NLRB v. MARINE WORKERS

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Argument of Norton J. Come

Chief Justice Earl Warren: Number 796, National Labor Relations Board, petitioner versus Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its local 22.

Mr. Come.

Mr. Norton J. Come: Mr. Chief Justice, may it please the Court.

This is case is here on certiorari to the Third Circuit which denied enforcement of the Board's order directed for the respondent Shipbuilding Workers Union and its local 22.

The basic question is whether a Union violates Section 8 (b) 1 (a) of the National Labor Relations Act a disciplining a member for filing an unfair labor practice charge against the Union with the National Labor Relations Board before he's exhausted internal Union procedures for the resolution of his dispute.

Now the basic facts are these, early in 1964, Edward -- Edwin Holder a member of local 22 and employed by the United States Lines Company is a ship painter filed charges with the local accusing its president of conduct violative of the International Union's Constitution.

When the locals trial board determined that the president was not guilty of the charges Holder went out pursuing his intra union procedures the International's constitution provided for appeals to the general membership of the local and then to the general executive board of the International and finally to the national convention filed unfair labor practice charges with the National Labor Relations Board covering the same subject matter.

He filed two charges.

He filed one against the union alleging that the union had cause United States Lines to discriminate against him in employment because of his concerted a activities and violation of Sections 8 (b) (2) and 8 (b) (1) (a) of the National Labor Relations Act.

He filed a companion charge against the company United States Line alleging that the company had discriminated against him because of his union activity in violation of Sections 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act.

After filing of these charges which I might say upon investigation why the board's general director would dismiss for lack of evidence, the Union accused Holder of violating the provision of the Union constitution which provided that every member shall exhaust all remedies and appeals within the Union before he shall resort to any court or other tribunal outside of the Union.

He was found guilty of having violated this provision by filing his charges with the National Labor Relations Board and was expelled from Union membership.

Holder thereupon filed another charge with the National Labor Relations Board which forms the basis for this proceeding alleging that the Union by expelling him for having filed his first charge with the Board violated Section 8 (b) (1) (a) of the act which I will get to it in a moment.

Justice Potter Stewart: Is it clear Mr. Come that nothing affected his employment, nothing in this case affected his employment relationship with US Lines?

Mr. Norton J. Come: That is correct.

There's no dispute that his employment was not affected.

The Board applying its current decision, in which it had held that a Union had violated Section 8 (b) (1) (a) by fining a member who had filed charges against the Board found that the Union here had violated Section 8 (b) (1) (a) and entered in appropriate remedial order.

The Court of Appeals for the Third Circuit set aside the Board's order, its decision is in conflict with what the Court of Appeals for the District of Columbia did in the Roberts case upholding the a comparable board order.

Now, Section 8 (b) (1) (a) which this Court is well familiar with provides that it shall be an unfair labor practice for a labor organization to restraint or coerce employees and the exercise of the rights guaranteed in Section 7 of the Act.

I might say that the statutory provisions are set forth that beginning pages 39 of the government's brief.

Now, there's a proviso to Section 8 (b) (1) (a) that says that this paragraph shall not impair the right of a labor organization to proscribe its own rules with respect to the acquisition or retention of membership therein.

Now, I wish to acknowledge at the outset that I've got a problem with this proviso and I have a further problem with this Court's decision in Allis-Chalmers on the last term which I hope I can overcome but before I get to that I would just like to deal momentarily with the subsidiary contention that there's no in permanent of Section 7 right here to begin with.

Now, I think that the Courts have pretty clearly establish and even the court below acknowledges that the right to file a charge with the National Labor Relations Board even though it is not specifically enumerated in Section 7 of the Act is included in thereby necessary implication for the simple reason and as this Court has recognized only most recently early this time in the Nash case.

The Board can only act on a charges file and therefore as a necessary precondition of vindicating all the other rights they are specifically enumerated in Section 7.

There must be the right to file a charge.

Secondly, I think that it is also well settled that a charge since it merely sets in the motion, the Board machinery doesn't have to have the specificity of a formal plea and that the charge here although the court below seem to think to the contrary was certainly specific enough to show that Holder was complaining of a violation of a Section 7 rights so that I think that --

Justice Potter Stewart: Section 7 protects only concerted activities, isn't it?

Mr. Norton J. Come: Well, that -- that contention is raised by the Union and I think that that is --

Justice Potter Stewart: But that's correct.

