Machinists Local 1327, Aerospace Workers

MACHINISTS LOCAL 1327, AEROSPACE WORKERS Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 115 (Dalmo Victor) and Viola Lapinski and Hilda Hall and Polmyra Gomes. Cases 20-CB-3488, 20-CB-3491, and 20-CB- 3629 August 29, 1977 DECISION AND ORDER Upon charges duly filed by Viola Lapinski, Hilda Hall, and Polmyra Gomes, the Regional Director for Region 20 of the National Labor Relations Board, acting on behalf of the General Counsel of the Board, issued complaints alleging that the Respon- dent Union, Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 115, violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.). 1 The Respondent filed answers to the complaints in which it admitted certain allegations of the complaints and denied others, including all those charging it with the commission of any unfair labor practices. 2 On various dates in December 1975 and January 1976, the General Counsel, the Charging Parties, and the Respondent Union entered into a stipulation in which they agreed to certain facts relevant to the issues in this proceeding. They also agreed to waive a hearing before an Administrative Law Judge, the issuance of an Administrative Law Judge's Decision, and the presentation of any evidence other than that contained in the stipulation and the exhibits there referred to. By order dated February 20, 1976, the Board approved the stipulation and transferred the proceeding to the Board. Thereafter, the General Counsel and Respondent Union filed briefs with the Board. The Board has considered the entire record in this case, including parties' briefs, and makes the follow- ing: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Dalmo Victor, the employer of the Charging Parties, has been at all times material a division of Textron, Inc., and has been a California corporation with a place of business at Belmont, California, where it has been engaged in the manufacture of I Lapinski and Hall filed their charges in Cases 20-CB-3488 and 20-CB 3491 on May 7 and 12, 1975, respectively. On September 16, 1975. the Regional Director for Region 20 issued an order consolidating those cases, a consolidated complaint, and notice of hearing. Gomes filed her charge in Case 20-CB-3629 on September 11. 1975, and the Regional Director issued complaint and notice of heanng in that case on October 10, 1975. Also on 231 NLRB No. 115 electronic products. During the past year, Dalmo Victor sold products valued in excess of $50,000 directly to customers located outside the State of California and purchased and received supplies at its California operations valued in excess of $50,000 directly from suppliers located outside the State of California. Accordingly, we find, in agreement with the parties, that Dalmo Victor has been at all times material an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union has been the bargaining representative of employees of Dalmo Victor, herein called the Employer, since around 1949. At all times material Hall, Lapinski, and Gomes, the Charging Parties, have been employees of the Employer. On or about April 19, 1974, the Respondent called a meeting of its members, who at the time included the Charging Parties, and told them of the then newly adopted union constitutional provision which provided as follows: 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 com- mencement. 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. At all times since that meeting Hall, Lapinski, and Gomes have been aware of the constitutional provision. In early June 1974, the Union called a meeting to take a strike vote and at that time again that date, the Regional Director issued an order consolidating the three cases and also a notice of consolidated hearing. 2 The Respondent Union served its answers to the consolidated complaint in Cases 20-CB-3488 and 20-CB-3491 on September 22. 1975, and its answer to the complaint in Case 20CB-- 3629 ON October 14. 1975. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told its members about the constitutional provision and warned them that anyone crossing the picket line would be fined. The employees, including the Charging Parties, began an economic strike against the Employer on June 3, 1974, which strike has continued to the present. The Union has throughout the strike picketed the Employer. On February 14, 1975, Hall and Lapinski resigned membership in the Union, and the Union received notice of their resignation on February 19. The previous day the two had returned to work at the Employer's struck plant. On May 8, Gomes submit- ted her resignation; the Union received notice of the resignation on May 10; and Gomes returned to work on May 12. On April 16, 1975, the Union fined both Hall and Lapinski $2,277.50 each for working behind the picket line. Gomes was, for the same reason, fined $1,125 on August 6. The amount of the fines equaled the amount each employee has received as strike benefits while out on strike.3 It is agreed that the fines are court collectible. The complaint alleges that the Respondent, by fining the former members for working behind the picket line, violated Section 8(b)(1)(A) of the Act. In support