National Labor Relations Board v. Allis-Chalmers Manufacturing Company/Concurrence White

Mr. Justice WHITE, concurring.

It is true that § 8(b)(1)(A) makes it an unfair labor practice for a union to restrain or coerce any employees in the exercise of § 7 rights, but the proviso permits the union to make its own rules with respect to acquisition and retention of membership. Hence, a union may expel to enforce tis own internal rules, even though a particular rule limits the § 7 rights of its members and even though expulsion to enforce it would be a clear and serious brand of 'coercion' imposed in derogation of those § 7 rights. Such restraint and oe rcion Congress permitted by adding the proviso to § 8(b)(1)(A). Thus, neither the majority nor the dissent in this case questions the validity of the union rule against its members crossing picket lines during a properly called strike, or the propriety of expulsion to enforce the rule. Section 8(b)(1)(A), therefore, does not bar all restraint and coercion by a union to prevent the exercise by its members of their § 7 rights. 'Coercive' union rules are enforceable at least by expulsion.

The dissenting opinion in this case, although not questioning the enforceability of coercive rules by expulsion from membership, questions whether fines for violating such rules are enforceable at all, by expulsion or otherwise. The dissent would at least hold court collection of fines to be an unfair labor practice, apparently for the reason that fines collectible in court may be more coercive than fines enforceable by expulsion. My Brother BRENNAN, for the Court, takes a different view, reasoning that since explsion would in many cases-certainly in this one involving a strong union-be a far more coercive technique for enforcing a union rule and for collecting a reasonable fine than the threat of court enforcement, there is no basis for thinking that Congress, having accepted expulsion as a permissible technique to enforce a rule in derogation of § 7 rights, nevertheless intended to bar enforcement by another method which may be far less coercive.

I do not mean to indicate, and I do not read the majority opinion otherwise, that every conceivable internal union rule which impinges upon the § 7 rights of union members is valid and enforceable by expulsion and court action. There may well be some internal union rules which on their face are wholly invalid and unenforceable. But the Court seems unanimous in upholding the rule against crossing picket lines during a strike and its enforceability by expulsion from membership. On this premise I think the opinion written for the Court is the more persuasive and sensible construction of the statute and I therefore join it, although I am doubtful about the implications of some of its generalized statements.

Mr. Justice BLACK, whom Mr. Justice DOUGLAS, Mr. Justice HARLAN, and Mr. Justice STEWART join, dissenting.

The United Automobile Workers went on a lawful economic strike against the Allis-Chalmers Manufacturing Co. Some union members, refusing to engage in the concerted strike activities, crossed the picket lines and continued to work for Allis-Chalmers. The right to refrain from engaging in such 'concerted activities' is guaranteed all employees by the language of § 7 of the National Labor Relations Act, as amended, 61 Stat. 140, and § 8(b)(1)(A) of the Act, 61 Stat. 141, makes it an unfair labor practice for a union to 'restrain or coerce' employees in their exercise of their § 7 rights. Despite these emphatic guarantees of the Act, the union filed charges against the employees and imposed fines against those who had crossed its picket lines to go back to work. Though the proviso to § 8(b)(1)(A) preserves the union's 'right * *  * to prescribe its own rules with respect to the *  *  * retention of membership therein,' the union did not attempt to exercise its right under the proviso to expel the disciplined members when they refused to pay the fines. Instead, it brought legal proceedings in state courts to compel the payment of the fines. The Court now affirms the Labor Board's action in refusing to find the union guilty of an unfair labor practice under § 8(b)(1)(A) for fining its members because they crossed its picket lines. I cannot agree and, therefore, would affirm the judgment of the Court of Appeals which set aside the Labor Board's order.

