Machinists Local 1327, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO, Dist. Lodge 115 v. N.L.R.B.

Decision Date14 February 1984
Docket NumberAFL-CIO,83-7052 and 83-7089,DISTRICT,AFL-CI,82-7701,Nos. 82-7580,s. 82-7580
Citation725 F.2d 1212
Parties115 L.R.R.M. (BNA) 2972, 100 Lab.Cas. P 10,805 MACHINISTS LOCAL 1327, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,LODGE 115, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Viola Lapinski, Hilda Hall, and Polmyra Gomes, Intervenors. DISTRICT LODGE 160, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,, and Affiliated Local Lodge 1028, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Robert C. Ferguson, Intervenor.
CourtU.S. Court of Appeals — Ninth Circuit

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

Barbara Atkin, NLRB, Washington, D.C., for respondent.

On Petitions for Review and Cross-Applications for Enforcement of an Order of the National Labor Relations Board.

Before TUTTLE * and MERRILL, Senior Circuit Judges, and PREGERSON, Circuit Judge.

PREGERSON, Circuit Judge:

The question presented is whether a labor organization reasonably restricts the right to resign union membership when it imposes a fine under its constitution on a member who quits the union during a strike to resume working for the struck employer. 1 Because the restriction at issue comports with both national labor policy and the test set out in Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), we refuse to enforce the order of the National Labor Relations Board.

BACKGROUND

This case comes before us a second time. The parties do not dispute the facts, which we first outlined in NLRB v. Machinists Local 1327 (Machinists I), 608 F.2d 1219 (9th Cir.1979). The facts show that shortly before calling an economic strike against the employer, the union reminded all members about the following rule in the union's constitution:

Improper Conduct of a Member: ... Accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this Constitution, without permission. Resignation shall not relieve a member of his obligation to refrain from accepting employment at the establishment for the duration of the strike or lockout within 14 days preceding its commencement ....

Eight months after the strike began, three of the intervenor employees, Viola Lapinski, Hilda Hall, and Polmyra Gomes, submitted their resignations to the union, crossed the picket line, and returned to work. Later, the union imposed court-collectible fines on each employee for violating the rule. The employees responded by complaining that the union had violated National Labor Relations Act (NLRA) Sec. 8(b)(1)(A), 29 U.S.C. Sec. 158(b)(1)(A) (1976), 2 and the Board issued a complaint. In a case tried on stipulated facts, the Board construed the provision as merely prohibiting certain post-resignation conduct, not as restricting the union member's right to resign. 231 N.L.R.B. 719, 720-21 (1977).

Considering that decision on the first appeal, we criticized the Board's construction of the provision as "hypertechnical." Machinists I, 608 F.2d at 1222. We concluded that the rule "defines or limits the circumstances under which a member may resign, and is a restriction on a member's right to resign," and asked the Board on remand to On remand, a plurality of the Board decided that it should balance two competing interests: the employee's right to refrain from collective activity under NLRA Sec. 7, 29 U.S.C. Sec. 157 (1976), and the legitimate interest of a union in representing every employee in its bargaining unit. 263 N.L.R.B. 984, 985 (1982) (Fanning & Zimmerman, Members). After performing this operation, the plurality held that a union rule limiting a member's right to resign only to non-strike periods "constitutes an unreasonable restriction" on the right to resign. Id. at 986. The plurality went on to articulate a new rule permitting a union to prohibit a resignation "for a period not to exceed thirty days after the tender of such a resignation." Id. at 987.

determine whether such a restriction was valid. Id.

But the two Board members who concurred in the result thought that any restriction on the employee's right to resign from the union is an unfair labor practice. Id. at 987-88 (Van de Water, Chairman & Hunter, Member, concurring). They filed a lengthy opinion disagreeing with the plurality's 30-day rule and virtually all of its reasoning.

A fifth Board member dissented altogether. He would have held that the rule was a reasonable restriction on the right to resign. Id. at 993 (Jenkins, Member, dissenting).

