Appendix — International Union of the United Ass'n of Journeymen v. National Labor Relations Board

8 2 = 7 5 ii Office - Supreme Court, U.S.

FILED

No. OCT 29 1982

ALEXANDER L. STEVA6,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

THE INTERNATIONAL UNION OF THE UNITED ASSOCIATION

OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND

CANADA, LOCAL UNIONS Nos. 141, 229, 681, and 706,

8 Petitioners,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JERRY L. GARDNER, JR.

(Counsel of Record)

BARKER, BOUDREAUX, LAMY,

GARDNER & FOLEY

1400 Richards Building

837 Gravier Street

New Orleans, Louisiana 70112

(504) 586-9395

DONALD J. CAPUANO

O’DONOGHUE & O DONOGHUE

1912 Sunderland Place, N.W.

Washington, D.C. 20036

Attorneys for Petitioners

WILSON - Eres PrintinGc Co. Inc. - 789-0096 - WASHINGTON, D.C. 20001

o> «

INDEX

Page

APPENDIX A—Decision of the United States Court

of Appeals for the District of Colum-

e la-53a

APPENDIX B—Order of the United States Court of

Appeals for the District of Columbia

Circuit Denying Rehearing ................ 54a

Labor Relations Board 55a-56a

ad 57a-82a

APPENDIX E-—-Order of Chief Justice Burger Ex-

tending Time To File etition For

Writ of Certiorari ............ * 83a

APPENDIX F—Order of Chief Justice Burger Fur-

ther Extending Time To File Petition

For Writ of Certiorari ........00.00......... 84a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-2393

THE INTERNATIONAL UNION OF THE

UNITED ASSOCIATION OF JOURNEYMEN AND

APPRENTICES OF THE PLUMBING AND

PIPEFITTING INDUSTRY OF THE UNITED STATES AND

CANADA, LOCAL UNIONS Nos. 141, 229, 681, AND 706,

. Petitioners

NATIONAL LABOR RELATIONS BOARD,

Respondent

Petition for Review of an Order of the

National Labor Relations Board

Argued October 29, 1981

Decided April 16, 1982

Louis Robein for petitioner. Jerry L. Gardner, Jr.

was on the brief for petitioner.

David A. Fleischer, Attorney, National Labor Relations

Board, with whom Elliott Moore, Deputy Associate Gen-

eral Counsel, National Labor Relations Board, was on

the brief, for respondent.

Rex H. Reed and Richard J. Clair were on the brief

for amicus curiae National Right to Work Legal Defense

Foundation, Inc., urging affirmarce.

2a

Before: J. EDWARD LUMBARD,* Senior Circuit Judge

for the Second Circuit, Rogg and MIkvA, Circuit Judges.

Opinion for the court filed by Senior Circuit Judge

LUMBARD.

Dissenting opinion filed by Circuit Judge MIKVA.

LUMBARD, Circuit Judge: In bargaining for a re-

newal of labor management contracts in four right-

to-work states, the Union' insisted on clauses assessing

nun-union employees for the costs of union representa-

tion. International Paper Co. (the Company) responded

that, in those states, such clauses were illegal under

right-to-work laws. The National Labor Relations Board

(NLRB) found that such clauses were not a mandatory

subject for bargaining, and therefore insistence on the

clauses was an unfair labor practice. 252 NLRB 181,

[1980-81] CCH NLRB 71 ~ 3 (1980). The Union

petitioned for review and the NLRB cross-petitioned

to enforce its order. We grant enforcement of the

Board’s order.

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

1 The International Union of the United Association of Journey-

of

remained obligated to represent the Natchez pipefitters

even though none of them paid dues.* Abood v. Detroit

Board of Education, 431 U.S. 209, 221-22 (1977); Int'l

Ass'n of Machinists v. Street, 367 U.S. 740, 760-61

(1961).

When the Union opened contract negotiations with the

Company in May 1977, it proposed clauses levying “rep-

resentation fees” on non-member pipefitters. The Union’s

final draft of the clauses was:

The cost and expenses of representing all members

of the bargaining unit, without regard to union affili-

ation or lack of same must be borne by ail bargaining

unit employees.

Those unit employees who voluntarily choose not to

become union members shall be required to contribute

a pro-rata share of the costs and expenses incurred by

the union that are directly related to enforcing and

servicing the collective bargaining agreement. The

representation fee will apply only when a collective

bargaining agreement is in effect. Furthermore, in

no case will the fee exceed the dues and assessments

required of union members.

Failure of any permanent employee to make pay-

ment of the representation fee each month and to

maintain the payments during employment for dis-

missal after ten (10) days written notice to the em-

ployee and the company.

2 The other locals did not have similar problems. Locals 141 and

229 retained all of their members. Only two of 29 pipefitters rep-

resented by Local 706 refused to pay dues.

Judge Schlesinger suggested that the Union could disclaim any

interest in representing the Natchez employees. The Board did not

consider this point on appeal, and neither party has raised the

issue here.

4a

The amount of the representation fee will be based

upon an independent audit to determine those serv-

ices performed by the union directly related to the

collective bargaining process.

The Union and the Company reached agreement on all

other contract provisions, but on September 28, 1977, the

Company rejected the representation fee clauses on the

grounds that they violated the right-to-work laws of

Arkansas, Florida, Mississippi, and Louisiana.“ On Oc-

tober 17, the Union wrote to the Company to insist on

the clauses, and to announce that picketing would com-

mence at Natchez on October 31. The Company then

filed its unfair labor practice charge.

At the NLRB hearing, Judge Schlesinger ruled that

representation fees were permissible under § 8(a) (3)

of the National Labor Relations Act, 29 U.S.C. § 158 (a

(3), which says:

* Ark. Stat. Ann. § 81-202 provides in part that “No person shall

be denied employment because of membership in, or affiliation with,

a labor union . nor shall any person unless he shall voluntarily

consent in writing to do so, be compelled to pay dues, or any other

monetary consideration to any labor organization as a prerequisite

to, or condition of, or continuance of, employment.”