In determining what the Court here holds, it is helpful to note what it does not hold. Since the union resorted to the courts to enforce its fines instead of relying on its own internal sanctions such as expulsion from membership, the Court correctly assumes that the proviso to § 8(b)(1)(A) cannot be read to authorize its holding. Neither does the Court attempt to sustain its holding by reference to § 7 which gives employees the right to refrain from engaging in concerted activities. To be sure, the Court in characterizing the union-member relationship as 'contractual' and in emphasizing that its holding is limited to situations where the employee is a 'full member' of the union, implies that by joining a union an employee gives up or waives some of his § 7 rights. But the Court does not say that a union member is without the § 7 right to refrain from participating in such concerted activity as an economic strike called by his union. Such a holding would be clearly unwarranted even by resort to the legislative history of the 1947 addition to § 7 of 'the right to refrain from any or all of such activities.' According to Senator Taft, that phrase was added by the Conference Committee to 'make the prohibition contained in section 8(b)(1) apply to coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line.' 93 Cong.Rec. 6859, II Leg.Hist. 1623. (Emphasis added.)

With no reliance on the proviso to § 8(b)(1)(A) or on the meaning of § 7, the Court's holding boils down to this: a court-enforced reasonable fine for nonparticipation in a strike does not 'restrain or coerce' an employee in the exercise of his right not to participate in the strike. In holding as it does, the Court interprets the words 'restrain or coerce' in a way directly opposed to their literal meaning, for the Court admits that fines are as coercive as penalties imposed on citizens for the nonpayment of taxes. Though Senator Taft, in answer to charges that these words were ambiguous, said their meaning 'is perfectly clear,' 93 Cong.Rec. 4021, II Leg.Hist. 1025 and though any union official with sufficient intelligence and learning to be chosen as such could hardly fail to comprehend the meaning of these plain, simple English words, the Court insists on finding an 'inherent imprecision' in these words. And that characterization then allows the Court to resort to '(w)hat legislative materials there are.' In doing so, the Court finds three significant things: (1) there is 'not a single word' to indicate that § 8(b)(1)(A) was intended to apply to 'traditional internal union discipline in general, or disciplinary fines in particular'; (2) the 'repeated refrain' running through the debates on the section was that Congress did not intend to impose any limitations on the 'internal affairs of unions'; (3) the Senators who supported the section were primarily concerned with union coercion during organizational drives and with union violence in general.

Even were I to agree with the Court's three observations about the legislative history of § 8(b)(1)(A), I do not think they alone justify disregarding the plain meaning of the section, and it seems perfectly clear to me that the Court does not think so either. The real reason for the Court's decision is its policy judgment that unions, especially weak ones, need the power to impose fines on strikebreakers and to enforce those fines in court. It is not enough, says the Court, that the unions have the power to expel those members who refuse to participate in a strike or who fail to pay fines imposed on them for such failure to participate; it is essential that weak unions have the choice between expulsion and court-enforced fines, simply because the latter are more effective in the sense of being more punitive. Though the entire mood of Congress in 1947 was to curtail the power of unions, as it had previously curtailed the power of employers, in order to equalize the power of the two, the Court is unwilling to believe that Congress intended to impair 'the usefulness of labor's cherished strike weapon.' I cannot agree with this conclusion or subscribe to the Court's unarticulated premise that the Court has power to add a new weapon to the union's economic arsenal whenever the Court believes that the union needs that weapon. That is a job for Congress, not this Court.

Though the Court recognizes that a union fine is in fact coercive, it seeks support for its holding-that court-enforced fines are not prohibited by § 8(b) (1)(A)-by reference to the proviso which authorizes a union to prescribe its own rules with respect to the retention of membership. The Court first assumes that the proviso protects the union's right to expel members for the express purpose of discouraging them from going to work. From that assumption the Court then suggests that '(a)t the very least * *  * the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the *  *  * threat of expulsion for nonpayment.' And finally, departing a third step further from the literal language of the proviso, the Court arrives at its holding that Congress could not have meant to preclude unions from the alternative of judicially enforcing fines.

Contrary to the Court, I am not at all certain that a union's right under the proviso to prescribe rules for the retention of membership includes the right to restrain a member from working by trying him on the vague charge of 'conduct unbecoming a union member' and fining him for exercising his § 7 right of refusing to participate in a strike, even though the fine is only enforceable by expulsion from membership. It is one thing to say that Congress did not wish to interfere with the union's power, similar to that of any other kind of voluntary association, to prescribe specific conditions of membership. It is quite another thing to say that Congress intended to leave unions free to exercise a courtlike power to try and punish members with a direct economic sanction for exercising their right to work. Just because a union might be free, under the proviso, to expel a member for crossing a picket line does not mean that Congress left unions free to threaten their members with fines. Even though a member may later discover that the threatened fine is only enforceable by expulsion, and in that sense a 'lesser penalty,' the direct threat of a fine, to a member normally unaware of the method the union might resort to for compelling its payment, would often be more coercive than a threat of expulsion.

