dissenting:
Resolution of the question before the court requires that the rationale of two Supreme Court cases be extended into an overlapping gray area. The question is a close one. The guideposts which lead to our point of departure, however, point me to a result different from that reached by the majority.
The central question involves a clash between the respondent union’s right to control its internal affairs and the right of an individual, who happens to be a union officer, to have unimpeded access to the National Labor Relations Board (the “board”) in connection with his individual employment status. The union argued before this court that it did not coerce or restrain the employee in any way forbidden by the National Labor Relations Act (the “Act”), but that it merely exercised its right to govern its internal affairs, or more specifically the actions of its officers. The union placed primary reliance on NLRB v. Allis-Chal-mers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). The question presented in the Allis-Chalmers case as stated by the court was:
[Wjhether a union which threatened and imposed fines, and brought suit for their collection, against members who crossed the union’s picket line and went to work during an authorized strike against their employer, committed the unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act of engaging in conduct ‘to restrain or coerce’ employees in the exercise of their right guaranteed by § 7 to ‘refrain from’ concerted activities. Id. at 176, 87 S.Ct. at 2004.
The Supreme Court held that section 8(b)(1)(A) does not prevent a union from *479imposing fines on members who cross a picket line set up to implement an authorized strike. The strike, “is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms . . .” Id. at 181, 87 S.Ct. at 2007, and “[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent. . . . ” Id.
The union’s freedom of self regulation was protected in Allis-Chalmers in a situation where its legitimate internal affairs were concerned. Subsequent cases demonstrate, however, that the internal- affairs exemption in section 8(b)(1)(A) is not applicable when a question outside the legitimate internal affairs of the union is raised or where its application would be contrary to national labor policy.
In NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968), a union member who had a grievance against his local’s president for violating the international constitution was expelled for filing a charge against the local with the board without first exhausting remedies available within the union. The Supreme Court recognized that considerations of public policy different from those presented in Allis-Chalmers had come into play. It had previously noted that the board could not initiate its own proceedings. The force and effect of the Act is dependent upon the initiative of individual persons. Nash v. Florida Industrial Commission, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967). The policy of keeping people completely free from coercion in connection with access to the board was recognized as being important in the functioning of the Act as an organic whole. The provision in the international constitution under which the union member was disciplined in Marine Workers was viewed as contrary to that policy, the court stating:
Any coercion used to discourage, retard, or defeat that access [to the board] is beyond the legitimate interests of a labor organization. Id. 391 U.S. at 424, 88 S.Ct. at 1722.
In upholding the board’s remedial order in favor of the employee, the court held:
[T]he proviso in § 8(b)(1)(A) that unions may design their own rules respecting ‘the acquisition or retention of membership’ is not so broad as to give the union power to penalize a member who invokes the protection of the Act for a matter that is in the public domain and beyond the internal affairs of the union. Id. at 425, 88 S.Ct. at 1722.
The Supreme Court’s opinion in Marine Workers followed the policy of the board as previously expressed in the so-called Skura case.1 Local 138, International Union of Operating Engineers, 148 N.L.R.B. 679 (1964). It expresses that there should be as much freedom to seek relief from the board as to petition any other agency of govern-*480merit for redress of grievances.2 The overriding public interest requires unimpeded access to the board except and unless plainly internal affairs of the union are involved.3
The majority distinguishes Marine Workers based on its conclusion that removal of this union officer from his position is not similar to other punishments since his action in failing to follow the grievance procedure undermines the union’s strength as a bargaining agent.
Under the 8(b)(1)(A) proviso, a union is free to enforce a properly adopted rule to the extent that it reflects legitimate union interests and “impairs no policy Congress has imbedded in the labor laws.” Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969). The impeding of free access to the board in connection with a charge against an employer is contrary to the plain policy of the Act. Marine Workers teaches that an internal union rule which thus frustrates an overriding policy of national labor law may not be enforced under the exemption. In my view interfering with Mr. Soape’s access to present a charge against his employer is therefore outside the legitimate interests of the union and wholly beyond the scope of the 8(b)(1)(A) proviso.
The LMRDA free speech cases cited by the majority4 are also the product of a balancing of conflicting rights. Although distinguishable, they obviously are of persuasive effect when somewhat similar balancing processes are required in other areas.
Also of persuasive force, however, is the line of cases from the board holding that removal of a union official from office for filing a charge with the board constitutes an unfair labor practice under 8(b)(1)(A). Meat Cutters Local 590, 181 N.L.R.B. 773 (1970); Clothing Workers Local 424, 193 N.L.R.B. 390 (1971); cf., Tool and Die Makers Lodge 113, 207 N.L.R.B. 795.
The disparity of result between the LMRDA cases and the N.L.R.B authorities is not explained by factual distinctions; nor do I view it as necessarily presenting a conflict. It is, I believe, correctly explained by a difference in the underlying policies being given effect in the two different situations.
The applicable provisions of LMRDA were designed to protect the member’s right to discuss freely and to criticize the management of his union and the conduct of union officers. The free speech right belongs to each union member, as a member, regardless of any additional status he may attain. The union cannot infringe upon his right as a union member. This is not to say, however, that the same provisions protect a union officer if after assuming his office he embarks on a course of subverting the union’s leadership and vocally attacking its policies. According to the prevailing view in this circuit, affording protection in this latter situation was simply not part of the congressional purpose. Cases that adopt this view generally recognize that judicially implanting such uncon-*481templated protection of dissident officials would fragment and unnecessarily weaken unions.