La. Rev. Stat. Ann. § 23:983 provides that “No person shall be

required, as a condition of employment, to become or remain a

member of any labor organization, or to pay any dues, fees, assess-

ments, or other charges of any kind to a labor organization.”

Miss. Const. Art. VII and Miss. Code Ann. § 71-1-47 provide that

“No employer shall require any person, as a condition of employ-

ment or continuation of employment, to pay any dues, fees or other

charges of any kind to any labor union or labor organization.”

Fla. Const. Art. I § 6 provides that “The right of persons to work

shall not be denied or abridged on account of membership or non-

membership in a labor organization.” This provision was construed

to prohibit an agreement requiring nonunion members to pay their

pro-rata share of bargaining and grievance costs, Florida Educa-

tion Ass'n v. Pub. Empl. Rel. Com., 346 So. 2d 551 (Fla. App.

1977).

5a

It shall be an unfair labor practice for an employer

. . . (3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

Act, or in any other statute of the United States,

shall preclude an employer from making an agree-

ment with a labor organization . . 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 agree-

ment.

But Judge Schlesinger then concluded that the repre-

sentation fees were banned by the right-to-work laws

of the four states under § 14(b) of the NLRA, 29 U.S.C.

§ 164(b), which provides:

Nothing in this subchapter shall be construed as

authorizing the execution or application of agree-

ments requiring membership in a labor organization

as a condition of employment in any State or Terri-

tory in which such execution or application is pro-

hibited by State or Territorial Law.

The Union argued that fee-for-service clauses are the

equivalent of “membership in a labor organization”

under § 8(a)(3) but not under §14(b). Such clauses,

the Union claimed, are necessary to prevent “free riders”

such as the Natchez employees. Judge Schlesinger con-

cluded, however, that by passing § 14 (b) Congress had

deliberately allowed the States to make their own judg-

ment on the issue of “free riders.” He held that the

representation fee clauses were prohibited by State law

under § 14(b), and the Union committed an unfair labor

practice under § 8(a)(3) by bargaining to impasse for

the clauses. The Board adopted Judge Schlesinger’s opin-

ion that § 14 (b) permitted states to ban representation

fees and ordered the Union to cease violating § 8(a) (3)

6a

by its insistence on the fees; whereupon the Union peti-

tioned for review and the Board cross-petitioned for

enforcement.

The legislative history of the Taft Hartley Act of

1947 which enacted § 14(b), clearly supports the Board’s

ruling. Congress knew precisely what state laws it was

validating when it passed §14(b). See Air Transport

Ass’n of America v. Professi mal Air Traffic Controllers

Organization, 667 F.2d 316, 321 (2d Cir. 1981). The

House report listed each state which had passed a right-

to-work law or constitutional provision. H.R. Rep. No.

245, 80th Cong., Ist Sess. 34, reprinted in I Legislative

History of the Labor Management Relations Act of

1947 324 (1948). Among the enactments noted was the

Arkansas statute at issue in this cave. Another was the

Georgia statute, Law No. 140 §§ 3-4, 1947 Ga. Laws

616, 618 (March 27, 1947) (codified as Ga. Code

§§ 54-903-04 (1978) ):

§ 54-903—No individual shall be required as a condi-

tion of employment or continuation of employment to

pay any fee, assessment or any other sum of money

whatsoever to a labor organization.

§ 54-904—Any provision in a contract between an

employer and a labor organization which requires as

a condition of employment, or continuation of employ-

ment, that any individual . . pay any fee, assess-

ment or other sum of money whatsoever to a labor

organization, is hereby declared to be contrary to the

public policy of this state.

The Mississippi statute at issue here is almost identical

to the Georgia statute above, which Congress practically

incorporated by reference into the legislative history of

§ 14(b).

Congress also knew about the free rider problem posed

by such laws when it sanctioned such laws by passing

§ 14(b), as the report of the Senate Committee shows:

7a

A controversial issue to which the committee has

devoted the most mature deliberation has been the

problem posed by compulsory union membership. . . .

[Albuses of compulsory membership have become so

numerous there has been great public feeling against

such arrangements. This has been reflected by the

fact that in 12 States such agreements have been

made illegal either by legislative act or constitutional

amendment, and in 14 other States proposals for

abolishing such contracts are now pending. Although

these regulatury measures have not received authori-

tative interpretation by the Supreme Court [citation

omitted] it is obvious that they pose important ques-

tions of accommodating Federal and State legislation

touching labor relations in industries affecting com-

merce [citations omitted]. In testifying before this

committee, however, leaders of organized labor have

stressed the fact that in the absence of such provi-

sions many e.nployees sharing the benefits of what

unions are able to accomplish by collective bargaining

will refuse to pay their share of the cost.

Report of the Senate Committee on Labor and Public

Welfare presented by Senator Taft, Soth Cong., Ist Sess.

6, April 17, 1947, reprinted in I Legislative History,

supra, at 412. Senator Taft reported his bill, S. 1126,

one week after Representative Hartley introduced H.

3020, whose § 13 was the textual precursor of the Taft-

Hartley Act’s final § 14(b). Although the original Sen-

ate bill did not contain §14(b), Senator Taft and

Representative Hartley were of one mind on federal

preemption of state law. On June 5, 1947, Senator Taft

explained the future § 14(b) to his peers as follows:

Many states have enacted laws or adopted consti-

tutional provisions to make all forms of compulsory

unionism in such states illegal. As stated in the re-

port accompanying the Senate committee bill, it was

not the intent to deprive the States of such power.

Cong. Rec. S 6602, reprinted in II Legislative History,

supra, at 1543. Senator Taft added, “All we Lave done

is to write in expressly what our committee report said.”

Id. at 6604, reprinted in II Legislative History, supra,

at 1546.

Congress knew of the free rider problem; it knew of

the state laws at issue here; it passed § 14 (b) anyway.

President Truman’s veto message specifically criticized

§14(b): “The bill’s stated policy of preserving some

degree of union security would be abdicated in all

states where more restrictive policies exist.” Cong. Rec.

