Opposition Brief — Marositz v. International Brotherhood of Boilermakers

-

~ «BIBER OR

‘)} « ERED

No. 88-1902 wa S we

IN THE Pe cieien 4, SPRANG

Cuisieek

SUPREME COURT OF THE UNITED STA

October Term, 1988 '

LOCAL LODGE D504, D17, D54, D376, D547 and

D554 OF THE CEMENT, LIME, GYPSUM AND ALLIED

WORKERS, DIVISION OF THE INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS;

GARY MAROSITZ, RICHARD GROSS, JAMES BEGIES,

GEORGE MAYER, ALEXANDER SZOKE, RUEL OSWALD,

ROBERT VOGEL, JEFFREY FENSTERMACHER, WILFRED

BRUMBAUGH, NORMAN HOOVER, ROBERT BURK,

RICHARD YELLES, WAINWRIGHT BEAL, RONALD

SILFIES, BARRY SILFIES, ROBERT CSENCITZ

and

INDEPENDENT WORKERS OF NORTH AMERICA,

Petitioners,

Uz.

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, AFL-CIO, CHARLES JONES, DONALD WHAN

AND HENRY HARDEN,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Bruce E. Endy

(Counsel of Record)

SPEAR, WILDERMAN, SIGMOND,

BORISH & ENDY

1500 Atlantic Building

260 South Broad Street

Philadelphia, Pennsylvania 19102

(215) 732-0101

Michael J. Stapp

BLAKE & UHLIG, P.A.

475 New Brotherhood Building

753 State Avenue

Kansas City, Kansas 66101

Counsel for Respondents

PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

ene

TABLE OF CONTENTS

Page

RAR CP AU Eee ae vs a a vse cos cewee' il

GR CREE Ee Og ea io | rr Vi

SIAL EPGTE OE BEREe GEES oc koa s oeeyedeeeeass 1

REASON WHY THE WRIT OF CERTIORARI

SeUULD NOT BE GRANTED. «6600 denies 8

I. Certiorari Should Not Be Granted Because

The Decision Below Does Not Create A Con-

lict Among FNC CUCUME oo o65 cc ecnecees 8

II. Certiorari Should Not Be Granted Because

The Decision Below Is Based Upon The

Distinctive Contractual Arrangements Be-

CWECETR RINE FIR: onc 5-0 60000 he hee eennes ss 14

III. Certiorari Should Not Be Granted Because

The Decision Below Comports With Federal

LO PET Ghana sc vun dN eee recut nee hes 16

A. Federal Labor Policy Favors Enforcement

OF Tine TBD Constitution. 0.6 ies ies aees 17

B. Enforcement Of The IBB Constitution

Does Not Interfere With Employee

Rights To Select Their Own Collective

Bargaining Representative ............. ook

C. The IBB Constitution Does Not Require

Members To Continue Paying Per Capita

TOK ARGT ROSiIAON . 6. sos kev cose 26

CAPER ENS aac RRS EO ORE ee Os 27

TABLE OF AUTHORITIES

Cases: Page

Bowman v. Moe, 66 Wash. 2d 629, 404 P.2d 437, 60

L.R.R.M. (BNA) 2284 (Wash. 1965) ......... 18

BRAC v. Orr, 95 L.R.R.M. (BNA) 2701 (E.D. Tenn.

LOTT) nk vd y ou SR e ee ae ee ea 17

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

2121, 6 L. Ed.20 G96 Ci9T9) 1322250 oe 19

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

CX. TIS Z™) ss cee ew Nae one 17

Georgia Kaolin, Inc., 287 N.L.R.B. No. 50 (1987). 18

Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951,

18 L. Ed.2d 1178 (2967 )oscesescetseee 15

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

107 S. Ct. 2617, L. BG.26 Siz tier eee io

Grain Millers Local v. Grain Millers International,

59 L.R.R.M. (BNA) 3025 (Neb. D.C. 1965)... 17

Harker v. McKissock, 7 N.J. 323, 81 A.2d 480, 28

L.R.R.M. (BNA) 2204 (Na 3938) cece 18

International Brotherhood of Boilermakers v. God-

frey, CV 87-6-2010-S (N.D. Ala., May 17, 1989) 16

International Brotherhood of Boilermakers v. Har-

deman, 401 U.S. 233, 91 S. Ct. 609, 28 L. Ed.2d

LO CIOL) 2. cece esd ses anssateee eee 18

International Brotherhood of Boilermakers v. Local

Lodge 714, 845 F.2d 687 (7th Cir. 1988) ... 9, 10,

iZ,; 13,16

International Brotherhood of Boilermakers v. Local

Lodge D111, 681 F. Supp. 1570 (S.D. Ga.

1987), aff'd, 858 F.2d 1559 (11th Cir. 1988)

cert. denied ___. U.S. ___, (May 1, 1989)... &, 9,

li, 12, 42

TABLE OF AUTHORITIES — (Continued)

Cases: Page

International Brotherhood of Boilermakers v. Local

Lodge D238, 678 F. Supp. 1575 (M.D. Ga.

