Petition — King v. Public Service Employees Local Union 572

IN THE Supreme Court, U. a

Supreme Court of the United tates! & ® DP

OCTOBER TERM, 1977 JEC & i977

MICHAEL RODAK, JR., CLERK

NT-793 .

PEGGIE ANN KING, BARBARA JENKINS,

and IRENE COMBS,

Petitioners,

PUBLIC SERVICE EMPLOYEES LOCAL UNION 572

OF THE LABORERS INTERNATIONAL UNION

OF NORTH AMERICA, AFL-CIO, GEMINI FOOD

SERVICES, INC., ERNEST McNEAL, AND SID-

NEY C. RAGLAND,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES NEWTON WILHOIT, III, Esq.

REX H. REED, Esq.

MILTON L. CHAPPELL, Esq.

National Right to Work Legal

Defense Foundation

8316 Arlington Boulevard

Suite 600

Fairfax, Virginia 22038

(703) 573-7010

STEPHEN M. SMITH, Esq.

JOSEPH SMITH, LTD.

P.O. Box 1437

Smith Building

‘ 2100 Kecoughtan Road

Hampton, Virginia 23661

‘ (804) 247-6369

November 30, 1977

Washington, 0.C. ¢ CLS PUBLISHERS © LAW PRINTING CO. « (202) 393-0625

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

(i)

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

5.

2.

The Decision Below is in Conflict with the

Controlling Decisions of this Court .........

The Decision Below Conflicts with the

Uniformity Principle As Set Forth by this

cL es vant ee che esa hee ®

Contrary to the Decision Below, the Prin-

ciple of Uniformity, through the Assimilative

Crimes Act, is Controlling in this Case .......

The Decision Below Conflicts with this

Court’s Decision in Mobil Oil and _ its

Application of §14(b) of the National Labor

Relations Act, As Amended ..............

. The Decision Below Clearly Conflicts with

this Court’s Decision Regarding Federal

6 ee De ee ee ee ee es

The Decision Below is Wrong in Stating that

Ban on Compulsory Unionism is in Conflict

with the Proviso to §8({aX(3) on the Federal

DE les Cn ee need Chee ORE eee O68

CONCLUSION

APPENDIXES:

Appendix. Principal Statutory Provisions Involved

Jurisdictional Statutes

Provisions of the National Labor Relations Act

Provisions of the Virginia Right to Work Law

See SCP ee Ce e8 CC Oe 8 2 P68. 2 6.686970 6688 ©

Se eoee@ee@@€2@eeceecee&ks @& 8 0 6 6 @

Ss 26 ¢

1]

14

16

(ii)

Page

Opinion of the United States Court of Appeals for

I e's aw 6:8 7a

Memorandum Opinion of the United States District

Court for the Eastern District of Virginia,

a ee es Seeman 8a

TABLE OF AUTHORITIES

Cases:

Air Terminal Services, Inc. v. Rentzel, 81 F. Supp.

DEP ER EE kcé ees vsesess eee 13

Alabama v. King & Boozer, 314 U.S. 1 (1941) .......... 6

Algoma Plywood & Veneer Co. v. Wisconsin

Employment Relations Board, 336 U.S. 301

ooh ew es eee e646 ab eben néne 6 ene 17,18,19

Bartsch v. Washington Metropolitan Area Transit

Commission, 357 F.2d 923 (4th Cir. 1966) .......... 4

Evans v. Cornman, 398 U.S. 419 (1970) .............. 8

First Hardin National Bank v. Fort Knox National

Bank, 361 F.2d 276 (6th Cir.), cert. denied, 385

SE 85 565 a4 O8 68 66068 0486 o 0,0: 00 7

Hancock v. Train, 426 U.S. 167 (1976) .............. 4,6

Howard v. Commissioners of Sinking Fund, 344

PE <2 eCere idee a ence sens cet eeue 10

James Stewart & Co. v. Sadrakula, 309 U.S. 94

DD <beeseeee oeb beh 0ed'we ah eeseeect ees 5,68

Nash v. Air Terminal Services, Inc., 85 F. Supp. 545

en is. Seb bGhRbOOEWEeES OS 643 64% 13

Oil, Chemical & Atomic Workers v. Mobil Oil Corp.,

CK Ee eee ee eee 14,15,16

Pacific Coast Dairy, Inc. v. Department of Agricul- -

Se UE «we <cteceesenusccess 8-10

Penn Dairies, Inc. v. Milk Control Commission, 318

DE Cece dencnduetbvneese cd besnes 5.6

(iii)

Page

Retail Clerks, Local 1625 v. Schermerhorn, 373

US. 746, reargued, 375 U.S. 96 (1963) ........... 19

United: States v. Anderson, 425 F.2d 330 (7th Cir.

DE: skece eee nd ance Se ewed eeu o ledens 12

United States v. Press Publishing Co., 219 U.S. 1

Pt tie.e eet ee dee tha hence 6 6'ss 6s 11,12

United States v. Sharpnack, 355 U.S. 286 (1958) ....... 12

United States v. Warne, 190 F. Supp. 645 (N.D.

Cal. 1960), modified, 371 U.S. 245 (1963) ....... 12-13

Wallach v. Lieberman, 366 F.2d 254 (2d Cir. 1966)...... 11

Williams v. United States, 327 U.S. 711 (1946) ......... 12

Statutes:

Code of Va. Ann. § §40.1-58—40.1-69 . . 2,3,6,7,13,14,16,19,21

National Labor Relations Act,

§8(aX(3), 29 U.S.C. §158(aX3) .. 3,14,15,16,17,18,19,20,21

§14(b), 29 U.S.C. §164(b) ........ 3,6,8,14,15,17,18,19

United States Code,

ED. <0 6 0565s ob neeusebeceetestersess 5

URC, osu pedecoecesseutiectesecisens 5

CEE 6 ok 66.0 664 0604460 06600 0360008 62 8

0 3 ,6,8,11,12,13,16,17,19,21,22

ED 006060060540 nes eneensenes 2

DUDE Lenckgdeececepavecovesececeaes 3

I EE ee ee eee ee ee 3

SPEED ce cesccdeevesosecesecess 8

Miscellaneous:

ee een eee eee see neeseces 14

I & Il Legislative History of the National Labor

Relations Act 1935 (GPO 1949) ............... 20-21

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No.

PEGGIE ANN KING, BARBARA JENKINS,

and IRENE COMBS,

Petitioners,

PUBLIC SERVICE EMPLOYEES LOCAL UNION 572

OF THE LABORERS INTERNATIONAL UNION

OF NORTH AMERICA, AFL-CIO, GEMINI FOOD

SERVICES, INC., ERNEST McNEAL, AND SID-

NEY C. RAGLAND,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioners, Peggie Ann King, Barbara Jenkins,

and Irene Combs, respectively pray that a writ of

certiorari issue to review the final judgment and opinion

of the United States Court of Appeals for the Fourth

Circuit entered in this proceeding on September 6,

1977.

