NLRB v. TEXTILE WORKERS

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Argument of Norton J. Come

Chief Justice Warren E. Burger: Number 71-711, National Labor Relations Board against Granite State Board.

Mr. Come.

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

This case is here on certiorari to the First Circuit, which denied enforcement of the Board's order against respondent Union, a local of the Textile Workers Union.

The case involves an application of the principles formulated by this Court in the Allis-Chalmers and Scofield cases.

Section 8(b)(1)(A) of the National Labor Relations Act makes it an unfair labor practice for a Union to restrain or coerce employees in the exercise of their Section 7 rights which includes the right to engage in concerted activity and the right to refrain from engaging in concerted activity.

The question presented here is whether a Union violates Section 8(b)(1)(A) by fining employees who return to work during the strike after they had resigned from Union membership and by seeking judicial enforcement of the fines.

The facts are briefly these.

The Union for many years has been the collective bargaining representative of the employees of the International Paper Box Machine Company in New Hampshire.

On September 14, 1968, six days before the scheduled expiration of the collective-bargaining agreement, the Union membership voted to strike, if a new agreement was not reached by September 20.

No agreement reached and the strike was attended, and picketing began on that day.

On September 21, the Union held a meeting to discuss strike organization in which the membership approved the resolution to anyone aiding or abetting the company would be subject to a fine of $2,000.

All but three or four of the 160 employees in the bargaining unit were Union members and all of the Union members went out on strike.

The contract that had just expired had a maintenance-of-membership provision in it which required employees who were Union members at the time of the contract became effective or who joined the Union during the term of the contract to remain members during the contract term.

Practically, all of the Union members attended both the strike authorization and the fine authorization meetings.

The members assented to the strike by a standing vote with only one member dissenting.

The motion to levy the fine was adopted unanimously without discussion.

On November --

Justice Harry A. Blackmun: Mr. Come, were those public votes in the sense that they were not secret ballots?

Mr. Norton J. Come: That is correct, Your Honor.

They were standing votes.

They were not secret ballot votes.

Justice Byron R. White: Do you know what attendance there was, or is that in the record?

Mr. Norton J. Come: The record shows that, practically all of the members attended.

The Court of Appeals and the trial examiner indicated that there might be some problem in future compliance proceedings as to whether all of the 31 who were subsequently fined were there or not, but the record shows that practically the entire membership was present at the meeting.

Justice William J. Brennan: And I gather there is no issue here of membership?

It's conceded all that were involved were members of the Union?

Mr. Norton J. Come: That is correct and the question here is the right of the Union to fine the members after they had resigned from the Union.

Justice William J. Brennan: And is there any issue of the reasonableness of the fine?

Mr. Norton J. Come: That is not in this case.

That is pending in the Boeing case which is on a petition for certiorari, but the Court has not acted on that.

About --

Chief Justice Warren E. Burger: Would it make any difference to your position Mr. Come when they resigned?

Mr. Norton J. Come: Yes.

Chief Justice Warren E. Burger: Now where would you have the cut off?

Mr. Norton J. Come: Under the principle that the Board is applying, the cut off is whether they resigned before they engaged in the activity for which they are being fined.

In another words, if they went to work before they resigned, in the Board's view, under Allis-Chalmers, the fine would be okay.

If they resigned before they went to work and then were fined, in the Board's view, that would not be protected and that's what you have in this case.

In the Boeing case, you have also a mid-position or you have some people who resigned after they went back to work and what the Board did in Boeing was to sustain the fine as to the activity that occurred, the strikebreaking activity that occurred before the resignation, but thereafter held that the fine was improper.

But you don't have that mid-position here because it's perfectly clear that all of the 31 employees who were fined first took the step of notifying the Union of their resignation before they went back to work.

Now you -- as I have indicated, during the course of this strike which was still going on at the time of the Board's second hearing which was 18 months after its inception, you had 31 employees who, beginning some month-and-a-half to two months and the poke occurring from seven-and-a-half to twelve months during the course of the strike, submitted resignations to the Union and went back to work.