H 7503, reprinted in II Legislative History, supra, at

920-21.°

In short, the legislative history of § 14 (b) supports

the position of the Board. So does the Supreme Court.

On June 3, 1963, the Court held that an “agency shop”

agreement, requiring non-members to pay union dues,

was the equivalent of membership under § 8(a) (3) and

therefore permissible under the NLRA. NLRB v. General

5 The dissent insists that in passing § 14(b) Congress intended

state regulation only of closed or union shops. But President Tru-

man’s veto message complained that § 14(b) allowed the states to

ban all forms of union security, and both friends and foes of the

Taft-Hartley Act agreed with that assessment. Senator Murray’s

analysis of the bill concluded that “Section 14(b) . . . expressly

provides that in the case where the State law covering union-security

agreements is more rigorous than the policy expressed in the bill

such State law shall be unaffected.” Cong. Rec. S. 6665-66 (June

6, 1947, reprinted in II Legislative History, supra, at 1586. Senator

Pepper said the section “leaves in effect all the strictures which

any state may impose.” Cong. Rec. S. 6678 (June 6, 1947), reprinted

in II Legislative History, supra, at 1596. Senator Morse specifically

objected to §14(b) “which completely outlaws any form of the

union shop in those States that have enacted laws abolishing or

making illegal all forms of union security.” Cong. Rec. S. 6613

(June 6, 1947), reprinted in II Legislative History at 1562. Clearly

Congress equated membership with union security and considered

the latter subject to state regulation. It is difficult to see how the

agreement at issue can not be termed a union security agreement.

9a

Motors Corp., 373 U.S. 734 (1963). On the very same

day, the Court held that because the agency shop was

the equivalent of membership under 58 (a) (3), it was

for that reason the equivalent of membership under

§ 14(b) and therefore amenable to prohibition by state

law. Retail Clerks Int’! Ass’n v. Schermerhorn, 373 U.S.

746 (1963).

The connection between the § 8(a) (3) proviso and

§ 14(b) is clear. Whether they are perfectly coninci-

dent, we need not now decide, but unquestionably they

overlap to some extent. Whatever may be the

status of less stringent union-security arrangements,

the agency shop is within § 14(b).

Id. at 751-52.“

The Union's “representation fee” is a less stringent

union-security arrangement” than the fee in Schermer-

horn because it is not set to equal union dues. The

representation fee thus escapes Schermerhorn’s holding,

but not its rationale as restated in recent dicta: “Section

14(b) simply mirrors that part of §8(a)(3) which

focuses on post-hiring conditions of employment.” Oil,

Chemical & Atomic Workers Int’l Union v. Mobil Oil

Corp., 426 U.S. 407, 417 (1980). See also id. at 427:

“To summarize, §§ 8(a)(3) and 14(b) together exhaust

the federal interest in the types of union-security agree-

ments employers and unions may make. The closed shop

The General Motors and Schermerhorn cases neatly illustrate

the Union’s dilemma: the agreement at issue must concern “mem-

bership” to be a mandatory subject of bargaining under § 8(a) (3),

but must not concern “membership” in order to avoid state regula-

tion under § 14(b). The dissent attempts to avoid this dilemma by

stating that the agreement is a mandatory subject of bargaining

under § 8(d) as regulating relations between employer and em-

ployee or as settling any term or condition of employment. This

line of reasoning holds that an agreement concerning employee-

union relationships falls under the NLRA provision governing

employer-employee relations but not under the NLRA provision gov-

erning union security agreements.

10a

is absolutely prohibited. Any lesser security agreement,

though consistent with federal interest is sanctioned only

if it harmonizes with state policy.” (Stewart, J., dissent-

ing).

The Union argues that not every practice permitted

under federal law may be forbidden by the States. The

Union cites several circuit court decisions holding that

non-discriminatory union hiring halls, permissible under

§ 8(a) (3), may not be prohibited by right-to-work laws

under § 14(b). Laborers Int’l Union of North America

Local 107 v. Kunco, Inc., 472 F.2d 456 (8th Cir. 1973);

NLRB v. Tom Joyce Floors, Inc., 353 F.2d 768 (9th Cir.

1965); NLRB v. Houston Chap. Ass’n Gen’l Con., 349

F.2d 449 (5th Cir. 1965), cert. denied, 382 U.S. 1026

(1966). These cases are clearly distinguishable. The

regulation of union “membership” permitted to the states

under § 14(b) applies only to post-hiring union security

arrangements. Oil, Chemical & Atomic Workers, supra.’

Use of a union hiring hall precedes hiring, and there-

fore does not constitute “membership” under § 14(b).

But the representation fees at issue here are clearly a

post-hiring union-security arrangement. They fall within

the ambit of § 14(b).

Section 14(b) allows states to permit free riders. The

Union and the dissent complain that free riders pose

more of a burden today than they did when § 14(b) was

enacted, but that argument is better addressed to Con-

gress than to this court. A state law valid under § 14 (b

in 1947 is valid today, and there is no serious question

but that Congress in 1947 intended laws like Mississippi’s

Oil, Chemical & Atomic Workers Int'l Union v. Mobil Oil Corp.,

426 U.S. 407 (1977), held that § 14 (0b) did not permit Texas to ban

an agency shop covering seamen. The Court reasoned that Texas

law could only govern union-employee relations where employees

worked in Texas, because regulation of union membership permitted

by § 14(b) applied to union-employee relationships on the job, after

the employee had been hired.

lla

to survive federal preemption. Moreover, on the facts

of this case Mississippi’s right-to-work law protects pre-

cisely those liberties Congress allowed the states to pre-

serve. The men at the Natchez plant once belonged to the

Union. They fied the Union when it raised its tax upon

their labor. The dissent argues that the Union can force

these men to choose between paying the fees they fled,

or losing their jobs—and this notwithstanding state laws

to the contrary. This is precisely the “compulsory

unionism” Congress had in mind when it passed § 14(b),

and this is the core of membership the Supreme Court

has interpreted § 14(b) to encompass.*

Enforcement granted.

