concurring:
In every attempt to regulate the First Amendment associational activities of its public employees, a state or municipality is necessarily caught between the Scylla of an overbroad regulation and the Charybdis of a pattern of exemptions that renders the regulation arbitrary and irrational. The more narrowly the regulation is drawn to avoid a challenge of overbreadth, the more likely it is that the regulation will fail to achieve its purposes and will be deemed arbitrary because of areas excluded from coverage. The instant regulation fails under the Constitution because it is both over-broad and in particular instances arbitrary. I thus concur in the result reached by the majority. I write separately, however, to emphasize what I perceive as the most important infirmities in the statute.
The regulation is overbroad to the extent that it precludes a police union from affiliating with a national labor federation.1 Cf. Atkins v. City of Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969) (three-judge court). The mere affiliation of an all-police union with the AFL-CIO or some other national federation presents a much less aggravated possibility of conflict. I believe further that an arrangement wherein a police officers’ organization is an independent all-police division of an international union could not be constitutionally precluded. Cf. Police Officers’ Guild v. Washington, 369 F.Supp. 543 (D.D.C.1973) (three-judge court).
Rule 54A is also overbroad in that it bans membership in all labor organizations with non-police members, even those organizations whose non-police members assert no right to strike. As was stated by counsel for the defendants at oral argument, the critical concern of the City is the divided loyalty of a police officer called upon to cross a picket line, which his union membership requires him to respect, in the course of his official duties. The possibility of such a conflict of interest is greatly lessened, however, if the non-police members of the union are, for example, other government employees denied the right to strike. *115This kind of police/non-police affiliation m a single union is not unlikely given the common interests shared by the two groups. Rule 54A is overbroad to the extent that it prohibits such a joint union.
It may also be (but this seems less clear) that the secondary employment exception to the Rule is not tailored narrowly enough to avoid rendering the Rule arbitrary. Although the onset of a strike would automatically terminate a police officer’s approval for secondary employment, as a practical matter his interest would remain aligned with the other striking employees working for his secondary employer. The temporary hiatus might not change the public’s perception of a conflict of interest, one of the major reasons for Rule 54A. And the police officer would surely benefit from whatever pecuniary gains might be secured as a result of the strike.
As for certain other reasons asserted by the majority for striking down Rule 54A, with all respect, I question for the most part their weight and significance. Membership in social or ethnic organizations involves no duty comparable to the obligation of a member of a union not to cross his union’s picket line. Further, as stockholders of a struck business, police officers bear no obligation to deal with a labor dispute in any way similar to their obligation as union members to respect the picket line of their own union. The exceptions or gaps that allow these types of speculative “conflicts” do not in my view render the Rule arbitrary or irrational.
. Both the record and the statements at oral argument indicate that this kind of affiliation would be prohibited by Rule 54A.