Opposition Brief — Local Lodge D111 of the Cement, Lime, Gypsum & Allied Workers v. International Brotherhood of Boilermakers

“| Supreme Court, US. |

.3 FILED

No. 88-1490 APR 7 3968

TOLER SPANIOL, JR.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1988

LOCAL LODGE D111 OF THE CEMENT, LIME, GYPSUM

AND ALLIED WORKERS, DIVISION OF THE

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, AFL-CIO; RONNIE BRANT, Individually and

as President of LOCAL LODGE D111; MARSHA PINKNEY,

Individually and as Recording Secretary of

LOCAL LODGE D111; and FREDDIE STEPHENS, Individually

and as Financial Secretary of Local Lodge D111

and

INDEPENDENT WORKERS OF NORTH AMERICA

Petitioners and Intervenor,

V.

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Michael J. Stapp

(Counsel of Record)

Blake & Uhlig, P.A.

475 New Brotherhood Building

753 State Avenue

Kansas City, Kansas 66101

ATTORNEYS FOR RESPONDENT

cabo: 3]

. a _ ee - ~ ee ee

LA AIR DATE ail yee ac es lh

QUESTION PRESENTED

Should this Court review by writ of certiorari a decision by

the lower court that the terms of a contract between two (2)

labor organizaticns are not ambiguous?

PARTIES TO THE PROCEEDING

Although Petitioners do not separately list the parties, the

cover of the Petition for Writ of Certiorari lists the Indepen-

dent Workers of North America (hereinafter [WNA) as an In-

tervenor. The IWNA did not intervene at any stage of the

proceedings either before the Circuit Court of Appeals or the

District Court.

iil

TABLE OF CONTENTS

Renee m ROME OR PCECIVE ED 2. ow ee ee ee

peepee eme BOP SOE WING. ...............

0 6

Pee ee RRO A IES... . 5...

SIATUTORY PROVISIONS ..........

STATEMENT OF THE CASE .....

REASONS WHY THE WRIT OF CERTIORAR!

SHOULD NOT BE GRANTED...

I. Certiorari Should Not Be Granted Bee:

Decision Below Does Not Create A (

Papome ine Circuits ........

II. Certioari Should Not Be Granted Because The

Decision Below Is Based Upon The Distinctive

Contractual Arrangement Between The Parties

III. Certioari Should Not Be Granted Because The

Decision Below Comports With Federal Labor

eR SS

A. Federal Labor Policy Favors Enforcement

Of The IBB Constitution..............

B. Enforcement Of The IBB Constitution Does

Not Interfere With Employee Rights To

Select Their Own Collective Bargaining

eee er ere ee

C. The IBB Constitution Does Not Require

Members To Continue Paying Per Capita

Tee Amer MOsienatION.................

gE I a ara

LO

1V

TABLE OF AUTHORITIES

Page

Cases:

Alvino v. Carraccio, 400 Pa. 477, 162 A.2d 358,

46 L.BRR.M. (BNA). 2541. (Pa: 1960); ....6<. 6.600... 14

Bowman vy. Moe, 66 Wash. 2d 629, 404 P.2d 437,

60 L.R.R.M. (BNA) 2284 (Wash. 1965)............. 14

BRAC y. Orr, 95 L.R.R.M. (BNA) 2701

Ce OR ae oan eas a eas ah eeu a ek Gee nb eA dae oe 12

Bradley v. O'Hare, 202 N.Y.S.2d 141, 46

L.R.R.M. (BNA) 2672 (N.Y. Sup. Ct. 1960) .... 14

Electrical Workers v. Foust, 442 U.S. 42, 99 S. Ct.

DIZ OB -1,. Be Fe GO CITI oo vccoscvcassevccasvcnse 15

Fisher v. Behr, 30 L.R.R.M. (BNA) 2116 (N.Y.

RN EO, SP screenees cnencvi as Sutedexcerecisaxtaxacers: 12

Georgia Kaolin, 287 N.L.R.B. No. 50 (1987) ............ 14

Gilbert v. California, 388 U.S. 263, 87 S. Ct.

P51 FG Rs Fi ee Bae OU acc oncccvacessscseccss 1]

Goodman vy. Lukens Steel Company, 482 U.S. 656,

107 S. Ct. 2617, © L. Ba. 2a Siz (V98)) «...2.4555. 10

Grain Millers Local v. Grain Millers International,

59 L.R.R.M. (BNA) 3025 (Neb. D.C. 1965)....... 12

Harker v. McKissock, 7 N.J. 323, 81 A.2d 480,

28 LRM. CNA) Zo OF). VRS 8) occ. cisccecccss 13

International Brotherhood of Boilermakers v.

Hardeman, 401 U.S. 233, 91 S. Ct. 609,

pe BAR Be Eo a 8 DR en ee ape ante er pee eae 13

International Brotherhood of Boilermakers vy.

Local Lodge 714, 845 F.2d 687

eB Ae | ere ren perry 3, @, 7); Wo a fa

International Brotherhood of Boilermakers v.

Local Lodge D111, 681 F. Supp. 1570

(S.D. Ga. 1987), aff'd, 858 F.2d 1559

$e Gg: re RRA Rn eee Fy key OT 2

International Brotherhood of Boilermakers v.

Local Lodge D238, 678 F. Supp. 1575

(M.D. Ga. 1988), aff'd., 865 F.2d 1228

RTGS: ROPE occ se carciucevcics Mi 8a, 18,19; 20, 28

International Brotherhood of Boilermakers vy.

Local Lodge D296, 687 F. Supp. 469

Ree Rae | agetesern rhea eye henner ie a o, Bote?

International Brotherhood of Boilermakers vy.

Local Lodge D31, 694 F. Supp. 1203

IRE Py here | sony hi exe mE cranes 10

International Brotherhood of Boilermakers y.

Local Lodge D405, 699 F. Supp. 749

EE aa | Sandee ark Arey Une econ ee ete lO. 12

International Brotherhood of Boilermakers vy.

Local Lodge D461, 663 F. Supp. 1031

(M.D. Ga. 1987), aff'd, 835 F.2d 1439

he MSAD 74 green eects, taletine ral Gt nner ne |2

International Brotherhood of Boilermakers v.

Local Lodge D474, 673 F. Supp. 199

CR ass ls AO ices cece ncn . 2. 20

International Brotherhood of Boilermakers \

Local Lodge D504, F.2d . 130

L.R.R.M. (BNA) 2528 (3rd Cir. 1989)... 7. 9, 12. 2

International Brotherhood of Ragtlermakers \

Local Lodge D522, 815 F.2d 912

fos ee, i) eee | cores 7

International Brotherhood of Teamsters vy.

