Local 1255, International Association of Machinists Andaerospace Workers, Afl-cio, Petitioner, Cross-respondent, v. National Labor Relations Board, Respondent, Cross-petitioner, 456 F.2d 1214 (5th Cir. 1972)

This case is before the Court on the petition of Local 1255, International Association of Machinists and Aerospace Workers, AFL-CIO [the Union] to review and set aside an order of the National Labor Relations Board and on the cross-application of the Board to enforce the order.

On March 17, 1970 the Union struck Mason & Hanger-Silas Mason Company and established a picket line at the Company's Amarillo, Texas plant. Picketing continued from March 17 through April 3, 1970. Theron Howard, Jr., an employee of the Company, was a member of the Union when the work stoppage began. He crossed the picket line and worked throughout the strike. On March 18, the Union received a letter from Howard stating that he wished to be dropped from membership effective March 16, 1970.

On April 4, 1970 a member of the Union preferred intra-union charges against Howard for refusing to honor the picket line. Howard was found guilty as charged and the following penalty was voted by the Union:

You shall be fined an amount equal to the wages earned by crossing the picket line at Pantex Plant or be expelled from any Local Lodge of the International Association of Machinists until the fine is paid and all other constitutional requirements are fulfilled.

Howard responded by filing an unfair labor practices charge against the Union based on Sec. 8(b) (1) (A) of the National Labor Relations Act, 29 U.S.C.A. Sec. 158(b) (1) (A).

Sec. 158(b) It shall be an unfair labor practice for a labor organization or its agents-

(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: 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;

Sec. 157 [Sec. 7 of the NLRA]:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . . . A hearing before a Trial Examiner was waived by both parties and the case went directly to the Board.

The Board found that Howard's resignation was effective when received by the Union on March 18. It held that the Union was free to punish him for crossing the picket line the two days before he quit the Union, March 17 and 18, but that it was barred by Sec. 8(b) (1) (A) of the Act, supra, from disciplining him for postresignation strikebreaking.

This is a case of first impression in this Circuit. The facts are not in dispute. The legal issue before us, stated in its broadest terms, is whether a union may penalize a member, who resigns during a strike and returns to work, for conduct occurring after his resignation.¹  The Act does not provide a clear answer, but instead presents a somewhat conflicting matrix of legislation comprised of Secs. 7 and 8(b) (1) (A). Sec. 7 grants employees the right to refrain from concerted union activities except in circumstances not relevant here. Sec. 8(b) (1) (A) makes it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of their Sec. 7 rights. It would thus seem at first glance that an employee-union member is free to eschew participation in strikes without fear of union discipline. This is, however, not the law. Union members may be disciplined by various means, including court-enforceable fines. NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175, 87 S. Ct. 2001, 18 L. Ed. 2d 1123 (1967).

The Board argues, however, that although Sec. 8(b) (1) (A) permits punishment of members, it absolutely prevents a union from imposing any form of penalty on an employee who has resigned from the union for conduct occurring after his resignation is effective. The Union replies that it has an unqualified right to punish members who quit during a strike for crossing the picket line during the remainder of that strike. The Union argues alternatively that the proviso to Sec. 8(b) (1) (A), which permits unions to prescribe their own rules "with respect to the acquisition or retention of membership" in the union, at least gives it the right in the instant case to punish Howard for his postresignation strikebreaking by giving him the choice of paying a fine or being expelled.²  We find the Union's alternative contention persuasive. Since Howard had already resigned when the penalty was imposed, the thrust of the penalty was to condition readmission to membership on payment of the fine. The sanction for nonpayment of the fine was thus confined to the "acquisition or retention of membership," a domain which is reserved to the Union under the Act.

In the instant case, the Board adopted the position it took in the Boeing case, supra at note 1, that employees' postresignation acts are wholly beyond the pale of union discipline. The facts in the Boeing case were, however, distinguishable from those in the case before us. There the fines were not imposed in the alternative as they were here-that is, the employees were not given a choice of paying the fine or being expelled. In Boeing the union filed suit in some cases and threatened suit in others against its former members to collect their fines. In contrast, no suit has been filed in the instant case. Under the terms of the penalty imposed on Howard, see text supra, he may not be sued for crossing the picket line, but only may be expelled. We believe the Union's right to expel a member, or deny readmission to an ex-member, for not paying a fine is clearly protected by the proviso to Sec. 8(b) (1) (A). The proviso makes no distinction between acts done while a member and thoe done while not a member. Either may be taken into consideration in determining who is to be admitted to membership or retained as a member. There is no doubt that the Union could have expelled Howard unconditionally for strikebreaking. It seems that if the Union may absolutely bar him from membership it may conditionally bar him subject to the payment of a fine.

In summary, we hold only that a union member who resigns during a strike and crosses his union's picket line to return to work may be fined by the union for his postresignation strike-breaking when the fine is enforceable only by expulsion from the union.³  We express no opinion on the broader issue raised by the parties but not presented by this case of whether the Act permits a union to levy fines for postresignation conduct that are ostensibly enforceable in court or by any means other than expulsion from union membership.

Enforcement denied.