OPINION BELOW

The opinion of the Court of Appeals affirmed the

judgment of the District Court for the Eastern District

of Virginia which issued a brief order with opinion

granting a motion for judgment on the pleadings. The

opinion of the Court of Appeals and the order of the

District Court appear in the Appendix hereto.

JURISDICTION

The final judgment of the Court of Appeals was

entered on September 6, 1977 and this petition for writ

of certiorari is being filed within ninety (90) days of

that date. This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Was the Court of Appeals wrong in affirming a

decision of the District Court which held that the

Virginia Right-to-Work law is incompatible with federal

law?

2. Was the Court of Appeals wrong in affirming the

conclusion of the District Court that a state law which

prohibits all forms of compulsory unionism does not

supplant federal law which permits an employer and a

union to negotiate a compulsory unionism clause?

3. Does the federal law positively authorize the

states to prohibit on a federal enclave within the states’

environs all forms of compulsory unionism?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioners asserted below the protection of their

rights under § §40.1-58—40.1-69, Code of Virginia

Annotated.

They invoked the jurisdiction of the District Court

under the Federal Assimilative Crimes Act, 18 U.S.C.

§ 13, the Declaratory Judgment Act, 28 U.S.C. §2201,

and 28 U.S.C. §1331.

Petitioners claimed that they were subject to injury

and damages by the respondents for the violation of

§ §40.1-58—40.1-68, Code of Virginia Annotated, by

virtue of the authority given the states under § §8(a)(3)

and 14(b) of the National Labor Relations Act, 29

U.S.C. §§158(a)(3) and 164(b) respectively.

STATEMENT OF THE CASE

Petitioner King was an employee of Gemini Food

Services, Inc. and its predecessor when Gemini and

Public Service Employees Local Union 572 of the

Laborers International Union of North America,

AFL-CIO, entered into a collective bargaining agreement

under which all employees were required to join the

Union within thirty (30) days as a condition of

employment. Petitioner King steadfastly refused to join

the Union and was thus discharged by her employer.

Petitioners Jenkins and Combs were employed by

Gemini and involuntarily acquiesced to the demands to

join the Union in order to keep their jobs.

4

Defendant Sidney Ragland is the president and

manager of Gemini Food Services, Inc. and Defendant

Ernest McNeal was the owner and manager of the

Company’s predecessor, Multi-Mack, Inc.

Gemini provides cleaning services for the kitchen at

Fort Monroe, Virginia, a federal enclave. Pursuant to an

agreement arranged by Emest McNeal and negotiated

and honored by and between Gemini, Sidney Ragland

and the Union, employees of Gemini must make

application to join the Union within thirty (30) days of

employment at the Company and must maintain their

membership in good standing in the Union as a

condition of continued employment.

REASONS FOR GRANTING THE WRIT

1. The Decision Below is in Conflict with the

Controlling Decisions of this Court.

The Court of Appeals for the Fourth Circuit, in the

case at bar, has retreated from the position that it

previously took when it held that the “grant of

exclusive jurisdiction...to the federal govern-

ment ...does not exclude all state jurisdiction relating

to the federal area.” Bartsch v. Washington Metropolli-

tan Area Transit Commission, 357 F.2d 923, 924 (4th

Cir. 1966). The decision below is also in conflict with

the principles set forth by this Court in Hancock vy.

Train, 426 U.S. 167, 179 (1976) when this Court said

“[njeither the Supremacy Clause nor the Plenary

Powers Clause bars all state regulation which may touch

the activities of the Federal Government.”

Congress has specifically provided for the applica-

bility of state laws on federal enciaves. These

permissible state laws have been in the nature of a

public policy-regulatory law, e.g., 10 U.S.C. §2671

which provides that all hunting, fishing, and trapping on

the enclaves be in accordance with state law, and 4

U.S.C. §§105-106, under which persons on federal

enclaves are not relieved from the payment of sales and

income taxes of the surrounding state. The most

notable such Congressional enactment, however, is the

Assimilative Crimes Act, which, in effect, adopts the

entire criminal code of a state where that code is not

inconsistent with federal policy. The Act applies in the

situation where Congress can be relieved of day to day

regulation and where the regulation is of private

conduct and imposes no prohibitions on the national

government or its offices. Penn Dairies, Inc. v. Milk

Control Commission, 318 U.S. 261 (1943).'

Thus, if the administering of state laws will “interfere

with the carrying out of a national purpose... [or

w]here enforcement of the state law would handicap

efforts to carry out the plans of the United States, the

state enactment must, of course, give way.” (citations

omitted) James Stewart & Co. v. Sadrakula, 309 U.S.

94, 103-04 (1940). There must, therefore, be a serious

'“(T] hose who contract to furnish supplies or render services

to the government are not such agencies and do not perform

governmental functions...and the mere fact that non-

discriminatory ...fegulation of the contractor imposes an

increased economic burden on the government is no longer

regarded as bringing the contractor within any implied immunity

of the government from state . . : regulation.” (citations omitted)

318 U.S. a! 269.

6

interference or burden on the federal government

before the state law will give way.”

The law in question, the Virginia Right-to-Work law,

“imposes no prohibitions on a national government or

its officers”; and it in no way handicaps “efforts to

carry out the plans of the United States.” Instead, it

only applies to those who “contract or furnish supplies

or render services to the government,” and are without

any governmental immunity. Furthermore, Congress has

ordained any “burden” that the Right-to-Work law may

impose by virtue of §14(b) of the Taft-Hartley Act, 29

U.S.C. §164(b), and the Assimilative Crimes Act.

If state regulation of an activity is applied to a

federal enclave “when and to the extent there is ‘a clear

congressior. ’ mandate’” that would make the authori-

zation of state regulations clear and unambiguous.

Hancock, 426 U.S. at 179. Clearly, if the Assimilative

Crimes Act is read together with §14(b) of the

?This Court has held that some burdens: “save as Congress

may act to remove them, are to be regarded as the normal

incidents of the operation within the same territory of a dual

system of government, and that no immunity of the national

government from such burdens is to be implied from the

Constitution which established the system. . - .

“Furthermore, we should be slow to strike down legislation

which the state concededly had power to enact, because of its

asserted burden on the federal government. For the state is

powerless to remove the ill effects of our decision, while the

national government, which has the ultimate power, remains free

to remove the burden.” Penn Dairies, 318 U.S. at 271, 275. See

also Alabama v. King & Boozer, 314 U.S. 1 (1941), and James

Stewart, supra.

Ty ree

Taft-Hartley Act, it is apparent that there is a

Congressional mandate that makes the authorization

and application of Virginia’s Right-to-Work law to Fort

Monroe “clear and unambiguous.”

2.The Decision Below Conflicts with the

Uniformity Principle As Set Forth by this

Court.