1988), aff'd, 865 F.2d 1228 (11th Crr.

SEE vias ye ss 8, 13, 16, 18, 20, 24, 26

International Brotherhood of Boilermakers v. Local

Lodge D296, 687 F. Supp. 469 (D. Ariz.

on Lay 10, 22

International Brotherhood of Boilermakers v. Local

Lodge D354, C.No. EV-87-129-C (S.D. Ill., June

I 14, 26

International Brotherhood of Boilermakers v. Local

Lodge D405, 699 F. Supp. 749 (D. Ariz. 1988) 16

International Brotherhood of Boilermakers v. Local

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

1987), aff'd, 835 F.2d 1439 (11th Cir. 1987).. 16

International Brotherhood of Boilermakers v. Local

Lodge D474, 673 F. Supp. 199 (W.D. Tex.

TG Sas sb ashes k bce r ese scas 16, 24

International Brotherhood of Boilermakers v. Local

Lodge D504, 866 F.2d 641, (3rd Cir. 1989).... 11,

16, 18

International Brotherhood of Teamsters v. United

States, 275 F.2d 610 (4th Cir. 1960), cert.

LE os 17

International Union v. Local 450, 271 Minn. 181,

135 N.W.2d 697, 59 L.R.R.M. (BNA) 2288

iy nas ss ba ees ee nes i?

Kearney & Trecker v. NLRB, 210 F.2d 852 (7th Cir.

ieoemeo wert, gemied, 46 U.S. 824.........<.. fake

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)........... 17

il

TABLE OF AUTHORITIES — (Continued)

Cases: Page

McVicker v. International Union of District SO,

Allied and Technical Workers, 327 F. Supp. 296

CPN ees SOR EES Ces ye eta eae oh 18, 19, 24

Michigan Teamsters Joint Council v. Bufalino, 626

Po es Oe ee: PR, ROOD teh a be ewe pas 17

Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958,

2 Ba. RO CE a eee eh Rhee ee 15

NEA v. Dade County Class Room Teachers Associ-

ation, 407 F. Supp. 739 (S.D. Fla. 1974), aff'd,

527 F.2d 1388 (Sth Cir. 1976), cert. denied, 429

EON * ¢ Ro ee pee ee ere eer wy Pe 18, 24

NLRB v. Allis-Chalmers, 388 U.S. 175, 87 S. Ct.

PAS BO Rane BEES CRIT a ccs cede ances 23

NLRB v. Boeing Company, 412 U.S. 67, 93 S. Ct.

EOE, PO Bn A TO EP COR vaccine wean ae, £5

NLRB v. Financial Institution Employees, Local

1181, 475 U.S. 192, 106 S. Ct. 1007, 89 L.

a Oe EAE hes Se nee a hee Ree e ens 24

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

93S. C4. 385, 34:1. BG.20 422 CUS 7Z). «ess ss 23

Pattern Makers’ League v. NLRB, 473 U.S. 95, 105

a. Gt. SO, OT Lic Be OS Ca he cc ccccese 23

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....... 17

Plumbers and Pipefitters v. Local 334, 452 US.

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

2) Se ree ee ier ny a peru eee rae 17, 24

Sawyers v. Grand Lodge, International Association

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

SES oc ne ea UR Oe eae OR UE ewe Pe 18, 24

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Scofield v. NLRB, 394 U.S. 423, 89 S. Ct. 1154, 22

Rin RUG ee CR UEED hk xu ke we ache ena cheanaes 22

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

me Es, RA Be CEE Dis os xan cs on vacewsas am 15

Textile Workers v. Lincoln Mills, 353 U.S. 448, 77

oo. GR. Pid, 2 BL. eee 978 CASS 7). «snc an see 19

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

102 S. Ct. 2339, 72 L. Ed.2d 707 (1982) ..... 24

United Steelworkers v. Warrior & Gulf Navigation

Company, 363 U.S. 574, 80 S. Ct. 1347, 4 L.

Sie te I oe eee 19

Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L.

Ba Set C1 os re ee 19

Walter Kidde v. United Electrical Radio & Machine

Workers, 7 N.J. 528, 82 A.2d 184, 28 L.R.R.M.

Co ee Pat Oe bo} fea aogier | eta 18

STATUTES:

DP Meee BAR 6554 08 6 ORR wre 19

Ee RA he cue er eA Pia Ne ee eee 16, 23

Oe Rae ea a oa ek TKN oe ORRICK LS vi, 17, 24

ee Sa NE 0 65 ha ANA EROS OO 16

Fo Re ae i tS ae ee eee eee ery IN Gee LS vil, 21

Ys fe 8, UA, Tn | | Pi Been nee mR RH 16, 20, 21, 22

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 commerce 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 judg-

ments. Any labor organization which represents

employees in an industry affecting commerce as

defined in this Act and any employer whose activi-

ties 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 on

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 of 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 orga-

nization maintains its principle office, or (2) in any

district court in which its duly authorized officers or

V1

|

agents are engaged in representing or acting for

employee members.