If the Unior can prove that every cent of union dues and fees

is spent on collective bargaining, non-members will then pay exactly

the same amount as members, yet the dissent would still hold that

such a requirement is not the equivalent of membership.

12a

MIKVA, Circuit Judge, dissenting: The specific ques-

tion posed by this case is whether employees who are

not members of a union can be required to pay their

fair share of grievance costs and other collective bargain-

ing expenses incurred by a union on their behalf without

thereby becoming “members” of the union, as member-

ship is defined by federal labor law. Congress has never

addressed this question, and the Supreme Court has ex-

plicitly left it open. The answer given by the majority

runs against the grain of federal labor policy and firds

no support in the legislative history of the statute from

which that answer is said to stem.

Stated more generally, the question presented by this

case goes to the heart of the model of trade union democ-

racy endorsed by Congress in the Wagner and Taft-

Hartley Acts. Under this model, the representative se-

lected by a majority of the employees ir a bargaining

unit is authorized to bargain with the employer on behalf

of the entire unit. “The collective bargaining system

as encouraged by Congress and administered by the

NLRB of necessity subordinates the interests of an in-

dividual employee to the collective interests of all em-

ployees in a bargaining unit.” Vaca v. Sipes, 386 U.S.

171, 182 (1967). The subordination of individual in-

terests is not complete, however. Congress has enacted

innumerable provisions giving individual employees rights

against unions and protecting employees from arbitrary

union conduct. One such measure is section 14(b) of

the .aft-Hartley Act, 29 U.S.C. § 164 (b) (1976), which

lets the states outlaw contracts requiring employees to

become “members” of the union selected as the bargain-

ing agent. Section 14(b) is thus part of a curious and

delicate balance between the powers and duties of unions

and the freedom of individual employees.

In recent years, the courts have firmed up one side

of this balance by articulating the obligations owed by

the exclusive bargaining representative to each employee

13a

in the bargaining unit. Decisions such as Vaca v. Sipes

have made it clear that the union is a necessary party

in virtually any relationship between the employer and

the employee. Even in right-to-work states, the union

cannot refuse to represent individual workers whether or

not they are members of the union. The union must

press their grievances; it must defend their interests

during arbitration and contract negotiation; it must not

permit individuals to “opt out” of the contract negotiated

for the bargaining unit as a whole.

These duties, and the liabilities for breaching them,

have been elaborated by the courts rather than by Con-

gress. It follows that courts must take these pronounce-

ments into consideration when addressing the other side

of the balance implicit in trade union democracy. Judi-

cial expansion of union obligations provides strong rea-

son for us to hold section 14(b) to its exact terms, and

for being careful to read the statute and Supreme Court

decisions interpreting it no more broadly than their

language justifies. This is not a call for judicial cir-

cumvention of section 14(b), but for an understanding

that the statute is only one element in a complex equa-

tion. If courts emphasize one side of that equation with-

out a corresponding treatment of the other side, their

decisions can only undermine the balance appropriately

set by Congress. I respectfully dissent.

I. THE UNION PREDICAMENT

To appreciate the importance of this case, it is nec-

essary to focus on the bind in which the Union found

itself in 1977 after the members of one of its locals

stopped paying their dues. Local 681 had represented

the pipefitters and helpers at mills of the International

Paper Company (the Company) in Vicksburg and

Natchez, Mississippi, since 1951. The members of Local

681 voted in 1972 to add “working dues,” a fraction of

the actual hourly earnings of individual workers, to the

l4a

dues already being assessed Union members at a flat

monthly rate. But in 1974, the Local 681 members at

the Natchez mill began refusing to pay both kinds of

dues.

By 1976, Union membership at the Natchez mill had

declined from 38 to 1, and even the remaining member

was not required to pay dues by virtue of his position

as shop steward. The Union was not decertified at the

Natchez mill until July 1979. In the interim, however,

Local 681 expended thousands of dollars representing the

employees at the Natchez mill despite the fact that it

received nothing in dues or fees from those employees

during the same period.

This outlay by the Union reflected its statutory duty

to represent all employees in the bargaining unit,

whether union or nonunion. See, e.g., Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554, 564-65 (1976);

Humphrey v. Moore, 375 U.S. 335, 342 (1964). This

obligation arises from the fact that the union, as the

exclusive bargaining representative of all employees, must

serve the interests of all employees in the bargaining

unit “without hostility or discrimination toward any.”

Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty was

first recognized by the Supreme Court in Steele v. Louis-

ville & NV. Ie. Co., 323 U.S. 192 (1944), in which a union

whose constitution excluded blacks from membership

sought a collective bargaining agreement that also would

have excluded black firemen from service with the rail-

road. The duty of fair representation has grown enor-

mously in scope since 1944, however, from avoiding

racial discrimination to providing daily representation :

The bargaining representative’s duty . . does not

come to abrupt end... with the making of an

agreement between union and employer. Collective

bargaining is a continuing process. Among other

things, it involves day-to-day adjustments in the con-

tract and other working rules, resolution of new prob-

15a

lems not covered by existing agreements, and the pro-

tection of employee rights already secured d con-

tract. The bargaining representative can no more

unfairly discriminate in carrying out these func-

tions than it can in negotiating a collective agree-

ment.

Conley v. Gibson, 355 U.S. 41, 46 (1957); see Abood v.

Detroit Board of Education, 431 U.S. 209, 221-22 (1977).

The National Labor Relations Board (NLRB) has re-

peatedly held that a union cannot lawfully refuse to

process a grievance of an employee in the bargaining

unit on the ground that he is not a union member. E. g.,

International Brotherhood of Electrical Workers, Local

1504, 211 NLRB 580 (1974) ; Locals 186, 381, 396, et al.,

affiliates of the International Brotherhood of Teamsters,

203 NLRB 799 (1973) ; United Steelworkers of America,

Local 937, 200 NLRB 40 (1972).

