Booster Lodge No. 405, Int. Ass'n of M. & AW v. NLRB

• Decision Date: 03 February 1972
• Docket Number: 24744.,No. 24687,24687
• Citation: 459 F.2d 1143
• Parties: BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Boeing Company, Intervenor. The BOEING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

459 F.2d 1143 (1972)

BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Boeing Company, Intervenor.

The BOEING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.

Nos. 24687, 24744.

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 1971.

Decided February 3, 1972.

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Mr. Bernard Dunau, Washington, D. C., with whom Messrs. Plato E. Papps, Washington, D. C., and C. Paul Barker, New Orleans, La., were on the brief, for petitioner in No. 24,687 and intervenor in No. 24,744.

Mr. C. Dale Stout, New Orleans, La., for petitioner in No. 24,744 and intervenor in No. 24,687.

Mr. Glen M. Bendixsen, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Washington, D. C., at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Stanley R. Zirkin, Atty., National Labor Relations Board, were on the brief, for respondent.

Before MacKINNON and WILKEY, Circuit Judges, and GOURLEY,^* Senior District Judge for the Western District of Pennsylvania.

MacKINNON, Circuit Judge:

In this case, we are called upon to examine the right of a labor organization, consonant with the provisions of the National Labor Relations Act (N.L.R.A.), to discipline those members who have crossed its picket line to work during an authorized strike. We must determine the effect which a member's resignation from the union, before, during, or after such conduct, has upon the union's disciplinary authority. We are also requested to consider the legal implications of the "reasonableness" of the fines imposed, where the union has threatened enforcement thereof, or has actually sought collection through legal means.

The essential facts are not in dispute. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter sometimes referred to as the Union), and The Boeing Company, (hereinafter sometimes referred to as the Company), were parties to a collective bargaining agreement which was effective from May 16, 1963, through September 15, 1965.¹ Upon the expiration of the contract, the Union commenced a lawful strike against Boeing at its Michoud plant, as well as at various other locations. This work stoppage lasted 18 days. On October 2, 1965, a new bargaining agreement was signed, and the economic strikers returned to work the following day. Both the expired agreement and the newly executed contract contained maintenance-of-membership clauses, which required all new employees to notify both the Union and the Company within 40 days of their acceptance of employment if they elected not to become Union members. It also required those who were Union members to retain their membership during the contract term.

During the strike period, approximately 143 employees, of the 1900 production and maintenance employees represented by the Union at the Michoud plant, crossed the picket line and reported to work. All of these persons had been Union members during the 1963-1965 contract period. Some of the employees who worked during the strike made no attempt to resign from the Union during the strike. The remaining 119 submitted their voluntary resignations, in writing, to both the Union² and the Company. About 61 of the employees who resigned did so before they crossed the picket line and returned to work. Another 58 resigned during the course of the strike, but after they had crossed the picket line in order to work. All resignations were submitted after the expiration of the 1963-1965 contract, and before the execution of the new agreement, and all were submitted prior to the imposition of any Union discipline. Union members had not been warned prior to the strike that disciplinary measures could, or would, be taken against those who crossed the picket line to work, nor had any such discipline been imposed on members by Booster Lodge 405 prior to this time.

In late October or early November of 1965, the Union notified all members and former members who had crossed the picket line to work during the strike that charges had been preferred against them under the International Union Constitution, for "Improper Conduct of a Member" due to their having "accepted employment . . . in an establishment where a strike existed." They were advised of the dates of their Union trials, which were to be held even in their absence if they did not appear, and they were notified of their right to be represented by any counsel who was a member of the International Association of Machinists and Aerospace Workers. Pursuant to the International Union Constitution provision which permitted the imposition of disciplinary measures, including "reprimand, fine, suspension, or expulsion from membership, or any lesser penalty or combination," where a member had been found guilty of misconduct after notice and a hearing, fines were imposed on all employees who had worked during the strike. No distinction was drawn between those persons who had resigned from the Union during the course of the strike and those who had remained Union members.

Employees who did not appear for trial before the Union Trial Committee and those who appeared but were found guilty were fined $450.00 each, the amount determined by the membership, and they were barred from holding a Union office for a period of 5 years. The fines of about 35 employees who appeared for trial, apologized, and pledged loyalty to the Union, were reduced to 50 percent of the earnings they received during the strike.³ In some of these cases the time period during which these persons were prohibited from holding Union office was decreased to a period based upon the number of days of strike-breaking activity each respective person had engaged in. None of the disciplined individuals processed intra-Union appeals.

Although none of the $450.00 fines has been paid, reduced fines have been paid in some instances. The Union has sent out written notices that the matter has been referred to an attorney for collection, that suit will be filed if the fines remain unpaid, and that reduced fines will be reinstated to $450.00 in the event of nonpayment. The Union has also filed suit against nine individual employees to collect the fines (plus attorney's fees and interest). None of these suits has yet been resolved.

On February 18, 1966, the Company filed a charge with the N.L.R.B., alleging that the Union had violated Section 8(b) (1) (A) of the N.L.R.A.,⁴ and a complaint was issued by the General Counsel. The Labor Board decided that the Union violated section 8(b) (1) (A): (1) by fining those employees who had resigned from the Union before they returned to work during the strike; and (2) by disciplining those employees who had resigned after returning to work, to the extent that the fines were imposed for their working during the strike after their resignations. The Board further found that the Union did not violate the Act (3) by fining members for crossing the picket line to work, and by fining those employees who had resigned after returning to work during the strike, for work they performed during the strike prior to their resignations.

Finally, the Board determined (4) that it was not the intention of Congress to have the N.L.R.B. regulate the size of such disciplinary fines and establish standards with respect to their reasonableness, and it dismissed the claim that otherwise legal fines may be rendered violative of the N.L.R.A. if unreasonably large. A cease and desist order was issued, and the Union was ordered to refund any fines collected from employees who had resigned before returning to work. The Union was also required to refund a pro rata portion of those fines collected from employees who had resigned after first engaging in work during the strike, so that the part of the fines retained would only reflect preresignation conduct.

Booster Lodge 405 challenges the Board's conclusion that a mid-strike resignation from a union relieves an individual from the burden of union discipline with respect to his post-resignation activity, while The Boeing Company contends that the N.L.R.B. should have examined the reasonableness of the fines imposed by the Union. The Board seeks enforcement of its order.

Part I of this opinion discusses the legality of the imposition of the disciplinary fines by the Union in response to the strikebreaking by the approximately 143 employees involved. Part II considers the effect the reasonableness of the fines has upon their propriety under the N.L.R.A., and the proper function of the N.L.R.B. in this area. Finally, Part III deals with the propriety of the Board's remedial order.

I The Legality of the Disciplinary Fines

A. The Employees Who Did Not Resign

As early as 1954, in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954), the Labor Board held that a union did not violate Section 8(b) (1) (A) of the Act by imposing a fine on a member for his failure to perform picket duty during the course of an authorized strike. The Board declared that the proviso to 8(b) (1) (A)⁵ precluded any interference by it with the internal affairs of a labor organization in such a situation. In N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), a divided Supreme Court similarly determined that a union did not violate the N.L.R.A. when it imposed, and attempted to enforce through court action, reasonable fines against members for their failure to honor an authorized picket line. Instead of relying upon the express language of the proviso, however, the Supreme Court carefully analyzed the entire legislative history of ...