I mean in -- that's what its language says, isn't it?

Mr. Norton J. Come: Well, it says the employee shall have a right to self organization before him join or resist labor organizations.

The 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 all such activities.

Now, there is no question that an individual has a right to complain of Union activity that interferes with his right to refrain from engaging in union activity.

I mean, it doesn't have to be concerted in the sense that it's a grievance that he's alleging not only for himself but for other people.

Now, what Holder was complaining about here was that the Union was discriminating or causing the employer to discriminate against him and to prior of employment opportunities because of position that he had either taken or failed to take with regard to the Union.

Justice Potter Stewart: There was no question about that so far as the act is concern that an individual employee has a right to be a charging party to file a charge under Section -- of an unfair labor practice but the question is whether or not that particular right is one of the rights protected Section 7 of the Act and you -- it has to be in order for you to prevail, doesn't it?

Mr. Norton J. Come: Yes, but all I'm saying is that the kind of complaint that Holder may is the garden variety kind of complaint if there were merit to it that would be found to violate 8 (b) (2) if you could prove that the union was discriminating against him for the reason that he alleged or that the company was violating 8 (a) (3) if the act we asked in the union's causing the discrimination.

Secondly, there's also a matter as to whether or not the union had failed to process a grievance alleging this problem in good faith which could raise a problem as to whether there was a duty of the union's violations of the duties of the union's duty fair representation which will give you in 8 (b) (1) (a) violation.

All I'm saying is that although there may be situations at the periphery as to whether the filing of a charge is a Section 7 activity or not.

The sort of thing that Holder was complaining of here if the evidence sustained his contention what have been clear violations of the statue and I think that that is all that we have to show to get in the ball park here.

Now, I'd like to turn to the one other thing under Section 7 and to put and that is that if the individual is protected in his right to file a charge he has the right to file the charge under the act is promptly as possible as this Court pointed out in a decision earlier this term there is no requirement in the National Labor Relations Act for the exhaustion of administrative remedies.

It's a matter of fact, Section 10 (a) of the Act says that the board's power shall not be affected by any other private means of adjustment and Section 10 (b) of the Act which sets a six months statute of limitations period indeed encourages a prompt filing of charges so that we start then at least in our view of it with a situation where the union by expelling Holder for filing charges with the board promptly without exhausting his internal union remedy in a very real sense has restraint or coerced him in a exercising freely the right that Section 7 would give him the file such a charge promptly irrespective of whether an investigation it prove to have merit as long at least is there was no showing that he acted in bad faith and there is none here.

So, then we come to the problem as to whether or not this restraint or coercion is legal restraint or coercion and that brings us to the proviso of the 8 (b) (1) (a) and to this Court's decision in the Allis-Chalmers case.

Now, for the union this is a very easy case.

They read the terms of the proviso and they say that this exhaustion requirement was a membership requirement which Holder a great too when he joined the union by violating this membership requirement.

The union had disciplined and that ends the ball game for them because they apply the plain meaning rule and they say how plainer can you get something that fits within the terms of the statute.

Now, I admit that that is a persuasive argument however, this Court has often times cautioned that a plain meaning rule particularly with respect to Section 8 (b) (1) (a) is not a very reliable guide as to the reach of the provision but you have to look at the statute in the light of its legislative history and even more importantly in the light of the other provisions of the statute because Congress in enacting Section 8 (b) (1) (a) was trying to fit it into a unified statutory pattern.

Now, when we look at the unified statutory pattern, what do we find?

Well, we find first of all as I've indicated that under Section 10 (b) of the Act the board cannot act unless a charge is filed.

You look at the employer's side of the picture and you find that employer coercion in respect to the filing of charges is prohibited.

It's not only prohibited it's specifically under Section 8 (a) (4) but it has been held even by the court below that such employer coercion is been held to violate the general terms of Section 8 (a) (1) of the statute which bars employer in general terms restraint coercion and the exercise of Section 7 rights.

Now, looking at those provisions this Court in the Nash case earlier this term said this indicates that Congress intended that an individual would be free of all coercion in respect to the filing of unfair labor practice charges.

As a matter of fact the Court said, employer and union coercion and referred to the Roberts case, Nash to be sure that not involve a union coercion and involved the question as to whether or not State of Florida's policy of denying an individual unemployment compensation because he had filed charges was in conflict with the scheme of the act.