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

subpoena, 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 consti-

tute service upon the labor organization.

(e) Determination of question of agency. For the

purposes 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 per-

formed were actually authorized or subsequently

ratified shall not be controlling.

29 U.S.C. § 411(a)(2):

$411. Bill of rights; constitution and bylaws of

labor organizations.

Every member of any labor organization shall have

the right to meet and assemble freely with other mem-

bers; and to express any views, arguments, or opinions;

and to express at meetings of the labor organization his

views, upon candidates in an election of the labor

Organization or upon any business properly before the

meeting, subject to the organization’s established and

reasonable rules pertaining to the conduct of meetings:

Provided, 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 or contractual obligations.

No. 88-1902

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

LOCAL LODGE D504, D17, DS4, D376, D547 and

D554 OF THE CEMENT, LIME, GYPSUM AND ALLIED

WORKERS, DIVISION OF THE INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS;

GARY MAROSITZ, RICHARD GROSS, JAMES BEGIES,

GEORGE MAYER, ALEXANDER SZOKE, RUEL OSWALD,

ROBERT VOGEL, JEFFREY FENSTERMACHER, WILFRED

BRUMBAUGH, NORMAN HOOVER, ROBERT BURK,

RICHARD YELLES, WAINWRIGHT BEAL, RONALD

SILFIES, BARRY SILFIES, ROBERT CSENCITZ

and

INDEPENDENT WORKERS OF NORTH AMERICA,

Petitioners,

Vv.

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, AFL-CIO, CHARLES JONES, DONALD WHAN

AND HENRY HARDEN,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE |

The International Brotherhogd of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers and Helpers (Boil-

ermakers or IBB) is an unincorporated labor organiza-

tion within the meaning of Section 2(5) of the National

Labor Relations Act. (A-5) Currently the Boilermakers is

l

a

2

an International Union having approximately 100,000

members in the United States and Canada. These

members belong to some 680 local lodges all of which

are parties to the Constitution of the International Broth-

erhood of Boilermakers. At the International level the

Boilermakers maintain a variety of divisions, which

facilitate collective bargaining in their respective indus-

tries, e.g., the Cement Division, the Railroad Division,

the Shipbuilding Division and the Construction Divi-

sion. Each local lodge is chartered by the International

Union and is required to adopt a uniform set of bylaws

that acknowledge the International Constitution as the

governing instrument for all the Boilermakers’ subordi-

nate local lodges.

In 1983 the Boilermakers began discussions with

the Cement, Lime, Gypsum and Allied Workers Inter-

national Union (Cement Union) relating to the Merger

of the two organizations. (A-6) There were approxi-

mately 25,000 members in the Cement Union at that

time.

There were striking similarities in the two unions’

Constitutions with regard to ownership of union prop-

erty; especially at the local level. Article XXXVI Section

2 of the Boilermakers Constitution provided:

Section 2. the funds and property of a subordi-

nate 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 belong-

ing to such 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

3

international Board of Trustees of the International

Brotherhood.

Similarly Article 15, Section 8 of the Cement

Union’s Constitution provided:

Section 8. International Union Control Over Lo-

cal Union Property

In cases of suspension; revocation of the charter,

expulsion, lapsing, or disbanding of any local union

for any cause or reason whatsoever, all 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 said funds, property and assets of the said local

union. *** In the event that such local union is not

reestablished, all funds, property and assets shall

belong to and become the property of the Interna-

tional Union to be coming led with the other prop-

erty of the International Union.

Indeed, the Cement Union’s Constitution went so

far as to provide:

Article 11, Section 3 Property Rights

Membership in this International Union shall not

vest any member with any right, title or interest in or

to the funds, property or other assets of this Inter-

national Union or any subordinate body, whether

now owned or possessed or whether hereafter ac-

guired, and each member hereby expressly waives

any right, title or interest in or to the funds, property

or other assets of this International Union or any

subordinate body.

4

In addition to these clauses that defined what would

happen to local union property upon the disbandment of

a local, the two Constitutions contained similar clauses

that permitted the International union to disband a local.

The Cement Union Constitution provided, inter alia,:

Article 15, Section 7 Disbanding of Local Unions.

So long as seven (7) members thereof remain in

good standing and retain employee status in a

bargaining union which constitutes the sole juris-

diction of the local union, a local union cannot be

disbanded nor can such local union vote or other-

wise decide to disband. ***

Article V, Section 6 of the Boilermakers’ Constitu-

tion provides, inter alia,:

* * *

Any local lodge having less than ten (10) active

members shall be automatically disbanded and its

Charter returned to the International Brotherhood,

together with all books, records, properties, funds

and assets (including trust, 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 prop-

erty of the International Brotherhood.

The IBB and the Cement Union followed: the same

practice of demanding the return of all local union assets

upon the disbanding of a local union affiliate. (A-7, n.7)

The document that would be executed as the final

Merger Agreement was presented to a special conven-

tion of the Cement Workers on March 14-15, 1984

called for the purpose of ratifying the proposed Merger.