of this allegation the General Counsel relies primarily on the Board's decision in O.K Tool Company, Inc. 4 There the union fined certain former members who had resigned during a strike, for doing struck work. The fines were alleged to be unlawful. The union defended its conduct on the ground that under the terms of its applicable constitutional provision-the same one involved in this proceeding and quoted above-the fining of the "strikebreakers" was proper. A majority of the Board held, however, that not only did the "proscription of postresignation strikebreaking impair a former member's Section 7 right to refrain from concerted activity, but it also is plainly contrary to Scofield's requirement that union members be free to leave the union to escape membership conditions that they consider oner- ous." 5 It, thus, concluded that the union could not legally "levy court-collectible fines against a former :' As noted above, Lapinski and Hall returned to work a day before the Respondent received any notification of their resignation. This fact is not relied on by any party for any reason whatsoever and the stipulation states that no part of these two employees' fines was for crossing the picket line prior to the Respondent's receipt of notice of their resignations. 4 Local Lodge No. 1994, International Association of Machinists and Aeropacre Workers, AFL-CIO (O.K. Tool Company, Inc.), 215 NLRB 651 (1974). 5 215 NLRB at 653. The reference is to the Supreme Court's decision in Scofield v. N. L. R. B., 394 U.S. 423 (1969). '" 215 NLRB at 653. The Board also found in that case that the union unlawfully threatened to fine former members for postresignation "stnke- breaking." as well as unlawfully fining them for such conduct. There is no allegation of unlawful threats in the present case. I The Respondent points to the fact that in O.K. Tool, unlike in the present case, the union had misstated to the fined employees the meaning of the "Improper Conduct of Member" constitutional provision and claims member for exercising his Section 7 rights following lawful resignation from the union."6 There is no substantial or relevant distinction between the situation that faced the Board in O.K. Tool and that which is now before us.7 Nor has the Respondent raised in this proceeding any argument or other consideration showing that the Board's decision in that case was wrong or otherwise inadvisable. Consequently, we find for the reasons set forth in the majority decision in O.K. Tool that the Respondent by fining former members Lapinski, Hall, and Gomes for their postresignation "strike- breaking" violated Section 8(b)(1)(A) of the Act. Our dissenting colleagues disagree with our result here essentially on the ground that they would find that the Union's constitutional provision forbidding postresignation "strikebreaking" was actually a restriction on the employees' right to resign from the Union. From this Member Jenkins concludes that such restriction should be held proper-and thus the fines at issue in this case lawful-as "measures ... within the ambit of the Union's control over its internal affairs" and both he and Member Murphy view the restriction as a means of protecting the strike as a legitimate economic weapon. If indeed the constitutional provision here involved and quoted above were truly a restriction on the right to resign, then, as the dissenters in effect claim, we would be faced with an issue the Supreme Court expressly left open in its Scofield and Granite State decisions,8 and thus with determining if such a restriction as enforced here with fines is lawful. But that issue is not before us, and we express no opinion on it. For the 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 postresignation that this is a factual difference warranting a different result in this case. The rationale of the concurring opinion in O.K. Tool did rest in part on the fact of misrepresentation. However, the majority decision did not turn at all on that fact but treated it as irrelevant by ignoring it. As precisely set forth, the issue decided by the majority in O.K. Tool-and it is the same issue as that before us now-was "whether or not a labor organization may lawfully .. . impose .. a court-collectible fine on a former member, who has tendered a valid resignation, for conduct following'his resignation which is prohibited by the union's constitution but protected by Section 7 of the Act." 215 NLRB 651 , 652. 8 Scofield v. N.LR.B., supra, N.L.R.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO [International Paper Box Machine Co.l, 409 U.S. 213 (1972). In the latter case the Court in finding fines on former members unlawful cautioned that it was not deciding "to what extent the contractual relationship between union and member may curtail the freedom to resign." (409 U.S. at 217.) 