These decision have compounded the problem of “free

riders”—employees who obtain the benefits of union

representation while refusing to join the union and there-

by support the cost of its activities. Fifty years ago,

when the Wagner Act was passed, free riders simply

benefitted from accomplishments that the union would

have sought in any event, such as higher wages or im-

proved working conditions. Today, free riders can in-

voke union efforts on their particular behalf, such as the

prosecution of nonunion grievances and arbitrations, and

thus affirmatively deplete the union’s treasury. The dif-

ference is like that between the house guest who warms

himself beside the fireplace, and the guest who demands

that the thermostat be turned up. In short, the problem

of free riders has become more pronounced as the respon-

sibilities of unions have grown.

In the interest of “fair representation,” however, the

NLRB has frustrated union efforts to recoup these costs

from free riders. In Hughes Tool Co., 104 NLRB 318

(1963), for example, the Board held that a union could

l6a

not charge nonunion employees a fiat rate for handling

their grievances, or a graduated fee for handling arbitra-

tions. In Machinists Local 697, 223 NLRB 832 (1976),

the Board held that a union could not charge nonunion

employees the actual costs of handling their grievances

and arbitrations. In both cases the Board reasoned that

these charges were unlawful because similar fees were

not charged to union members, thereby ignoring the fact

that the members had presumably already met the ex-

pense of such representation in their dues.

Whatever the wisdom of these NLRB decisions, Local

681 continued to represent the employees at the Natchez

mill long after it ceased to have any dues-paying mem-

bers at that location.“ Between May 1976 and June

1978, the Union’s agent travelled to Natchez once a

It is not clear whether the Union could have “walked away”

from this situation while the collective bargaining agreement was

still in force. The NLRB allows filing of petitions for decertification

only between the 90th and 60th day prior to the expiration of the

contract or after the termination of the contract. See Delure Metal

Furniture Co., 121 NLRB 995, 1000 (1958). Such petitions must

be filed by employees or a “labor organization acting in their be-

half,” 29 C. F. R. § 102.60 (1977), and this has been interpreted as

requirements as serving written notice 60 days prior to negotiating

termination or modification). Even though the shop

Natchez mill did not pay dues by of

parently remained a member of the Union until it was decertified

in July 1979. ‘

17a

week to handle grievance, insurance, pension, vacation,

and other matters and to attend safety meetings. The

Union successfully prosecuted 19 grievances, negotiated a

new contract after frequent bargaining sessions resulting

in wage increases and other added benefits for the

Natchez employees, and hired an attorney to represent

Local 681 in a Title VII civil rights action. In the

fiscal year ending June 30, 1977, Local 681 expended

approximately $10,700 in order to represent the em-

ployees at the Natchez mill.“

It is not surprising that the Union attempted to rem-

edy this erosion of its financial resources by proposing

the “representation fee” clause to the company during

contract negotiations in May 1977.“ The clause would

have collected from each nonunion employee “a pro rata

Brief for Petitioner Union (Union Brief) at 9-11; see Initial

Decision, 252 NLRB 1299, 1300-02 (1980).

»The Union also proposed that similar clauses apply to employees

represented by the Union at three other mills owned by the Com-

pany—Camden, Arkansas (Local 706), Panama City, Florida (Local

229), and Springhill, Louisiana (Local 141). These mills did not

present the same problem to the Union. The 46 and 37 employees

represented by Locals 141 and 229, respectively, continued to main-

tain their union membership. Only two of the 29 employees rep-

resented by Local 706 refused to pay their dues. See 252 NLRB at

1300 n.3.

But for the fact that the Union represents the employees at yet

another facility of the Company at Vicksburg, Mississippi, where

a similar issue has been raised in collective bargaining negotiations,

we would face a serious problem of mootness in this case. Since

the contractual negotiations that precipitated this litigation, the

Company has sold its mill at Panama City, Florida, and has closed

the mill at Springhill,

:

3

4

:

5

2

ent NLRB (NLRB Brief) at 7 n.5; Union Brief at 13.

18a

share of the costs and expenses incurred by the union

that are directly related to enforcing and servicing the

collective bargaining agreement,” as determined by “an

independent audit to determine those services performed

by the union directly related to the collective bargaining

process.” The initial representation fee required of the

38 employees at the Natchez mill would have been $5 a

week, allowing the Union to collect approximately $9,900

a year or somewhat less than the $10,700 expended by

Local 681 in representing those employees. The clause

specifically stated that in no event would the representa-

tion fee exceed the dues and assessments required of

Union members. Had the Natchez employees remained

in the Union and paid all their dues and assessments

under the pre-existing dues structure, the Union would

have collected a total of $14,200—which would have pro-

vided approximately $3,500 in additional income that it

could have used for institutional expenses.‘

II. THE LEGAL Issue

There is no doubt that the proposed representation fee

violates the Mississippi right-to-work laws,“ which state:

This figure is based on a dues structure for Local 681 of $8.25

per month plus the two percent working dues. See 252 NLRB at

1300. Other locals had widely varying dues structures, and it should

be noted that the representation fees sought by Locals 141 and 706

would have been equal to the amount of dues paid by their mem-

bers, and thus unlawful. Retail Clerks v. Schermerhorn, 373 U.S.

746 (1963). The administrative law indge noted this problem, but

explained that “the complaint places at issue only the validity of

the last of Respondent's proposals [concerning Local 681 in Nat-

chez], and does not rely on the bargaining history; and I limit this

Decision to that issue.” Initial Decision, 252 NLRB at 1304 n.12.

5 The same conclusion holds for the right-to-work laws of the

other three states involved in tie negotiations. See 252 NLRB at

1302 n.6 (right-to-work laws of Arkansas, Louisiana, and Florida).

19a

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.

Miss. Const. Art. VII; Miss. Code Ann. § 71-1-47. This

observation precipitates but does not resolve the court’s

inquiry, of course. State law generally cannot be applied

to limit the arrangements that unions and employers may

make concerning subjects of collective bargaining made

mandatory by the National Labor Relations Act, and the

administrative law judge specifically found that the rep-

resentation fee proposed by the Union was such a manda-

tory subject of bargaining under section 8(a)(3) and

8id) of the Act, 29 U.S.C. §§ 158(a)(3), (d). Initial

Decision, 252 NLRB 1299, 1303 (1980).