The Merger Agreement was organized to track the

provisions of the Boilermakers International Constitu-

tion. So, for instance, the creation of a new Internationa!

Vice President-At-Large was indexed under Article IV

5

Section 1 of the Boilermakers Constitution, while vacan-

cies in that office were indexed under Article IV Section

5 of the Constitution. (A-10)

The Merger Agreement’s first phrase states:

The Constitution of the International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers and Helpers will be the supreme law of the

merged organization. (A-9)

Indexed under Article V, Section 3 of the Boilermak-

ers Constitution the Merger Agreement provided:

Article V, Section 3

Jurisdiction of District and Local Lodges

Local Union charters held by the current Local

Unions in the United Cement, Lime, Gypsum and

Allied Workers International Union will have issued

in their stead Boilermaker Charters carrying the

present local numbers preceded by a capital “D”.

Each Local Lodge will retain its Local Union trea-

SUIY.

As soon as possible following effective date of

Merger but not to exceed six (6) months, the

present districts will be formed into the Cement,

Lime, Gypsum and Allied Workers Division. (A-9,

10) |

All other assets of the Cement Workers and its

district councils of every kind and description were to be

turned over to and placed into the General Fund of the

International Brotherhood of Boilermakers. (A-10) The

Merger Agreement made no mention of, nor did it make

changes to, Article V, Section 6 or Article XXXV of the

Boilermakers Constitution. Those provisions which dealt

with the disbanding of local lodges and the title to the

funds and assets of the Boilermakers were left un-

touched. Post merger the Boilermakers continued to

enforce the surrender clauses of their Constitution

6

where local cement division lodges fell below ten (10)

members. (A-7, n.7)

On August 11, 1986 the Boilermakers held their

Twenty-Seventh Consolidated Convention. Henry Becht-

holdt, Cement Division Director, had become a candi-

date for International Vice President-At-Large in oppo-

sition to the incumbent Richard Northrip. The Merger

itself had become an issue at the convention as a result

of the Boilermakers’ Executive council’s resolution to

dissolve the Merger; a procedure that was sei forth in

the Merger Agreement itself. This resolution became the

first order of business and was defeated by a vote of the

delegates on the floor of the convention. The next order

of business was the election of International officers in

accordance with Article IV, Section 4 of the Boiler-

makers’ Constitution. The delegates to the Convention

elected Henry Bechtholdt to succeed Northrip as the

International Vice President-At-Large. In the same elec-

tion Thomas Cooper, who had decided to abandon his

area vice presidency and run for the office of Interna-

tional Secretary-Treasurer, was defeated. (A-6)

Together Cooper and Northrip left the Boilermakers

and started a rival International Union, the Independent

Workers of North America (IWNA). They were joined by

former Boilermaker employees, many of whom had been

officers of the now defunct United Cement, Lime,

Gypsum and Allied Workers International Union.

In October, 1986, the IWNA met with the officers of

Local Lodges D504, D17, D54, D376, D547 and D554

(Local Lodges) and explained to them a procedure

developed by the IWNA designed to result in the decer-

tification of the Boilermakers and the certification of the

IWNA by these employees. The Boilermaker Constitu-

tion expressly prohibits the cessation or disaffiliation of a

Local Lodge. (A-10, n.8) It does not, however, prohibit a

member or a group of members from leaving the orga-

nization. This the members chose not to do. The mem-

bers of these local lodges were not content to merely

5

quit, they wanted to transfer the local lodge, as an entity,

with its assets in tact, to the IWNA. The procedure set

out by the IWNA called for each of the lIccal lodges to

conduct an internal union vote to “disaffiliate” from the

Boilermakers. Boilermakers International representa-

tives were neither notified of the meetings nor were they

invited to attend. The procedure called for the officers of

these local lodges to obtain signatures on “disaffiliation”

petitions and for an internal union vote on the question

of “disaffiliation.” The local Lodge members were told

that their signatures on new union authorization cards

would be used to obtain an election with the NLRB. No

Boilermakers representatives were permitted to attend

these secret votes and in most cases only small numbers

of union members cast their vote in favor of disaffilia-

tion. Although those that attended voted in favor of the

disaffiliation, these members were not told that seces-

sion or disaffiliation votes were in express violation of the

existing Boilermakers Constitution. (A-27) These local

lodges were then advised to transfer their assets out of

the local lodge and into the bank accounts of a new

entity, the IWNA local union. Two of the local lodges,

D554 and D547, then made per capita tax payments to

the IWNA although the IWNA did not as yet have any

constitution or bylaws calling for such payments. These

lodges continued to collect dues from their members,

but as a result of these manipulations, these local lodges

withheld their per capita tax payments to the Boilermak-

ers which the appellants and appellees were able to

stipulate came to $39,730.

The District Court found specifically that internal

union votes to disaffiliate were ineffective to accomplish

that purpose. (A-16, 27) Further, the District Court

found, that even after these internal disaffiliation votes

were taken, the local lodges and their members contin-

ued to accept support services from the IBB. These

findings were not disturbed by the Court of Appeals.