United States, 275 F.2d 610 (4th Cir.

ISGG), cert. dented, 362 U8. STS... occcccc cece ccs 12

vi

International Union v. Local 450, 271 Minn.

181, 135 N.W.2d 697, 59 L.R.R.M.

ee Rn | en re 12

Kearney & Trecker v. NLRB, 210 F.2d 852

(7th Cir. 1954), cert. denied, 348 U.S. 824......... 21

Local I v. International Brotherhood of Teamsters,

461 F. Supp. 961 (E.D. Penn. 1978),

aff'd in part, 614 F.2d 846 (3rd Cir. 1980) ......... 12

Louisville Railroad, 90 N.L.R.B. 678 (1950) ............. 14

McVicker v. International Union of District 50,

Allied and Technical Workers, 327 F. Supp.

Br AED. SI FI ion inecscccsansccsicsss: 14, 19, 20

Michigan Teamsters Joint Council v. Bufalino,

626 F. Supp. 51 (E.D. Mich. 1985) .................. 12

Mishkin v. New York, 383 U.S. 502, 86 S. Ct.

Woe, 86. 0.. Bb.20 56 CIMEG).... ...0.5 2 elidel. 1]

NEA v. Dade County Class Room Teachers

Association, 407 F. Supp. 739 (S.D. Fla.

1974), aff'd, 527 F.2d 1388 (Sth Cir.

1976), cert. denied, 429 U.S. 827................ 14, 19

NLRB y. Allis — Chalmers, 388 U.S. 175,

87 S. Ct. 2001, 18 L. Ed.2d 1123 (1967) ........... 18

NLRB v. Boeing Company, 412 U.S. 67,

93 S. Ct. 1952, 36 L. Ed.2d 752 (1973)........ 18, 19

NLRB y. Financial Institution Employees,

Local 1182, 475 U.S. 192, 106 S. Ct.

Mar? We L.. Bd.26 151 (19GG)......0.5 0... ..00cc ccs 19

NLRB v. Granite State Joint Board, 409 U.S. 213,

S35 S. Cr. 385, 34 L. Ed.2d 422 (1972) .........5... 18

NLRB y. Hershey's Chocolate Corporation,

Se ee a ne 14

Vil

Pattern Makers’ League v. NLRB, 473 U.S. 95,

105 S. Ct. 3064, 87 L. Ed.2d 68 (1985)............. 18

Pizer v. Brown, 133 Cal. App. 2d 367, 283

P.2d 1055, 36 L.R.R.M. (BNA) 2341

(Cal Dist. Ct. App. 1955), cert. denied,

CT EU oe 7 SR Mere eee Oe Ene Py Oe RE Se 12

Plumbers and Pipefitters v. Local 334, 452

U.S. 615, 101 S. Ct. 2546, 69 L. Ed.2d 280

| Sea Bee an Ae er A et RR Seer Na te 13, 19

Prudential Insurance Company, 106 N.L.R.B.

Pe ie rete ee eee 14

Sawyers v. Grand Lodge, International Association

of Machinists, 279 F. Supp. 747 (E.D.

Dr SE cere uae eee ee 14, 20

Scofield v. NLRB, 394 U.S. 423, 89 S. Ct.

i meee ae ae Oe ae) 18

Springfield v. Kibbe, 480 U.S. 257, 107 S. Ct.

BETH, DO LL. TED 2OF CVG oo vn ncon ccccccccdecesussss 11

Textile Workers v. Lincoln Mills, 353 U.S.

448, 77 S. Ct. 912, 1 L. Ed.2d 972 (1957)......... 13

Trans World Airlines, Inc. v. Independent

Federation of Flight Attendants, 57

RF ahi Re WO AED cs seed ea eaea ach eee 10

United Steelworkers v. Sadlowski, 457 U.S.

102, 102 S. Ct. 2339, 72 L. Ed.2d 707

RE ni ae fon erence Bee awe aes A. NG eee Te 19

United Steelworkers v. Warrior & Gulf

Navigation Company, 363 U.S. 574,

80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960)............. 14

Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903,

PF Bee Ge ee Issacs dactsnen cles esssces 15

Vill

Walter Kidde v. United Electrical Radio &

Machine Workers, 7 N.J. 528, 82 A.2d

184. 28 L.R.R.M. (BNA) 2241 (N.J. 1951) ... 13, 14

Wells v. Waukesha County Marine Bank,

135 Wis. 2d 519, 401 N.W.2d 18, 124

L.R.R.M. (BNA) 2735 (Wis. Ct. App. 1986)....... 14

STATUTES:

28 U.S.C. § 1441 se ee eS ee tila ial CR pia cd ARERR EEE 3

29 U.S.C. § 151 whe aR Suara CON aN Ne ral enes 14

a) SE A ogy YC. yen oe are eens ee piv 11, 18

‘ER ale S| oR eee re: renee renter pny” 3; t2, 19

29 U.S.C. § 401 EE ee eEy eT Pry [t,10

20 1). 5 . & Sl Sete ONE Leh Deed ee ee 11, 16, 17

1X

STATUTORY PROVISIONS

In addition to the statutory provisions set forth in the Petition

for Writ of Certiorari, this case involves the following statutory

provisions.

29 U.S.C. § 185:

§ 185. Suits by and against labor organizations

(a) Venue, amount, and citizenship. Suits for violation

of contracts between an employer and a labor organization

representing employees in an industry affecting com-

merce as defined in this Act, or between any such labor

organizations, may be brought in any district court of the

United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to_

the citizenship of the parties.

(b) Responsibility for acts of agent— Entity for

purposes of suit — Enforcement of money judgments.

Any labor organization which represents employees in an

industry affecting commerce as defined in this Act and any

employer whose activities affect commerce as defined in

this Act shall be bound by the acts of its agents. Any such

labor organization may sue or be sued as an entity and

in behalf of the employees whom it represents in the courts

of the United States. Any money judgment against a labor

organization in a district court of the United States shall

be enforceable only against the organization as an entity

and against its assets, and shall not be enforceable against

any individual member or his assets.

(c) Jurisdiction. For the purposes of actions and

proceedings by or against labor organizations in the district

courts of the United States, district courts shall be deemed

to have jurisdiction of a labor organization (1) in the district

in which such organization maintains its principal office.

or (2) in any district court in which its duly authorized

officers or agents are engaged in representing or acting

for employee members.