Both Congress and the courts have consistently made

clear that, where constitutionally possible, uniformity

between the surrounding states and the federal enclave

is favored. In First Hardin National Bank v. Fort Knox

National Bank, 361 F.2d 276, 279 (6th Cir.), cert.

denied, 385 U.S. 959 (1966), the Court of Appeals

said:

[A federal enclave] within a state remains a

geographical part of the city, county and state of

which it was part at the time of acquisition by the

United States....

The geographical structure of the State... not

only remains the same, but the State retains a

dormant jurisdiction over the land. (footnote

omitted)

* = * =

The State...merely relinquished its political

control over the area so long as the property is

owned by the United States Government, but did

not relinquish its geographical boundaries.

In 1970, this Court extended this principle when it

found that persons residing on federal enclaves “clearly

live{d] within the geographical boundaries of the State”’

from which it was acquired and are, therefore, residents

of that state — at least to the extent of being able to

vote in state elections. Evans v. Cornman, 398 U.S.

419, 421-22 (1970).

Where Congress has not legislated otherwise, the

judicial assimilation of the laws of the federal enclave

with the laws of the surrounding state, “‘assures that no

area however small will be left without a developed

legal system for private rights.” James Stewart, 309

U.S. at 100. This desire for uniformity between the

federal and surrounding state territory has led to a

series of Congressional acts which have adopted the

state cause of action for accidental death by negligence

or wrongful dedfh, 16 U.S.C. §457, the State

Workmen’s Compensation Act, 40 U.S.C. § §105-110,

and, as already set forth, the state criminal laws, i.e.,

the Assimilative Crimes Act. We urge also that Congress

has shown the same inclination toward uniformity by

enacting §14(b) of the Taft-Hartley Act whereby a

state may prohibit compulsory unionism in any form.

To assimilate the state law on the enclave would, in

effect, give the state er to carry out its public

policy of insuring private rights everywhere within the

state and not just in those areas over which the federal

government would have no jurisdiction. Mr. Justice

Frankfurther, in a dissenting opinion in Pacific Coast

Dairy, Inc. v. Department of Agriculture, 318 U.S. 285,

299-300 (1943) characterized this principle of uni-

formity as a lessening of exclusive jurisdiction of the

federal government, when he said:

The so-called exclusive jurisdiction drawn from

the grant to Congress of power to legislate

exclusively has, as a matter of historical fact,

become increasingly less and less exclusive... .

9

And while lip service is paid to the doctrine of

‘exclusive jurisdiction’ by professing to absorb for

federal enclaves those laws of the state which were

enforced there prior to its cession, the liberality

with which state social measures are deemed not

to impinge upon the. national purposes for which

the enclave was established, is a recognition in fact

that the Constitution permits sensible adjustments

between state and federal authority although

activities subject to legal control take place on

federal territory within a state. (citation omitted)

Dissenting in the same case, Mr. Justice Murphy

reaffirmed this principle of applying state power to the

federal enclave. This Court, ten years after Pacific

3’ Congress is given the power ‘to exercise exclusive

legislation’ over federal areas... but that does not necessarily

mean that the States, no matter what their interest or need, are

absolutely without power to enact legislation, not inconsistent

with Congressional policy or Constitutional dictates, which will

apply in some measure to those areas which are within their

boundaries.

“We derive much of our strength as a nation from our dual

system of federal government. To promote the harmonious

working of that system the general clauses of the Constitution

which broadly delineate the boundaries of state and national

power should be construed by appraising the respective state and

national interests involved and striking a balance which gives

appropriate recognition to the legitimate concerns of each

government... : If a state is acting in matters normally within its

competence, with which it is especially equipped to deal, to

achieve important governmental ends such as the protection of

the public health and welfare or the maintenance of orderly

marketing conditions, the effects of its action should be allowed

to extend into federal areas within its boundaries unless

inconsistent with an act of Congress or the provisions or

necessary implications of the Constitution. This formula allows

(continued)

10

Coast Dairy, adopted the uniformity principle, as earlier

expressed by Justices Frankfurter and Murphy, as the

law of the land, when it said in Howard y,.

Commissioners of Sinking Fund, 344 U.S. 624, 627

(1953):

The fiction of a state within a state can have no

validity to prevent the state from exercising its

power over the federal area within its boundaries,

so long as there is no interference with the

jurisdiction asserted by the Federal Government.

The sovereign rights in this dual relationship are

not antagonistic. Accommodation and cooperation

are their aim. It is friction, not fiction, to which

we must give heed.

Thus, where the public policy of the state is to prohibit

an activity such as compulsory unionism, as is the case

in the State of Virginia, it would truly be a “thorn in

the side” of that state to have a territory within its

boundaries where such activity would be permitted and

where its public policy would be thwarted. To permit

compulsory unionism within the federal enclave in

Virginia would create the ‘“‘fiction of a state within a

state” and would thus be counter to the opinion of this

Court in Howard.

(footnote continued from preceding page)

the States to carry out important programs which must be of

Statewide application to be effective and adequately recognizes

the paramount character of federal power... .

*“*...So long as there is no overriding national purpose to be

served, nothing is gained by making federal enclaves thorns in the

side of the States and barriers to the effective statewide

performance of those functions.” 318 U.S. at 303-05.

3. Contrary to the Decision Below, the Principle

of Uniformity, through the Assimilative

Crimes Act, is Controlling in this Case.

Conformity with state law was what the Court of

Appeals was concerned with in Wallach v. Lieberman,

366 F.2d 254, 256 (2d Cir. 1966) when it said:

[T]he constitution requires national uniformity in

the admiralty jurisdiction; however, with respect to

certain crimes in federal enclaves, instead of any

such constitutional mandate, there is an express

Congressional policy of promoting conformity with

state law... . (citations omitted)

The Assimilative Crimes Act is the most persuasive

evidence of the principle of uniformity.

In 1911, this Court, in analyzing a forerunner of the

present Assimilative Crimes Act, declared in United

States v. Press Publishing Co., 219 U.S. 1, 9-10 (1911):

[I]t becomes manifest that Congress, in adopting

it, sedulously considered the twofold character of

our constitutional government, and had in view the

enlightened purpose, so far as the punishment of

crime was concerned, to interfere as little as might

be with the authority of the states on that subject

over all territory situated within their exterior

boundaries, and which hence would be subject to

exclusive state jurisdiction but for the existence of

a United States reservation. In accomplishing these

purposes it is apparent that the statute, instead of

fixing by its own terms the punishment for crimes

committed on such reservations which were not

previously provided for by a law of the United

States, adopted and wrote in the state law, with

the single difference that the offense ... [would

be] punished as an offense against the United

States...

12

In upholding the constitutionality of the present

Assimilative Crimes Act against allegations that it was

an unconstitutional delegation to the state of Congress’

legislative authority, this Court reaffirmed the principle

of Press Publishing in the case of United States v.