The Union notified them that they had -- were in violation of the Union rules, and ordered them to appear for a hearing before the Union tribunal.

They did not.

They were tried in absentia and fined the equivalent of a day's wages for each day work during the strike.

And when none of the employees paid the fines, the Union filed suits in the state courts to collect the fines.

The suits are still pending and the employees in turn filed unfair labor practice charges with the Board.

The Board concluded that the 31 employees had affectively resigned from the Union before returning to work, that the Union violated Section 8(b)(1)(A) of the Act --

Justice William J. Brennan: But I want to be clear Mr. Come.

No resignation was submitted in any of the 31 cases.

So until after that meeting at which the resolution was passed that anyone who crossed the picket line would be subject to a fine of $2,000.

Mr. Norton J. Come: That is correct.

Justice William J. Brennan: And is it that fact that the Board relies on particularly?

Mr. Norton J. Come: It was that fact that the Court of Appeals was relied on in reversing the Board.

The Court of Appeals said that since they had participated in the strike vote, they in effect had by analogy to the charitable subscription line of cases made a contract with the Union to see the strike through, and the Board's position -- submission that strike vote is not sufficient to override the employee's Section 7 right to resign from the Union and go back to work.

That's the issue we have in the case.

Well, in Allis-Chalmers, this Court held that a Union did not violate Section 8(b)1(A) of the Act by fining employees who went to work during the strike authorized by the Union membership and by suing in court to enforce the fines.

The Court, balancing the Union's need to preserve solidarity during the strike against the employee's Section 7 right to refrain from engaging in concerted activities, concluded that the Union discipline there did not violate Section 8(b)(1)(A) because as we read the Court's opinion, it was imposed against the member pursuing through the contract of membership.

The employees there were full members of the Union and the infraction of the Union strike rule occurred, while they were full members of the Union, and therefore, they were subject to the Union discipline.

In the subsequent Scofield case, the Court in holding that the Union did not violate Section 8(b)(1)(A) by levying a court enforced fine against employees who violated a Union production rule that was acquiesced in by the employer, laid down this test which we think is applicable here for applying Section 8(b)(1)(A), namely that it leaves a Union free to enforce a properly adopted rule which reflects a legitimate Union interest, impairs no policy which Congress has embedded in the labor laws, and is reasonably enforced against Union members who are free to leave the Union and escape the rules.

Now we think that the principle to be distilled that's relevant here is that the power to levy a court enforceable fine on an employee for breach of a legitimate Union rule which this is, is co terminus with the Union member contract or relationship and in the Board's view that was terminated here by the resignations for this reason.

The Union's constitution and bylaws contained no provision defining or limiting the circumstances under which a member could resign from the Union.

Under the law of governing voluntary associations, where there is no specific provision with respect to resignations, it's settled that a member may resign at will.

Now the Union contends however that even if the 31 employees could thus effectively sever ties with the Union.

Even the Court of Appeals was willing to concede that the absent of any provision, the resignation here was affective for most purposes.

These 31 employees were none the less bound to support the strike until its conclusion because it's only reasonable to construe the Union's constitution and bylaws, as imposing by implication and obligation to see a strike through to its end or in any event, that conclusion is warranted here in view of the employee's participation in the strike vote.

We submit that neither of these arguments warrants on different conclusion here.

In the first place with respect to implying by implication an obligation in the Union's constitution and bylaws to see the strike through at the end -- to the end, we're coming across a very important right that's guaranteed by Section 7 of the Act which gives to all employees, including Union members the right to refrain from engaging in concerted activities.

Justice William J. Brennan: You suppose the results would be the same in your submission Mr. Come if there were an express provision to that effect in the constitution?

Mr. Norton J. Come: I would say Your Honor that the Board has not yet had occasion to consider whether a different accommodation between the Section 7 rights of the employees and the Union's right to impose reasonable discipline would be warranted if there were such information.

Justice William J. Brennan: I expect that if the Board prevails in this case, you will get that chance pretty soon?

Mr. Norton J. Come: I would assume so, but all I can tell you is that up until now, the Board has not had occasion to face that question, and it has reserved.