(d) Service of process. The service of summons, sub-

poena, or other legal process of any court of the United

States upon an officer or agent of a labor organization,

in his capacity as such, shall constitute service upon the

labor organization.

(e) Determination of question of agency. For the pur-

poses of this section, in determining whether any person

is acting as an ‘agent’ of another person so as to make

such other person responsible for his acts, the question

of whether the specific acts performed were actually

authorized or subsequently ratified shall not be controlling.

No. 88-1490

Supreme Court of the United States

October Term, 1988

LOCAL LODGE D111 OF THE CEMENT, LIME, GYPSUM

AND ALLIED WORKERS, DIVISION OF THE

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, AFL-CIO; RONNIE BRANT, Individually and

as President of LOCAL LODGE D111; MARSHA PINKNEY,

Individually and as Recording Secretary of

LOCAL LODGE D111; and FREDDIE STEPHENS, Individually

and as Financial Secretary of Local Lodge D111

" and

INDEPENDENT WORKERS OF NORTH AMERICA

Petitioners and Intervenor, :

¥.

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Prior to April 1, 1984, the International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and

Helpers (hereinafter IBB) and the United Cement, Lime,

Gypsum and Allied Workers International Union (hereinaftet

2) separate international labor organizations

Effective April 1, 1984 these two (2) international unions

reed; with the CWI becoming a division of the IBB

Prior to Apri 1984, the CWI and its affiliated Local Union

represented the employees of Gold Bond Building Products

Savannah, Georgia. As a result of the merger of the two (2

tional unions, Local Union 111 became affiliated with

Cement Division of the IBB and was redesignated Local!

Lodge D111, but otherwise was unchanged. As an affiliate of

IBB, Local Lodge D111 was contractually bound to the

consult it the IBB

During the international convention of the IBB in August of

leveloped among certain candidates

IBB offices and their supporters.'/ As with all political

squabbles, one side lost. The losers of this political squabble

n decided to form their own international labor organization

the Independent Workers of North America (here

fter IWNA

The IWNA proceeded to raid local lodges of the IBB. The

vast majority of the members of the [WNA are former members

of the IBB. Nevertheless, a majority of the former CWI locals

remain with the IBB, and the Cement Division continues as

a Viable functioning appendage of the IBB.

rhe IWNA sought to represent the members of IBB Local

Lodge D111 by filing a representation petition with the National

Labor Relations Board (hereinafter NLRB). An NLRB election

For a more thorough explanation of this political battle, see, Georgia

Kaolin, 287 N.L.R.B. No. 50 (1987)

a

was held and the IWNA was certified on January 16. 1987 as

the collective bargaining representative of the employees of Gold

Bond.

As a result of this NLRB election, there were less than ten

(10) active members in IBB Local Lodge D111. Pursuant to

certain contractual provisions in the IBB constitution, set forth

more fully infra, the IBB revoked the charter of Local Lodge

D111 and demanded the return of all assets to the IBB.”/

Local Lodge D111 and its officers refused to comply with

this demand and suit was filed with the Superior Court of

Chatham County Georgia by the IBB to enforce its contractual

rights. That cause of action was properly removed by

Defendants, pursuant to 28 U.S.C. § 1441 and 29 U.S.C. §

185, to the United States District Court for the Southern District

of Georgia.

The IBB filed a Motion for Summary Judgment along with

It is interesting to note that the constitution of the tormer CWI

contained a virtually identical provision, which stated

Article 15

Section 7 Disbanding of Local Unions

So long as at least seven (7) members thereof remain in good standing and

retain employee status in a bargaining unit which constitutes the sole

jurisdiction of the local union, a local union cannot be disbanded nor can

such local union vote or otherwise decide to disband. Under no other

circumstances may a local union be disbanded or dissolved without prior

written consent of the International President. In the event a mill, plant or

quarry, which constitutes the sole jurisdiction of a local union, is abandoned,

the International President, with the consent of the International Executive

Board may revoke the charter of said local union. All funds and other assets

of a local union shall be the specific property of the local union, subject

to all applicable provisions of the International Constitution and Bylaws,

and under no conditions may local union funds and other assets be dissipated

or allotted or divided among the members thereof, or turned over to any

other organization or person.

(continued next page)

= we

accompanying Memorandum, Statement of Facts, and Affi-

davits. The Statement of Facts and Affidavits were never

controverted by Defendants, in fact, Defendants stipulated to

most of these facts.

Defendants opposed Plaintiffs’ Motion for Summary Judg-

ment on the sole ground that certain provisions of the merger

agreement between the IBB and the CWI conflicted with the

surrender provisions of the IBB constitution. Defendants

maintained that what has been referred to as the ‘‘retain

ciause’’of the merger agreement allowed the IWNA to keep

the assets of IBB Local Lodge D111. Both the District Court

and the Circuit Court determined that the contractual language

in question was not ambiguous as a matter of law and that the

IBB was contractually entitled to the assets of former IBB Local

Lodge D111.

Section 8 International Union Control Over Local Union Property

In cases of suspension revocation of the charter, expulsion, lapsing, or

disbanding of any local union for any cause or reason whatsoever, ali the

funds, property and assets of the local union shall forthwith revert to and

become the property and assets of the International union. The International

Secretary-Treasurer may authorize, in writing, a member of a nearby local

union or another representative to take charge of and to remit to the

International Union, all of the said funds, property and assets of the said

local union. All such funds, property and assets of the said local union shall

be held by the International Secretary-Treasurer, or his designated

representative, and shall be held for a period of at least six months, during

which said funds, property and assets may be used solely for the purpose

of meeting the existing obligations of the said local union. If, within the

period of time during which said funds, property and assets are held for

the purpose of making said payments, application is made therefor by at

least fifteen (15) members in good standing with the International Union

in that locality, such local union shall be reestablished and the funds, property

and assets shall belong to and become the property of the International Union

to be commingled with the other property of the International Union.

Pe gee

REASONS WHY THE WRIT FOR CERTIORARI

SHOULD NOT BE GRANTED

I. Certiorari Should Not Be Granted Because The

Decision Below Does Not Create A Conflict Among

The Circuits.

The decision in the present case by the Eleventh Circuit is

not in conflict with the decision of the Seventh Circuit in

International Brotherhood of Boilermakers v. Local Lodge 714.