Sharpnack, 355 U.S. 286, 291-93 (1958):

The above ... demonstrates a consistent congres-

sional purpose to apply the principle of con-

formity to state criminal laws in punishing most

minor offenses committed within federal en-

claves... .

Recognizing its underlying policy of 123 years’

standing, Congress has thus at last provided that

within each federal enclave, to the extent that

offenses are not preempted by congressional

enactments, there shall be complete current

conformity with the criminal laws of the respective

States in which the enclaves are situated.

The basic legislative decision made by Congress is

its decision to conform the laws in the enclaves to

the local laws as to all offenses not punishable by

any enactment of Congress.

Where an offense is expressly prohibited and

punished as a crime by a law of the United States, that

law is dominant and controlling on the federal enclave

and the Assimilative Crimes Act would not apply.

Williams v. United States, 327 U.S. 711, 717 (1946).

But, when the federal criminal law has not defined a

certain offense or provided for its punishment, and the

offense would be punishable in the state where the

enclave is located, the Assimilative Crimes Act consti-

tutes an adoption by Congress of state criminal law for

that federal enclave. United States v. Anderson, 425

F.2d 330, 332 (7th Cir. 1970); United States v. Warne,

13

190 F. Supp. 645, 658 (N.D. Cal. 1960), modified, 371

U.S. 245 (1963).

Federal law is silent on the question of membership

in or the payment of dues to a labor union as a

condition of continued employment. However, because

the State of Virginia has legislated that such a denial of

the Right-to-Work is a criminal offense (Code of Va.

Ann. §40.1-69), these sanctions are assimilated onto

Fort Monroe by virtue of the Assimilative Crimes Act.

Ti provisions of the state criminal statute then

become the requirements of federal law and prevail on

the federal enclave and continue in force until the

adoption of a federal statute or regulation expressing a

different policy. Nash v. Air Terminal Services, Inc., 85

F. Supp. 545, 548 (E.D. Va. 1949).*

Hence, it follows that absent any federal legislative

enactments expressed by Congress on the subject of

compulsory unionism, the state law is the federal law.

*In Nash, the District Court held that Virginia’s segregation

law, by virtue of the Assimilative Crimes Act, was the federal law

prevailing at National Airport because on the date of the events

pleaded, there was no contrary federal policy on the question of

integration. However, the same court, in Air Terminal Services,

Inc. v. Rentzel, 81 F. Supp. 611 (E.D. Va. 1949), held that

Virginia’s segregation law no longer applied to National Airport

after December 27, 1948, the date on which the administrator of

civil aeronautics promulgated a regulation mandating the

avoidance of racial distinctions in federal matters. That court

held that while the Assimilative Crimes Act “was intended ‘to

use local statutes to fill in gaps in the Federal Criminal

Code’... [i]t is not to be allowed to override other ‘federal

policies as expressed by Acts of Congress’ or by valid,

administrative orders. .:.* ‘(citations omitted) 81 F. Supp. at

612.

14

4.The Decision Below Conflicts with this

Court’s Decision in Mobil Oil and its

Application of §14(b) of the National Labor

Relations Act, As Amended.

The main issue in the case at bar is whether §14(b)

of the National Labor Relations Act permits the

application of the Virginia Right-to-Work law to the

union shop provision in the collective bargaining

agreement between the Union and the Employer. There

is no question that such a provision would be illegal

and contrary to state law if it were contained in a

collective bargaining agreement covering employees

outside of the federal enclave, or even if it covered

employees who were federal employees covered under

Executive Order 11491; but the employees in question

here work on a federal enclave for a private employer,

that federal enclave being completely within the

environs of the State of Virginia.

In Oil, Chemical & Atomic Workers v. Mobil Oil

Corp., 426 U.S. 407 (1976), this Court addressed itself

to the job situs as the principal determinant of the

applicability of a state Right-to-Work law. In that case,

the place of employment was “on tive high seas —

outside the territorial bounds of the State.” 426 U.S. at

413. However, in the case at bar, the place of

employment is completely within the territorial bounds

of the State of Virginia. In that case, this Court said:

We hold that under §14(b), right-to-work laws

cannot void agreements permitted by §8(a)(3)

when the situs at which all the employees covered

by the agreement perform most of their work is

located outside of a State having such laws. 426

U.S. at 414.

15

Thus, because Fort Monroe is within the bounds of the

State of Virginia, the Mobil Oil test has been met and

the Virginia law would apply under the uniformity

principle.

As Mr. Justice Stewart stated in his dissenting

opinion in Mobil Oil:

§ §8(a)(3) and 14(b) together exhaust the federal

interest in the types of union-security agreements

employers and unions may make. The closed shop

is absolutely prohibited. And any lesser security

arrangement, though consistent with the federal

interest, is sanctioned only if it harmonizes with

state policy. 426 U.S. at 427.

Mr. Justice Stewart went on to say:

The specific legislative history of §14(b) is of

no greater aid in resolving the dilemma. Congress

simply did not address the choice of law problems

that would inevitably arise in multistate work

force situations. We are, however, not entirely

without signposts. When Congress legislated with

respect to union-security agreements in 1947, it

did not write on a clean slate, for few issues in

American labor history had been as controverted

as the moral legitimacy and, indeed, the legality,

of union security agreements. It is unnecessary for

the purpose of this case to review the history of

that long controversy. It is sufficient only to

realize that Congress did not resolve it, but instead

left each individual State free to outlaw union

security agreements in the interest of a perceived

policy of keeping industrial relations more indi-

vidualistic, open, and free. (footnotes omitted) 426

U.S. at 429-30.

The State of Virginia has an interest in, and must be

permitted to legitimately assert that interest in, the

hiring process as well as the conditions of employment

16

that are negotiated between an employer and a union

covering employees who work within the boundaries of

the State. This rule Congress has specifically legislated.

Thus, whether one uses the Mobil Oil test of Justices

Stewart and Rehnquist in their dissenting opinion, or

the test of Justice Marshall in the majority opinion, one

can reach only one conclusion: that the Virginia

Right-to-Work law, a law prohibiting all forms of

compulsory unionism, is applicable to any employee

working within the boundaries of the State of Virginia.

5.The Decision Below Clearly Conflicts with

this Court’s Decision Regarding Federal Labor

Law.

The only reason for excluding state law from federal

enclaves, under the Assimilative Crimes Act, is the

conflict with federal law which is non-existent in this

case. In fact, not only is there lack of a conflict with

federal law, but there is a positive authorization of the

state law by the federal law.

The Court below appeared to assume that there is a

federal policy in favor of union security agreements. In

view of the decision of this Court in Mobil Oil, such an

assumption is clearly erroneous because this Court there

said:

Federal policy favors permitting such agreements

unless a State or Territory with a sufficient

interest in the relationship expresses a contrary

policy via right-to-work laws. (emphasis added)

426 U.S. at 420.

The proviso to §8(a)(3) of the Taft-Hartley Act was

never intended to provide affirmative legal protection

=" =

= fe -

17

to union security agreements and, in fact, merely sets

forth a policy that such agreements will not be

considered to be illegal under federal law. Implicit in

§8(a)(3), as construed by this Court in Algoma

Plywood & Veneer Co. v. Wisconsin Employment

Relations Board, 336 U.S. 301 (1949), as well as in

§14(b), is the federal policy that the states are

permitted and given the explicit power to prohibit any

form of compulsory unionism agreements within their

boundaries.