So then we say in the light of this statutory pattern it is reasonable for the board to read the general restraint and coercion terms of Section 8 (b) (1) (a) as affording the same protection against union coercion in respect for the filing of charges that 8 (a) (1) of the Act provides against employer coercion.

Now, in the Allis-Chalmers case which was decided last term this Court held that Section 8 (b) (1) (a) did not bar a union from finding those of its members who refused to heed the union's strike ball and seeking to collect those fines by state court suits.

Now, in reaching that conclusion the Court relied upon two principle things as I read the decision.

One, that the right to strike was an important weapon in the union's economic arsenal and unless it had a power to find strike breakers, the right to strike would be substantially impaired and secondly, that as the Court read the legislative history of Section 8 (b) (1) (a) and its proviso it indicated that Congress did not propose any limitation with respect to the internal affairs of a labor union.

Now, I should point out that as the Court is well aware that Allis-Chalmers was a five to four decision and Mr. Justice White in his concurring opinion indicated that he did not read the majority opinion as privileging any union rule no matter how unreasonable or unenforceable on its face.

It appeared to be.

Now, apart from that however we submit that as Mr.-- as Judge Fay pointed out for the Court of Appeals in the Roberts case that a union rule that would penalize employees for filing charges with the board goes beyond the area of internal union affairs that Congress was concerned about in enacting the -- and in providing an exemption under Section 8 (b) (1) (a).

As Judge Fay put it such a rule goes beyond the internal affairs of the union and into the public domain --

Justice Potter Stewart: And equally true that this certification petitioner for about remembering if the board is -- how's the board differentiate that situation?

Mr. Norton J. Come: You're quite right in pointing out that the board has differentiated decertification.

Justice Potter Stewart: Well, that does not involved internal union affairs anymore than this case, does it?

Mr. Norton J. Come: Well, I think that the decertification petition case is a trouble someone.

I think that it part takes of much of the same aspects that I'm talking about with respect to a charge.

However, there is this difference and that is that with respect to a charge the individual is complaining that the union has violated his statutory right with respect to a decertification petition he is attacking the very existence of the union itself and a decertification petition is going to --

Justice Potter Stewart: Attack the existence of the union itself either as you well know.

Mr. Norton J. Come: Well, he is in the sense that --

Justice Potter Stewart: Like the automobile workers are not going to be put on existences, they don't represent particular local in a particular small town.

Mr. Norton J. Come: Well, you have the further problem that it's well acknowledge that a union is entitled to protect itself against disloyalty and its ranks and whether decertification petition means that you're going to have an election campaign.

You're going to and the question is whether the union has to keep to its bosom a defector while this election campaign is going on.

Now, this is what the board thought keep the balance the other way.

I think --

Justice Potter Stewart: But there's nothing -- you can't point any thing in the language of the statute that would differentiate that case from this one, can you?

Mr. Norton J. Come: No I cannot.

Justice Potter Stewart: Just a matter of valued judgment by the board in terms of public policy, is that it?

Mr. Norton J. Come: I believe so.

However, I do not think that we have to decide the correctness of that the Board's position in that case and this time, I think --

Justice Potter Stewart: Well, it rather tests the correctness of the board's decision in this case, I suggest.

Mr. Norton J. Come: Well, I won't dispute that but as you can appreciate Your Honor whenever you have competing policies as you do have here, the one hand the policy in favor of giving a protection to internal union affairs and on the other hand a policy of keeping the channels of the board open.

There is going to come point where those policies are going to get very close together and you could very easily go on either side of that line and I think that decertification case is in that area.

I think it gets very, very close.

I think that the charge case however in the Allis-Chalmers case are -- it's easier to separate them out.

Now, I just want --

Justice Potter Stewart: But both agree it's not easier in terms of what to where the statute is written?

Mr. Norton J. Come: No, I think not except with this exception that with respect to the filing of a charge Section 10 (b) makes it perfectly clear that a board cannot act unless a charge is filed.

You'll also have 8 (a) (1) of the act which bars employer coercion for interfering with the Section 7 rights.

Justice Potter Stewart: Well, you have Section 8 (a) (4) which expressly makes it an unfair labor practice for an employer to do this and the act is entirely silent in respect to union's doing.

Mr. Norton J. Come: Well, that is correct however --

Justice Potter Stewart: When you have that additional argument in this case that you don't have a decertification?