In section 14(b) of the Act, however, Congress au-

thorized the states to enact statutes in conflict with this

federal law. Section 14(b) provides:

Nothing in this subchapter shall be construed as au-

thorizing the execution or application 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.

29 U.S.C. § 164 (b). In other words, when state laws

that fall within the scope of section 14{b) conflict with

provisions of federal law, state law governs. But the

extent to which section 14(b) authorizes states to limit

collective bargaining, an area in which Congress has

otherwise preempted the field, is clearly a federal ques-

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

426 U.S. 407, 417 (1976); NLRB v. Tom Joyce Floors,

Inc., 353 F.2d 768, 770-71 (9th Cir. 1965). We must

therefore determine whether the Mississippi laws ban-

ning payment of “charges of any kind” constitute a

prohibition of “membership” that is within the scope of

section 14(b).

20a

The Supreme Court has carefully left open the precise

definition of what it means to require “membership” in

a labor organization, as that term is used in section

14(b). In companion cases decided in 1963, the Court

did hold that the term “membership” could be “whittled

down to its financial core.” At issue was the legality

of the “agency shop” arrangement, which leaves union

membership optional but requires nonunion employees to

pay to the union sums equal to the initiation fees and

dues of union members. In NLRB v. General Motors

Corp., 373 U.S. 734 (1963), the Court observed:

It is permissible to condition employment upon mem-

bership, but membership, insofar as it has signifi-

cance to employment rights, may in turn be condi-

tioned only upon payment of fees and dues. “Mem-

bership” as a condition of employment is whittled

down to its financial core.

Id. at 742. As a result, the Court said, the “agency

shop” is the practical equivalent of the “union shop,” an

arrangement under which all employees must join the

union within a specified period of time as a condition of

continued employment. Unions were therefore permitted

to bargain for an agency shop in any state in which they

could bargain for a union shop, NLRB v. General Motors

Corp., but could not bargain for an agency shop in any

state where the right-to-work laws prohibited bargaining

for a union shop. Retail Clerks v. Schermerhorn, 373

U.S. 746 (1963).

Schermerhorn, however, clearly left open the status

of the kind of representation fee at issue in this case.

Originally, the petitioners in Schermerhorn had likened

their proposal to the agency shop involved in General

Motors. Upon briefing and argument, however, the pe-

titioners made a last-minute effort to distinguish their

contract from an agency shop. 373 U.S. at 752 n.4. The

clause provided that nonunion employees would contribute

to the union “for the purpose of aiding the Union in

21a

defraying costs in connection with its legal obligations

and responsibilities as the exclusive bargaining agent of

the employees in the appropriate bargaining unit.“ The

petitioners claimed that this confined nonunion payments

“to collective bargaining purposes alone,” and prohibited

the union from using the payments “for institutional pur-

poses unrelated to its exclusive agency functions.” Id.

at 752.

The Supreme Court was “wholly unpersuaded” by this

“belated” attempt to distinguish General Motors. Justice

White’s opinion gave two primary reasons. First, con-

trary to the petitioners’ suggestion, the clause at issue

imposed “no ironclad restrictions” on what the union

could do with the payments it received from nonmem-

bers, and therefore could have allowed the union to use

these payments for “institutional items.” Id. at 753.“

Second, because that proposed “service fee” was set equal

to the union’s initiation fees dues, and because the

union dues could be expended for a variety of purposes,

there was no guarantee that a nonmember might not

pay more of the union’s collective bargaining costs “than

his pro rata share.” Id. at 754. The Court explained:

If the union’s total budget is divided between collec-

tive bargaining and institutional expenses and if non-

member payments, equal to those of a member, go

entirely for collective bargaining costs, the nonmem-

The Court elaborated on these “institutional items” by quoting

from the union’s brief:

Rather typically, unions use their members’ dues to promote

legislation which they regard as desirable and to defeat legis-

lation which they regard as undesirable, to publish newspapers

and magazines, to promote free labor institutions in other na-

tions, to finance low cost housing, to aid victims of natural

disaster, to support charities, to finance litigation, to provide

scholarships, and to do those things which the members au-

thorize the union to do in their interest and on their behalf.

373 U.S. at 753 n.6.

22a

ber will pay more of these expenses than his pro rata

share. The member will pay less and to that extent

a portion of his fees and dues is available to pay in-

stitutional expenses. The union’s budget is balanced.

By paying a larger share of collective bargaining

costs the nonmember subsidizes the union’s institu-

tional activities.

Id. Accordingly, there was no reason why the clause

should, “in the present posture of the case, be construed

against respondent to raise a substantial difference be-

tween this and the General Motors case.” Id. at 752. It

would be anomalous, the Court said, to let Florida ban

agency shop agreements under which union members and

nonmembers paid equal shares while forbidding Florida

to ban an arrangement in which nonmembers might pay

even more bargaining costs than members. /d. at 754.

By discussing the Schermerhorn petitioners’ position,

clearly only a product of appellate strategy, in so much

detail, the Court signalled that it considered the status

of the kind of representation-fee proposal now before us

to be a difficult question. The Court’s discussion draws

a clear distinction between agency shops and the collec-

tion of fees to cover representation costs. Schermerhorn

does not govern this case, because the belated effort to

distinguish General Motors failed. If the representation

fee proposed by the Union in this case meets the two con-

ditions laid down in Schermerhorn—“ an ironclad restric-

tion” against using nonmember payments for purposes,

other than servicing the collective bargaining agreement,

with nonunion members paying no more than their pro

rata share of such expenses—then the clause conceivably

does not require “membership in a labor organization”

and therefore is beyond the reach of state right-to-work

laws whose application depends on section 14(b).

The NLRB, which affirmed the decision of the adminis-

trative law judge in a simple one-page decision and or-

der, 252 NLRB 1299 (1980), seems not to have devoted

23a

the careful attention to this case that Schermerhorn re-

quires. Nothing in subsequent Supreme Court decisions

has departed from its dicta in Schermerhorn.“ The ques-

tion before us is open, and is a matter of some signifi-

cance. Our answer must center on the congressional in-

tent in enacting section 14(b!. The legislative history

is lengthy, often dry, and relatively inconclusive, but it

casts serious doubts on the reasoning of the majority.