Even on the assumption that § 8(b)(1)(A) permits a union to fine a member as long as the fine is only enforceable by expulsion, the fundamental error of the Court's opinion is its failure to recognize the practical and theoretical difference between a court-enforced fine, as here, and a fine enforced by expulsion or less drastic intra-union means. As the Court recognizes, expulsion for nonpayment of a fine may, especially in the case of a strong union, be more severe than judicial collection of the fine. But, if the union membership has little value and if the fine is great, then court-enforcement of the fine may be more effective punishment, and that is precisely why the Court desires to provide weak unions with this alternative to expulsion, an alternative which is similar to a criminal court's power to imprison defendants who fail to pay fines.

In this case, each strikebreaking employee was fined from $20 to $100, and the union initiated a 'test case' in state court to collect the fines. In notifying the employee of the charges against them, however, the union warned them that each day they crossed the picket line and went to work might be considered a separate offense punishable by a fine of $100. In several of the cases, the strikes lasted for many months. Thus, although the union here imposed minimal fines for the purpose of its 'test case,' it is not too difficult to imagine a case where the fines will be so large that the threat of their imposition will absolutely restrain employees from going to work during a strike. Although an employee might be willing to work even if it meant the loss of union membership, he would have to be well paid indeed to work at the risk that he would have to pay his union $100 a day for each day worked. Of course, as the Court suggests, he might be able to defeat the union's attempt at judicial enforcement of the fine by showing it was 'unreasonable' or that he was not a 'full member' of the union, but few employees would have the courage or the financial means to be willing to take that risk. Cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.ed. 714.

The Court disposes of this tremendous practical difference between court-enforced and union-enforced fines by suggesting that Congress was not concerned holding. of union fines' and that court-enforcement of fines is a necessary consequence of the 'contract theory' of the union-member relationship. And then the Court cautions that its holding may only apply to court enforcement of 'reasonable fines.' Apparently the Court believes that these considerations somehow bring reasonable court-enforced fines within the ambit of 'internal union affairs.' There is no basis either historically or logically for this conclusion or the considerations upon which it is based. First, the Court says that disciplinary fines were commonplace at the time the Taft-Hartley Act was passed, and thus Congress could not have meant to prohibit these 'traditional internal union discipline' measures without saying so. Yet there is not one word in the authorities cited by the Court that indicates that court enforcement of fines was commonplace or traditional in 1947, and, to the contrary, until recently unions rarely resorted to court enforcement of union fines. Second, Congress' unfamiliarity in 1947 with this recent innovation and consequent failure to make any distinction between union-enforced and court-enforced fines cannot support the conclusion that Congress was unconcerned with the 'means' a union uses to enforce its fines. Congress was expressly concerned with enacting 'rules of the game' for unions to abide by. 93 Cong.Rec. 4436, II Leg.Hist. 1206. As noted by the Labor Board the year after § 8(b)(1)(A) was passed, '(i)n that Section, Congress was aiming at means, not at ends.' Perry Norvell Co., 80 N.L.R.B. 225, 239. At the very least Congress intended to preclude a union's use of certain means to collect fines. It is clear, as the Court recognizes, that Congress in enacting § 8(b) (2) was concerned with insulating an employee's job from his union membership. If the union here had attempted to enforce the payment of the fines by persuading the employer to discharge the nonpaying employees or to withhold the fines from their wages, it would have clearly been guilty of an unfair labor practice under § 8(b)(2). If the union here, operating under a union shop contract, had applied the employees' dues to the satisfaction of the fines and then charged them extra dues, that, under Board decision, would have been a violation of § 8(b)(1)(A), since it would have jeopardized the employees' jobs. Yet here the union has resorted to equally effective outside assistance to enforce the payment of its fines, and the Court holds that within the ambit of 'internal union discipline.' I have already pointed to the impact that $100 per day court-enforced fines may have on an employee's job-they would totally discourage him from working at all-and I fail to see how court enforcement of union fines is any more 'internal' than empoy er enforcement. The undeniable fact is that the union resorts to outside help when it is not strong enough to enforce obedience internally. And even if the union does not resort to outside help but uses threats of physical violence by its officers or other members to compel payment of its fines. I do not doubt that this too would be a violation of § 8(b)(1)(A).