(A-16, 27)

8

Between November 4, 1986 and February 9, 1987

the IWNA filed six (6) petitions with the National Labor

Relations Board seeking elections for the certification of

a new bargaining representative at six employer loca-

tions where a Boilermakers’ local lodge was the cur-

rently certified bargaining representative. (A-7, n.5)

Each petition acknowledged that a Boilermakers’ local

lodge was the currently certified or recognized collective

bargaining representative of the employees in question

and each was signed by an employee of the IWNA. In

each case an election was conducted by the National

Labor Relations Board and the Independent Workers of

North America was certified as the new bargaining

representative of the employees ousting the Boiler-

makers at those employer locations.

Under the Internationa! Brotherhood of Boilermak-

ers’ constitution, these NLRB elections effectively re-

duced the membership of the six local lodges to zero.

The Boilermakers’ then notified the officers of each of

the locals that they were disbanded in accordance with

the provisions of Article V, Section 6 of the International

Constitution. Although requested to turn over all of the

books, records, properties, funds and assets of the local

Lodge to the International Union each local failed and

refused to do so. (A-7)

REASONS WHY THE WRIT FOR CERTIORARI

SHOULD NOT BE GRANTED

1. Certiorari Should Not Be Granted Because The Deci-

sion Below Does Not Create A Conflict Among The

Circuits.

The decision in the present case is in accord with

the Eleventh Circuit decisions in /nternational Broth-

erhood of Boilermakers v. Local Lodge D111, 858 F.2d

1559 (11th Cir. 1988), cert. denied, USS. ;

May 1, 1989 and Jnternational Brotherhood of Boiler-

makers~v. Local Lodge D238, 865 F.2d 1228 (11th Cir.

9

1989) and is not in conflict with the decision of the

Seventh Circuit in /nternational Brotherhood of Boiler-

makers v. Local Lodge 714, 845 F.2d 687 (7th Cir.

1988).

On May 1, 1989, this Court denied a Petition for

Writ of Certiorari in International Brotherhood of Boil-

ermakers, Local Lodge D111, supra. There the petitioner

made the identical claim that they are making herein,

i.e. that there is a conflict in the circuits. The case sub

Judice was cited by the petitioner in the D111 case as a

basis for its so-called conflict. No additionai circuit court

decisions, indeed no district court decisions have been

decided in the interim that conflict with the present

case.

In International Brotherhood of Boilermakers v.

Local Lodge 714, supra, the IBB sought to enforce the

trusteeship provisions of the Boilermakers’ Constitution.

The IBB argued that local lodge 714 and its officers had

violated the 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 then the local lodge was automatically dis-

banded, and thus, there was no local lodge for the IBB to

trustee. The Seventh Circuit also stated:

The international’s constitution may forbid disaffi-

liation, as we have seen. If so, then even if the

prohibition is not enforceable by means of the trust-

eeship, 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.

* * x

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

10

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 interna-

tional.

* * *

[P]rovided Local Lodge 714 did not disband before

the trusteeship was voted and by disbanding per-

haps place itself beyond the power of the interna-

tional to impose a trusteeship; on these questions a

remand is necessary.

845 F.2d at 695. Thus, the Seventh Circuit did not

resolve two (2) questions: (1) Did Local Lodge 714 fall

below ten (10) members and thus automatically dis-

band, and (2) Does the IBB constitution prohibit a local

lodge from “disaffiliating’’?

In the present case the IBB sought enforcement of

the contractual surrencer clause set forth in the IBB

constitution, referred to by the Seventh Circuit in /nter-

national Brotherhood of Boilermakers v. Local Lodge

714, 845 F.2d 687.! The IBB argued that the member-

1. The constitution of the IBB provides in relevant part:

Upon issuance of such Charter, such Local Lodge shall,

subject to other applicable provisions of this Constitution and

particularly Section 3 and 4 of this Article, continue in exist-

ence 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 tén (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 International Brotherhood, together with all books, records,

properties, funds and assets (including trusts, trust funds or

other trust properties held, operated or controlled by such Local

11

ship in the Local Lodges fell below ten (10) members as

the result of an NLRB election. The IBB further argued

that the IBB constitution contractually obligated the

Local Lodges to surrender all books, records, property,

funds and assets of the local; the locals having been

disbanded pursuant to the IBB constitution. Citing the

11th Circuit decision in International Brotherhood of

Boilermakers v. Local Lodge D111, 858 F.2d 1159, as

support, the Third Circuit found this contractual surren-

der clause enforceable. International Brotherhood of

Boilermakers v. Local Lodge D504, 866 F.2d 641 (3d Cir.

= 1989).

Neither the Third Circuit nor the Eleventh Circuit,

addressed the issue before the Seventh Circuit — en-

forceability of a trusteeship. All three (3) circuits are in

Lodge) owned or held by such Local Lodge at the time of such

disbanding, which shall become the property of the Interna-

tional Brotherhood (Article V, Section 6).