845 F.2d 687 (7th Cir. 1988). In /nternational Brotherhood

of Boilermakers v. Local Lodge 714 the IBB sought to enforce

the trusteeship provisions of the IBB constitution. The IBB

argued that local lodge 714 and it officers had violated the IBB

constitution and that the IBB was entitled to injunctive relief

to enforce the trusteeship placed on local lodge 714. The Seventh

Circuit determined that if there were no longer ten (10) active

members in local lodge 714 that the local lodge was auto-

matically disbanded, and thus, there was no local lodge for the

IBB to trustee. The Seventh Circuit also stated:

The international’s constitution may forbid disaffiliation.

as we have seen. If so, then even if the prohibition is not

enforceable by means of the trusteeship, because the

prohibition of secession as such may not be a legitimate

objective under section 302, it may still be enforceable

as a matter of contract law.

* * *

The international union may appear to have a clear right

to the return of its books and money, but that is not correct,

because if the trusteeship is valid the trustee has the right

to the books and money, while if the trusteeship is invalid

the books and money presumably should be turned over

to the international.

* * *

[P]Jrovided Local Lodge 714 did not disband before the

trusteeship was voted and by disbanding perhaps place

a eee

itself beyond the power of the international to impose a

trusteeship; on these questions a remand is necessary.

845 F.2d at 695. Thus, the Seventh Circuit left open two (2)

questions: (1) Did Local Lodge 714 fall below ten (10) mem-

bers and thus automatically disband, and (2) Does the IBB con-

stitution prohibit a local lodge from ‘‘disaffiliating’’?

In the present case the IBB sought enforcement of the

contractual surrender clause set forth in the IBB constitution,

referred to by the Seventh Circuit in /nternational Brotherhood

of Boilermakers v. Local Lodge 714, 845 F.2d 687.*/ The IBB

argued that the membership in Local Lodge D111 fell below

ten (10) members as the result of an NLRB election. The IBB

further argued that the IBB constitution contractually obligated

Local Lodge D111 to surrender all books, records, property,

’ The constitution of the IBB provides in relevant part:

Upon issuance of such Charter, sueh Local Lodge shall, subject to other

applicable provisions of this Constitution and particularly Sections 3 and

4 of this Article, continue in existence while ten (10) or more of its members

are employed under the jurisdiction of the International Brotherhood, subject

to the approval of the Executive Council. If ten (10) or more members

maintain membership in such Local Lodge and otherwise comply with the

provisions of this Constitution, all books, records, properties, funds and

assets (including trusts, trust funds or other trust properties held, operated

or controlled by such Local Lodge) owned or held by such Local Lodge

shall remain the property of such Local Lodge so long as the Charter is

maintained.

Any Local Lodge having less than ten (10) active members shall be

automatically disbanded and its Charter returned to the ‘[nternational

Brotherhood, together with all books, records, properties, runds and assets

(including trusts, trust funds or other trust properties held, operated or

controlled by such Local Lodge) owned or held by such Local Lodge at

the time of such disbanding, which shall become the property of the

International Brotherhood. (Article V, Section 6).

(continued next page)

cae

funds and assets of the local; the local having been disbanded

pursuant to the IBB constitution. Citing the Seventh Circuit

decision in /nternational Brotherhood of Boilermakers v. Local

714, 845 F.2d 687, as support, the Eleventh Circuit found this

contractual surrender clause enforceable. /nternational

Brotherhood of Boilermakers v. Local Lodge D111, 681 F.

Supp. 1570, aff'd., 858 F.2d 1559 (11th Cir. 1988).

Likewise, in /nternational Brotherhood of Boilermakers v.

D504, _ -F.2d_,« 130 L.R.R.M. (BNA) 2528 (3rd Cir.

1989), the IBB sought enforcement of this very same surrender

clause. Citing, /nternational Brotherhood of Boilermakers v.

Local Lodge D111, 858 F.2d 1559, the Third Circuit also found

this surrender clause enforceable. It is interesting to note that

in International Brotherhood of Boilermakers v. Local Lodge

D522, 815 F.2d 912, 917, n.8 (3rd Cir. 1987), the Meranze

and Katz firm advocated enforcement of the very same

provisions.

The funds and property of a subordinate body are trust funds for the benefit

of its members and shall not be divided in any manner among the members

of the subordinate body. Upon the surrender, forfeiture or revocation of

its charter other than through consolidation, all funds belonging to each

subordinate body shall be forwarded promptly to the International Secretary-

Treasurer and all real estate and other property owned or held by such body

shall be immediately transferred and conveyed by the proper legal instrument

to the International Board of Trustees of the International Brotherhood. The

International Brotherhood through its Board of Trustees shall be authorized

to sell and liquidate such real estate and other property and the proceeds

arising therefrom, after the payment of expenses incurred, shall be deposited

with the other funds so forwarded to the International Secretary-Treasurer.

All such funds shall revert to the General Fund of the International

Brotherhood with proper record of the transfer maintained by the

International Secretary-Treasurer. In the event such subordinate body should

ever be rechartered at that location, the Executive Council is authorized

to give approval to the transfer of an amount not to exceed fifty per cent

(50%) of such funds from the General Fund to the credit of the rechartered

subordinate body. (Article XXXVI, Section 2).

ae 3e-

Neither the Eleventh Circuit nor the Third Circuit, addressed

the issue before the Seventh Circuit — the enforceability of a

trusteeship. All three (3) circuits are in accord on the only

common issue — the enforceability of the surrender clauses

contained in the IBB’s constitution.

Apparently, Petitioners hinge their argument that there is a

conflict among the circuits on certain language in /nternational

Brotherhood of Boilermakers v. Local Lodge 714, 845 F.2d

687. The Seventh Circuit stated:

{t]he international’s constitution is ambiguous on the right

to disaffiliate. It contains no provision authorizing disaf-

filiation and contains a provision making ‘secession or

threaten secession’ a ground for imposing a trusteeship,

which could be taken either as an implied prohibition of

disaffiliation or as recognition that disaffiliation will some-

times occur and authorization to do something about it.

* * *

Maybe Local Lodge 714 could not disaffiliate but if so

many of its members quit that fewer than ten remained

the lodge was automatically disbanded and its property

reverted to the international.

845 F.2d at 692. The Seventh Circuit went on to conclude that

because of the state of the record it could not make a

determination as to whether or not the IBB constitution

prohibited disaffiliation.

In the case sub judice, the Eleventh Circuit did not squarely

rule on whether or not the IBB constitution prohibited dis-

affiliation of a local lodge. Here, the Eleventh Circuit found

that Local Lodge D111 fell below ten (10) members and was

disbanded as the result of an NLRB election. 858 F.2d 1564.

