(dissenting).
I respectfully dissent. The court’s opinion footnotes the facts and abbreviates the points made in support of the original opinion, now withdrawn. I think it prudent to adopt, as part of my dissent, so much of the original opinion* as is necessary to give a full understanding of the points originally made:
* -* * * * *
Allis-Chalmers contends that a union member who crosses a picket line of his own union is exercising his Section 7 right to refrain from engaging in a concerted activity and that if the union disciplines the member for engaging in this activity by any means other than expulsion from the union, it violates Section 8(b) (1) (A). This contention rests upon a literal reading of Section 7. But a literal reading fails to take into account the history and purpose of the Section, which shows that it was not intended to immunize a union member from discipline for defiance of a decision of the majority to strike.
There is no merit in the contention, because Congress did not intend in Section 7 to protect everything which might be described as “concerted activities.” As an example, the House Committee Report on H.R. 3020, the House version of the bill, pointed out that the courts and the Board had already held that wildcat and sitdown strikes were not protected activities and that the bill would make no change in those rules;1 and the Conference Report on the House and Senate bills states that Section 7 was limited to “protected activities,” even though some unprotected activities may be “concerted” and within the literal meaning of the Section.2
Prior to the 1947 Taft-Hartley amendments no federal legislation in any way regulated union internal affairs or activities. Neither the original proposals of the House or Senate specifically prohibited a union from fining its members for “strikebreaking,” although the original House version provided a number of restrictions on unions in their dealings with *666members.3 These provisions do not appear in the bill as enacted.
When Congress was considering the 1947 amendments, it was well aware of union disciplinary measures, including fines, for such activities as “strikebreaking.” If Congress had intended to prohibit such fines — while at the same time permitting expulsion as a disciplinary measure — the intention to do so could be expected to be clear. See International Ass’n of Machinists v. Gonzales, 356 U.S. 617, 620, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). The indications, however, are to the contrary.4
The legislative history of Section 8 (b) (1) (A) shows also that the prohibition of that Section, with or without the proviso, was directed against the specific evils of force, violence, and threats thereof, mass picketing, and economic reprisals in the form of inducing an employer to discriminate against an employee in his job rights. It was not intended to have the breadth contended for by Allis-Chalmers and to encompass any activity, including fines collectible by legal process, which may be described as “coercive.”
Section 12 of the version of the bill passed by the House defined a number of “unlawful concerted activities” by unions which could be enjoined or be the basis of a suit for damages. This provision was not enacted in the final version which became law. The Conference Committee Report5 explains that Section 8(b) (1) (A) was intended to cover the activities specified in Section 12(a) (l)6 of the House bill. That Section made no mention of fines as discipline for “strikebreaking.”
House Report No. 245 on the House bill as reported by the Committee also made no reference to fines for “strikebreaking” in a listing of results to be achieved by the bill. It states, rather, that “It [the bill] outlaws mass picketing and other forms of violence designed to prevent individuals from entering or leaving a place of employment.” 7 In the same report the Committee said, in explaining Section 8(b) (1):
This is new, making it an unfair labor practice for labor organizations, their officers, agents, and representatives, or for employees, to interfere with, restrain or coerce employees. There is included in this provision a qualification which is not found in the corresponding paragraph covering employers — namely, that the interference proscribed is interference by intimidation.8
The language of the Section referred to was:
(1) by intimidating practices, to interfere with the exercise by employees of rights guaranteed in See*667tion 7(a) or to compel or seek to compel any individual to become or remain a member of any labor organization.9
The Supreme Court in NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639, Int. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Curtis Bros.), 362 U.S. 274, 286-87, 80 S.Ct. 706, 713, 714, 4 L.Ed.2d 710] (1960), stated that the Congressional debate shows that the purpose of Section 8(b) (1) (A) is “the elimination of the use of repressive tactics bordering on violence or involving particularized threats of economic reprisal” and that “[t]he note repeatedly sounded is as to the necessity for protecting individual workers from union organisational tactics tinged with violence, duress or reprisal.” A fine collectible by legal process hardly comports with the notion of “reprisal” or “intimidation.” The “economic reprisal” referred to is such things as securing discharge or reductions in pay or seniority.
The Board also has reached this conclusion with respect to the history of Section 8(b) (1) (A) in holding, in Local 283, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO (Wisconsin Motors Corp.), 145 NLRB 1097 (1964), that fines imposed on members and attempted to be collected in State courts for exceeding production quotas do not constitute restraint or coercion within the meaning of that Section. And in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954) the Board held that a $500 fine for failure to attend union meetings and picket during a strike did not violate Section 8(b) (1) (A). The Board said there that a fine may be coercive but it is not what Congress meant by “coercion.”
There are other considerations adding rational support for our conclusion. A union member may express agreement or disagreement with union rules or policies, but he cannot simultaneously be a member and also have whatever advantages there might be in non-membership, and he should not be immunized against discipline if as a member he acts against a lawful union activity determined by the majority to be in his, as well as their, interest. “The power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent. * * * ” Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951).
