# Petition — King v. Public Service Employees Local Union 572

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1065

## Text

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 ©

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0147%3A1. Public record. Not legal advice.