The Eleventh Circuit went on to find the Local Lodge was

contractually obligated to go on making per capita tax payments

to the IBB until there were less than ten (10) members. 858

F.2d at 1568, citing with favor, International Brotherhood of

ae ee

Boilermakers v. Local Lodge D296, 687 F. Supp. 469 (D. Ariz.

1988).

In International Brotherhood of Boilermakers v. Local Lodge

D238, 678 F. Supp. 1575 (M.D. Ga. 1988), aff'd., 865 F.2d

1228 (11th Cir. 1989), the Eleventh Circuit more squarely

addressed one of the questions left unresolved by the Seventh

Circuit in /nternational Brotherhood of Boilermakers v. Local

Lodge 714 — whether or not a disaffiliation vote will result

in the local lodge having less than ten (10) members. Citing,

International Brotherhood of Boilermakers v. Local Lodge 714.

with apparent favor, the Eleventh Circuit found that the locals

in question had not disbanded by taking an internal disaffiliation

vote, and that there were in fact more than ten (10) members.

There, the Court found:

the International Union presented evidence that the Local

Lodges did not disband, and the Local Lodges failed to

provide any evidence or testimony that their memberships

fell below ten members.

865 F.2d 1235.

The Third Circuit in J/nternational Brotherhood of

Boilermakers v. Local Lodge D504 squarely addressed one of

the other questions unresolved in /nternational Brotherhood of

Boilermakers v. Local Lodge 714 — whether or not the IBB

constitution prohibits disaffiliation. Based on a complete record.

the Third Circuit was able to determine the IBB constitution

did in fact prohibit disaffiliation. 130 L.R.R.M. (BNA) 2528.

2530, n.8. The Court went on to conclude:

[t]he Boilermakers, even after the Locals’ internal disaffili-

ation votes, remained the bargaining agent for the Locals

until the National Labor Relations Board decertification.

* *« *

Moreover, the Boilermakers provided support services

to the Local Lodges until decertification. We hold that the

—w

per capita tax is due from the Local Lodges for each

member until the date of decertification provided the

member remained employed and remained a member of

the Local Lodge.

130 L.R.R.M. 2532-33, citing with favor, International

Brotherhood of Boilermakers v. Local Lodge D3/, 694 F. Supp.

1203 (D. Md. 1988); and International Brotherhood of

Boilermakers v. Local Lodge D405, 699 F. Supp. 749 (D. Ariz.

1988).

Petitioners also argue that the Eleventh Circuit’s decision

somehow conflicts with the Supreme Court’s recent decision

in Trans World Airlines, Inc. v. Independent Federation of Flight

Attendants, 57 U.S.L.W. 4283 (1989). TWA v. Independent

Federation of Flight Attendants, stands for the proposition that

an employer covered by the Railway Labor Act can hire

permanent replacements for economic strikers, absent union

animus, similar to an employer covered by the National Labor

Relations Act. This decision has no bearing on the case sub

judice.

Il. Certiorari Should Not Be Granted Because The

Decision Below Is Based Upon The Distinctive

Contractual Arrangement Between The Parties.

The question presented to the Eleventh Circuit was very

simple — whether or not the constitution of the IBB is consistent

with the merger agreement and requires surrender of Local

Lodge D1I11’s assets to the IBB. The Eleventh Circuit found

as a matter of law the contract language in question was not

ambiguous. The Eleventh Circuit went on to find that the

contract language unambiguously required surrender of Local

Lodge DI11’s assets to the IBB. Such a factual based

determination, particular to the parties, does not warrant review

on a petition for certiorari. Goodman v. Lukens Steel Company,

482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed.2d 572 (1987).

—

Petitioners apparently seek review on a number of more

esoteric grounds, raised for the first time in their Petition for

Writ of Certiorari. It would not be appropriate to grant certiorari

on these issues not raised at the district court or circuit court

level. Springfield v. Kibbe, 480 U.S. 257, 107 S. Ct. 1114,

94 L. Ed.2d 293 (1987); Mishkin v. New York, 383 U.S. 502.

86S. Ct. 958, 16 L. Ed.2d 56 (1966). Nor are the record facts

such as to warrant review of the issues now argued by

Petitioners in their Petition for Writ of Certiorari. Gilbert v.

California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed.2d 1178

(1967).

Petitioners raise for the first time in their Petition for Writ

of Certiorari that the Eleventh Circuit’s decision somehow

interferes with the power of employees to select their own

collective bargaining representative. Apparenily, Petitioners rely

on their factual assertion that *“‘members of Local 111 engaged

in valid and lawful disaffiliation proceedings designed indi-

vidually and collectively to resign their memberships in the

IBB.’’ There was absolutely no record evidence before the court

below to support such an argument. Moreover, Petitioners did

not argue before the court below that enforcing the IBB

constitution would somehow interfere with federal labor policy

embodied in 29 U.S.C. § 157.

Petitioners raise for the first time in their Petition for Writ

of Certiorari the argument that the Labor Management Report-

ing Disclosure Act does not permit a finding of entitlement to

assets. Petitioners did not raise any argument before the court

below that enforcement of the IBB constitution would somehow

interfere with federal labor policy embodied in 29 U.S.C. §

401 or 29 U.S.C. § 501.

III. Certiorari Should Not Be Granted Because The

Decision Below Comports With Federal Labor

Policy.

The IBB constitution unambiguously requires Local Lodge

D111 to surrender all books, properties, records, funds and

12

assets to the IBB. /nternational Brotherhood of Boilermakers

v. Local Lodge 714, 845 F.2d 687; International Brotherhood

of Boilermakers v. Local Lodge D504, 130 L.R.R.M. (BNA)

2528; International Brotherhood of Boiiermakers v. Local Lodge

D238, 865 F.2d 1228; International Brotherhood of Boiler-

makers v. Local Lodge D461, 663 F. Supp. 1031 (M.D. Ga.

1987), aff'd, 835 F.2d 1439 (11th Cir. 1987); International

Brotherhood of Boilermakers v. Local Lodge D474, 673 F.

Supp. 199 (W.D. Tex. 1987); International Brotherhood of

Boilermakers v. Local Lodge D296, 687 F. Supp. 469; and

International Brotherhood of Boilermakers vy. Local Lodge

D405, 699 F. Supp. 749. The Eleventh Circuit specifically

concluded that this unambiguous language required Local Lodge

D111 to surrender all books, properties, funds and assets to

the IBB. International Brotherhood of Boilermakers v. Local

Lodge D111, 858 F.2d 1562-63.