A union is a form of industrial government and the rights and duties of a member are. similar to those of a citizen in a democratic society. Summers, p. 1074. The nature of this relationship was recognized by Congress in enacting Section 101(a) (2), 73 Stat. 522, 29 U.S.C. § 411(a) (2), of the LMRDA in 1959. In this section of the “bill of rights” of union members, after providing that members shall have the right to meet together and express their views on matters concerning the organization, Congress added the proviso
That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal and contractual obligations.
Congress would have been inconsistent in adopting this proviso if it had previously, in Section 8(b) (1) (A), forbidden unions to fine members who cross picket lines, for what greater responsibility could a union member have to the union as an institution than to support a lawful strike called by the majority?
Allis-Chalmers’ admission of the union’s right under the Act to expel *668members for “strikebreaking” and its challenge of the lesser disciplinary-power to fine is inconsistent. If it were true that a union’s disciplinary power is limited to expulsion, this would mean that a union would be faced with the dilemma of either permitting anarchy and dissension within its ranks or depleting its strength by expulsion of the offending members. We have not been persuaded by Allis-Chalmers that this absurdity was in the contemplation of Congress.
The employer argues that a fine is not a lesser penalty, but is more coercive than expulsion, since many members would not object to, and might even welcome, expulsion. In many cases, however, expulsion could result in serious financial loss through cancellation of union insurance, pension and other benefits. It would be strange for Congress to prohibit one form of discipline and not the other, where the effect of the one permitted could be equal to, or greater, in severity than the one prohibited.
The employees in this case had the right, under Section 7, to strike or not to strike. But once the union voted to strike, the employees who were union members were bound by the limitation that union membership placed on their right not to strike. It would be difficult to accept the proposition that a union should be the one secular society in our nation which one may enter without being bound by majority rule and without submission to some limitations on rights for the common good. Upon entering, union members must take not only the benefits but the burdens also, N. L. R. B. v. International Union UAW-AFL-CIO, 320 F.2d 12, 16 (1st Cir. 1963), and these burdens are not solely financial. Implicit in the Section 7 right to organize is the duty, once that right has been exercised, to support the organization. The point is not that an employee, as such, may not refrain from striking, but that a union member may not with impunity flout the will of the majority (in this case a two-thirds majority) expressed in a strike vote.
If the employer’s position that a union may not fine “strikebreakers” is correct, then the converse — that a union may not fine wildcat strikers— would also be true. This would render a union virtually powerless to enforce a no-strike clause on its members. The last portion of the proviso to Section 101(a) (2) of the LMRDA quoted above, however, clearly protects the rights of a union reasonably to discipline members who violate contract clauses. We do not think Congress intended to treat “strikebreakers” differently from wildcat strikers, so far as union discipline is concerned.
We disagree with the employer that this court’s decision in Allen Bradley Co. v. N. L. R. B., 286 F.2d 442 (7th Cir. 1961), controls our disposition of the issue in this case. There this court held that proposals of the employer to limit the union’s right to fine or discipline members refusing to join in a strike were subjects of mandatory bargaining. In dictum the court said that fines for crossing picket lii\es impose a sanction on the exercise of the right to work guaranteed by the Act and thus do not relate solely to the internal affairs of the union, so that the proviso of Section 8(b) (1) (A) was inapplicable to protect the union. We do not see how, if fining a union member for crossing a picket line is unlawful coercion, as Allis-Chalmers claims here, it can be a matter for collective bargaining. Nor can we see how, if the employer is “concerned” with a union’s fining its members for crossing picket lines, so as to give the employer a bargainable interest in the matter — one of the principal bases of the Allen Bradley decision — it can be less “concerned” over the expulsion of members, which the employer here concedes is lawful.
The Board’s decision in Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB No. 74, holding it an unfair labor practice for *669a union to fine a member for filing an unfair labor practice charge against the union, also does not militate against our position. That case was based on the principle that a union rule which seeks to frustrate the right of members to avail themselves of the services of the Board is contrary to recognized public policies and beyond the competence of a union to enforce by any coercive means.
******
Both the original and present opinions state the issue identically. I take the present holding of the court to be that “a union which imposes fines upon its members” for crossing a picket line, and seeks to collect the fines by suit or threat of suit, is guilty of an unfair labor practice in violation of § 8(b) (1) (A). On this holding, the original opinion to the contrary was withdrawn.
The original opinion discloses that both parties and the court were concerned only with fines imposed on union members who were subject to the union constitution and rules. This is clear from the original opinion, for example, “no members have been expelled or suspended from the union, nor have any resigned, for any reason arising from the disciplinary proceedings”; also “ * * * the parties do not dispute * * * that the union may expel its members for any reason authorized by its rules”; and “Allis-Chalmers contends that a union member who crosses a picket line of his own union is exercising his Section 7 right * * *; and that if the union disciplines the member for * * * this * * * by any means other than expulsion, it violates Sec. 8<b) (1) (A).”
This being so, the court’s statement concerning nonvoluntary members10 might be misleading to the reader. There is no question in the issue before us of “forced * * * membership.”