720 MACHINISTS LOCAL 1327, AEROSPACE WORKERS conduct, i.e., the conduct of employees who are no longer members.9 Consequently, as we have found above, the Union's fining the Charging Parties for crossing the picket line was, as we held in identical circumstances in O.K. Tool, 10 unlawful under the Supreme Court's decision in Scofield and Granite State. The contrary result championed by our dissenting colleagues is based on an obvious miscon- truction of the matters here before us. I The dissenters treat the notice and consent re- quired for enforcement of the union-member con- tractl2 as no more than an annoying technicality. Otherwise they could not seriously argue that the reasoning necessary to equate the Respondent's restrictions on postresignation activity with restric- tions on resignation is consistent with reasonable notice that members may not resign during a strike. The same provision was described to the Supreme Court in Boeing as explicitly binding "a member, notwithstanding his resignation, to abstain from strikebreaking for the duration of an existing strike." 13 There is a distinction between postresignation restrictions and restrictions on resignation, implicitly acknowledged, if not identified, by the dissenters. A member has the right to participate in his union's affairs, but surrenders that right on resignation. The dissenters suggest nothing which would show that the Respondent continued to allow a former member to participate in its affairs "notwithstanding his resigna- tion." The absence of that right and membership benefits was decisive in O.K. Tool. Contrary to Member Murphy, we see no reason to believe that the Textile Workers interests in Granite . Our construction here not only is required by a plain reading of the language involved but also is wholly consistent with the actual position taken by the Union in stipulating that the Charging Parties did indeed resign as of the date it received their written resignations. Member Jenkins' discussion seeking to avoid the implications of this stipulated fact initially concedes, as it must, that the employees did effectively resign on such date. This concession is all that is necessary to reveal the unsubstantiality of his position. As for his other observations concerning the stipulated resigna- tions, they are, even if true, largely irrelevant but seem to us to be little more than an involved rationalization intended to resolve the discrepancy between his theory of the case and the actual facts. Finally, we might add that, if the Union had intended to place restrictions on the right to resign, it could have done so directly and unambiguously, but this it has not done. t" Member Jenkins states in effect that in O.K. Tool the majority failed to realize that the Supreme Court decisions on which they relied (Scofield and Granite Slate, both cited supra) involved contexts "in which the union had placed no restrictions on the right of a member to resign" and seems to imply that if they had realized this the majority would have reached a different result there. We fail to see how he could conceivably have come up with any such idea, Even a most casual reading of the O.K. Tool decision shows that the majority considered the constitutional provision in dispute to be a restriction on postresignation conduct, not a restriction on resignation itself. Consequently, the O.K. Tool "context" was the same as the "context" in the cited Supreme Court cases. Thus, even if the O.K. Tool majority did not realize, as Member Jenkins claims, that those Supreme Court cases involved contexts with no restrictions on the right to resign, we fail to see what difference it would have made to the majonty's resolution of the issues before them. Of course, the majority was well aware that neither their decision nor the Supreme Court decisions were concerned with the issue of State were any less legitimate than are those of the Machinists here or in Boeing, yet the attempts to enforce those interests were found unlawful by both the Board and the courts. The issue is not now, and has never been, whether unions have legitimate interests in restricting resignations or postresignation activity. They do. But those interests are not absolute. The issue is whether unions' attempts to protect those interests impermissibly intrude on other matters of concern under the national labor policy. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the Employer's opera- tions, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, certain unfair labor practices, we shall order it to cease and desist therefrom. In order to effectuate the purposes of the Act, we shall also order the Respondent to rescind the unlawful fines, to refund any money paid to it as a result of the fines, with interest computed at 7 percent per annum,14 and to post the notice attached as an appendix to this Decision and Order. restrictions on resignation. for they stated that such an issue was "not raised by the facts of this proceeding." (215 NLRB at 653.) i" Member Jenkins' position might also be construed as a claim that the fines are legitimate because the Union's constitutional provision provides for resignation subject to automatic revocation in the event a former member breaches his obligation not to cross a picket line-a rather novel concept-or provides only for limited resignation: i.e., resignation for all purposes other than noncompliance with the no-strikebreaking clause. Both of these rather unrealistic constructions come down to much the same thing and would in substance represent, if correct, an attempt by the Union to extend an obligation of membership to employees who, in view of their contingent or partial resignations, no longer have any of the rights and privileges of membership. (See O.K. Tool Co., 215 NLRB at 653.) Thus, the fines for crossing the picket line would under those theories find no sanction in the Supreme Court's decision in N. LR.