Finally, the Court attempts to justify court-enforcement of fines by comparing it to judicial enforcement of the provisions of an ordinary commercial contract-a comparison which, according to the Court's own authority, is simply 'a legal fabrication.' The contractual theory of union membership, at least until recently, was a fiction used by the courts to justify judicial intervention in union affairs to protect employees, not to help unions. I cannot believe that Congress intended the effectiveness of § 8(b)(1)(A) to be impaired by such a fiction, or that it was content to rely on the state courts' use of this fiction to protect members from union coercion. Particularly is that so where the 'contract' between the union and the employee is the involuntary product of a union shop. Although the Court of Appeals held that to be the case here, the Court takes the surprising position that 'what motivated' the full union member to make the 'contract' is immaterial. I doubt that even an ordinary commercial contract is enforceable against a party who entered into it involuntarily. But I am certain that Congress did not intend to insulate union coercion form the literal language of § 8(b)(1)(A) merely because the union has secured a 'full' but involuntary contract from those it desires to coerce.

While the Court may be correct in saying that resort to legislative history is proper here, it is certainly not justified in ignoring the plain meaning of § 8(b)(1)(A) on the basis of the inconclusive legislative history it points to. In the first place, '(w)hat legislativema terials there are dealing with § 8(b) (1)(A)' are only the remarks of a few Senators during the debate on the floor. The section was added on the floor after the bill had cleared the Senate Committee. There were no debates on the section in the House, there were no committee reports on the section, and debate in the Senate was brief. In the second place, though the Court deems the words 'restrain or coerce' to be 'imprecise,' it somehow is willing to attribute a magical quality of clarity to the refrain 'internal affairs of unions.' The Court is thus willing to attribute more certainty and careful consideration to a refrain used by several Senators in a heated debate in response to certain criticism than it is to the words repeatedly used in the Act itself.

The repeated refrain of the debates on § 8(b)(1)(A) was actually that it was aimed to secure 'equality * *  * between employers and employees.' Over and over again, Senator Taft and others emphasized that if a union indulges in conduct that would be an unfair labor practice on the part of an employer, it too should be guilty of an unfair labor practice. Although the Court deems 'this parallel * *  * clearly *  *  * inapplicable to the relationship of a union member to his own union,' it is clear that the sponsors of § 8(b)(1)(A) did not think so. Several times, Senator Pepper tried to persuade Senator Taft that there was a difference between an employee's relation to his employer and his relation to his union. On each occasion, Senator Taft replied, 'I cannot see any difference.' 93 Cong.Rec. 4022, II Leg.Hist. 1026, 1027. When Senator Pepper asked whether the words 'restrain or coerce' might have a different application to unions than to employers, Senator Taft replied:

'The Board has been defining those words for 12 years, ever     since it (the Act) came into existence. Its application to     labor organizations may have a slightly different      implication, but it seems to me perfectly clear that from the      point of view of the employee the two cases are parallel. * *      * If there is anything clear in the development of labor      union history in the past 10 years it is that more and more      labor union employees have come to be subject to the orders      of labor union leaders. The bill provides for the right of     protest against arbitrary powers which have been exercised by      some of the labor union leaders. Certainly it seems to me     that if we are willing to accept the principle that employees      are entitled to the same protection against labor union      leaders as against employers, then I can see no reasonable      objection to the amendment *  *  * .' 93 Cong.Rec. 4023, II     Leg.Hist. 1028. (Emphasis added.) When Senator Pepper replied that Senator Taft was overlooking 'the fact that the workers elect their own officers, whereas they do not elect their employers'-precisely the fact that the Court points to in finding the parallel between unions and employers inapplicable-Senator Taft replied:

'I think it is fair to say that in the case of many of the     unions, the employee has a good deal more of an opportunity      to select his employer than he has to select his labor-union      leader; and even if he has that opportunity *  *  * the man who      is elected may have been voted against by various of the      employees who did not desire to have that particular man      elected as the union leader. In such cases the very fact that     they did vote against that man is often used later by the      union as a means of coercing such employees, and in some      cases the union expels them from the union or subjects them      to treatment which interferes with their rights as American      citizens.' 93 Cong.Rec. 4023, II Leg.Hist. 1028. (Emphasis     added.)