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 Interna-

tional 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 the 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 (SO0%) of such

funds from the General Fund to the credit of the rechartered

subordinate body. (Article XXXVI, Section 2). :

12

accord on the only common issue — the enforceability of

the surrender clauses contained in the IBB’s constitu-

tion.

Apparently, Petitioners hinge their argument that

there is a conflict among the circuits on certain lan-

guage in International Brotherhood of Boilermakers v.

Local Lodge 714, 845 F.2d 687, the Seventh Circuit

stated:

[t]he international constitution is ambiguous on the

right to disaffiliate. It contains no provision autho-

rizing disaffiliation and contains a provision making

‘secession or threatened secession’ a ground for

imposing a trusteeship, which could be taken either

as an implied prohibition of disaffiliation or as rec-

ognition that disaffiliation will sometimes occur and

authorization to do something about it.

* * *

Maybe Local Lodge 714 could not disaffiliate but if

so many of its members quit and 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 International Brotherhood of Boilermakers v.

Local Lodge Dill, supra, the Eleventh Circuit did not

squarely rule on whether or not the IBB constitution

prohibited disaffiliation of a local lodge. 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 tess than ten (10) members. 858 F.2d at 1568,

13

citing with favor, International Brotherhood of Boiler-

makers 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 International

Brotherhood of Boilermakers v. Local Lodge 714, supra

whether or not a disaffiliation vote will result in the local

lodge having less than ten (10) members, Citing, /nter-

national 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 the case sub judice squarely ad-

dressed one of the other questions unresolved in /nter-

national 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 that the IBB constitution

did in fact prohibit disaffiliation. 866 F.2d 641, 644, n. 8.

The Court went on to conclude:

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

disaffiliation votes, remained the bargaining agent

for the Local until the National Labor Relations

Board decertification. 866 F.2d at 647.

14

Although the Seventh Circuit found the Boilermak-

ers’ constitution “ambiguous” on the question of disaf-

filiation, resolution of that issue was not necessary to the

court’s determination. The District Court in Jnterna-

tional Brotherhood of Boilermakers v. Local Lodge D354,

C.No. EV-87-129-C (S.D. Ill., June 6, 1989), however

observed that “a careful reading of the Local 714 opinion

leads this Court to the belief that the Seventh Circuit

simply was not considering the complexities of this

argument at that time” (Slip Op. at p. 7). The District

Court then concluded that the decision of the Third

Circuit on this issue was correct. In fact, Article XXVIII,

Section 2(a) of the constitution provides that a member,

in the exercise of his rights under the constitution, may

not “. . . evade or avoid his responsibility to the Organi-

zation as an institution, or engage in or advocate con-

duct that would interfere in the organization’s perfor-

mance of its legal or contractual obligations or

functions.” Article XVII of the Constitution, makes en-

couraging or engaging in a secessionist movement a

chargeable offense. Other chargeable offenses make

clear that the duties and loyalty that members owe to

this labor union preclude their disaffiliation and transfer

of assets to a rival union. Revocation of a local lodge’s

charter is a potential penalty for this proscribed conduct.

Article XVII, Section 5.

Each of the Circuit Court decisions harmonize the

Boilermakers’ interpretation of its Constitution; none

conflict.

II. Certiorari Should Not Be Granted Because The Deci-

sion Below Is Based Upon The Distinctive Contractual

Arrangement Between The Parties.

The question presented to the Third Circuit was

very simple — whether or not the constitution of the IBB

is consistent with the merger agreement and requires

surrender of Local Lodge assets to the IBB. The Third

15

Circuit found as a matter of law the contract language in

question was not ambiguous. The Third Circuit went on

to find that the contract language unambiguously re-

quired surrender of Local Lodge 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 appropri-

ate 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, 86 S. 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. Califor-

nia, 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 Third Circuit’s decision some-

how interferes with the power of employes to select their

own collective bargaining representative. In fact, in each

case the members of the Local Lodges petitioned the

NLRB to select a new bargaining representative. The

NLRB, following the requested election, certified the

IWNA as these employees’ collective bargaining repre-

sentative. The Petitioners suggest that (1) enforcement

of the IBB surrender clause and (2) the obligation to

turn over to the IBB dues collected by the local lodge

from members prior to the decertification of the boiler-

makers “creates an improper restraint on members who

choose to change affiliation and thus conflicts with the

fundamental federal labor policy of consensual union-

ism.” There is absolutely no record evidence before the

court below to support such an argument. Moreover,

Petitioners did not argue before the court below that |

16

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 Manage-

ment Reporting 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 Deci-

sion Below Comports With Federal Policy.

The IBB constitution unambiguously requires Local

Lodges to surrender al! books, properties, records, funds

and assets to the IBB, International Brotherhood of

Boilermakers v. Local Lodge 714, 845 F.2d 687; Inter-

national Brotherhood of Boilermakers v. Local Lodge

238, 865 F.2d 1228; International Brotherhood of

Boilermakers 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; International Brother-

hood of Boilermakers v. Local Lodge D405, 699 F. Supp.