The closest that the Board has come to it, as in dealing with a provision in a Union constitution that provided for resignation only 10 days at the end fiscal year, and the Board has held that that provision doesn't give any meaningful right to resign in terms of a strike situation and reach the same result in that case as it did in this case where there is no such provision, but it has not yet indicated what it would do, where you had a rule that was specifically tailored to a particular situation.

Justice Byron R. White: We would like to hope for the employee in face of such a provision, would be tantamount to saying that Section 7 rights were un-waivable I suppose?

Mr. Norton J. Come: That is correct.

That would be the conclusion that the Board would have --

Justice Byron R. White: Are there some other instances where you have upheld waiver?

Mr. Norton J. Come: There are instances where waivers have been upheld and it really comes down to a basic and Board's and the Court's judgment would be as to the right to refrain is in Section 7.

There are some rights that have been held not to be a waiver.

Now, given the statutory right in Section 7, however, it is well settled that a waiver of statutory rights if it can be waived, has got to be expressed, and you would go against that principle if you found a waiver by implication in the constitution and bylaws here.

Secondly, there is very good reason, for not the party from the principle of requiring an express waiver because a contract of membership is a rather unusual contract.

A member becomes bond by the Union's constitution and bylaws upon joining the Union even though he had no real part in formulating the provisions of the contract.

It's like a contract of adhesion similar to an insurance policy, and the principle applicable there is between two possible interpretations, you give the break of the party who had no part in formulating the terms of the contract, and thirdly, the decision whether to resign from a Union and return to work during a strike presents the employee with a very, very difficult choice, a choice that can be most meaningfully made in the particular strike situation.

Therefore, it can't readily be assumed that a employee if he could waive the right would willingly want to do so by implication. Four, while the employees may be sympathetic to a strike when it's first called, events occurring thereafter which he may not have anticipated, may lead him to alter his view and a desire to return to work.

For example, he may have underestimated the time that the strike is going to take.

This strike, as I indicated, was going on for at least 18 months.

And underestimating the duration, he may have underestimated the resultant hardship to himself, to his family or underestimated the employer's ability to find replacements for him.

On the other hand, the decision to resign from the Union and abandon the strike is going to subject the employee to the individual to his right to participate in Union meetings, to which policies are formulated, both for Union officers.

It may deprive them of certain Union benefits, subject them to a certain social stigma.

So he has a difficult choice to make here and we submit that the policies of the Act are thus effectuated by holding as the Board has, that if he can waive his right at all, it has to be an express waiver.

Now what about the strike mode here which is what the Court of Appeals relied on as making the difference?

We believe that the strike for vote is an unreliable basis for determining rights and obligations under the Act, particularly where it was by a voice vote such as you had here because the employees may be induced the strike by a bandwagon psychology.

As a matter of fact, one of the employees here testified that, yes, he stood up, but he stood up because everybody else was standing up.

But be that as it may, assuming that you really wanted to support the strike, we believe that it's unrealistic to conclude that any employee voting to strike in 68, knowingly made a waiver to support that strike to the bitter end no matter how long it went on or no matter what his own personal situation may have developed.

Certainly we believe that it's unreasonable to attribute to the employee in intention to support the strike even after he would be willing to take the very severe step of resigning from the Union.

Justice William H. Rehnquist: Mr. Come, you say that it was a severe step to have resigned from Union?

Mr. Norton J. Come: Yes.

Justice William H. Rehnquist: What adverse consequences flow to these particular Union members as it was a result of their resignations in this case?

Mr. Norton J. Come: Well, the record doesn't show specifically what happened to them, I can only generalize that normally, resigning from the Union, the individual loses the right to participate in Union meetings at which policies are determined the -- and also the right to vote for the officers of the Union who are going to be his bargaining representative.

Justice William H. Rehnquist: So if the Union had governed a similar contract to the one which had expired at the conclusion of the strike, could it have prevented these man from being reemployed?

Mr. Norton J. Come: No, it could not have prevented them for being reemployed.