An argument was introduced by Allis-Chalmers in its rehearing petition that the men before us were involuntary members having “solely a dues paying status,” a “very limited technical” membership.11 The union’s answer to the petition stated that the union shop clause does not require full union membership; that the union, could not compel employees to take the union oath, submitting to the union constitution and rule. The union’s answer conceded that if the men before us had no obligation to the union beyond paying dues and fees, they would not be subject to the union “requirement of obedience to the common cause.” 12 In reply Allis-Chalmers shifted gears : “This avoids the question in issue. The question is whether a union may coerce an employee who is a member, be he one voluntarily or involuntarily. It is the Petitioner’s position that unions have no such right.” 13 The question of involuntariness was not and is not in the case.
In addition, it seems important to me that a few observations be made about the court’s opinion.
The opinion states:
“In formulating our original opinion, we gave favorable consideration to the following arguments:
* * * * * *
“6. An analogy was drawn between an industrial union and a democratic society where the majority rules, forgetting that a union is largely the creature of statute. * * *»
I am sure the court by the term “largely the creature of statute” meant only to say that the Wagner Act and subsequent legislation gave unions status as institutions. Taken literally the words im*670ply that unions, as associations of men, had no rightful prestatute existence. .The Constitution presupposes and gives protection to the right of association. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
The court states “the statutes in question present no ambiguities whatsoever, and therefore do not require recourse to legislative history for clarification.” Section 8(b) (1) (A) is not less ambiguous than other parts of Section 8(b), application of which has been troublesome for the Supreme Court. For example, see N. L. R. B. v. Drivers Local Union, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960), and especially 362 U.S. at 290, 80 S.Ct. at 715, where the Court referred to the term “restrain or coerce” as “nonspecific, indeed vague, words. * * *”14 And Allis-Chalmers, in its original brief in this case, relied upon legislative history to but[t]ress its contention as to the intent of Congress.
The stipulated facts do not warrant the court’s implication that the actual fines imposed in this case took away the union member’s “wages.” There is no claim in this case that the fines levied were unreasonable. The only issue is with respect to the right to fine these union members for crossing a picket line and to enforce payment in court. And the original opinion cannot be read as insulating from Board or court decision the unreasonable imposition by a union of such fines as would be equivalent to prer venting a member from working or blocking his promotion or having him demoted.
The court reassures the union, concerned if it has no right to fine members who are wildcat strikers, by noting that wildcat strikes are not protected activities and that the employer, by disciplinary action, will “adequately assist” the union. This burden would probably not rest lightly on the employer, nor will the reassurance put the union quite at ease about enforcement of no-strike clauses.
It is my view that the original opinion was correct, and I adhere to the views I expressed there. I would deny the petition to set aside the Board’s dismissal of the complaint.
I also concur in the views expressed by Chief Judge Hastings and Judge Swygert in their separate dissents.
Allis-Chalmers Mfg. Co. v. NLRB, No. 14853, 7th Cir., Sept. 13, 1965, at 3-9. Footnotes have been renumbered from the “slipsheet” opinion.
. L.H. 318-19. (References to “L.H.” are to the Legislative History of the Labor Management Relations Act, 1947, published by the National Labor Relations Board (1948).
. L.IL 542-543.
. L.H. 52-56.
. L.H. 1097, 93 CongHec. 4318 (1947) (remarks of Senator Taft):
“The pending measure does not propose any limitation with respect to the internal affairs of unions. They still will be able to fire any members they wish to fire, and they still will be able to try any of their members. All that they will not be able to do, after the enactment of this bill, is this: If they fire a member for some reason other than nonpayment of dues they cannot make his employer discharge him from his job and throw him out of work. That is the only result of the provision under discussion.”
. L.H. 546.
. L.H. 204.
“Sec. 12. (a) The following activities, when affecting commerce, shall be unlawful concerted activities:
“(1) By the use of force or violence or threats thereof, preventing or attempting to prevent any individual from quitting or continuing in the employment of, or from accepting or refusing employment by, any employer; or by the use of force, violence, physical obstruction, or threats thereof, preventing or attempting to prevent any individual from freely going from any place and entering upon an employer’s premises, or from freely leaving an employer’s premises and going to any other place. * * * ”
. L.H. 297.
. L.H. 321.
. L.H. 178-79. This was § 8(b) (1) of H.R. 8020, as it passed the House.
. The court states, 358 F.2d at 660 “ * * * where, as in the case before us, membership is the result not of individual voluntary choice but of the insertion of a union security provision in the contract under which a substantial minority of the employees may have been forced into membership.”
. Petition for Rehearing and For Rehearing En Banc, pp. 17-18.
. Intervenor’s Memorandum of Response to Petition for Rehearing, pp. 3-5.
. Reply Brief for the Petitioner on Rehearing En Banc, p. 12. (Emphasis added.)
. The Fifth Circuit, rejecting a district court’s dictionary interpretation of the •word “coerce” in § 8(b) (4), had recourse to legislative history, stating; “We believe that the Congress used ‘coerce’ in the section under consideration as a word of art * * Local Union No. 48, of Sheet Metal Workers v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964).