Mr. Norton J. Come: That's --

Justice Potter Stewart: That's your position?

Mr. Norton J. Come: That is correct and I'm not minimizing the difficulties that I have with the decertification case.

I submit that we're entitled to prevail here even if they are wrong in the decertification case and I would like to --

Justice Abe Fortas: Well, does the employer have the same degree of interest in the two situations?

Does the individual union member have the same degree of interest, same directness of interest in the two situations?

Mr. Norton J. Come: Well, in the charge case he certainly has a very immediate interest and that what he is complaining about is that the union has violated his statutory right.

Now, with respect to the decertification petition, he has a real interest and I would have acknowledge in the sense that he is saying that this --

Justice Abe Fortas: Firstly as in this is, but it's no different from the interest of all other members?

Mr. Norton J. Come: Well, that is correct Your Honor.

That is correct.

In that sense there is a difference.

However, I should like to point out that not only does the filing of a charge get into the public domain but it is been recognized by scholars in the field that these restrictions in union constitutions against resort to the courts and other outside tribunals are acknowledged to be against the public policy as Archibald Cox pointed out the restriction is against public policy, no private organization should be permitted to restrict any person's access to the court's of justice no less than restrict his right to petition the legislature to communicate with the member of Congress.

Justice John M. Harlan: You mentioned the proviso --

Mr. Norton J. Come: Yes Your Honor.

Justice John M. Harlan: -- in your argument, you have said about a check.

Mr. Norton J. Come: Well, what I meant to say was that reading the proviso in the light of Section 10 (b) of the act and necessity for the board to have a charge before it can act, the provision in Section 8 (a) (1) that would proscribe employer coercion in respect for the filing of charges the fact that a restriction on resort to the board is commonly acknowledged to be contrary to public policy.

The board is reasonable in saying that the literal terms of the proviso were not intended to accomplish a union restriction on the filing of charges because it is contrary such a reading of the proviso would be contrary to the scheme of the remainder of the Act and to recognize public policy so that --

Justice John M. Harlan: What force do you deal the proviso?

Mr. Norton J. Come: I would say that the proviso would apply to other to the normal area of internal union affair such as the kind of union rule that you had in Allis-Chalmers and but not to a union rule such as the one that we have here that goes beyond the area of internal union affairs and attempts to choke off the procedures of the board.

Now, I would like to say in the moments that are remaining to me that there is a big distinction between a union restriction on resort to public tribunals and the rule of judicial administration.

There's a well recognized principle of judicial administration that in these union's suits that says when a union comes to a court, the court if it is persuaded that it has an adequate union remedy will stay its hand and remit -- may I just finish my argue -- will remit the individual to his union tribunal.

We say that that is a far cry from a union sanction because there the individual has a chance to go to an impartial tribunal for the impartial tribunal to make a judgment to whether the union procedure is in fact adequate and then can remit them.

If on the other hand the tribunal is satisfied at the procedure is inadequate, it can give the member immediate relief without requiring the member to guess is to whether or not he has got a situation that can wait or can't wait if he guesses wrong union discipline sticks.

For those reason we submit that the court herein denying enforcement to the board's order in this case.

Chief Justice Earl Warren: Mr. Goldstein.

Argument of M. H. Goldstein

Mr. M. H. Goldstein: Mr. Chief Justice, may it please the Court.

Before saying anything else I should like to point out that no error in the record of this case is there anything to show that the union failed to process the grievance for Mr. Holder or any of the other facts respecting the detail of his alleged complain against the union.

I should also like to say that insofar as the board argues public policy here I think we have two considerations.

First, even if you call expulsion from a union restraint or coercion and the sense in which those were to use in Section 8 (b) (1) (a) you do not in this case have that restraint or coercion used to blank completely or to punish for entry into the board's processes.

You have it only as a rule which under the statute can delay and by the statute, I'm referring to the Landrum-Griffin Act, I think Section 101 (a) (4) can delay access to the board for four months at the most.

And the second place the Congress has already adopted a public policy on this matter, not withstanding all of the scholarly attempts to split hairs about whom the proviso on Section 101 (a) (4) of the Landrum Griffin Act applies to it.

It is perfectly clear is set forth in the opinion of the court below and it is set forth in our briefs that the best reasoning is that the public policy would permit a union itself or a court or a board to impose only a four-month delay.