The union now petitions for review and the Board cross-applies for enforcement of its order.

STANDARD OF REVIEW

Ordinarily, we give "considerable deference" to the Board's expertise in construing and applying the labor laws. Bureau of Alcohol, Tobacco & Firearms v. FLRA, --- U.S. ----, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983); see NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149-50, 10 L.Ed.2d 308 (1963); NLRB v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industries, 704 F.2d 1164, 1166 (9th Cir.1983).

But " 'the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.' " Bureau of Alcohol, Tobacco & Firearms v. FLRA, 104 S.Ct. at 444 (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)).

Therefore, although we should uphold the Board's reasonable and defensible constructions of the NLRA, we must not " 'rubber-stamp ... administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying [the] statute.' " Bureau of Alcohol, Tobacco & Firearms v. FLRA, 104 S.Ct. at 444 (quoting NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)); see Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166, 92 S.Ct. 383, 390-91, 30 L.Ed.2d 341 (1971).

For the reasons that follow, we believe that the Board's holding, including its 30-day rule, 3 frustrates federal labor policy in important respects.

ANALYSIS
A. National Labor Policy and Union Discipline

Our national labor policy is built on the premise that employees can bargain most effectively for improvements in wages, hours, and working conditions by pooling their economic strength and acting through freely chosen labor organizations. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006-07, 18 L.Ed.2d 1123 (1967).

Congress embraced this policy when it passed the Wagner Act in 1935 because the history of the labor movement demonstrated that employees who acted collectively were far more successful in improving their lot than those who faced employers individually. See A. Cox, D. Bok & R. Gorman, Cases and Materials on Labor Law 15-17 (8th ed. 1977). But to ensure that a union could not abuse its position as an exclusive bargaining representative, Congress also enacted the Taft-Hartley Act of 1947 and the Landrum-Griffith Act of 1959. These laws made unfair labor practices out of union conduct coercing employees in the exercise of their Sec. 7 rights, see 29 U.S.C. Sec. 158(b)(1)(A) (1976), and preventing union members from participating fully in union affairs, see id. Sec. 411(a)(2). Moreover, the Supreme Court read the labor laws as requiring a union to represent every employee in its bargaining unit fairly and adequately. Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912-13, 17 L.Ed.2d 842 (1967); Steele v. Louisville & N.R.R., 323 U.S. 192, 202-03, 65 S.Ct. 226, 231-32, 89 L.Ed. 173 (1944).

In imposing these substantial fiduciary obligations on labor organizations, however, neither Congress nor the Court gave individual members license to avoid union rules designed to protect the welfare of the bargaining unit.

Congress, therefore, enacted the proviso to Sec. 8(b)(1)(A), 4 which reserves to unions the power to make reasonable rules regarding the retention and acquisition of membership. Allis-Chalmers, 388 U.S. at 181, 87 S.Ct. at 2007; 263 N.L.R.B. 984, 985 (1982) (plurality opinion). This power

is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms, and "[t]he power to fine or to expel strikebreakers is essential if the union is to be an effective bargaining agent ...." Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants, including strikebreakers, are therefore commonplace and were commonplace at the time of the Taft-Hartley amendments.

Allis-Chalmers, 388 U.S. at 181-82, 87 S.Ct. at 912-13 (footnotes omitted) (quoting Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049, 1049 (1951)).

In short, federal labor policy restricts the individual employee's absolute power to order his relations with management. Instead, it vests this power in a collective representative who must protect the interests of everyone in the bargaining unit. As a result,

[t]he complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

Allis-Chalmers, 388 U.S. at 180, 87 S.Ct. at 2006-07 (emphasis added) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953)).

B. The Scofield Test and Post-Resignation Discipline

In Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), the Supreme Court articulated a three-part test for determining when a union disciplinary rule is reasonable. A union is free to enforce a properly adopted...

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