749; and International Brotherhood of Boilermakers v.

Godfrey, CV 87-6-2010-S (N.D. Ala., May 17, 1989).

The Third Circuit specifically concluded that this unam-

biguous language required the instant Local Lodges to

surrender all books, properties, funds and assets to the

IBB. International Brotherhood of Boilermakers v. Local

Lodge D504, 866 F.2d 641.

:F

A. Federal Labor Policy Favors Enforcement Of The

IBB Constitution.

The surrender language set forth in the IBB Consti-

tution is not unusual, and is in fact, standard language

for international unions. The Local Lodges herein con-

tracted with the IBB when it became a chartered local of

the Boilermakers. The constitution of the IBB sets forth

the terms of that contractual relationship, by which

these Local Lodges agreed to abide. One of the terms of

that contractual relation was that a Local Lodge is

required to surrender all books, property, funds and

assets to the IBB if it discontinues that contractual

relation. These Local Lodges enjoyed the benefits of that

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

their obligations when they wished to end the contrac-

tual 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. Con-

comitantly, a union’s interpretation of the requirements

2. See, e.g. BRAC v. Orr, 95 L.R.R.M. (BNA) 2701 (E.D.

Tenn. 1977); Local 1 v. International Brotherhood of Teamsters,

461 F. Supp. 961 (E.D. Pa. 1978), aff'd in part, 614 F.2d 846 (3d

Cir. 1980); Michigan Teamsters Joint Council v. Bufalino, 626 F.

Supp. 51, (E.D. Mich. 1985); International Brotherhood of Team-

sters v. United States, 275 F.2d 610 (4th Cir. 1960), cert. denied,

362 U.S. 975; Grain Millers Local 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)

228 (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).

18

of its own constitution will be respected by the Court and

not overturned unless patently unreasonable. /nterna-

tional Brotherhood of Boilermakers v. Hardeman, 401

U.S. 233, 242-43, 91 S. Ct. 609, 28 L.Ed.2d 10 (1971).

The record evidence is that 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 con-

tinued since the merger between the Cement Union 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 enforce-

ment of such a provision. The most fundamental of

3. International Brotherhood of Boilermakers v. Local Lodge

D504, 866 F.2d 641, n. 7

4. 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 to be

thus, enforceable. See 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 & 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) 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. dented, 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 infil-

trated 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 Brother-

19

Congressional labor goals is the preservation of indus-

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

446, 77 3S. Ct. 912, 1 L.Ed.2d 972 (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 bar-

gaining between employers and unions, which is in turn

part of the federal labor policy. 29 U.S.C. $151; Mc-

Vicker v. International Union of District 50 Allied and

Technical Workers, 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, 87 S. 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 constitution, - international

unions will be unable to protect the limited funds that

they can accumulate. International unions could spend

large amounts of money organizing and representing

emp!oyees 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 constitu-

tional 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 sta-

bility.

hood of Boilermakers v. Local Lodge D238, 681 F.Supp. 1570 (M.D.

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

20

The Eleventh Circuit recognized that this policy

consideration favored enforcement of the IBB constitu-

tion. International Brotherhood of Boilermakers v. Local

Lodge D238, 856 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 seces-

sion.

845 F.2d at 694.

Congress has also found that the preservation of

ethical standards in the administration of labor organi-

zation is an important federal labor policy. 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

labor 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 by-

laws 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 simi-

lar to these statutory obligations. Thus, the IBB consti-

tution provides that the funds of a subordinate body are

to be used only for the subordinate body in accordance

with the IBB constitution and if subordinate body leaves

the IBB, the funds must be surrendered to the IBB. IBB

constitution Article XXXVI, Section 1 and 2. Likewise,

21

that IBB constitution provides that no member in excr-

cising 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 XXIV

Section 2), and prohibits a member from advocating

conduct detrimental to the interest of the IBB or its

subordinate bodies, (IBB constitution Article XVII, Sec-

tion I(e) and (1). In 29 U.S.C. §411(a)(2) Congress

provided:

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. .

Contrary to the Petitioners’ position, not only do the

officers of Local Lodges have duties toward the mem-

bership, but they have duties toward the Local Lodge

and IBB as entities.5 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 specif-

ically 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 sub-

ordinate body shall be used only for the purpose of said

body” and “shall not be divided in any manner among

5. Petitioners boldly state that there is no evidence of a

violation of 29 U.S.C. §501. There was ample evidence before the

Third Circuit that Local Lodge funds were dissipated in violation of

the IBB constitution. Moreover, there was no evidence before the

Third Circuit that the Local Lodge Membership somehow approved

of this fraud.

ae

the members of the subordinate body.” IBB constitution

Article XXXVI, Section 1 and 2. Compare the former

Cement Union Constitution at page 3, supra. 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 offic-

ers 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 expen-

ditures. In this instance, those members ostensibly

voted to spend money in direct contravention 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 Boilermak-

ers v. Local Lodge D296, 687 F.Supp. 469; and Interna-

tional Brotherhood of Boilermakers v. Local Lodge D111,

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

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 relation-

ship 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 promulgate and

23

enforce rules against members who voluntarily 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 St. 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 further application of the rule to subsequent con-

duct. 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 treasury. To the

contrary, it does not impinge on federal labor law to

require a member to pay all contractual financial obliga-

tion upon resignation. NLRB v. Granite State Joint

Board, 409 U.S. 213, 93 S. 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

normally is reflected in our free institutions — 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 with which he

was associated.