III. THE LEGISLATIVE HISTORY OF SECTION 14(B)

A fundamental tension in labor law, as indeed in con-

stitutional law, exists between encouraging majority rule

and protecting the rights of the minority. Congress faced

this problem many times when it enacted the historic

Wagner Act and amended it with the Taft-Hartley Act,

and the genesis and scope of section 14(b) must be un-

derstood in light of this tension.

The Wagner Act, passed in 1935 during an explosive

period in our social history, gave workers the right to

organize unions and to bargain collectively with their

employers.* The legislation was a factor in the doubling

In Oil, Chemical & Atomic Workers Int'l Union v. Mobil Oil

Corp., 426 U.S. 407 (1976), the Court held that the Texas right-

to-work law could not be enforced “with regard to an employment

relationship whose principal job situs” was not in Texas, even

though the employees were hired in Texas and had “a number of

other contacts” with the state. Jd. at 418, 410. In dicta, the Court

explained that “Section 14(b) simply mirrors that part of § 8(a) (3)

which focuses on post-hiring conditions of employment.” Id. at 417.

Compare id. with Retail Clerks v. Schermerhorn, 373 U.S. at 751:

“The connection between the § 8(a)(3) proviso and § 14(b) is clear.

Whether they are perfectly coincident, we need not now decide,

but unquestionably they overlap to some extent.”

Prior to passage of the Act, courts had resisted permitting

unions to bring suit to enforce collective bargaining agreements

because unions were unincorporated associations. See, e.g., A.R.

Barnes & Co. v. Berry, 169 F. 225, 228 (6th Cir. 1909); see gen-

erally Sturges, Unincorporated Associations as Parties to Actions,

33 YALE L.J. 383, 396-99 (1924).

24a

of union membership between 1933 and 1937, a period

coinciding with the rise of the great industrial unions.

It was also followed hy dramatic and often violent

strikes. World War II brought a momentary hiatus in

industrial strife, but at its conclusion “the no-strike era

came to an end, and in 1947 the country experienced the

largest strike wave in its history.” Stone, The Post-War

Paradigm in American Labor Law, 90 YALE L.J. 1509,

1523 (1981). Anti-union sentiment was widespread, and

representatives on both sides of the aisle agreed that

legislative reforms were required.

Congress could conceivably have pulled back from the

labor issue entirely and returned the question to the

hands of the states. Instead, the Taft-Hartley Act of

1947 concentrated on amending the structure of the

NLRB and revising methods for resolving representation

disputes. Section 14(b) was not the most substantive

change amidst these reforms. It did not enact a new

policy, but simply made explicit a congressional under-

standing that had accompanied passage of the earlier

Wagner Act concerning the general tension between rule

by union majority and the rights of nonunion minorities.

A full discussion of section 14(b) must therefore begin

with the broader problem, and the evolution in congres-

sional attitudes toward the rights of the nonunion mi-

nority in a given bargaining unit. At the outset, it may

help to define some of the terms that frequently arose in

this context. An open shop allows the employer to hire

without regard to union membership, and lets employees

obtain or refuse membership in the union as they please.

A closed shop requires the employer to hire union mem-

bers only. A union shop allows the employer to hire

without regard to union membership, but requires em-

ployees to become members of the union within a speci-

fied time after they have been hired. Preferential hiring

requires the employer to give a preference to union mem-

bers, although nonunion employees may be hired if

union members are unavailable. Finally, maintenance-of-

25a

membership agreements let employees obtain or refuse

membership in the union as they please, but require that

employees who become union members maintain their

membership for the duration of the agreement. The

closed shop and the union shop played particularly im-

portant roles in shaping the congressional views about

minority rights under a model of trade union democracy.

A. The Closed Shop

The Wagner Act, with its emphasis on collective bar-

gaining, treated minority rights almost as an after-

thought. Section 9(a) provided:

Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

ployees in such unit for the purposes of collective

bargaining in respect to rates of pay, wages, hours

of employment, or other conditions of employment,

Provided, That any individual employee or group of

employees shall have the right at any time to present

grievances to their employer.

Ch. 372, §9(a), 49 Stat. 453 (1935) (codified at 29

U.S.C. 8 159 (a)). Section 8(3) outlawed attempts by

employers to force workers into company unions or dis-

courage them from forming their own, but distinguished

these practices from union bargaining with employers

over means to control the problem of free riders:

It shall be an unfair labor practice for an employer

by discrimination in regard to hire or tenure of em-

ployment or any term or condition of employment to

encourage or discourage membership in any labor

organization, Provided, That nothing in this act .. .

shall preclude an employer from making an agree-

ment with a [qualifying] labor organization.. to

require as a condition of employment membership

therein

26a

Ch. 372, §8(3), 49 Stat. 452 (1935) (codified at 29

U.S.C. § 158 (a)).

Several Senators criticized the Act for ignoring the

rights of employee minorities. See, e.g., 79 CoNnG. REC.

7671 (1935) (Senator Tydings) (“As I see this par-

ticular section [§9(a)], it looks to me like an effort

to force every man in America to join a certain kind of

union, whether or not he wishes to join that union”) ;

id. (Senator Hastings) (“Is it not true that the in-

dividual worker should be free to decline association with

his fellows? Can that be true under this bill?”). Senator

Wagner responded:

The Senator is concerned with what happens to the

minority. Under this proposed legislation . . there

will be no advantage which a majority can have un-

der an agreement to which the minority is not also

entitled, and in order to have that advantage the

mi ority need not join any organization. It can join

or ot join, either way. It cannot be discriminated

against under any other provision of the law.