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 196 (1967), and would be in conflict with the Court's statement in Scofield supra at 430, to the effect that fines are lawful only against members "who are free to leave the union and escape the rule" the breach of which would result in a fine. 12 See N.L R.B. v. Granite State Joint Board, supra at 217. fn. 5: Booster Lodge No. 405. International Association of Machinists & Aerospace Workers, AFL-CIO [Boeing Co.] v. N.L R.B., 412 U.S. 84, 88 (1973). i3 412 U.S. at 89, fn. 9. 14 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW i. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By imposing court-collectible fines on former members who had duly resigned from the Union, for their postresignation crossing of a sanctioned picket line and working during a strike at Dalmo Victor, Respondent restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 115, Burlingame, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees who have resigned from, and are no longer members of, Respondent in the exercise of the rights guaranteed them in Section 7 of the Act by imposing court- collectible fines on such employees because of their postresignation conduct in working at Dalmo Victor during the strike which began on June 3, 1974. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Rescind the fines levied against Viola Lapinski, Hilda Hall, and Polmyra Gomes because of their postresignation work for Dalmo Victor during the strike which begain in June 1974, and refund to them any money they may have paid as a result of such fines, plus interest. (b) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respon- dent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it f5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a for 60 consecutive days thereafter in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 20 signed copies of said notice for posting by Dalmo Victor, if the Company is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, after being duly signed by the Respon- dent's authorized representative, shall be returned forthwith to the Regional Director. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting: The majority accepts the fact that the Union had a validly adopted constitutional provision which de- fines "Improper Conduct of Member" as including the failure of a member to observe a picket line for its duration, notwithstanding his resignation, when the picket line was established prior thereto. The majority also accepts the facts that the Union brought this provision to the attention of its members, including the Charging Parties, before the membership voted to strike, and that the Charging Parties were aware of this provision before the strike was called. In addition, the majority does not contest the Union's claims that this provision was properly adopted and reasonably enforced against the Charg- ing Parties. The majority likewise acknowledges that the amount of the fines assessed was equal to the amount each employee had received as strike benefits while out on strike. Despite these acknowledgments, the majority finds the Union's actions in fining the Charging Parties pursuant to the above-stated constitutional provision to be violative of Section 8(b)(1)(A) of the Act, on the strength of the Board's decision in O.K Tool Company, Inc., supra. While I concurred in the similar result reached in that case based solely on the substantially different set of facts involved there, I specifically refrained from taking any position on the broader legal issue of whether or not a union may, on proper notice and in the absence of any other legal impediment, enforce an otherwise valid constitution- al provision forbidding former members from return- ing to work following lawful resignation from the Union. That legal issue has been squarely presented Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 722 MACHINISTS LOCAL 1327, AEROSPACE WORKERS here by a stipulated record which effectively elimi- nates any other possible misconduct on the part of the Union in terms of the manner in which the constitutional provision was adopted or implement- ed, or in terms of the actual notice given to the Charging Parties. Contrary to the majority both here and in O.K. Tool, I would conclude that the Union was entitled to levy these fines as a means of enforcing a lawful rule, as such measures are within the ambit of the Union's control over its internal affairs. My principal disagreement with the majority is based on the O.K. Tool majority's too narrow reading of Supreme Court precedent in this area. The Court in Scofield, supra, stated that it had taken and would continue to take a dual approach to the problem of evaluating the validity of union fines vis-a-vis Section 8(b)(l)(A) of