There is one thing that the Union cannot do, and that is to affect a job right.

Now you talked about the kind of contract that they had.

The kind of contract that they had was a maintenance-of-membership, a contract which doesn't require you to be a member in order to keep your employment.

If they had been successful in getting a Union shop agreement which they did not have, under a Union-Shop Agreement, you have to become a member of the Union within 30 days.

They might have been able to require that they pay dues as a condition of continuing employment under the Taft-Hartley Act, that kind of thing, but you could not require them, at least as we understand the law, to actually become a full member of the Union and thus subject themselves to Union discipline.

And a further point that I wanted to make is that in most strike situations, the vote is not by standing vote, but by secret ballot and to try to find out how somebody voted where it's by secret ballot would impair the secrecy of the ballot and lead to further complications, and finally, if you made the strike vote determinative, we believe that there is a serious risk of deterring Union democracy because employees would be fearful that by participating in the vote or in the discussions, that they might be hooked forever respective of what may develop might decide to play it safe and not participate which is certainly not a --

Justice William J. Brennan: Mr. N. Come Do I though understand correctly that basically the Board's position is to -- without regard to all these special factors, the Union's authority begins and ends of with what it may do with a member, and once one has resigned, he is no longer a member, and therefore, a conduct after resignation is simply not subject to Union discipline --

Mr. Norton J. Come: Yes sir.

Justice William J. Brennan: -- is that it basically?

Mr. Norton J. Come: That is it.

For these reasons, we submit that the judgment of the court below should be reversed, and the case should be remanded with directions to enforce the Court's order.

Chief Justice Warren E. Burger: Thank you Mr. Come.

Mr. Roitman.

Argument of Harold Roitman

Mr. Harold Roitman: Mr. Chief Justice, and may it please the Court.

There are several points that I think there is some emphasis in analyzing this case.

First of all, I think, it should be pointed out that in this case the Board is now seeking to have the, what is an already rendered decision of the state court of New Hampshire reversed.

In this case, the Union sought enforcement of the fines and sought collection of other contract remedies that it had against these 31 individuals in the New Hampshire court and a motion to dismiss that action was filed and after a hearing, there was a ruling by Mr. Justice Flynn of the New Hampshire superior court denying the motion to dismiss and accepting a sitting jurisdiction for the New Hampshire court for the determination of these membership issues acting as the opinion points out and I have attached the opinion as a slip to the brief of the respondent.

The judge pointed out that the New Hampshire court was acting in a federally unentered enclaved mentioned by this Court in the Scofield case and in the earlier decision of Machinists against Gonzales where you would recall the state court's ruling that the Union had improperly expelled and an individual was held to be a matter for decision of the state court, and not a matter reserved to Board under the National Labor Relations Act.

Secondly, the Board now seeks of course to have that decision of the New Hampshire court reversed without in any way proceeding against the decision in New Hampshire by a way of Federal Court injunction or otherwise.

Secondly, it seems to me that we have here three distinct classes of members that gets somewhat lost in the intricacy of the case, but there were some 160 odd employees of this company.

Three or four of the employees at all times elected to act pursuant to their Section 7 right not to join the Union and not to engage in concerted activities.T

hose employees never joined the Union, never participated in Union affairs.

They refused to join in the strike and in fact, it show -- the record shows that they continued to work all during the lengthy strike that occurred passing to and follow from the picket line.

And there is of course nothing in the record which in anyway indicates that any of their Section 7 rights to refrain were in anyway impinged upon by the actions of the Union.

On the contrary, those rights were scrupulously observed by the Union and these people, we say comes squarely within the Section 7 rights and don't come within the special proviso of Section 81 which gives the Union the right to act in these situations and making membership rules.

Those employees would carefully have their rights carefully preserved under Section 7.

Now it's our position that with respect to the other 160 employees, they were all mature men who voluntarily elected to join the Union.

There was no pressure of a Union shop or any other outward pressure with respect to their jobs which would compel them to join the Union.

They freely elected to join the Union on their own and then as the contract that was about to expire, they met in a democratic meeting and voted to engage in the strike as a new contract could not be reached with the company.