With these preliminary attempts to answer only one or two of the statements made my Brother, I should like to say that to me the most stricken aspect of this case is that the board under the guide of interpreting Section 8 (b) (1) (a) has in effect legislature that a new unfair labor practice.

I say this because the pertinent statutes and their legislative history as well as this Court's opinion last term, the Allis-Chalmers case, make it so eminently clear that the union conduct which the Board in this case condemns is not violative of Section 8 (b) (1) (a) and I believe that my statement is warranted in addition by the fact that this evidence is such clear and preponderant proof that such conduct is not an unfair labor practice that for 17 years the board its general counsel and the courts uniformly so held indeed only a few months before the board decided the Pre LaGuardia case namely the Scura case.

The board stated after reviewing the relevant legislative history that it had not been empowered by Congress to police a union decision that a member is or is not in good standing or to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member status as an employee and it is to be remember that this case as Mr. Come admits for the board Mr. Holder's status as an employee was not changed one wit.

The board said this in the case of Louis Coniston Motor Company was affirmed that few weeks ago by the Court of Appeals for the Second Circuit under the name of Scofield versus the again NLRB.

I should like now if I may to list some of the items of evidence that demonstrate that Mr. Holder's expulsion from this union is not an unfair labor practice.

Before doing so --

Justice Abe Fortas: Before you do that Mr. Goldstein, what is the chronology here Mr. Holder did file a complaint with his local union, did he not?

Mr. M. H. Goldstein: Against the president alleging that the president had violated the national union's constitution, yes sir.

Justice Abe Fortas: And do you have the date when he did that?

Mr. M. H. Goldstein: That was --

Justice Abe Fortas: Well, let me ask you this, what I want to know is did the local decide that issue within or outside of the four-month-period?

Mr. M. H. Goldstein: Oh, within and without waiting further Mr. Holder then immediately filed his charge based on the same facts with the labor board.

Before going into the enlisting of these items of evidence, I should like to emphasize that the board itself found that Holder was expelled not simply because he filed a charge with the board but be called by doing some he violated his duty under his union's constitution to precede with the internal remedies provided by that constitution for adjusting his grievances against the local union.

I don't know if I may and interject to this point --

Justice William J. Brennan: Excuse me Mr. Goldstein, may I ask you?

Do I gather that you agree with Mr. Come that the four-month limitation in 101 applies here exhaustion?

Mr. M. H. Goldstein: I would Mr. Justice Brennan certainly agree.

Justice William J. Brennan: Well, may I ask you then because the local I gather to suppose to this within the four-month I think you just said.

Mr. M. H. Goldstein: That's right sir.

Justice William J. Brennan: But would've been impossible for him to have exhausted his other remedies international within the four-month period?

Mr. M. H. Goldstein: The appeal to the general executive board, yes, that would've been very readily done because their time limitations upon the length of time that the general executive board make an assume in passing on a case and it did happen by the way that when the appeal when is expulsion by the local union, the general executive order very promptly heard the case and very promptly decided --

Justice William J. Brennan: Well, would he have had a right under the union procedures to go to the conventional?

Mr. M. H. Goldstein: Yes he would.

Now that --

Justice William J. Brennan: Well he could have done that within four months.

Mr. M. H. Goldstein: Certainly not.

Now, there however I would say to you sir that unless the Court as a matter of its own jurisprudential discretion said, you'd come to exhaust your remedies before you come here.

He would've been free under Section 101 (8) (4) of the Landrum Griffin Act to come right to the board and we could've done nothing about it.

Justice William J. Brennan: Well, let's see.

What you mean then is how do you at least done everything he could've done within the four months after he had exhausted such steps as he could exhaust within four months even though there are other steps that he could've as going to the convention then he would've been free to go to the board.

Mr. M. H. Goldstein: Precisely sir and I would say this.

The union certainly would not have been in any position to discipline him in any way whether by suspension or by expulsion.

If having utilized its internal processors for four months and not having gotten a final resolutions satisfactory date --

Justice William J. Brennan: And in summary brief Mr. Goldstein, what are the time on its union puts on his exhaustion?

What are the steps?

First, you have to go to local I gather.

Mr. M. H. Goldstein: That's right sir.

Justice William J. Brennan: And is there a time limit fixed?

Mr. M. H. Goldstein: For the local to act?

