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

dissenting:

I do not agree with the majority that the Board’s decision is simply a “hypertechnical” construction that can be ignored. I believe there is great substance to the distinctions the Board makes, and I respectfully dissent.

The provision of the union constitution in question here seeks not to condition resignations by members, but rather to control the post-resignation conduct of employees who are no longer union members. I submit it is unlawful for a union to fine a former member for post-resignation conduct otherwise protected by § 7 of the Act. Booster Lodge No. 405, Int’l Ass’n of Machinists v. N. L. R. B., 412 U.S. 84, 88 , 93 S.Ct. 1961 , 36 L.Ed.2d 764 (1973); N. L. R. B. v. Granite State Joint Board, Textile Workers Union, 409 U.S. 213, 215 , 93 S.Ct. 385 , 34 L.Ed.2d 422 (1972). The majority suggests that, because the Union’s constitution specifically prohibits former members from returning to work following resignation during a strike, Booster Lodge and Granite State are not applicable. It concludes that the right of a labor organization to maintain solidarity during a strike and to prescribe its own rules with respect to the acquisition and retention of…

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:

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…

608 F.2d 1219 102 L.R.R.M. (BNA) 2583 , 87 Lab.Cas. P 11,607 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MACHINISTS LOCAL 1327, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, DISTRICT LODGE 115, Respondent. No. 77-3723. United States Court of Appeals, Ninth Circuit. Oct. 10, 1979. Elliott Moore, N. L. R. B., Washington, D. C., on brief; Jesse Etelson, N. L. R. B., Washington, D. C., for petitioner. Louis P. Poulton, Washington, D. C., on brief; Robert M. Simpson, Rose, Klein, Marias, Los Angeles, Cal., for respondent. Petition to Review a Decision of the National Labor Relations Board. Before DUNIWAY and KENNEDY, Circuit Judges, and BONSAL, * District Judge. DUNIWAY, Circuit Judge: 1 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. 2 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…