Now that vote for strike was part of the democratic process and a part of the Union's legislative activities which this Court referred to in the above -- in the Allis-Chalmers case as part of the National Labor Policy.

But these individuals and the 31 individuals from the Board seeks to protect in their strikebreaking activities in this case, all of these employees, first of all met and voted to engage in the strike.

Secondly --

Justice Harry A. Blackmun: Mr. Roitman, suppose at that point, some of them had voted against the strike and the strike Board having been taken, there upon resign, would your position as to them be any different?

Mr. Harold Roitman: Yes, our position with respect to them is that there was an established Union procedure, now they are not spelled out in the constitution, but there was an established Union procedure set forth in the membership application card and the check-off authorization record, under which an employee was free to resign his membership in the ten-day period following the termination of the contract, and that that was an appropriate time for any employee who did not want to participate in the concerted activity of the strike to resign.

As the Union pointed out that there had been an established practice and in fact one of the 31 members whom the Board is seeking to protect here, his name was Hassan Johnson, he was an employee who had joined the Union after spending sometime in the employment of the company.

Then he had decided to resign from the Union.

His resignation had been timely filed at a previous contract termination and was accepted by the Union.

Then he changed his mind again and reapplied for admission to the Union and now after many months of the strike, he resigned again for the second time and the Union at all times has taken a position that those second resignations were untimely, but they would have been timely, had they been filed at the conclusion of the contract and at the inception of the strike in that ten-day period.

Justice Harry A. Blackmun: Then I take it that you are insisting, sticking upon the ten-day provision?

Mr. Harold Roitman: Well, it's the Union's position with respect to that position that under Section 8 (b) (1), the Union is the appropriate party to determine what its rules are with respect to retention of membership.

Now it's true that the Union did not spell out explicitly in the contract, in the constitution, that there was this escape period, but the Union did establish and that's documented in the testimony that it honored as a matter of practice any resignation that was submitted during this period.

And the application for membership card of course contained this ten-day escape period immediately above the signature of every member of the Union.

Every member who applied the membership in the Union signed one of the cards for membership application which contained within it the recitation after the application could be withdrawn during this ten-day period.

Justice William J. Brennan: Well then this position, Mr. Roitman, that is to all 31, none having resigned within the ten-day period at the termination of the contract and within the first ten days of the strike, they remained members after that ten-day period?

Mr. Harold Roitman: Yes, that's always been our position throughout this case.

We argued that point before the trial examiner.

It's mentioned again in the Court of Appeals' decision.

The Court of Appeals did not attack that particular phase of our argument.

It decided the case on the contract argument rather than this membership argument, but I would say that it is still the position of the Union and always has been that the Union has the right under 8 (b) (1) to determine its rules with respect to retention.

This was the rule that the Union put forth and the Union is the proper party to determine any ambiguity in those rules, not the trial examiner or some party outside the Union.

Chief Justice Warren E. Burger: Mr. Roitman, excuse me.

Mr. Harold Roitman: We just say that that Act puts the Union in the position of being the determiner of those.

Chief Justice Warren E. Burger: Since the Union constitution doesn't provide for this ten day resignation period and the rules do not apply and the contract doesn't apply, is that something the Union could withdraw at will, unilaterally?

In other words, what is the (Voice Overlap) ten-day?

Mr. Harold Roitman: No, the Union --

Chief Justice Warren E. Burger: You called it a --

Mr. Harold Roitman: -- membership is a contract of membership.

Chief Justice Warren E. Burger: You called it a practice. Now is it something that he could enforce?

Mr. Harold Roitman: Yes, I think so.

I think this was in fact the Union rule which was part of the contract of membership which any member could enforce.

I think he could absolutely enforce his rights to resign at that time.

We would point out also that the construction given that in particular aspect of the case is that, apparently the Board will allow an individual to resign at any time regardless of this limitation which the Union says is there.

But if the Board -- its position is taken and you say that a member can resign at any time during the course of the contract, it would appear that he would continue to pay dues until this escape period for the payment of his dues applied, and you have the incongruous result of a individual continuing to pay dues to an organization of which he is no longer a member.