Justice William J. Brennan: Yes.

Mr. M. H. Goldstein: No sir, there is not.

But and there is no time either for the local membership to pass on and appeal from its executive board's decision.

Justice William J. Brennan: Yes.

Mr. M. H. Goldstein: But it seems to me sir that none of that is material here because I freely admit that once four months have passed the man is free and in this case the four months, Mr. Justice Fortas, Mr. Justice Brennan had not elapsed otherwise we would have done nothing.

Chief Justice Earl Warren: How much time did elapse?

Mr. M. H. Goldstein: I beg your pardon?

Chief Justice Earl Warren: How much time did elapse here after he --

Mr. M. H. Goldstein: The best that I can determine Mr. Chief Justice from the record is that stands is that there were about two or three months before between the date of his charge against the union president and the final disposition of his appeal to the membership, two or three months at the most.

So that he is still have time to go the general like to the board just Judge Hastie below points out that although that could be a protracted proceeding that need not necessarily be so as exemplified by the fact that in his appeal to the general like to the board from the expulsion he got a very expeditious determination, Judge Hastie points that out.

Now, let me if I may list some not all of the items of evidence as I see it which make it clear and should've made it clear to the board that there was not in this case a Section 8 (b) (1) (a) violation.

Section 8 (a) (4) of the Act makes it an unfair labor practice for an employer if this retry is all upon an employee because that employee has filed a charges on to the Act it would seem perfectly simply possibly too simple logic to say that had Congress intended in 1949 when that added at Section 8 (b) the list of union unfair labor practices to the Wagner Act to proscribe similar in action by union in a clear statement of that effect in Section 8 (b).

Indeed, the House in passing the Taft-Hartley Act included in it a Section 8 (c) (5) which did make it an unfair labor practice for a union to find or penalize any member because he may charges for instituted proceedings against the union.

The conference committing however the -- this Section from the House's Bill and the Bill was passed without it.

So but as Mr. Justice Stewart pointed out there is no provision in Section 8 (b) with respect to unions that is cognate to Section 8 (a) (4) with respect to employers.

The second piece of evidence because of the absence of such a specific provision in Section B, the board seeks to use Section 8 (b) (1) (a) as a substitute net in which to catch its fish.

The volley of Section makes it an unfair labor practice for a union to restrain and to coerce employees and the exercise of the rights guaranteed in Section 7.

Here again, I appeal might've well sit down because I think Your Honors have what was the facets of this case very firmly in your draft because as Mr. Justice Stewart point out Section 7 however guarantees only the right to engage or to refrain from engaging in concerted activities it does not and perhaps not even by implication let alone explicitly guarantee any employee the right to file an unfair labor practice charge.

Justice Abe Fortas: Well, if a union member is fired out of the union, is it your position that he's not deprived of his right to conduct concerted activities under Section 7?

Is that your point?

Mr. M. H. Goldstein: My point --

Justice Abe Fortas: Here, a man belongs to a union and as a union member he conducts -- he's engaged as one of many and collective bargaining and concerted activities and a union fires him, says, you're no longer a member and I take it your point is that despite that the Section 7 is not implicated.

In the other hand, it could be argued that to kick a man out of the union that you deprive him of you at least curtail or invade his right to engage in concerted activities.

Mr. M. H. Goldstein: Mr. Justice Fortas, I must concede to you that you are impinging on a member's right to engage a concerted activities when you throw him out of the union which is the instrumentality for carrying on to concerted activities but I think if one goes farther than that one is guilty of circular reasoning because --

Justice Abe Fortas: Well I sure don't want to be guilty of that.

Mr. M. H. Goldstein: Well, you might catch up with yourself sir.

Because what happens there is if we adopt your theory is that the board is punishing a union or may punish a union every time that union for no matter what reason expels or suspends a member because every time it does some it is under your reasoning and which I concur affecting the member's concerted activities or opportunities to engage him but that is --

Justice Abe Fortas: Perhaps you just demonstrated proposition which I have heard that one man circle is another man is triangle.

Mr. M. H. Goldstein: What the board is doing here however is saying, not that the union interfered with Holder's concerted activities or right to engage by expelling him but that interfered with his right to engage into concerted activity of filing a charge by expelling and that's an entirely different thing.

There is -- I must concede as we do in our brief that the filing of a charge may be something in connection with a concerted activity for example, seven men are trying to organize a plan for employer discriminates against them they filed a charge certainly they are engaging in concerted activity when they final charge.