the Act, such that properly adopted union rules, reflecting legitimate union interests, which impair no policy Congress had imbedded in the labor laws, and which are reasonably enforced against members, are permissible under that section, whereas fines against exmembers would be viola- tions. That statement reflects the Court's view that union rules and their enforcement are an internal matter governed by contractual considerations as embodied in the union's constitution and bylaws, which are agreed to by the members in consideration for the benefits attained by membership. In support of this view, the Court has noted that union security cannot compel such membership. It is also important to note, however, that in expressing this view, the Court was speaking in a context in which the union had placed no restrictions on the right of a member to resign. 6 While the significance of that context was appar- ently lost on the O.K. Tool majority, the Supreme Court itself acknowledged its importance in Granite State, '7 decided after Scofield, when as part of its decision finding the union's action in fining resigned members violative of Section 8(b)(l)(A), it dis- claimed any consideration of the problem of constru- ing a union's constitution or bylaws defining or limiting the circumstances under which a member may resign from the union, since no such provision was involved in either that case or in Scofield. Thus, the O.K Tool majority, while citing the language in Granite State by which the Court set forth its 6' I agree with the majority that a most casual reading of the O.K. Tool majority decision might lead one to conclude that inasmuch as it was found there that the factual "context" did not involve a restriction on the right of a union member to resign, the union's conduct was unlawful under prior Supreme Court precedent. However, a close reading of that decision, as well as the facts of that case-admittedly identical to the facts here relative to the constitutional provision under scrutiny reveals the fallacy of concluding that the provision is anything other than a restriction on the right of a member to resign during an ongoing strike. Whether or not the majorities rationale for finding the union's conduct violative of the Act, ignored the fact that in saying that a member must be "free to refrain in November from the action he endorsed in May" the Court specifical- ly limited this principle by the possibility that a union may restrict this freedom by an express constitutional limitation, properly adopted, duly instituted, and reasonably applied. The Supreme Court never had such a factual context before it, even though the union in Granite State argued that such a restriction could be implied from its member- ship's participating in the strike vote and ratification of a poststrike rule against aiding and abetting the employer during the strike. Similarly, the Supreme Court rejected the union's contention in a later case 8 that a general constitu- tional proscription against strikebreaking would suffice as an implied restriction on the right of a member to resign during a strike in order to avoid the rule against strikebreaking. Contrary to the implication of the majority, the 1973 decision of the Court in Boeing did not consider the validity of the provision here invoked by the Union, inasmuch as the Union's constitution was amended in 1974 to add the explicit language relied on here. The Court in Granite State as well as in Boeing rejected the union's contentions since its concern with the right of a member to resign and escape the effect of union rules was too strong to permit the waiver of this right by implication. Nevertheless, the Court did leave open the question of the possible validity of a conscious waiver as embodied in a reasonable constitutional provision limiting this right, to be decided when and if a union adopted such a provision. The Court chose not to decide this issue absent a factual context, presumably so that the adoption and implementation, as well as the substan- tive validity of such a limitation could be examined together. Indeed, it was these surrounding circum- stances in O.K Tool which led me to concur in the result reached there without commenting on the substantive issue, even while recognizing that the provision, under proper circumstances, did raise the legal issue. The majority in O.K. Tool, however, simply read the provision before it as not limiting resignations, but only postresignation strikebreaking, thus sidestepping the legal issue left open by the Court. In so doing, it gave no justification for this here and in O.K Tool would have reached a different result if they had interpreted the provision as I do is something I can only speculate about since neither has spoken to the question left open by the Supreme Court, but instead have chosen to construe the facts in such a way as to obviate it. i7 N.LR.B. v. Granite State Joint Board. Textile Workers Union of Aenrica, Local 1029, AFL-CIO [lnternational Paper Box Machine Co.], 409 U.s. 213 (1972). 18 Booster Lodge No. 405, International Association of Machinists & Aerospace Workers, AFL-CIO [Boeing Co.] v. N. L R. B., 412 U.S. 84 (1973). 