If any conflict existed between permitting and

prohibiting union security agreements, it was resolved

by Congress in favor of allowing the states the power to

prohibit such agreements through the operation of

§14(b) of the National Labor Relations Act, as

amended and the Assimilative Crimes Act; and to limit

the states’ exercise of the power to prohibit such

agreements would conflict with federal policy. Thus,

District Judge Kellam’s opinion that federal policy

would conflict with the exercise of state prohibitions

on compulsory unionism on the federal enclave, an

opinion which was upheld by the Court of Appeals for

the Fourth Circuit, is clearly erroneous.

The historical background of §8(a)(3) of the

National Labor Relations Act clearly shows that federal

labor policy does not now and has not ever favored a

so-called ‘“‘union security” agreement, i.e., an agency

shop or union shop clause. When the language now

contained in §8(a)(3) of the Act was first adopted in a

similar form in §8(3) of the Wagner Act in 1933, the

first federal labor relations act, it was enacted to make

it perfectly clear that, as a matter of federal policy, a

union security agreement would not violate the federal

18

law. However, there was not then any express policy

favoring such an agreement. There were Right-to-Work

laws in existence before the passage of the present

National Labor Relations Act, the specific provisions

for them appearing in § 14(b).

In Algoma Plywood & Veneer Co. v. Wisconsin

Employment Relations Board, supra, this Court out-

lined the law with respect to union security agree-

ments. This Court quoted extensively from the

legislative history of the Wagner Act, the predecessor of

the present National Labor Relations Act, and referred

to the Senate Report which indicated that it was not

the intent of Congress to interfere with the laws of the

states on the subject of union security agreements. This

Court, in Algoma, went on to state:

Since we would be wholly unjustified, therefore,

in rejecting the legislative interpretation of §8(3)

placed upon it at the time of its enactment, it is

not even necessary to invoke the principle that in

cases of concurrent power over commerce State

law remains effective so long as Congress has not

manifested an unambigious purpose that it should

be supplanted. (emphasis added) 336 U.S. at 312.

Hence, one must conclude that there is no. federal

policy favoring so-called “union security” agreements

*“It is argued, therefore, that a State cannot forbid what

§8(3) affirmatively permits. The short answer is that §8(3)

merely disclaims a national policy hostile to the closed shop or

other forms of union-security agreement. This is the obvious

inference to be drawn from the choice of the words ‘nothing in

ths Act...or in any other statute of the United States,’ and it

is confirmed by the legislative history.” (emphasis added) 336

US. at 307.

19

over state prohibitions on compulsory unionism. In

fact, as this Court stated in Algoma, there is only the

language of disclaimer reflecting a federal policy of

non-interference, and on the question of compulsory

unionism agreements, the last word is left to the state

civilly as well as criminally. It would then follow that

the Assimilative Crimes Act would make the enforce-

ment of a union security agreement, whether it be

union shop or agency shop, illegal on a federal enclave

situated within a jurisdiction which prohibits such an

agreement by criminal statute, under the authority

vested in the state to institute such a prohibition under

§ §8(a)(3) and 14(b) of the Act.

There is no rigid Congressional mandate favoring any

form of compulsory unionism. In fact §14(b) manifests

a Congressional intent to grant priority to state policy

on compulsory unionism. By the combined authority of

§14(b) and the Assimilative Crimes Act, the Virginia

Right-to-Work Law-is controlling in any federal enclave

within the territorial units of Virginia. It then follows

as a matter of course that a collective bargaining

agreement authorizing a union shop on a federal enclave

within the boundaries of the State of Virginia would be

clearly in violation of federal labor policy because the

state prohibition is fully authorized by Congressional

enactments. State law then, on this question, is

supreme. Retail Clerks, Local 1625 v. Schermerhorn,

373 U.S. 746, reargued, 375 U.S. 96 (1963).

20

6. The Decision Below is Wrong in Stating that

Ban on Compulsory Unionism is in Conflict

with the Proviso to §8(a)(3) on the Federal

Enclave.

Section 8(a)(3) of the Act contains, in pertinent part,

the following language:

Provided, That nothing in this subchapter, or any

in any other statute of the United States, shall

preclude an employer from making an agreement

with a labor organization...to require as a

condition of employment membership therein on

or after the thirtieth day....

The legislative history of the original Wagner Act makes

the Congressional intent with respect to this proviso

quite clear. A Senate report on a draft of what is now

the 8(a)(3) proviso contained in | Legislative History of

the National Labor Relations Act 1935 (GPO 1949), at

1353, says:

The proviso does not make [union shop]

agreements legal; it merely says that nothing herein

should illegalize them. The operation of State

common law on the subject is left unaffected.

In Volume 2 of the same History, at 2311, another

Senate Report contains the following:

{T]he proviso in question states that nothing in

this bill, or in any other law of the United States,

or in any code or agreement approved or

prescribed thereunder, shall be held to prevent the

making of [union shop] agreements between

employers and employees. In other words, the bill

does nothing to facilitate [union shop] agreements

to or make them legal in any State where they

may be illegal; it does not interfere with the status

quo on this debatable subject but leaves the way

21

open to such agreements as might now legally be

consummated...

Again, at 2394 of the History, Senator Wagner himself

made the following response to a remark by Senator

Hastings: |

4

[T]he Senator apparently does not understand

that provision. It does no more than to legalize a

{union shop] agreement, which is a matter of

agreement between employer and employees where

it is now sustained by the public opinion of the

State.

It thus follows that Congress, in formulating and

enacting what is now the 8(a)(3) proviso of the

National Labor Relations Act, the predecessor of which

was §8(3) of the Wagner Act, intended only to permit

the union shop and nothing more. No federal policy

favoring the union shop, or any other form of

compulsory unionism for that matter, was intended.

Clearly Congress did not adopt the union shop as an

integral part of federal labor policy and certainly it did

not prohibit the application of a state Right-to-Work

law to a federal enclave under the Assimilative Crimes

Act. In fact, Congress’ sole (intent was to permit the

union shop only in those states where public policy

approved of such an arrangement. The State of Virginia

is clearly not one of those states because it has passed

civil and criminal sanctions prohibiting all forms of

compulsory unionism and has even stated that such

prohibitions are a matter of public policy of the State.

Violation of any section of the Virginia Right-to-

Work law constitutes a misdemeanor under §40.1-69 of

the Code of Virginia Annotated. It follows that the

Right-to-Work law is incorporated by the federal

22

Assimilative Crimes Act into the law applicable to

federal enclaves located within the boundaries of the

State of Virginia, and in this case, Fort Monroe.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of

Appeals for the Fourth Circuit.