Justice William J. Brennan: Well, that is sometime where the consequence of that form of collective -- a provision of the collective bargaining, isn't it?

Mr. Harold Roitman: Yes, I think it is, but I think the Union's construction that two things just opposed the (Inaudible)

Justice William J. Brennan: What's New Hampshire law on the question whether one is still a member if he doesn't resign within a period like this?

Mr. Harold Roitman: The court in its decision merely stated that, that was one of the issues that the court would take after it heard the case.

Justice William J. Brennan: Which court?

Mr. Harold Roitman: The New Hampshire court.

Judge Flynn's decision again which is appended to the back indicates that the question of resignation would be one for the court that side on the merits.

Justice William J. Brennan: What's your view whether that's a matter of state law or whether it becomes involved with --?

Mr. Harold Roitman: Well, I think this Court has said in effect in the Gonzales case, that that is the kind of an issue that the Federal government has not entered into and therefore it is a matter for the state court to determine?

Justice William H. Rehnquist: Mr. Roitman, the Court of Appeals apparently and the trial examiner concluded, perhaps as you suggested that there was no evidence that the employees knew of the Union's practice or that they consented to it.

Your position is that not withstanding that conclusion, this was something that was up to the Union and it didn't make any difference if the employees knew about it or consented to it.

Is that right?

Mr. Harold Roitman: Well, we say on the face of that – on the face of evidence that when they signed the application card, this provision was right in front of them, that was certainly some indication of knowledge that certainly in the case of Johnson whom I mentioned previously, he knew about it because he had resigned at the appropriate time, had his resignation accepted and chose to reapply for readmission.

Justice William H. Rehnquist: Are you confessing that this factual conclusion under the trial examiner that was upheld by the Court of Appeals?

Mr. Harold Roitman: Well, it's our position that basically yes that the Union does have the right to make that determination.

I don't think the issue is central to the upholding of the court below.

It's just another facet that can be used to uphold the final result here, which is that there was the Union's position that these were not accepted resignations at the time they were made, and therefore that the people were still barred.

The Court of Appeals went across on the other ground that this was a contract which it bound the -- (Inaudible) we agree with that.

Justice Harry A. Blackmun: Mr. Roitman, I am still bothered a little bit of this ten-day provision.

I take it, your position essentially is just that the Section 7 rights have been waived, except as to the ten-day provision during that period.

Now suppose there weren't any ten-day provision at all?

Mr. Harold Roitman: Well, then I think, you have perhaps back in the situation that this is a voluntary association and that absent restrictions, the voluntary association can be terminated by either party at any time as a matter of voluntary right of anybody to continue the association.

Justice Harry A. Blackmun: But with a ten-day provision that is not so?

Mr. Harold Roitman: No, we say that that is a part of the membership contract commitment to be bound by that state of affairs.

Justice Harry A. Blackmun: And if it were one-day provision, it would not be so?

Mr. Harold Roitman: Well I suppose as you can always stretch the elastic till it breaks, but our basic position would be that the Union that has the right and again the proviso of Section 8 (b) (1) to effectuate a rule with respect to retention of membership and I suppose it can be a hash rule as well a liberal rule.

There is nothing in the Act which in anyway indicates that.

I would say in that point that --

Justice Harry A. Blackmun: On that basis it doesn't seem to me there there should any difference between one day or not?

Mr. Harold Roitman: Well, no days is just a saying that they can be no escape from membership.

Justice Harry A. Blackmun: Once having accepted it, except by the information --

Mr. Harold Roitman: Well, that is -- it's not an impossible position when we formed a more Union, there was no escape provision into it.[Laughter]

Justice Thurgood Marshall: Mr. Roitman, where is the record as the Union position about this resignation?

Were they notified that their resignation would not be accepted?

Mr. Harold Roitman: Yes, they would.

Each of the – well --

Justice Thurgood Marshall: I can't find it, I must have missed it?