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interpretation except to point out that the respondent union had "conceded" that the fined employees had duly resigned before crossing the picket line. The conclusion is therefore inescapable that, contrary to the almost exclusive reliance the O.K Tool majority placed on Granite State and Boeing in deciding the issue before us, prior Court decisions do not decide the question posed by the constitutional provision here and in O.K. Tool. Moreover, the very fact that the Court was careful to point out that the precise legal question here was not presented by the facts in Granite State or in Boeing is clear evidence that the Court felt that neither its decisions in those cases nor its prior analysis of the general area in Scofield was determinative of the instant problem. In light of the above, and inasmuch as it has been admitted that the fines were levied pursuant to the Union's constitutional provision, it becomes neces- sary to determine whether or not the language of that provision is in reality a restriction on a member's right to resign or, as the majority concludes, an attempt to exercise control over exmembers. One attempt the majority makes to justify its construction of the provision is that its construction is consistent with the "actual" position taken by the Union in stipulating that the Charging Parties did resign as of the date it received their written resignations. This apparently is in reference to the Union's admitting to those allegations in the com- plaint concerning the tendering of resignations. While it is unquestionably correct that the resigna- tions were stipulated as having occurred when they did and that the stipulation may be consistent with the majority's construction, such facts are in no way inconsistent with, nor do they undermine in any way, the Union's contention that these resignations were subject to the restrictions contained in the constitu- tion. There is no reasonable action the Union could have taken, at the time these resignations were tendered, to reaffirm the binding nature of its constitutional provision conditioning these resigna- tions on the members' prior commitment to honor the strike already begun for its duration. A failure to accept these resignations, at a time before these individuals had crossed the picket line, would have constituted a refusal by the Union to abide by its own constitution and the shoe would be on the other foot. However, the Union lived up to its contract with its members and accepted these resignations pursuant to its constitution, while the Charging Parties' subsequent crossing of the picket line was a breach of their prior commitment which imposed the condition that their resignations did not confer the right to cross the picket line. The majority also contends that the language of the provision places no restriction on the right to resign. This contention is incomprehensible in light of the explicit language of that provision stating that "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 [in question]." While there is no evidence as to what the Charging Parties understood by this, the majority does not explain in what respects the above language is either ambiguous or unclear. Although my col- leagues could perhaps suggest language that would be more emphatic or more direct, I cannot accept a contention that the words chosen by the Union are unintelligible or unclear, and there is no contention that these words were not fully understood by all concerned. What is clear is the foundation of the majority's position, that because the Union failed to use some favored form of language (what this language might be is not revealed), this case is outside the realm of the potentially valid action suggested by the Supreme Court. Finally, the majority attempts to bolster its construction by labeling the result of the construc- tion I would give the provision as constituting either contingent or partial resignation. While I agree that such characterizations might well apply, I fail to see how or why they would be "unrealistic" as the majority says, inasmuch as the result reached, no matter how you label it, is precisely what was intended by the Union and accepted by the mem- bers; and it is a result which the Supreme Court inferentially found to be potentially valid. Moreover, to say, as the majority does, that the effect of such a construction would be to limit somewhat the free- dom of a member to leave the union to escape the rule is to ignore the fact that the Court in stating this principle specifically left open the possibility that some limitation might be possible if it was imple- mented properly within the contractual relationship between union and member. Granite State, 409 U.S. at 217. There are no facts here from which it can be concluded that the Charging Parties were not fully aware of the restrictions placed on them by the language in question, and the majority admittedly has offered no reasons why the restrictions here should not be dealt with by the Board as would any other internal union matter. Obviously some restric- tion of rights is involved, but when the employees