Respectfully submitted,

JAMES NEWTON WILHOIT, III

REX H. REED

MILTON L. CHAPPELL

STEPHEN M. SMITH

Counsel for Petitioners

la

APPENDIX

Principal Statutory Provisions Involved.

Jurisdictional Statutes:

Review by Certiorari of Decisions of Courts of

Appeals.

28 U.S.C. §1254(1):

“Case in the courts of appeals may be

reviewed by the Supreme Court by the following

methods: (1) By writ of certiorari granted upon

the petition of any party to any civil or criminal

case, before or after rendition of judgment or

decree;”

Jurisdiction of District Courts.

18 U.S.C. §13, Federal Assimilative Crimes Act:

“Whoever within or upon any of the places

now existing or hereafter reserved or acquired as

provided in section 7 of this title, is guilty of any

act or omission which, althcugh not made

punishable by any enactment cf Congress, would

be punishable if committed or omitted within the

jurisdiction of the State, Territory, Possession, or

District in which such place is situated, by the

laws thereof in force at the time of such act or

omission, shall be guilty of a like offense and

subject to a like punishment.”

28 U.S.C. §2201, Declaratory Judgment Act:

“In a case of actual controversy within its

jurisdiction, except with respect to Federal taxes,

any court of the United States, upon the filing of

an appropriate pleading, may declare the rights

and other legal relations of any interested party

seeking such declaration, whether or not further

2a

relief is or could be sought. Any such declaration

shall have the force and effect of a final

— or decree and shall be reviewable as

such.”

28 U.S.C. $1331:

(a) The district courts shall have original

jurisdiction of all civil actions wherein the matter

in controversy exceeds the sum or value of

$10,000, exclusive of interest and costs, and

arises under the Constitution, laws, or treaties of

the United States.”

Provisions of the National Labor Relations Act:

l.

Section 8(a)(3) of the National Labor Relations

Act, 29 U.S.C. §158(a)(3):

“(a) It shall be an unfair labor practice for an

employer —

*s* * *

(3) by discrimination in regard to hire or

tenure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization: Provided,

That nothing in this subchapter, or in any other

statute of the United States, shall preclude an

employer from making an agreement with a labor

Organization (not established, maintained, or

assisted by an action defined in this subsection as

an unfair labor practice) to require as a condition

of employment membership therein on or after

the thirtieth day following the beginning of such

employment or the effective date of such

agreement, whichever is the later, (i) if such labor

Organization is the representative of the em-

ployees as provided in section 159(a) of this title,

in the appropriate collective-bargaining unit

covered by such agreement when made, and (ii)

unless following an election held as provided in

3a

section 159(e) of this title within one year

preceding the effective date of such agreement,

the Board shall have certified that at least a

majority of the employees eligible to vote in such

election have voted to rescind the authority of

such labor organization to make such an

agreement: Provided further, That no employer

shall justify any discrimination against an em-

ployee for nonmembership in a labor organization

(A) if he has reasonable grounds for believing

that such membership was not available to the

employee on the same terms and conditions

generally applicable to other members, or (B) if

he has reasonable grounds for believing that

membership was denied or terminated for reasons

other than the failure of the employee to tender

the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or

retaining membership;”’

Section 14(b) of the National Labor Relations

Act, 29 U.S.C. §164(b):

“(b) Nothing in this subchapter shall be

construed as authorizing the execution or applica-

tion of agreements requiring membership in a

labor organization as a condition of employment

in any State or Territory in which such execution

or application is prohibited by State or Territorial

law.”

Provisions of the Virginia Right to Work law:

Code of Va. Ann. § §40.1-58 - 40.1-69:

l.

“§40.1-58. Policy of article. — It is hereby

declared to be the public policy of Virginia that

the right of persons to work shall not be denied

or abridged on account of membership or

nonmembership in any labor union or labor

organization.

4a

*$40.1-58.1. Application of article to public

employers and employees. — As used in this

article, the words, “person,” “persons,” “em-

ployer,” “employees,” “union,” “labor union,”

“association,” “organization,” and “‘corporation”

shall include but not be limited to public

employers, public employees and any representa-

tive of public employees in this State. The

application of this article to public employers,

public employees and their representatives shall

not be construed as modifying in any way the

application of §40.1-55 to government em-

ployees.

“*§40.i1-59. Agreements or combinations de-

clared unlawful. — Any agreement or combina-

tion between any employer and any labor union

or labor organization whereby persons not

members of such union or organization shall be

denied the right to work for the employer, or

whereby such membership is made a condition of

employment or continuation of employment by

such employer, or whereby any such union or

organization acquires an employment monopoly

in any enterprise, is hereby declared to be against

public policy and an illegal combination or

conspiracy.

Ҥ40.1-60. Employers not to require em-

ployees to become or remain members of union.

— No person shall be required by an employer to

become or remain a member of any labor union

or labor organization as a condition of employ-

ment or continuation of employment by such

employer.

Ҥ40.1-61. Employers not to require absten-

tion from membership in union. — No person

shall be required by an employer to abstain or

refrain from membership in any labor union or

10.

Sa

labor organization as a condition of employment

or continuation of employment.

**$40.1-62. Employer not to require payment

of union dues, etc. — No employer shall require

any person, as a condition of employment or

continuation of employment, to pay any dues,

fees or other charges of any kind to any labor

union or labor organization.

““$40.1-63. Recovery by individual unlawfully

denied employment. — Any person who may be

denied employment or be deprived of continu-

ation of his employment in _ violation of

§ §40.1-60, 40.1-61 or 40.1-62 or of one or more

of such sections, shall be entitled to recover from

such employer and from any other person, firm,

corporation or association acting in concert with

him by appropriate action in the courts of this

Commonwealth such damages as he may have

sustained by reason of such denial or deprivation

of employment.

**§40.1-64. Application of article to con-

tracts. — The provisions of this article shall not

apply to any lawful contract in force on April

thirty, nineteen hundred forty-seven, but they

shall apply in all respects to contracts entered

into thereafter and to any renewal or extension

of an existing contract.

“*$40.1-65. Agreement or practice designed to

cause employer to violate article declared illegal.

— Any agreement, understanding or practice

which is designated to cause or require any

employer, whether or not a party thereto, to

violate any provision of this article is hereby

declared to be an illegal agreement, understanding

or practice and contrary to public policy:

Ҥ40.1-66. Conduct causing violation of

article illegal; peaceful solicitation to join union.

11.

6a

— Any person, firm, association, corporation, or

labor union or organization engaged in lockouts,

layoffs, boycotts, picketing, work stoppages or

other conduct, a purpose of which is to cause,

force, persuade or induce any other person, firm,

association, corporation or labor union or organi-

zation to violate any provision of this article shall

be guilty of illegal conduct contrary to public

policy; provided that nothing herein contained

shall be construed to prevent or make illegal the

peaceful and orderly solicitation and persuasion

by union members of others to join a union,

unaccompanied by any intimidation, use of force,

threat of use of force, reprisal or threat of

reprisal, and provided that no such solicitation or

persuasion shall be conducted so as to interfere

with, or interrupt the work of any employee

during working hours.