409 USS. at 216.

The IBB has placed no restriction whatsoever on the

right of the members of a Local Lodge to resign from

union membership. The members of these Local Lodges

were free to resign at any time they chose. There is no

evidence present in this case to indicate that any mem-

bers of these Local Lodges resigned from union mem-

bership prior to the NLRB election.

The IBB constitution does indicate if enough mem-

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

24

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 interna-

tional 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 internationa!

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. Finan-

cial Institution Employees, Local 1182, 475 U.S. 192,

106 S. Ct. 1007, 89 L.Ed.2d 151 (1986); United Steel-

workers v. Sadlowski, 457 U.S. 102, S. Ct. 2339, 72

L.Ed.2d 707 (1982).

To the extent those internal union affairs are gov-

erned by contractual relations, Congress granted juris-

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

resolve differences concerning those contractual rela-

tions. 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 ClassRoom Teachers

Association, 407 F.Supp. 739; McVicker v. Interna-

tional Union of District 50 327 F.Supp. 296; Sawyers v.

Grand Lodge International Association of Machinists,

279 F.Supp. 747; International Brotherhood of Boiler-

makers v. Local Lodge D474, 673 F.Supp. 199; Interna-

tional Brotherhoood of Boilermakers v. Local Lodge

D238, 865 F.2d 1228.

Enforcement of the IBB constitution does not inter-

fere with free employee selection of their collective

such free choice. The IWNA apparently pullered th

funds of Boilermakers Local Lodges months before the

NLRB election. Petitioners assert without resort

record evidence that this was done as the result of some

sort of internal union disaffiliation vote

[his internal vote was ineffective to accomplish the

purposes of the Petitioners both because it was in

derogation of the IBB constitution itself and because

these votes were kept secret from the IBB. There was

lso 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 vote in a non-coercive

atmosphere. In short, there was no evidence that the

minimal due process requirements were observed.

If any party interfered with the election of the

collective bargaining representative it was the IWNA. By

the time of the NLRB election, the employees were

faced with fait accompli. The employees had two (2)

choices during the NLRB election; (1) vote for the 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,

property and funds can only be viewed as an interfer-

ence with employee freedom of choice. Kearney &

Trecker v. NLRB, 210 F.2d 852 (7th Cir. 1954), cert.

dented, 348 U.S. 824.

6. Although the IBB was generally aware that the IWNA was

raiding its locals, the IBB did not become aware of the purported

vote at these Local Lodges until discovery took place in the

underlying law suit.

26

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 any Local Lodge.

Nor does the IBB’s constitution require former members

to continuing paying dues after resignation.

The IBB constitution does require a Local Lodge to

continue making per capita tax/division fund payments

to the IBB, for each member that it does have. The Third

Circuit found that the Local Lodges attempt to dissafi-

liate was ineffectual. See, also, International Brother-

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

1418; International Brotherliood of Boilermakers v.

Local Lodge D354, C.No. EV-87-129-C (S.D. Ill., June 6,

1989). The Third Circuit went on to find, as did the

District Court, that these local lodges collected dues

from their members and continued to accept services

from IBB international representatives. Thus, the Third

Circuit found that the contractual obligation to make per

capita tax/division fund payments continued to inure

until disbandment.

The amount of per capita taxes collected was stipu-

lated by the parties. Thus, there was no issue betore the

Third Circuit of requiring individuals who had resigned

to pay dues.

The Third Circuit held:

that the per capita tax is due from Local Lodges for

each member until the date of decertification pro-

vided the member remained employed and re-

mained a member of the Local Lodge. 866 F.2d at

647.

(Iz:mphasis added).

Accordingly, these Local Lodges continued to have a

contractual obligation to make per capita tax/division

fund payments to the IBB, for each member, until

m

27

disbandment. Since a vote to disaffiliate does not consti-

tute resignation, Local Lodges remained obligated to

make payments to the IBB until disbandment.

CONCLUSION

For all foregoing reasons, Respondent respectfully

requests the Court deny the Petition for Writ of Certio-

rari.

June, 1989

BRUCE E. ENDY

(Counsel of Record)

Spear, Wilderman, Sigmond,

Borish & Endy

1500 Atlantic Building

260 South Broad Street

Philadelphia, Pennsylvania 19102

Michael J. Stapp

Blake & Uhlig, P.A.

475 New Brotherhood Building

753 State Avenue

Kansas City, Kansas 66101

Counsel for Respondents