freely, knowingly, and expressly agree to such limitations in order to attain the additional strength such a prior commitment gives to the strike as an economic weapon, I can perceive no reason in Board law, Supreme Court precedent, or overall labor policy to declare such a prior commitment a nullity. Rather it seems to me to be a flagrant exercise in semantic double-think to hold, as the majority does, 724 MACHINISTS LOCAL 1327, AEROSPACE WORKERS that the words "resignation shall not relieve a member of his obligation [to honor a strike]" are not a restriction on the right to resign. What magic words would the majority have a union utilize before it will acknowledge the existence of this issue, about which it here refuses to express any opinion? In sum, as I view the Supreme Court decisions herein as not having foreclosed the possible validity of union restrictions on postresignation strikebreak- ing, and since the issue here has been limited by stipulation to what amounts to a purely legal question, I would conclude on that basis that the restriction here is not contrary to Board law, excepting O.K. Tool as here construed, or to the policies of the Act, and would therefore find, contrary to my colleagues in the majority, that the Union's actions were not violative of Section 8(b)(1)(A). To whatever extent O.K Tool is inconsis- tent, I would overrule it. The intent of the provision, as a means by which unions protect the strike as a legitimate economic weapon, has been consistently accepted as valid by this Board as well as the Supreme Court. The amounts of the fines were limited to the actual amounts of money received by the individuals from the Union when they were supporting the strike and were therefore neither excessive nor punitive. Although the majority has seen fit to suggest that underlying the technical approach it takes through- out most of its decision there lies a question of balancing legitimate interests, it nevertheless stead- fastly adheres to its basic rationale that the Union's constitution does not place any restrictions on a member's right to resign, thus essentially foreclosing any real discussion of the broader legal issue involved. If indeed the issue here is, as the majority suggests (and I agree), "Whether [the Union's] attempts to protect [its] interests impermissibly intrude on other matters of concern under the national labor policy," why is it that its holding is predicated on the conclusion that this issue is "not before us, and we express no opinion on it." The majority cannot have it both ways. Either they must recognize the fact that this case presents the essential legal and policy issue, or leave it open for decision in a later case. Accordingly, I would dismiss the complaint in its entirety. MEMBER MURPHY, dissenting: I cannot agree with the conclusion that the Respondent acted unlawfully in imposing fines under the facts of this case. I believe a union member has a right under Section 7 of the Act to resign member- ship from his or her union at any time, subject to such reasonable restrictions as the union through its constitution and bylaws may have duly placed on resignations and timely brought to the member's attention. The relevant Supreme Court decisions certainly do not preclude this conclusion, even if they do not expressly endorse it. See, e.g., Scofield v. N.L.R.B., 394 U.S. 423 (1969); N.L.RB. v. Granite State Joint Board etc., 409 U.S. 213 (1972). Here I find that a realistic construction of the interrelated provisions of Respondent's constitution clearly show that it contained such a reasonable and valid restriction on resignation. Thus, the restrictions on working behind a picket line during a strike are in any practical sense an obvious restriction on the right of members to resign from the Union just before or during a strike for the purpose of working at their employer's struck plant. Furthermore, I believe that such a restriction on the right to resign under the facts here is directed toward protecting a legitimate union interest and is, thus, reasonable and lawful. Consequently, in the circumstances before us, where the employees were given full and timely notice of the prior existence of a reasonable restriction on their right to resign, I would find, contrary to the majority, that Respondent in finding the Charging Parties for working behind the picket line did not, as alleged, violate the Act. I would, therefore, dismiss the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees who have resigned from the Union and who, in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, work after their resignation at Dalmo Victor during the strike which began in June 1974, by imposing court-collectible fines on them for working during the strike. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL rescind the fines levied against Viola Lapinski, Hilda Hall, and Polmyra Gomes be- cause they worked at Dalmo Victor after their resignations from the Union during the strike which began in June 1974, and refund any money they may have paid as a result of such fines, plus interest. MACHINISTS LOCAL 1327, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, DISTRICT LODGE 115 726