“$40.1-67. Injunctive relief against violation;

recovery of damages. — Any employer, person,

firm, association, corporstion, labor union or

Organization injured as a resuit of any violation

or threatened violation of any provision of this

article or threatened with any such violation shall

be entitled to injunctive relief against any and all

violators or persons threatening violation, and

also to recover from such violator or violators, or

person or persons, any and all damages of any

13.

Ta

be written power of attorney, filed with the

Department of Labor and Industry and the State

Corporation Commission, appoint the clerk of the

State Corporation Commission its attorney or

agent upon whom all legal process against the

union or organization may be served, and who

shall be authorized to enter an appearance on its

behalf. The manner of service of process on the

clerk of the State Corporation Commission, the

mailing thereof to the labor union or organiza-

tion, the fees therefor, the effect of judgments,

decrees and orders, and the procedure in cases

where no power of attorney is filed as required,

shall be the same as provided for in cases of

foreign corporations.

*§40.1-69. Violation a misdemeanor. — Any

violation of any of the provisions of this article

by any person, firm, association, corporation, or

labor union or organization shall be a mis-

demeanor.”

Opinion of the United States Court of

Appeals for the Fourth Circuit

United States Court of Anveals, Fourth Circuit, No.

77-1064.

Appeal from the United States District Court for the

from such violations or threatened violations. Eastern District of Virginia, at Newport News (D.C. No.

Such remedies shall be independent of and in 16-37-NN). Argued June 9, 1977, decided September 6,

addition to the penalties and remedies prescribed 1977.

oe NS Se eee Before WINTER, BUTZNER and WIDENER, Circuit

**§40.1-68. Service of process on clerk of Judges

State Corporation Commission as attorney for

union. — Any labor union or labor organization

doing business in this State, all of whose officers

and trustees are nonresidents of this State, shall

character cognizable at common law resulting

8a

PER CURIAM:

Peggie Ann King, Barbara Jenkins, and Irene Combs

appeal the district court’s denial of declaratory and

injunctive relief, as well as monetary damages. Their

major contention is that for purposes of an employ-

ment contract on a federal enclave, the Virginia Right

to Work Law [Va. Code §40.1-58 ert seq.] is

assimilated into federal law by the Assimilated Crimes

Act [18 U.S.C. §13].

The district court concluded that the Virginia law is

not incorporated into federal law. For the reasons

sufficiently stated in its opinion, we affirm. See King v.

Gemini Food Services, 93 LRRM 2921 (E. D. Va. Nov.

1, 1976).

Memorandum Opinion of the United States

District Court for the Eastern District

of Virginia

Newport News Division

United States District Court for the Eastern District

of Virginia, Newport News Division, No. 76-37-NN.

Decided November 1, 1976.

KELLAM, Chief Judge.

This suit arises from a labor dispute concerning the

legality of a union shop agreement for a business

operating on a federal enclave situated within Virginia.

Jurisdiction is claimed on the basis of the existance of a

federal question and an amount in controversy in excess

of $10,000 exclusive of costs and interest. 28 U.S.C.

§ 1331. Plaintiff seeks declaratory and injunctive relief

9a

plus money damages. This case now comes up for

consideration on motions for judgment on the plead-

ings. Fed. R. Civ. P. 12(c).

Plaintiffs Johnson, Jenkins, and Combs are employees

of Defendant Gemini Food Services, Inc. (hereinafter

Gemini). Plaintiff King was employed by Gemini before

being discharged, allegedly, for failure to join Defendant

Public Service Employees Local Union 572 of the

Laborers International Union of North America,

AFL-CIO (hereinafter Union). Defendant McNeal was

the owner and manager of Gemini’s predecessor

company, Multi-Mack, Inc. Defendant Ragland is the

president and manager of Gemini. The union shop

agreement in question was arranged and honored by

McNeal, Ragland and Union.

Gemini is engaged in the business of supplying

certain food services on the federal enclave of Fort

Monroe, Virginia. Pursuant to agreement between

Gemini and Union, employees of Gemini must make

application to join Union within 30 days of their

becoming employed by Gemini and must maintain

membership in good standing in Union as a condition

of continued employment. Failure to join Union or

failure to maintain good standing in Union are grounds

for dismissal. |

Plaintiffs attack the union shop agreement on three

grounds. The first is that by virtue of the criminal

sanction of Virginia’s Right to Work law (Va. Code

Ann. §40.1-58 et seq.), the civil and regulatory

provisions of Virginia’s Right to Work law are

assimilated into federal law by the federal Assimilative

Crimes Act (18 U.S.C. §13), making union shop

agreements violative of federal law. Plaintiffs’ second

10a

claim is that the union shop agreement is unconstitu-

tional because the compulsory paying of dues is a

deprivation of property without div process of law and

the required association with the union is a deprivation

of Plaintiffs’ freedom of association. Thirdly, Plaintiffs

have suggested that the union shop agreement violates

the standards set forth in sections 8(a3) and 8(b)(2)

of the National Labor Relations Act. 29 U-S.C.

§ § 158(a)(3), (b)(2).

Defendants in the case at bar have moved for a

judgment on the pleadings. Plaintiffs have moved for a

partial summary judgment. The test applicable for a

judgment on the pleadings or a summary judgment is

whether or not, when viewed in the light most

favorable to the party against whom the motion is

made, no genuine issues of material fact remain and the

case can be decided as a matter of law. Fed. R. Civ. P.

12(c); C. Wright & A. Miller, Federal Practice and

Procedure §§1368, 1369 (1973). Additionally, Defen-

dants Ragland and Gemini cross claimed against Union

and McNeal for indemnification, court costs and

attorney’s fees. Union moved that the cross claim be

dismissed for failure to state a claim.

The Virginia Right to Work law is not incorporated

by the federal Assimilative Crimes Act because the

policy of the Virginia statute conflicts with federal law.

The Assimilative Crimes Act fills gaps in the federal

criminal code. State laws are not applied to federal

enclaves through the Assimilative Crimes Act if the

State law provision would conflict with existant federal

law or policy. Williams v. United States, 327 U.S. 711,

717-24 (1946); Stewart & Co. v. Sadrakula, 309 U.S.

94, 100 (1940); United States v. Warne, 190 F.Supp.

lla

645, 657-58 (N.D. Calif. 1960); Nash v. Air Terminal

Services, 85 F.Supp. 545, 548 (E.D. Va. 1949); Air

Terminal Services, Inc. v. Rentzet et. al., 81 F.Supp.