In contrast, the policy of the law with respect to board access is not directly related to an individual’s status. As was pointed out in Marine Workers, supra :
A proceeding by the Board is not to adjudicate private rights but to effectuate a public policy. . . The policy of keeping people ‘completely free from coercion’ ibid, against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. Id. 391 U.S. at 424, 88 S.Ct. at 1721.
The breadth of the policy is accurately reflected in Skura, supra, as follows:
Considering the overriding public interest involved, it is our opinion that no private organization should be permitted to prevent or regulate access to the Board, and a rule requiring exhaustion of internal union remedies by means of which a union seeks to prevent or limit access to the Board’s processes is beyond the lawful competency of a labor organization to enforce by coercive means. Id. at 682.
As I perceive the policy being described, protection from coercion extends to all people regardless of union status.
The facts before us do not involve any attack by Mr. Soape on the union, its leadership or its officers. A charge by an employee against his own employer and arising out of his own discharge is manifestly less involved in internal union affairs than is a charge by a member against his union or its officers.5 This is the implication of the dictum in Scofield v. NLRB, supra:
Frustrating this policy [of free access to the board] was beyond the legitimate interest of the labor organization, at least where the member’s complaint concerned conduct of the employer as well as the union. Id. 394 U.S. at 430, 89 S.Ct. at 1158.
Soape offended his union by filing a charge as an employee against his employer, when for unstated but understandable reasons, the union preferred that he pursue contract grievance procedures. This is not what Marine Workers refers to as a “plainly internal affair of the union.” Although- Soape might have been provided relief if he had elected to pursue the contract grievance procedure, the union’s internal procedures could not provide him with any relief whatever. More importantly, the question is clearly “in the public domain” and for that reason is beyond the internal affairs of the union.
I focus not so directly on the invasion of Mr. Soape’s rights as on prevention of any coercive action of any type directed toward any person and designed to impede access to the board. Removal from a position of union leadership is “a most effective weapon of reprisal.” Grand Lodge of International Association of Machinists v. King, 335 F.2d 340, 345 (9th Cir. 1964), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964). The form of the coercion, how- . ever, is not determinative. It is the policy of the law that there be no coercion. Against this backdrop, I would conclude that the action of the union was violative of section 8(b)(1)(A) and that the board’s order should be enforced.
. The board in Local 138, International Union of Operating Engineers, 148 N.L.R.B. 679 (1964) (The "Skura” case), rejected a similar argument by the union, stating in part:
Section 10 of the Act grants to the Board exclusive authority to prevent and remedy unfair labor practices, and, in furtherance of the exercise of the Board’s authority, confers upon any person the right to file an unfair labor practice charge.® The right to file
charges is indispensable to the administration of the Act since the Board cannot initiate its own processes and no unfair labor practice complaint can issue in the absence of a valid charge.
6 Also see, the National Labor Relations Board, Rules and Regulations Series 8, as amended, Section 102.9.
7 Hercules Powder Co. v. N. L. R. B., 297 F.2d 424, 433 (C.A.5).
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Just as an employer violates the Act by resorting to restraint and coercion to restrict the rights of an employee to file a charge, so too, does a labor organization infringe the rights of employees under this law by resorting to unlawful means to prevent or restrict employees from filing charges. As such conduct by an employer violates Section 8(a)(1), so does a labor organization’s use of restraint or coercion violate Section 8(b)(l)(A).l®
10 International Ladies Garment Workers Union, AFL-CIO (Bernhard-Altmann) v. N. L. R. B., 366 U.S. 731, 737-738, 81 S.Ct. 1603, 6 L.Ed.2d 762.
. See Cox, Internal Affairs of Labor Unions under the Labor Reform Act of 1959, 58 Mich. L.Rev. 819, 839 (1960); Summers, Legal Limitations in Union Discipline, 64 Harv.L.Rev. 1049, 1067-1068 (1951); Summers, The Usefulness of Law in Achieving Union Democracy, 48 Am.Econ.Rev. 44, 47 (1958).
. Illustrative of the opinions from other courts of appeal which turn on the same principles are: Roberts v. NLRB, 350 F.2d 427 (D.C.Cir. 1965); NLRB v. International Union of Operating Engineers, Local 825, 420 F.2d 961 (3d Cir. 1970); NLRB v. Local 30, International Longshoremen's and Warehousemen’s Union, 549 F.2d 698 (9th Cir. 1977).
. There is a conflict among the circuits. See e. g., Bradford v. Textile Workers, Local 1093, 563 F.2d 1138 (4th Cir. 1977) holding that “removal from union office for an exercise of free speech by a union member is ‘discipline’ which is proscribed by § 609 of the Act . .
The Newman rule and the apparent rule in this circuit are characterized as the minority view in Bradford, id. See also Wood v. Dennis, 489 F.2d 849 (7th Cir. 1973).
. Although I doubt that this fact is controlling, I would reserve the question as to whether the balance might be struck differently under extreme circumstances involving a wholly internal union matter.