And finally, when Senator Pepper charged that the 'amendment is an effort to protect the workers against their own leaders,'Senator Taft did not deny it. He clearly stated that the bill was designed to warn unions 'that they do not have the right to interfere with or coerce employees, either their own members or those outside their union.' 93 Cong.Rec. 4025, II Leg.Hist. 1032. (Emphasis added.)

It is true that the Senate sponsors of § 8(b)(1)(A) were primarily concerned with coercive organizational tactics of unions and that most of the examples of abuse referred to in the debates concerned threats of violence by unions against nonmember employees. But to say that § 8(b)(1)(A) covers only coercive organizational tactics, which the Court comes very close to doing, is to ignore much of the legislative history. It is clear that § 8(b)(1)(A) was intended to protect union as well as nonunion employees from coercive tactics of unions, and such protection would hardly be provided if the section applied only to organizational tactics. Also, it is clear that Congress was much more concerned with nonviolent economic coercion than with threats of physical violence. As Senator Ball, who introduced the section, put it: 'But we are less concerned here with actual acts of violence than we are with threats * *  * .' And Senator Taft noted: 'There are plenty of methods of coercion short of actual physical violence.' Examples were given of cases where unions threatened to double the dues of employees who waited until later to join. It is difficult to see how fining a member is less coercive than doubling his dues, or how the one is 'within the ambit of internal union affairs' and the other is not. After the bill was passed, in commenting on some of the abuses it was designed to correct, Senator Wiley said there are 'instances in which unions * *  * have imposed fines upon their members up to $20,000 because they crossed picket lines-dared to go to the place of employment.' Twice during the debate, Senator Taft emphatically stated that the section guarantees employees who wished to work during a strike the right to so. Though on neither occasion did he expressly limit his examples to organizational strikes, the Court reads them as having such a limited reference. Once again the Court utilizes ambiguous, extemporaneous legislative comments to circumvent the unambiguous language of a carefully drafted statute. Congress certainly knew how to limit expressly the applicability of the section to organizational coercion, if it intended to do so.

The Court finds the strongest support for its position in statements of Senator Ball when he accepted the proviso proposed by Senator Holland. When Senator Holland observed, 'Apparently it is not intended by the sponsors of the amendment to affect at least that part of the internal administration which has to do with the admission or the expulsion of members,' Senator Ball repied, 'It was never the intention of the sponsors of the pending amendment to interfere with the internal affairs or organization of unions.' From this statement by Senator Ball accepting the proviso the Court unjustifiably implies an intent to broaden it. First, there is no reason to suppose that Senator Ball was referring to any 'part' of internal affairs other than that to which Senator Holland had referred. Second, the sponsors of the section repeatedly announced that it would protect union members from their leaders, and that protection would be impossible if the section did not to some extent interfere with the internal affairs of unions. As Senator Wiley said, 'None of these provisions interferes unduly with union affairs, except to the extent necessary to protect the individual rights of employees.' Third, the Court recognizes-without holding-that the section may protect union members from 'arbitrary' action of union leaders. However, it is difficult to understand how the arbitrariness or nonarbitrariness of a fine determines whether it is within the scope of 'internal union affairs.'

What the Court does today is to write a new proviso to § 8(b)(1)(A): 'this paragraph shall not impair the right of a labor organization nonarbitrarily to restrain or coerce its members in their exercise of § 7 rights.' Nothing in the legislative history supports the creation of this new proviso.

The Court seeks further support for its holding by reference to the fact that the 1959 Landrum-Griffin amendments were 'thought to be the first comprehensive regulation by Congress of the conduct of internal union affairs.' And the Court thinks that to construe § 8(b)(1)(A) according to its literal language to prohibit fines 'is to say that Congress preceded the Landrum-Griffin amendments with an even more pervasive regulation of the internal affairs of unions.'

