National Labor Relations Board v. MacHinists Local 1327, International Association of MacHinists and Aerospace Workers, Afl-Cio, District Lodge 115 ( 1979 )

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order against the respondent Union. The Board’s Decision and Order are reported at 231 N.L.R.B. 719 (1977). We decline to enforce the Board’s order, and remand to the Board for further proceedings.

The facts were stipulated, and the case went directly to the full Board. It held, by a 3 to 2 vote, that the Union had violated § 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A) by fining three of its members who, during a strike, had resigned, crossed a picket line, and gone back to work.

The Board’s condensed statement of the stipulated facts is as follows:

Since approximately 1949 the Union has been the collective-bargaining representative of employees of Dalmo Victor, a division of Textron, Inc., (“the company”). About April 19, 1974, the Union called a meeting of its members and apprised them, including Company employees Hilda Hall, Viola Lapinski, and Pol-myra Gomes, of an amendment to the Union’s constitution that provided as follows (R. 21):

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 or within 14 days preceding its commencement. Where observance of a primary picket line is required, resignation shall not relieve a member of his obligation to observe the primary picket line for its duration if the resignation occurs during the period that the picket line is maintained or within 14 days preceding its establishment.

On June 3, 1974, the Union called another meeting to take a strike vote and again told its members, including Hall, Lapinski, and Gomes, that under the provision anyone crossing the picket line might be fined. On that same day the Union commenced an economic strike against the Company and established a picket line. (R. 22.)

Eight months later, on February 14, 1975, Hall and Lapinski submitted written resignations to the Union; they then returned to work, crossing the still-existing picket line on February 18. Gomes resigned from the Union on May 10,1975; she then crossed the picket line [and returned to work] on May 12. On April 16, 1975, the Union fined Hall and Lapinski $2,277.50 each and on August 6, 1975 the Union fined Gomes $1,125 for working behind a picket line. (R. 22-23.) The fines are court-collectible. (R. 30).

The strike was still continuing when the stipulation was executed on January 27, 1976.

In holding that the Union’s constitutional provision did not justify the discipline, the Board found that the provision did not purport to restrict the members’ right to resign from the Union, but rather sought only to unlawfully regulate post-resignation conduct. The dissenting Board members would have found the provision to be a restriction upon the right to resign, rather than a restriction upon post-resignation conduct. We think that the Board’s holding is hypertechnical, and that the dissenting Board members state and apply the law more accurately.

We begin with the power of a union to discipline its members for crossing its lawful picket line or returning to work during a strike. A union rule against that conduct is a legitimate internal regulation of the conduct of its members, and imposition of a fine on a member is lawful under § 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A). N. L. R. B. v. Allis-Chal-mers Mfg. Co., 1967, 388 U.S. 175, 195, 87 S.Ct. 2001, 18 L.Ed.2d 1123. See also N. L. R. B. v. Granite State Joint Board, Textile Workers Union, 1972, 409 U.S. 213, 215, 93 S.Ct. 385, 34 L.Ed.2d 422.

On the other hand, a union member has a right to resign from his union, protected by Section 7 of the Act, 29 U.S.C. § 157. N. L. R. B. v. Martin A. Gleason, Inc., 2 Cir., 1976, 534 F .2d 466, 476. Moreover, when the member does resign, “when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street.” Granite State, supra, 409 U.S. at 217, 93 S.Ct. at 387. To the same effect, see Booster Lodge No. 405, Int’l Ass’n of Machinists v. N. L. R. B., 1973, 412 U.S. 84, 88, 93 S.Ct. 1961, 36 L.Ed.2d 764. It is these two decisions upon which the Board majority placed its principal reliance.

However, in each case, the Court carefully restricted its holding. In Granite State, supra, Justice Douglas’ opinion for the Court says:

Neither the contract nor the Union’s constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign (409 U.S. at 214, 93 S.Ct. at 386)

We have here no problem of construing a union’s constitution or bylaws defining or limiting the circumstances under which a member may resign from the union. (Id. at 216, 93 S.Ct. at 387.)

Similarly, the Per Curiam opinion in Booster Lodge, supra, which simply followed Granite State, says:

Neither its [the Union’s] constitution nor its bylaws contained any provision expressly permitting or forbidding such resignations. (412 U.S. at 85 — 86, 93 S.Ct. at 1963.) . . .

[We] leave open the question of the extent to which contractual restriction on a member’s right to resign may be limited by the Act. (Id. at 88, 93 S.Ct. at 1964.)

It was after the decision against it in Booster Lodge, supra, that the Machinists Union, in 1974, adopted the amendment to its constitution that is quoted in the stipulation of facts. The Union asserts that its purpose was to impose “contractual restrictions on a member’s right to resign,” the validity of which was left open in Booster Lodge. The Board’s position is that

[T]he Union’s constitutional provision is clear and unambiguous in its language, and that language places no clear restriction, no subtle restriction, no restriction by implication, and, in sum, no restriction whatsoever upon an employee’s right to resign. Affirmatively, the provision seeks to do what its plain language says it seeks to do, that is, control, not resignations by members, but rather post-resignation conduct, i. e., the conduct of employees who are no longer members.

We cannot accept this hypertechnical reading of the Union’s constitution. It plainly tells its members that resignation “shall not relieve a member from his obligation to refrain from accepting employment” at the struck establishment, or from his “obligation to observe the primary picket line” during the strike or the picketing, if the resignation occurs during that time or 14 days before. Surely that is a “restriction on a member’s right to resign,” Booster Lodge, supra, a “defining or limiting [of] the circumstances under which a member may resign,” Granite State, supra. Apparently the Board majority would confine these phrases to provisions that expressly prohibit resignation at certain times or under certain circumstances. Such a provision would be a more drastic limitation on the member’s right to resign, and thus less likely to be upheld, than the provision that is before us.

In short, we conclude that this case presents the question reserved by the Court in Granite State and Booster Lodge. We answer that question in paat, by concluding that the provision before us defines or limits the circumstances under which aamem-ber maa resign, and is a restriction on a member’s right to resign.

The next question is whether the provision, construed as we construe it, is valid. Obviously, that question was not reached in Granite State or Booster Lodge. It was expressly reserved by the Board majority in this case (231 N.L.R.B. at 720). We should give the Board, the expert body in the field of labor relations, an opportunity to consider and decide the question. See N.L.R.B. v. Food Store Employees Union, 1974, 417 U.S. 1, 8-9, 94 S.Ct. 2074, 40 L.Ed.2d 612; Mohland v. N.L.R.B., 9 Cir., 1968, 394 F.2d 701, 704.

The petition for enforcement of the Board’s order is denied. The case is remanded to the Board for further proceedings consistent with this opinion.