One man is treated in a fashion by his employer but he doesn't like, he files a charge that certainly is not concerted activity.

Justice Abe Fortas: Well, suppose a union fires a man from membership --

Mr. M. H. Goldstein: We never fire any body.

Justice Abe Fortas: From membership in the union terminates his membership in the union and suppose he does not have a remedy under the unfair labor practice provision of the act, can he go -- does a remedy in the Court, can he get go to Court, does he have -- and the Court granted an injunction on a proper showing to compel the union's reinstating.

Mr. M. H. Goldstein: Since 1959, has had a federal right to be present before that he had state right under the Landrum-Griffin Act you'll have your Bill of Rights of members.

One of those Bills of Rights, one of the rights rather in that Bill is the right set forth in Section 10184 of a member to sue either the officers of his union or his union and as a matter of fact one of the things we have to consider in this case I submit to Your Honors is whether in that enactment 10184 and also Section 102, that's right of that act.

Congress has not made a perfectly clear but the board simply has no jurisdiction over a place in which a member of the union on expulsion from that union seeks reinstatement.

Section 102 of the Landrum-Griffin Act says that any person whose right secured by the provisions of this title namely the right to sue the union or its officers is one of the rights have been infringed by any violation of this title made bring a civil action in a District Court of the United States for such relief including injunctions Mr. Justice Fortas as maybe appropriate and this is the significant portion of that section.

Any such action against the labor organization shall be brought in the District Court of the United States.

And this is precisely --

Justice William J. Brennan: You're suggesting Mr. Goldstein that whenever may have been so before under Taft-Hatley that at least now establishes an exclusive remedy for the employee -- union member expelled from membership?

Mr. M. H. Goldstein: Under federal law exclusive of the board.

I think he's still can go to the state courts as he could as Your Honor know suppose --

Justice William J. Brennan: I suppose that might be a question too.

Mr. M. H. Goldstein: Yes.

Justice William J. Brennan: As between the federal court and the board --

Mr. M. H. Goldstein: He must go to the federal court, that's one of the propositions on which we stand.

It is not necessary to support that proposition in order to dispose the case in our favor but we do think that it is one proposition that does support the lower court.

Let me if I may get to a third item of evidence.

That demonstrates and I respectfully submit conclusively that what happened to Mr. Holder here was not an unfair labor practice violative of Section 8 (b) (1) (a).

All that happened to Holder was that he was expelled from membership in his union that such union action is outside the reach of Section 8 (b) (1) (a) has been made clear, I believe, by this Court on at least three occasions.

First, in Machinist versus Gonzales at 356 U.S, your Court spoke as follows; the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law and indeed the assertion of any such power has been expressly denied and we're speaking there of course concerning Section 8 (b) (1) (a) the Taft-Hartley Act had already been passed the Landrum-Griffin Act had not yet been passed.

The second instance in which this Court pronounce what I deem to be the piece of evidence I've just alluded to was in NLRB versus Kingsters Local 639, the Kurt's case in which the Court very carefully dealt into the legislative history of Section 8 (b) (1) (a) and indicated in a general way which I think is applicable to this case in the board certainly knew of it what this Court concede to be the meaning of restraint and coercion as used in Section 8 (b) (1) (a).

And finally the third instance in which this Court in effect taught the NLRB what restraint and coercion is particularly as applicable to a case very much like the present one was of course your Allis-Chalmers case.

Justice Potter Stewart: You're not suggesting that one has to agree with the rightness of Allis-Chalmers in order to decide this case in your favor, are you?

Mr. M. H. Goldstein: No, I am not.

I think it can be done independently but I think that --

Justice Potter Stewart: It is a precedent in your --

Mr. M. H. Goldstein: -- if one seeks support and the supreme board Allis-Chalmers supplies that.I'd like to point to a forth piece of --

Justice Byron R. White: You mean, you wouldn't have a harder case?

Mr. M. H. Goldstein: I beg your pardon?

Justice Byron R. White: You wouldn't have had a harder case to Allis-Chalmers if gone the other way?

I would think you would?

Mr. M. H. Goldstein: No, I think I not have Mr. Justice White.

May I suggest to you why.

In Allis-Chalmers you have a clear case of a member of the Union engaging in a Section 7 right namely he refrained from participating in the concerted activity of the strike.

