BAUER, ESCHBACH and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

The issue squarely confronting us is whether a union in its constitution may deny its members the opportunity to resign from the union during a strike or when a strike is imminent. The United States Supreme Court twice has acknowledged, but has not been required to decide, this issue. Booster Lodge No. 405 v. NLRB, 412 U.S. 84, 88-90, 93 S.Ct. 1961, 1964-1965, 36 L.Ed.2d 764 (1973); NLRB v. Granite State Joint Board, Textile Workers Union, Local 1029, 409 U.S. 213, 217, 93 S.Ct. 385, 387, 34 L.Ed.2d 422 (1972). We find such a rule invalid.

I

In May 1976, Petitioner Pattern Makers' League of North America (the Union) amended its constitution by adding the following provision: "13. No resignation or withdrawal from an Association, or from the League, shall be accepted during a strike or lockout, or at a time when a strike or lockout appears imminent." This provision, dubbed League Law 13, was ratified in August 1976 by the membership of the various member associations of the Union.

On May 5, 1977, the Union struck members of Intervenor Rockford-Beloit Pattern Jobbers Association (the Employer), a multi-employer bargaining unit consisting of eleven companies engaged in the manufacture and sale of patterns for casting. The strike ended December 19, 1977, when the parties agreed on a new collective bargaining agreement.

Eleven employees, ten from the Beloit Association and one from the Rockford Association, tendered their resignations to the Union during the strike. The first employee resigned on September 11. He returned to work for the Employer on September 12 and on that day the Union expelled him. After the strike ended, the Union sent letters to the other ten employees explaining that their resignations were not accepted because League Law 13 prohibited resignations during strikes. The Union retained these employees as members and fined them an amount commensurate with their wages earned while working during the strike.

The National Labor Relations Board ruled that the Union violated Section 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(A) (1974), by fining individuals who had tendered resignations from the Union and returned to work in violation of League Law 13. ¹ The Board rested its decision on the rationale enunciated in Machinists Local 1327, International Association of Machinists, District Lodge 115 (Dalmo Victor), 263 N.L.R.B. 141 (1982), petition for review filed, Nos. 82-7580 &amp 82-7701 (9th Cir. Oct. 4, 1982). In Dalmo Victor, the Board determined that a union's constitutional provision prohibiting members from resigning during a strike or within fourteen days preceding its commencement was invalid and thus unenforceable. The Board reasoned that the Supreme Court holdings in Granite State and Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), led to the "inescapable conclusion" that union members have the right to resign in both strike and non-strike situations. Because League Law 13 imposed the same type of restriction as the provision struck down in Dalmo Victor as an unreasonable restriction on a union member's Section 7 right to resign, the Board held that fines imposed pursuant to the law violated Section 8(b)(1)(A). ²

II

The issue of resignations from unions presents an apparent conflict between two fundamental policies underlying the NLRA. First, employees should not be restrained from exercising their right to refrain from collective bargaining activities. Second, unions must be allowed flexibility to regulate their internal affairs without the interference of Congress or the courts. This apparent conflict is reflected in Section 7 of the NLRA, 29 U.S.C. Sec. 157 (1947), which guarantees employees "the right to self-organization, ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and ... the right to refrain from any or all of such activities ...," and in Section 8(b)(1), which makes it an unfair labor practice "to restrain or coerce (A) employees in the exercise of the rights guaranteed in section : Provided, 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 ...." Our task is to resolve the tension between these policies when the Union seeks absolutely to prohibit resignations during a strike or when one appears imminent.

The Union first claims that the proviso to Section 8(b)(1)(A) validates League Law 13. That section gives a union flexibility to manage its own affairs. Although the Supreme Court has not resolved this issue, its decisions guide our analysis of the Union's claim. The Supreme Court, in considering the parameters of a union's authority, has developed an analysis that distinguishes between union rules that touch wholly "internal" affairs and rules that affect "external" activities. Scofield, 394 U.S. at 429-30, 89 S.Ct. at 1157-58. The Scofield Court stated that "it has become clear that if the rule invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating Sec. 8(b)(1)." Id. at 429, 89 S.Ct. at 1158.

The Supreme Court has applied this standard consistently to invalidate union rules that conflict with the fundamental policies of the NLRA. For example, in Granite State many union members resigned during a strike and returned to work. The union levied fines against those workers for violating a membership resolution that any member aiding or abetting the employer during the strike would be subject to a fine. The Supreme Court ruled that the union's fines frustrated the overriding "right of the individual to join or to resign from associations, as he sees fit ...." Granite State, 409 U.S. at 216, 93 S.Ct. at 387. Similarly, in Booster Lodge the union sought court enforcement of fines it imposed on employees who had resigned from the union. The employees had returned to work despite a union constitutional provision prohibiting strikebreaking by union members. The union argued that the obligation to refrain from strikebreaking bound union members notwithstanding their resignations. Booster Lodge, 412 U.S. at 89, 93 S.Ct. at 1964. The Supreme Court stated:

[I]n order to sustain the Union's position, we would first have to find, contrary to the determination of the Board and of the Court of Appeals, that the Union constitution by implication extended its sanctions to nonmembers, and then further conclude that such sanctions were consistent with the Act. But we are no more disposed to find an implied post-resignation commitment from the strikebreaking proscription in the Union's constitution here than we were to find it from the employees' participation in the strike vote and ratification of penalties in [Granite State ].

Id. at 89-90, 93 S.Ct. at 1964-1965 (footnote omitted).

Although the unions in Granite State and Booster Lodge did not restrict resignations, the Court's reasoning applies equally here. The Section 7 right to refrain from union activities encompasses the right of members to resign from the union. See, e.g., Granite State, 409 U.S. at 216, 93 S.Ct. at 387; NLRB v. Machinists Local 1327, International Association of Machinists, 608 F.2d 1219, 1221 (9th Cir.1979); NLRB v. Martin A. Gleason, Inc., 534 F.2d 466, 476 (2d Cir.1976). We think that because League Law 13 completely suspends an employee's right to choose not to be a union member and thus no longer subject to union discipline, it frustrates the overriding policy of labor law that employees be free to choose whether to engage in concerted activities. An employee's right to resign cannot be overridden by union interests in "group solidarity and mutual reliance in situations in which a collective effort is necessary to achieve a particular result" upon which the Union so heavily relies. Petitioners' br. at 9-10. Although a union has a powerful interest in maintaining its strength during a strike, see N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 at 181, 87 S.Ct. 2001 at 2007, 18 L.Ed.2d 1123, an employee's Section 7 rights "are not lost by a union's plea for solidarity or by its pressures...