A. Federal Labor Policy Favors Enforcement Of The

IBB Constitution. ~

The surrender language set forth in the [BB constitution is

not unusual, and is in fact, standard language for international

unions.*/ Local Lodge D111 contracted with the IBB when it

became a chartered local of the IBB. The constitution of the

IBB sets forth the terms of that contractual relationship, by

which D111 agreed to abide. One of the terms of that contractual

4 See, e.g. BRAC v. Orr, 95 L.R.R.M. (BNA) 2701 (E.D. Tenn. 1977);

Local | vy. International Brotherhood of Teamsters, 461 F. Supp. 961 (E.D.

Penn. 1978), aff'd in part, 614 F.2d 846 (3rd Cir. 1980); Michigan

Teamsters Joint Council v. Bufalino, 626 F. Supp. 51 (E.D. Mich. 1985);

International Brotherhood of Teamsters v. United States, 275 F.2d 610 (4th

Cir. 1969), cert. denied, 362 U.S. 975; Grain Millers Loccl v. Grain Millers

International, 59 L.R.R.M. (BNA) 3025 (Neb. D.C. 1965); International

Union v. Local 450, 271 Minn. 181, 135 N.W.2d 697, 59 L.R.R.M. (BNA)

2288 (Minn. 1965); Pizer v. Brown, 133 Cal. App. 2d 367, 283 P.2d 1055,

36 L.R.R.M. (BNA) 2341 (Cal. Dist. Ct. App. 1955), cert. denied, 351

U.S. 982; Fisher v. Behr, 30 L.R.R.M. (BNA) 2116 (N.Y. Sup. Ct. 1952).

ee

relation was that Local Lodge D111 is required to surrender

all books, property, funds and assets to the IBB if it discontinues

that contractual relation. Local Lodge D111 enjoyed the benefits

of that bargain for over two (2) years and then refused to meet

its obligations when it wished to end the contractual relation.

There is a specific grant of federal court jurisdiction for unions

to enforce such contractual relations. 29 U.S.C. § 185:

Plumbers and Pipefitters v. Local 334, 452 U.S. 615. 101 S.

Ct. 2546, 69 L. Ed.2d 280 (1981). Moreover, Congress has

specifically recognized the right of labor organizations to govern

their own internal affairs, unless there is a direct conflict with

federal labor policy. Plumbers v. Local 334, 452 U.S. 625-26.

Concomitantly, a union’s interpretation of the requirements of

its Own constitution will be respected by the Court and not

overturned unless patently unreasonable. /nternational Brother-

hood of Boilermakers v. Hardeman, 401 U.S. 233, 242-43. 91

S. Ct. 609, 28 L. Ed.2d 10 (1971).

The IBB has interpreted its constitution to require a local lodge

that is disbanded, to surrender all books, property, funds and

assets to the IBB. That interpretation of the IBB constitution

has been consistently applied since the incorporation of these

provisions into the IBB constitution and has continued since

the merger between the CWI and the IBB. That interpretation

of the IBB constitution is not patently unreasonable and,

accordingly, is due proper deference by the Court.

Federal labor policy considerations favor enforcement of such

a provision.’ The most fundamental of Congressional labor

goals is the preservation of industrial stability. Textile Workers

v. Lincoln Mills, 353 U.S. 448, 77S. Ct. 912, 1 L. Ed.2d 972

‘/ Contrary to Petitioners’ assertion, the vast majority of the courts that

have addressed this issue have found similar provisions, to serve valid

purposes consistent with federal labor policy, and thus, enforceable. Sec.

generally, Harker v. McKissock, 7 N.J. 323, 81 A.2d 480, 28 L.R.R.M.

(BNA) 2204 (N.J. 1951); Walter Kidde v. United Electrical Radio &

(continued next page)

14 —

(1957); United Steelworkers v. Warrior & Gulf Navigation

Company, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409

(1960). Industrial stability is promoted through collective

bargaining between employers and unions, which is in turn part

of the federal labor policy. 29 U.S.C. § 151; McVicker v.

International Union of District SO Allied and Technical Workers,

Machine Workers, 7 N.J. 528, 82 A.2d 184, 28 L.R.R.M. (BNA) 2241

(N.J. 1951); Bowman v. Moe, 66 Wash. 2d 629, 404 P.2d 437, 60

L.R.R.M. (BNA) 2284 (Wash. 1965); Bradley v. O’Hare, 202 N.Y.S.2d

141,46 L.R.R.M. (BNA) 2672 (N.Y. Sup. Ct. 1960); NEA v. Dade County

Class Room Teachers Association, 407 F. Supp. 739 (S.D. Fla. 1974),

aff'd., 527 F.2d 1388 (Sth Cir. 1976), cert. denied, 429 U.S. 827; McVicker

v. International Union of District 50, 327 F. Supp. 296 (N.D. Ohio 1971);

Sawyers v. Grand Lodge, International Association of Machinists, 279 F.

Supp. 747 (E.D. Mo. 1967).

Some Courts have, nevertheless, created a limited exception to this rule

where labor organizations have been substantially infiltrated by organized

crime or communist influences, resulting in a schism in the international

union. See, e.g. Bradley v. O'Hare, 202 N.Y.S.2d 141. However, the

National Labor Relations Board itself has already ruled no such disruption

exists in the International Brotherhood of Boilermakers. See, Georgia

Kaolin, Inc. , 287 N.L.R.B. No. 50 (1987), cited with favor, International

Brotherhood of Boilermakers v. Local Lodge D238, 681 F. Supp. 1570

(M.D. Ga. 1988), aff'd, 865 F.2d 1228 (11th Cir. 1989).

The cases cited by Petitioners do not lend support to their argument. The

question of proper ownership of the assets pursuant to contractua: obligations

of the local is not addressed in NLRB v. Hershey's Chocolate Corporation,

297 F.2d 286 (3rd Cir. 1961). The decisions of the NLRB in Prudential

Insurance Company, 106 N.L.R.B. 237 (1953) and Louisville Railroad,

90 N.L.R.B. 678 (1950), deal with whether or not the NLRB should hold

a representation election. Alvino v. Carraccio, 400 Pa. 477, }62 A.2d 358,

46 L.R.R.M. (BNA) 2541 (Pa. 1960), is another case carving out a limited

exception where there is widespread corruption at the international union.

Finally, Wells v. Waukesha County Marine Bank, 135 Wis. 2d 519, 401

N.W.2d 18, 124 L.R.R.M. (BNA) 2735 (Wis. Ct. App. 1986), is founded

On a State court's interpretation of a state statute. Morever, the reasoning

of Wells v. Waukesha, interpreting federal law, is faulty and principles of

voluntary unionism alluded to in that case are much narrower than the court

percelyv ed.

eae. om

327 F. Supp. 296. The destruction of labor unions impairs the

collective bargaining process and should be avoided if possible.