But again the Court fails to distinguish between court-enforced fines and fines enforced by the traditional method of expulsion. Although both kinds of fines are coercive, I have already indicated that the proviso to § 8(b)(1)(A) may preserve the union's right to impose fines which are enforceable only by expulsion and that expulsion was the common mode of enforcing fines at the time the section was adopted. If one assumes that the only fines prohibited by the section are court-enforced fines, then the section was not a pervasive regulation of union internal affairs. If court enforcement of fines is within the ambit of internal union affairs, which I doubt, then those affairs were only incidentally regulated by a flat prohibition of this seldom-used method of union discipline. If the common forms of union discipline-expulsion and fines enforceable by expulsion-were not prohibited or regulated by Taft-Hartley, then Landrum-Griffin was indeed the first comprehensive regulation of them.

The union here had a union security clause in its contract with Allis-Chalmers. That clause made it necessary for all employees, including the ones involved here, to pay dues and fees to the union. But § 8(a)(3) and § 8(b)(2) make it clear that 'Congress intended to prevent utilization of union security agreements for any urpose other than to compel payment of union dues and fees.' Radio Officers' Union, etc. v. National Labor Relations Board, 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455. If the union uses the union security clause to compel employees to pay dues, characterizes such employees as members, and then uses such membership as a basis for imposing court-enforced fines upon those employees unwilling to participate in a union strike, then the union security clause is being used for a purpose other than 'to compel payment of union dues and fees.' It is being used to coerce employees to join in union activity in violation of § 8(b)(2).

The Court suggests that this problem is not present here, because the fined employees failed to prove they enjoyed other than full union membership, that their role in the union was not in fact limited to the obligation of paying dues. For several reasons, I am unable to agree with the Court's approach. Few employees forced to become 'members' of the union by virtue of the union security clause will be aware of the fact that they must somehow 'limit' their membership to avoid the union's court-enforced fines. Even those who are brash enough to attempt to do so may be unfamiliar with how to do it. Must they refrain from doing anything but paying dues, or will signing the routine union pledge still leave them with less than full membership? And finally, it is clear that what restrains the employee from going to work during a union strike is the union's threat that it will fine him and collect the fine from him in court. How many employees in a union shop whose names appear on the union's membership rolls will be willing to ignore that threat in the hope that they will later be able to convince the Labor Board or the state court that they were not full members of the union? By refusing to decide whether § 8(b)(1)(A) prohibits the union from fining an employee who does nothing more than pay union dues as a condition to retaining his job in a union shop, the Court adds coercive impetus to the union's threat of fines. Today's decision makes it highly dangerous for an employee in a union shop to exercise his § 7 right to refrain from participating in a strike called by a union in which he is a member in name only.

The National Labor Relations Act, as originally passed and amendmed from time to time, is the work product of draftsmen skilled by long experience in labor affairs. These draftsmen thoroughly understood labor legislation terminology, especially the oft-used words 'restrain or coerce.' Sections 7 and 8 together bespeak a strong purpose of Congress to leave workers wholly free to determine in what concerted labor activities they will engage or decline to engage. This freedom of workers to go their own way in this field, completely unhampered by pressures of employers or unions, is and always has been a basic purpose of the labor legislation now under consideration. In my judgment it ill behooves this Court to strike so diligently to defeat this unequivocally declared purpose of Congress, merely because the Court believes that too much freedom of choice for workers will impair the effective power of unions. Cf. Vaca v. Sips, 386 U.S. 171, 203, 87 S.Ct. 903, 923, 17 L.Ed.2d 842 (dissenting opinion). A court-enforced fine is certainly coercive, certainly affects the employee's job, and certainly is not a traditional method of internal union discipline. When applied by a union to an employee who has joined it as a condition of obtaining employment in a union shop, it defeats the provisions of the Act designed to prevent union security clauses from being used for purposes other than to compel payment of dues. In such a situation it cannot be justified on any theory that the employee has contracted away or waived his § 7 rights.

Where there is clear legislative history to justify it, courts often decline to follow the literal meaning of a statute. But this practice is fraught with dangers when the legislative history is at best brief, inconclusive, and ambiguous. This is precisely such a case, and I dissent because I am convinced that the Court has ignored the literal language of § 8(b)(1)(A) in order to give unions a power which the Court, but not Congress, thinks they need.