Mr. Harold Roitman: Each of the employees who resigned, the first two were sent their letters by the head of the Granite State Joint Board and it was called to their attention that their resignation would not be considered effective and that the fine would be imposed against them and later on in the record after the company --

Justice Thurgood Marshall: But I want that, where is that record, the original one.

Is it in there?

Mr. Harold Roitman: Yes, page 79, Your honor.

Well, no.

Page is 79, it's the letter.

Justice Harry A. Blackmun: They would be barred --

Mr. Harold Roitman: Yes that's correct.

There are two letters set forth, one which has a PS on it and the other one does not.

Page 34, and page 35, and page 36 indicate --

Justice Thurgood Marshall: Where in here is that they are relying on the ten-day rule?

Mr. Harold Roitman: That is not spelled out in the letter.

Justice Thurgood Marshall: Is it spelled out in any place?

Mr. Harold Roitman: It's spelled out -- well, the evidence with respect to that appears in connection of the examination of Mr. (Inaudible) at the first case.

I think it's about page 20 or 21.

Justice Thurgood Marshall: But you are relying on that man? When did you start relying on the ten-day provision?

Mr. Harold Roitman: Well it was -- in the decision of the trial examiner, the first decision in the case, he sets forth some of the Union's arguments which he deals with, and that is one of them that he mentions.

The point that was brought out I think by my brother in his examination was the Board had considered this type of issue, the ten-day escape period in connection with automobile worker's Union in the case that went up to the Court of Appeals for the First Circuit, it's called the Paulding case which is referred to in the briefs.

In that case, the automobile workers did have a provision on the constitution which allowed resignations only in that ten-day period.

The Board held that it did not apply but the Court of Appeals reversed the Board in that case and it was never -- there was petition for certiorari, the decision of the Court of Appeals was accepted, that's at 320 Federal and it's referred to several cases in the several instances --

Justice Thurgood Marshall: But am I correct that up through the case in New Hampshire and the later of charges files with NLRB that this 10-day period then become an issue until then?

Mr. Harold Roitman: No, that's right.

Justice Thurgood Marshall: It wasn't an issue when they were fined, am I right?

Mr. Harold Roitman: No, nobody raised that question.

The Union always took the position that it had a right to fine these individuals on the basis of their strike vote, on the basis of their participation in the vote for the fine and in the fact that their resignations were defective, all three of these things were part of the Union's position.

Justice Thurgood Marshall: Even if they made it within the ten-day period, they still would have fined, am I right?

Mr. Harold Roitman: No, I don't think so.

These resignations came out within any stretch of a ten-day period, but months and months after the strike had not only started, but after these 31 individuals had not only voted for the strike, but had actively participated in the strike.

These employees all went on strike, these 31 employees all participated in the picketing.

They all participated or most, all of them participated in the decision of the Union to secure group health insurance for the strikers, they participated in the Union benefits for strikers.

They were actively and affirmatively supporting the strike for many months, and we say that all of these factors are part of the reliance item which entitles the Union to fine them for their subsequent strikebreaking because they broke their contract, the contract they would say affirmatively had worked to promote by engaging in the strikebreaking and I would suggest that --

Justice William J. Brennan: May I ask you, I have been looking in the appended record but can't locate a form of application for membership which includes that ten-day provision?

Have I --

Mr. Harold Roitman: You will find it in the original application, petition for certiorari where the decision of the trial examiner is set forth.

He sets it forth in his first opinion and I think it is also set forth in the record at page 34, Your Honor.

Justice William J. Brennan: Thank you.

Mr. Harold Roitman: This is -- the last paragraph there it says that the authorization shall remain in effect unless I revoke it within 10-days.

Justice William J. Brennan: Thank you, Yes.

Mr. Harold Roitman: Each individual signed that, as you notice right underneath the restitution, the matter is also referred to in the Trail Examiner Genesis' (ph) opinion and I think he sets forth a copy of the -- yes, check-off in the the membership application cards in his opinion.

Justice Harry A. Blackmun: Mr. Roitman, is it your position that the obligation of the Union members continued for the duration of the strike regardless of how long the strike lasted?