Electrical Workers v. Foust, 442 U.S. 42, 99 S. Ct. 2121, 60

L. Ed.2d 698 (1979); Vaca v. Sipes, 386 U.S. 171, 87S. Ct.

903, 17 L. Ed.2d 842 (1967).

If local labor unions are allowed to take the benefits of

affiliation with international unions, without being bound by

the international’s constitution, international unions will be

unable to protect the limited funds that they can accumulate.

Internationa! unions could spend large amounts of money

organizing and representing employees at a particular location,

in the expectation that those employees will become valuable

members of the international union as a whole. Allowing local

unions to withdraw after they receive these services, despite

their contractual obligations, defeats the very purpose of an

international labor union — collective action to increase

economic power. Enforcement of a constitutional provision that

requires the local to surrender its assets upon disaffiliation

encourages participation by the local union in the international

union. Healthy and stable international unions in turn promote

the national labor policy of collective bargaining and industrial

stability.

The Eleventh Circuit recognized that this policy considera-

tion favored enforcement of the IBB constitution. /nternational

Brotherhood of Boilermakers v. Local Lodge D238, 865 F.2d

1237. As the Seventh Circuit stated:

[a]n organization might conceivably lack minimum stability

if each of its cells were free to depart at a drop of a hat,

and if so, it would not comport with the procompetitive

policies of Landrum-Griffin to forbid unions to take any

measures at all to impede secession.

845 F.2d at 694.

Congress has also found that the preservation of ethical

standards in the administration of labor organizations is an

16 -

important federal labor policy. 29 U.S.C. § 401. Thus,

Congress enacted 29 U.S.C. § 501(a), which states, inter alia:

It is, therefore, the duty of each person, taking into account

the special problems and functions of a !abor organization,

to hold its money and property solely for the benefit of

the organization and its members and to manage, invest,

and expend the same in accordance with its constitution

and bylaws and any resolutions of the governing bodies

adopted thereunder, to refrain from dealing with such

organization as an adverse party or in behalf of an adverse

party.

(Emphasis added).

The IBB constitution echoes these principles and

creates an enforceable contractual obligation very similar to

these statutory obligations. Thus, the IBB constitution provides

the funds of a subordinate body are to be used only: for the

subordinate body in accordance with the IBB constitution, and

if the subordinate body leaves the IBB, the funds must be

surrendered to the IBB. IBB constitution Article XXXVI,

Section | and 2. Likewise, that IBB constitution provides that

no member in exercising his or her rights as a member shall

evade or avoid his or her responsibilities to the organization

as an institution or advocate any conduct that would interfere

with the organization (IBB constitution Article XXIX, Section

2), and prohibits a member from advocating conduct detrimental

to the interest of the IBB or its subordinate bodies. (IBB

constitution Article XVII, Section I(e) and (1) ).

Contrary to the Petitioners’ position, not only do the officers

of Local Lodge D111 have duties toward the membership, but

they have duties toward Local D111 and the IBB as entities.

6 Petitioners boldly state that there is no evidence of a violation of 29

U.S.C. § 501. There was ample evidence before the Eleventh Circuit that

Local Lodge funds were dissipated in violation of the IBB constitution.

Moreover, there was no evidence before the Eleventh Circuit that the Local

Lodge membership somehow approved of this fraud.

ee: Se

These officers must hold the property of the IBB for the benefit

of the IBB as an entity. Congress specifically left the manner

in which this was to be carried out to the internal operation

of unions and their governing rules. Congress also specifically

admonished union officers not to deal with the union entity as

an adverse party.

As Petitioners note, the IBB constitution provides that local

lodge funds are ‘“‘trust funds for the benefit of its members.’

Yet, the Petitioners fail to note that the IBB constitution also

provides ‘‘[t]he funds of any subordinate body shall be used

only for the purpose of said body”’ and “‘shall not be divided

in any manner among the members of the subordinate body.”

IBB constitution Article XXXVI, Section | and 2. The IBB

constitution goes on to state that those assets revert to the IBB

when the local lodge is no longer a subordinate body of the IBB.

Petitioners appear to advocate that local union officers can

spend local union money in any fashion they please, despite

contractual restrictions, as long as a majority of the membership

votes in favor of the expenditure. In this instance, those

members ostensibly voted to spend money in direct con-

travention to the rules they agreed upon and in conflict with

the union entity itself. The logical extreme of this argument

is that the local union officers could use local union money to

finance a vacation to Bermuda as long as a majority of the

membership voted in favor of the expenditure. This is the very

type of abuse that 29 U.S.C. § 501 was designed to prohibit.

The IBB seeks to prevent such abuses in this case by enforcing

its contractual rights. By enforcing these contractual rights the

Court would in turn be promoting federal labor policy as set

forth in 29 U.S.C. § 501. International Brotherhood of

Boilermakers v. Local Lodge D296, 687 F. Supp. 469; and

International Brotherhood of Boilermakers v. Local Lodge

D111, 681 F. Supp. at 1575, aff'd., 858 F.2d 1559.

=: oe

B. Enforcement Of The IBB Constitution Does Not

Interfere With Employee Rights To Select Their

Own Collective Bargaining Representative.

This Court has previously found that the relationship between

a union and its members is contractual in nature, unless the

contract impinges on some policy of federal labor law. Scofield

v. NLRB, 394 U.S. 423, 89 S. Ct. 1154, 22 L. Ed.2d 385

(1969); NLRB v. Boeing Company, 412 U.S. 67, 93 S. Ct.

1952, 36 L. Ed.2d 752 (1973). Thus, unions remain free to

promulgated and enforce rules against members who volun-

tarily submit themselves to such enforcement by agreeing to

assume full membership, even if the rule and its enforcement

might otherwise restrain or coerce the exercise of rights under

29 U.S.C. § 157; Pattern Makers’ League v. NLRB, 473 U.S.

95, 105 S. Ct. 3064, 87 L. Ed.2d 68 (1985); NLRB v. Allis-

Chalmers, 388 U.S. 175, 87 S. Ct. 2001, 18 L. Ed.2d 1123

(1967).

It is correct that a union member must be free to resign his

membership in the union, thereby, escaping any future appli-

cation of the rule to subsequent conduct. Pattern Makers’

League v. NLRB, 473 U.S. 95. Nevertheless, Pattern Makers’

League does not stand for the proposition that a union member

who resigns may lay claim to all or a portion of the union treas-

ury. To the contrary, it does not impinge on federal labor law

to require a member to pay all contractual financial obligations

upon resignation. NLRB y. Granite State Joint Board, 409 U.S.