611 (E.D. Va. 1949); Note, Federal Assimilative Crimes

Act, 70 Harv. L. Rev. 685 (1957}; cf. 21 Am. Jur. 2d

Criminal Law §395 (1965); see United States v. Press

Publishing Co., 219 U.S. 1, 9 (1911). Such a conflict

does arise in the instant case. Virginia law expressly

prohibits union shop agreements while federal law

expressly permits union shop agreements.’ Compare Va.

Code Ann. §40.1-58 with 29 U.S.C. §158(a)(3). In

view of the foregoing it is unnecessary for this Court to

consider whether vel non the Virginia Right to Work

Law would be incorporated by the Assimilative Crimes

'Section 8(aX3) of the National Labor Relations Act has been

interpreted to permit the requiring of paying union dues. NLRB

v. General Motors Corp., 373 U.S. 734, 740-41, 53 LRRM 2313

(1963); Radio Officers’ Union v. NLRB, 347 U.S. 17, 4041, 33

LRRM 2417 (1954); NLRB v. Hershey Foods Corp., 513 F.2d

1083, 1085, 89 LRRM 2126 (9th Cir. 1975); McDowell v.

Clement Bros. Co., 260 F.Supp. 817, 819, 63 LRRM 2432 (N.D.

Ga. 1966). This form of union agreement is frequently labeled an

“agency shop agreement”. See 2 J. Jenkins, Labor Law §4.9

(1969).

Section 8(aX3) of the National Labor Relations Act provides

in pertinent part that “...nothing in this subchapter, or in any

other statute of the United States, shall preclude an employer

from making an agreement with a labor organization ...to

require as a condition of employment membership therein . . 7"

By virtue of section 164(b) of the Labor-Management Relations

Act, 29 U.S.C. §164(b), states may enact right-to-work laws.

This permission to the states, however, does not soften

application of section 8(aX3) of the National Labor Relations

Act in areas under exclusive federal jurisdiction.

12a

Act in the absence of conflicting federal policy. It is

also, a fortiori, unnecessary to decide whether any

implied civil cause of action arise under the federal

Assimilative Crimes Act.

Plaintiff's attack on the constitutionality of Section

8(a)(3), which explicitly permits union shop agreements

requiring union membership as a condition of continued

employment, is without merit insofar as it requires

payment of dues and union fees. In Railway Em-

ployees’ Department, AFL v. Hanson, 351 U.S. 225, 38

LRRM 2099 (1956), the Supreme Court upheld union

security agreements requiring payment of dues, initia-

tion fees and assessments pursuant to congressional

authorization in the Railway Labor Act against attacks

leveled under the First and Fifth Amendments. The

Court, however, carefully limited its holding, stating:

If the exaction of union dues, initiation fees, or

assessments is used as a cover for forcing

ideological uniformity or other action in contra-

vention of the First Amendment, this judgment

will not prejudice the decision in that case.... We

only hold that the requirement for financial

support of the collective-bargaining agency by all

who receive the benefits of its work ... does not

violate either the First or the Fifth Amendments.

Id. at 238, 38 LRRM at 2104.

Subsequent court decisions have followed the principle

laid down in Hanson, supra, thereby upholding union

security agreements requiring payment of dues and

initiation fees. Buckley v. American Fed. of Television

and Radio Artists, 496 F.2d 305, 86 LRRM 2103 (2d

Cir. 1974), cert. denied, 419 U.S. 1093, 87 LRRM

3293 (1973), rehearing denied, 420 U.S. 926 (1975):

Linscott v. Millers Falls Co., 440 F.2d 14, 76 LRRM

2994 (Ist Cir. 1971), cert. denied, 400 U.S. 1001, 76

ees

l3a

LRRM 2160 (1971): see Haggard, A Clarification of the

Types of Union Security Agreements Affirmatively

Permitted by Federal Statutes, 5 Rutgers-Camden L.J.

418 (1974), passim. .

Although courts have exprestly upheld those agree-

ments that require the payment of initiation fees and

dues in support of the collective bargaining efforts of

the union, the Supreme Court has never discussed the

constitutionality of union security agreements that

condition continuing employment on full union mem-

bership, which would entail not only payment of union

dues and fees, but also adherence to other union rules

governing employee conduct with respect to manage-

ment and the union organization itself. Agreements of

this sort, however, are arguably violative of the National

Labor Relations Act. See NLRB v. Hershey Foods

Corp., 513 F.2d 1083, 89 LRRM 2126 (9th Cir. 1975)

(under valid union security agreement, employee who

tendered the dues and fees uniformly required of

members could not be compelled to become a

full-fledged union member in order to be protected

from discharge); Compulsory Union Membership under

the National Labor Relations Act—Is Hershey Foods

Corp. the End of the Road?, 23 W & L L. Rev. 205

(1976), passim.

It is unassailable that this Court possesses jurisdiction

to decide the constitutionality of union shop agree-

ments requiring only payment of dues and fees because

such agreements are uncontestably authorized by the

terms of the statute and therefore may not arguably

constitute an unfair labor practice. It may also decide

the applicability of the Virginia Right to Work Law to

federal enclaves. Cf. Oil Chemical and Atomic Workers

v. Mobil Oil Corp., 426 U.S. 407, 96 S.Ct. 2140, 92

14a

LRRM 2737 (1976). But his Court must defer to the

National Labor Relations Board (hereinafter NLRB) for

a determination of whether or not the requirement that

employees maintain union membership in good standing

in addition to paying dues and fees complies with the

standards of section 8 of the National Labor Relations

Act, 28 U.S.C. §158. Under the preemption doctrine,

federal courts must defer to the exclusive competence

of the NLRB when unfair labor practices are arguably

alleged. Amalgamated Ass’n of Street, Elec. Ry. and

Motor Coach Employees v. Lockridge, 403 U.S. 274, 77

LRRM 2501 (1971); San Diego Buildings Trades

Council v. Garman, 359 U.S. 236, 245, 43 LRRM 2838

(1959); see Garner v. Teamsters Union, 346 U.S. 485,

490-91, 33 LRRM 2218 (1953). See also Connell v.

U.S. Steel Corp., 516 F.2d 401, 89 LRRM 3089 (Sth

Cir. 1975).

Taking the facts in the light most favorable to

Plaintiffs, this Court rules that as a matter of law the

Virginia Right to Work Law is not assimilated into

federal law by the Federal Assimilative Crimes Act and

therefore does not apply to federal enclaves. It is

further recognized by this Court that as a matter of law

it is constitutionally permissable to require payment of

union dues as a condition of continued employment. As

to whether the specific agreement between Gemini and

Union comports with statutory requirements of fair

labor practice is a question for consideration by the

NLRB. In view of the findings of this Court, Ragland’s

and Gemini’s cross claim for indemnification and

related relief is inappropriate.

Accordingly, Defendants’ motion for judgment on

the pleadings is GRANTED as to the constitutionality

of the requirement of union membership and as to the

application of the Assimilative Crimes Act, 18 U.S.C.

§13.