Justice Byron R. White: You mean except for that point, would you be lose in Allis-Chalmers that gone the other way?

Mr. M. H. Goldstein: Oh no, I wouldn't lose.

I point out that my case is much stronger than Allis-Chalmers because in Allis-Chalmers although clearly the member was being punished for exercising a Section 7 right.

Nevertheless, this Court and the board said that there was no violation of Section 8 (b) (1) (a).

In our case, there is no showing in the record whatever that Holder engaged in the concerted activity and therefore when we expelled from admission we are safely not violating the literal meaning and the broad meaning of Section 8 (b) (1) (a).

Justice Abe Fortas: The record doesn't show what this is all about, was it?

Mr. M. H. Goldstein: I beg your pardon?

Justice Abe Fortas: The record doesn't show the controversy is between Mr. Holder and the Union.

Mr. M. H. Goldstein: It does not show the details, it does Mr. Justice Fortas show enough force to know what was about.

He accused the union of having caused his demotion from a lead man's job to an ordinary workman's or during that job and that was his whole complaint and he said that the president of the union was responsible for that.

He filed a charge with the union trial board against the president.

That charge was dismissed the president, was held to be innocent whereupon Mr. Holder and to the board and filed a charge.

Justice Abe Fortas: Because if we assume for the moment that the NLRB has jurisdiction in an appropriate case let only the question of exhaustion of remedies if a union member filed a charge against the president of the union and its officers for example of stealing or embezzlement assuming like that.

I suppose that one can't escape thinking the corporate cases in which suit can be brought by stock whole without the man on the corporation where that demand would be useless.

Mr. M. H. Goldstein: You have --

Justice Abe Fortas: That would not overwrite a clear statutory provision of course?

Mr. M. H. Goldstein: No, and I think you also have another consideration Mr. Justice Fortas that there is a strong indicate of the congressional dictate of what is to be our public policy is that with respect to unions you do attempt to had give them an opportunity by making an obligation if they wish to upon their members then wash their linen indoors before it comes out.

Justice Abe Fortas: Well, the same rule with respect to corporations?

Mr. M. H. Goldstein: Yes.

Yes.

And I think it's a salutatory rule if I may presume to pass judgment on the public policy declared by the Congress.

Justice William J. Brennan: Mr. Goldstein, I'm getting back to your argument based on 102, what you do with the language of 103 that makes succeeding section which in terms provides that nothing in the preceding portion which will include when a two shall and I'm quoting it, "limit the rights and remedies of any member of a labor organization under any state or federal law or before any court or other tribunal."

Mr. M. H. Goldstein: I don't see that that should concern us here at all.

Justice William J. Brennan: Well, as I've understood your 102 argument that was that 102 by providing an action in a federal District Court for either injunction or damages is to be read as expressing a congressional intent that that District Court action was the exclusive remedy to be available --

Mr. M. H. Goldstein: That is what I said.

Justice William J. Brennan: -- to the expelled member, but I'm wondering whether that is tenable in light of the very language of the very next Section 103 which I've read you which in terms says that nothing in that Section is to limit any rights and remedies assuming there are some that's all I'm -- on that hypothesis of any member of the labor organization under state or federal law or before any court or other tribunals -- you don't conceive of the board as a tribunal?

Mr. M. H. Goldstein: May I express my --

Justice William J. Brennan: Yes.

Mr. M. H. Goldstein: -- hold by now, perhaps I drew my battle too long.

Perhaps I overstated the case.

Justice William J. Brennan: I see.

Mr. M. H. Goldstein: I should have said perhaps in order to be precise that I would say that this is so that my interpretation is so in the case of the labor board because the labor board never had jurisdiction over this sort of case.

Justice William J. Brennan: Well, that's the different argument?

Mr. M. H. Goldstein: Yes.

Justice William J. Brennan: This is on the premise that perhaps we wouldn't agree with you about that.

I was interested with your suggestion that even if he did have one 102 what taken away from him so far as there was a remedy before the board and limited him to an action in the District Court.

Mr. M. H. Goldstein: I don't think I can say so without a fairer study of the legislative history in Section 103 because of the phrase other tribunal.

Justice William J. Brennan: Tribunal.

Mr. M. H. Goldstein: Other tribunal would give me trouble unless I can see what Congress had intended.

Thank you very much Your Honors.