213, 93S. Ct. 385, 34 L. Ed.2d 422 (1972). Thus, the Court

stated in Granite State Joint Board:

We have, therefore, only to apply the law which nor-

mally is reflected in our free institutions — the right of

the individual to join or resign from associations, as he

sees fit ‘subject of course to any financial obligations due

and owing’ the group which he was associated.

409 U.S. at 216.

—

The IBB has placed no restriction whatsoever on the right

of the members of Local Lodge D111 to resign from union

membership. The members of Local Lodge D111 were free

to resign at any time they chose. There is no evidence present

in this case to indicate any members of Local Lodge D111

resigned from union membership prior to the NLRB election.

The IBB constitution does indicate if enough members resign,

so that the local lodge falls below ten (10) members, that the

local lodge forfeits its charter in the IBB. The IBB constitution

also states that if the local lodge loses its IBB charter for this

or any other reason, that local lodge assets are surrendered to

the IBB.

Congress has placed no restriction on an international union's

ability to grant or revoke a local union charter. In fact, this

Court has specifically recognized the right of international

unions to govern their own internal affairs, unless there is a

direct conflict with federal law. NLRB v. Boeing, 412 U.S. 67;

and Plumbers v. Local 334, 452 U.S. 615, n. 15.

While there is a specific right for union members to resign

from a union, there is no such statutory right for local unions

to resign or ‘‘disaffiliate’’ from international unions. In fact,

this Court has previously made it very clear that no federal

statute regulates union decision making over matters such as

affiliation. NLRB v. Financial Institution Employees, Local

1182, 475 U.S. 192, 106 S. Ct. 1007, 89 L. Ed.2d 151 (1986);

United Steelworkers v. Sadlowski, 457 U.S. 102, 102 S. Ct.

2339, 72 L. Ed.2d 707 (1982).

To the extent those internal union affairs are governed by

some sort of contractual relation, Congress granted jurisdiction

to federal courts, under 29 U.S.C. § 185, to resolve differences

concerning those contractual relations. Since there is no federal

labor policy that is affected by a rule preventing local union

affiliation, the courts have generally found such a rule

contractually enforceable. NEA v. Dade County Class Room

Teachers Association, 407 F. Supp. 739; McVicker v.

—

International Union of District 50, 327 F. Supp. 296; Sawyers

v. Grand Lodge International Association of Machinists, 279

F. Supp. 747; International Brotherhood of Boilermakers vy.

Local Lodge D474, 673 F. Supp. 199; International Brother-

hood of Boilermakers v. Local Lodge D238, 865 F.2d 1228.

Not only does enforcement .of the IBB constitution not

interfere with free employee selection of their collective

bargaining representative, it actually promotes such free choice.

The IWNA apparently pilfered the funds of Boilermakers Local

Lodge D11i months before the NLRB election. Petitioners

assert without resort to record evidence that this was done as

the result of some sort of internal union disaffiliation vote.

There was no evidence before the court below that any vote

ever took place. There was no evidence before the court below

that there was adequate notice to the members of the purported

vote. There was also no evidence that there was any notice to

the IBB of the purported vote.” There was no evidence that

the purported vote authorized the misuse of Local Lodge funds.

There was also no evidence before the court below that the

members were offered an opportunity to freely discuss the issues

and voted in a noncoercive atmosphere. In short, there was no

evidence that the minimal due process requirements were

observed.

If any party interfered with the selection of the collective

bargaining representative it was the IWNA. By the time of the

NLRB election, the employees were faced with a fait accompli.

The employees had two (2) choices during the NLRB election:

(1) vote for a IBB Local Lodge, whose treasury had been

pilfered; or (2) vote for the IWNA, which was in possession

of the pilfered funds. The pilferage of the IBB books, records,

”’ Although the IBB was generally aware that the IWNA was raiding its

locals, the IBB did not become aware of the purported vote at Local Lodge

D111 until Petitioners attorneys asserted a vote took place in its briefs to

the court below.

=

—

property and funds can only be viewed as an interference with

employee freedom of choice. Kearney & Trecker v. NLRB, 210

F.2d 852 (7th Cir. 1954), cert. denied, 348 U.S. 824.

C. The IBB Constitution Does Not Require Members

To Continue Paying Per Capita Tax After

Resignation.

The IBB constitution places no restriction on the right to

resign from membership in Local Lodge D111. Nor does the

IBB’s constitution require former members to continuing paying

dues after resignation.

The IBB constitution does require Local Lodge D111 to

continue making per capita tax/division fund payments to the

IBB, for each member that it does have. The Eleventh Circuit

found that Local Lodge D111 attempted to disaffiliate in

September of 1986, but that attempted disaffiliation was

ineffectual. 858 F.2d 1559. See, also, International Brotherhood

of Boilermakers v. Local Lodge D238, 865 F.2d 1418. The

Eleventh Circuit went on to find that Local Lodge D111 was

disbanded by the IBB in February of 1987. Thus, the Eleventh

Circuit found that the contractual obligation to make per capita

tax/division fund payments continued to inure until

disbandment.

As the Eleventh Circuit found in /nternational Brotherhood

of Boilermakers v. Local Lodge D11/, there was no factual

dispute as to how many members D111 had or how much in

per capita tax/division fund payments were due. Thus, there

was no issue before the Eleventh Circuit of requiring individuals

who had resigned to pay dues.

The Third Circuit expanded on this view in International

Brotherhood of Boilermakers v. Local Lodge D504, when it

held:

that the per capita tax is due from the Local Lodges for

each member until the date of decertification provided the

member remained employed and remained a member of

the Local Lodge.

(Emphasis added). 130 L.R.R.M. (BNA) 2533.

Accordingly, Local Lodge D111 continued to have a

contractual obligation to make per capita tax/division fund

payments to the IBB, for each member, until disbandment. Since

a vote to disaffiliate does not constitute resignation, Local Lodge

D111 remained obligated to make payment to the IBB until

disbandment.

CONCLUSION

For all foregoing reasons, Respondent respectfully requests

the Court deny the Petition for Writ of Certiorari.

MICHAEL J. STAPP

(Counsel of Record)

Blake & Uhlig, P.A.

475 New Brotherhood Building

753 State Avenue

Kansas City, Kansas 66101

ATTORNEYS FOR RESPONDENT

April, 1989

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