Mr. Harold Roitman: Yes, it's -- I think that's the central position that we take.

That is when the Union members vote to go out on strike, they know they are engaging in a serious economic confrontation that can last for an in-determinant period and they obligate themselves to see that enterprise through till its termination.

It's is termination I might say, it might come either because the exercise of the economic forces on both of the parties gets them into a compromised position, or one of the other side yields sufficiently to arrive at an accommodation or as in the case here, the Union finally votes to abandon or discontinue a strike, that's wasn't in the record here, but ultimately that's what happened.

Justice Lewis F. Powell: Was there any meeting of the Union membership subsequent to the September 21st meeting 1968 when they voted to impose the fine?

Mr. Harold Roitman: Oh yes, there were constant meetings where the officers reported back to the membership on the status of negotiations and the situation once the Union was in where they voted to undertake items, for example like the insurance matter which I referred to a moment ago.

That wasn't spelled out very carefully in the record, but I think there is, perhaps a brief reference to it in some of the letters of resignation.

One or more of the members complained that he didn't like the way one of those meetings would run, but there were frequent meetings at which there was ample opportunity for these 31 employees to exercise their democratic right within the Union to persuade any of the others to the courts.

And we say that that's the position that this Court left the parties in, in the Scofield case, namely that the Union and the National Labor Policy is one that favors the democratic operation of Union affairs, that the Union has these legislative powers with respect to collective bargaining, that when they democratically vote to undertake a strike, the only thing that remains open after that is the settlement of the strike or the democratic -- use of the democratic practice to change the position.

In the Scofield quotation that's relied on by the Board, if you back up a few sentences, I think that's made clear by the Court that the Court points out that it's the right of an individual to exert his democratic influence or his influence on the body and had been -- have his minority position, if you will, change to a majority position by persuasion, and that position is the one that is in accord with the legislative policy under the act and is in effect the only way that the contract commitment can be changed by mutual agreement.

We point that the Board itself in dealing with associations, for example, that are put together for the purpose of mutual collective bargaining, lays down the rule that you can only withdraw from such an association prior to the time that the association engages in collective bargaining, that a subsequent withdrawal must be by mutual consent rather than by an individual having an individual veto power.

If you allow the Board's position of course, each individual has a right to veto the legislative examination of the majority, and you have not a democratic proposition but (Inaudible) within the Union which allows each member to be an individual breaker of the joint commitment, and there again, we pointed out situations, where in the past, the Court has held that an individual waives his right to engage in strikes when the Union votes to accept a contract against striking.

There are various other situations that we have referred to in the brief, where for one reason or another, the individual member's right to either engage in a strike or not to engage in a strike is affected by the majority determination of the Union in accordance with the National Labor Policy.

Chief Justice Warren E. Burger: Mr. Come, do you have anything further?

Rebuttal of Norton J. Come

Mr. Norton J. Come: I just wanted to point out as Mr. Justice Rehnquist noted that the Court of Appeals found on pages 5 (a) to 6 (a) of the petition, adopted a Trial Examiner's finding that there was no evidence that the employees knew of this practice or that they considered this limitation and their right to resign, that is with respect to this ten-day point that Mr. Roitman has been making.

Justice William J. Brennan: Well, suppose we were to say that if you've signed in it, you did not know about it, and it was effective, and then say is to whether or not they were members at the time they actually resigned?

Mr. Norton J. Come: Well, I think that there you would have an issue that would probably have to be remanded to the Board because as the Board found the facts here, this ten-day provision was not something first of all that had anything to do with resigning from the Union.

It was a combination of membership and check-off clause.

The Trail Examiner found that the ten-day provision related only to the check-off provision, not to the resignation from Union membership.

He further found that there was no evidence in the record that showed that the employees were made aware that this was the way that you had to resign from the Union.

The Court of Appeals sustained that finding.

We submit that it is supported by a substantial evidence for the additional reason, as Justice Marshall pointed out that nowhere in the letters that were sent to the employees, as to -- has any mention made of the fact that the resignation was improper because it didn't comply with the ten-day rule.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.