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National Labor Relations Board v. Local 73

decided: February 22, 1988.


A Petition for Enforcement of an Order from the National Labor Relations Board.

Cummings, Cudahy and Coffey, Circuit Judges.

Author: Cudahy

CUDAHY, Circuit Judge.

The National Labor Relations Board (the "Board" or the "NLRB") petitions for enforcement of its order prohibiting the respondent labor unions from restraining their members from resigning in anticipation, or during the pendency, of charges of union misconduct. The larger question before us is whether section 8(b)(1)(A) of the National Labor Relations Act (the "Act"), 29 U.S.C. ยง 158(b)(i)(A), is reasonably construed by the NLRB as prohibiting a union from imposing any restrictions on the rights of its members to resign. We hold that the NLRB's construction of section 8(b)(1)(A) is reasonable and, accordingly, we enforce the Board's order.


Local 73, Sheet Metal Workers' International Association ("Local 73") is affiliated with Sheet Metal Workers' International Association, AFL-CIO (the "International") and is bound by the International constitution. At all material times the International constitution has provided that "[n]o resignation [from the union] shall be accepted if offered in anticipation of charges being preferred against [the member], during the pendency of such charges or during a strike or lockout."*fn1 Local 73 is the exclusive collective bargaining representative of all production and maintenance employees of Safe Air, Inc. ("Safe Air"), a manufacturer of fire and smoke dampers. Safe Air filed charges against Local 73 and the International (the "Unions") in February and March 1984, and the General Counsel of the NLRB issued a complaint against the Unions in March 1984, alleging that the restrictions on resignation in the International constitution violated section 8(b)(1)(A) of the Act by coercing and restraining union member-employees in the exercise of their rights guaranteed in section 7 of the Act.*fn2 The parties agreed to transfer the case directly to the NLRB, without a prior hearing by an administrative law judge, and they briefed the case on the basis of the General Counsel's contention that the mere maintenance of the restriction on resignation in the International constitution was an unfair labor practice.

The NLRB found that the Unions' maintenance of the relevant portion of the constitution restrained and coerced members in violation of section 8(b)(1)(A).*fn3 The Board relied primarily on its earlier decision in International Ass'n of Machinists & Aerospace Workers, Local Lodge 1414 (Neufeld Porsche-Audi), 270 N.L.R.B. 1330 (1984), in which it had ruled invalid any restriction on a member's right to resign from a union. Id. at 1333-36. The NLRB therefore ordered the Unions to expunge the unlawful language from the International constitution and to cease and desist from the unfair labor practice.

The Unions have refused to comply with that portion of the Board's order that requires them to expunge from the International constitution the provision prohibiting the resignation of employees who face disciplinary proceedings.*fn4 In its petition for enforcement, the NLRB argues that the Supreme Court, in Pattern Makers' League v. NLRB, 473 U.S. 95, 87 L. Ed. 2d 68, 105 S. Ct. 3064 (1985), endorsed and ratified the essential elements of the Board's rationale in Neufeld, and thus confirmed the NLRB's holding in Neufeld and here. The Unions challenge the NLRB's expansive reading of Pattern Makers'. They claim that Pattern Makers' merely invalidated restrictions on resignation during strikes and lockouts and left the legitimacy of other resignation restrictions unresolved. The Unions argue that the Board's construction of section 8(b)(1)(A) in Neufeld and in the instant case is unreasonable.


The question before the NLRB in Neufeld was whether a union violated section 8(b)(1)(A) by disciplining an employee for post-resignation conduct in a situation where the union's rules barred resignations. The union's constitution declared that resignations tendered during a strike or lockout were ineffective. An employee who returned to work during a strike after attempting to resign his union membership was fined $2,250 by the union. Neufeld, 270 N.L.R.B. at 1331.

The Board found that the specific restraints in the union constitution violated section 8(b)(1)(A), and the Board went on to hold that "any restrictions placed by a union on its members' right to resign similarly are unlawful." 270 N.L.R.B. at 1333.*fn5 The NLRB analyzed resignation restrictions under a three-part balancing test propounded by the Supreme Court in Scofield v. NLRB, 394 U.S. 423, 22 L. Ed. 2d 385, 89 S. Ct. 1154 (1969). A union rule is valid under the Scofield test if it "reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule." Scofield, 394 U.S. at 430

The NLRB concluded that resignation restrictions founder on at least two prongs of this test. With respect to the "fundamental labor policy" prong of Scofield, the NLRB made several findings. First, it found that resignation restrictions restrain members in the exercise of their section 7 rights to refrain from any and all concerted activities. These rights, according to the Board, "encompass[] not only the right to refrain from strikes but also the right to refrain from union membership." Neufeld, 270 N.L.R.B. at 1333. Second, the NLRB found that by compelling a member to maintain full union membership, resignation restrictions collide with the statutory policy of voluntary unionism implicit in sections 8(a)(3)*fn6 and 8(b)(2)*fn7 of the Act. 270 N.L.R.B. at 1333. Third, the NLRB found that resignation restrictions undermine the policy aims that prompted the Supreme Court to distinguish between "internal" and "external" union actions. As long as the discipline imposed by a union meets the definition of an "internal" action, it does not constitute "restraint or coercion" within the meaning of section 8(b)(1)(A). See Scofeld, 394 U.S. at 428; NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967).*fn8 The Board believed that restrictions on resignation would "artificially expand the definition of internal actions," enabling unions to continue to regulate conduct over which they would otherwise have no control. Neufeld, 270 N.L.R.B. at 1333. In a similar vein, the NLRB found that resignation restrictions cannot be justified under the proviso to section 8(b)(1)(A), which safeguards a union's right to prescribe its own rules about acquiring and retaining members. According to the Board,

while a union can enact and enforce [membership] rules that are internal in scope and target, it possesses no statutory authority to impose its will on employees who exercise their section 7 right to resign and thereby refrain from concerted activity. For at that juncture, any action the union takes against the resigned employee is, by definition, "external," unless the provision is read as ...

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