Id. at 7673. But Senator Hastings was unconvinced. He

turned from section 9(a) to section 8(3), and reiterated

the charge that the bill would require all workers to join

a union regardless of their wishes. Senator Wagner

again responded:

No, Mr. President; the Senator apparently does not

understand that provision. It does no more than

to legalize a closed-shop agreement, which is a mat-

ter of agreement between employer and employee

where it is now sustained by the public opinion of

the State. . . The provision will not change the

status quo. That is the law today; and wherever it

is the law today that a closed-shop agreement can be

made, it will continue to be the law. By this bill we

do not change that situation. Closed-shop agree-

ments are made all over the country, and they are

27a

matters of agreement. The question of compulsion

is not involved in them.

Id. at 7673-74.

But Senator Wagner turned out to be wrong. Closed-

shop agreements, which prohibited hiring any employee

who was not already a union member, did involve com-

pulsion. Between 1935 and 1947, the closed shop became

notorious. Union leaders, with unreviewable authority

to admit new union members and expel old ones, acted

in a corrupt and undemocratic fashion to perpetuate

their power. Articles in the popular press and legal

journals condemned closed shops and the control they

gave unions over the careers of workers. See, e.g. New-

man, The Closed Union and the Right to Work, 43

CoLuM. L. Rev. 42 (1943) (arguing that unions operat-

ing under closed shops used restrictive admissions re-

quirements to create labor monopoly, perpetuate union

management, and protect social prejudices). The Senate

Report accompanying the Taft-Hartley Act found:

Until the beginning of the war only a relatively

small minority of employees (less than 20 percent)

were affected by contracts containing any compul-

sory features. According to the Secretary of Labor,

however, within the last 5 years over 75 percent

now contain some form of compulsion. But with this

trend, abuses of compulsory membership have be-

come so numerous there has been great public feel-

ing against such arrangements.

It continued with specific examples:

In the maritime industry and to a large extent in

the construction industry union hiring halls now

provide the only method of securing employment.

... “xtension of this principle to licensed deck and

engine officers has created the greatest problems in

connection with the safety of American vessels at

sea.

Numerous examples were presented to the commit-

tee of the way union leaders have used closed-shop

devices as a method of depriving employees of their

jobs, and in some cases a means of securing a liveli-

hood in their trade or calling, for purely capricious

penaed to appear in court, having witnessed an

assault upon his foreman by a fellow employee. Be-

cause he told the truth upon the witness stand, the

union leadership brought about his expulsion with a

consequent loss of his job since his employer was

subject to a closed-shop contract.

Numerous examples of equally glaring disregard

for the rights of minority members of unions are

contained in the exhibits received in evidence by the

committee.

S. REP. No. 105, Soth Cong., Ist Sess. 6-7 (1947), I

Legislative History of the Labor Management Relations

Act 412-13 (1948) (hereinafter Leg. Hist.)

Animosity toward the closed shop was widespread in

Congress. See, e.g., 93 CONG. Rec. 3453 (1947) (re-

marks of Representative Holifield) ; id. at A1223 (exten-

sion of remarks by Representative Landis). Representa-

tive Jonkman observed that “the principle criticism of

unions today is not directed at unionism itself but to the

irresponsible and corrupt management and leadership

into which many unions have drifted. It requires but

little reading of the hearings on this bill to cause one to

shudder at the tyranny and depredation committed by

such union officers and leaders.” Id. at 3560. Accord-

ingly, Congress added section 8(a)(3) in the Taft-

Hartley Act banning the closed shop. Ch. 120, tit. 1,

§ 8(a) (3), 61 Stat. 140 (1947) (codified at 29 U.S.C.

§ 158(a)(3)). That section continued:

no employer shall justify any discrimination against

an employee for nonmembership in a labor organiza-

tion (A) if he has reasonable grounds for believing

that such membership was not available to the em-

ployee on the same terms and conditions generally

applicable to other members, or (B) if he has rea-

sonable grounds for believing that membership was

denied or terminated for reasons other than the

failure of the employee to tender the periodic dues

and initiation fees uniformly required as a condition

of acquiring or retaining membership.

Id., 61 Stat. at 141.

B. Union Shops and Union Security

It is absolutely crucial to distinguish congressional re-

vulsion toward the closed shop from the congressional

treatment of other union security agreements. Congress

abolished the closed shop, but it retained lesser forms of

union security as subjects of mandatory bargaining

under federal law. The closed shop and section 14(b)

were thus viewed in different contexts because they

focused on different forms of union security agreements.

The majority opinion obfuscates this distinction. The

Senate Report that it quotes on page seven, which is said

to demonstrate that Congress enacted section 14(b) in

order to let the states make their own judgments on the

issue of free riders, is not a discussion of section 14(b)

at all. The Senate Report only addressed the decision to

The committee has taken into consideration these

arguments in reaching what it considers a solution

of the problem which does justice to both points of

view. We have felt that on the record before us the

abuses of the system have become too serious and

numerous to justify permitting present law to re-

main unchanged. It is clear that the closed shop

which requires preexisting union membership as a

condition of obtaining employment creates too great

a barrier to free employment to be tolerated... .

This not only permits unions holding such monop-

olies over jobs to exact excessive fees but it deprives

management of any real choice of the men it hires.

. . - If trade-unions were purely fraternal or social

organizations, such instances would not be a matter

of congressional concern, but since membership in

such organizations in many trades or callings is

essential to earning a living, Congress cannot ignore

the existence of such power.

S. Rep. No. 105, 80th Cong., Ist Sess. 6-7 (1947), Leg.

Hist. at 412-13. The Senate Report could not possibly

have discussed section 14(b) in any event, because that

section originated in the House, was not part of the

Senate bill, and was adopted by the Senate only after

conference.

It is true that several members of Congress saw no

real difference between the closed shop and the union

shop, and urged that both be abolished. Representative

Fisher declared that “[{t]he union shop and the closed

shop are Siamese twins. In either case a man cannot

work unless he belongs to the union, whether he wants to

belong or not.” 93 Conc. Rec. 3555 (1947). He ob-

served that “the right to work is one of the most sacred

rights a man has,” and called the union shop “a form of

involuntary servitude.” Jd. Representative Hoffman also

urged that

a man should have the right to join or not to join, to

be bound by or not to be bound by, union rules. If

this Congress wants to forsake the American princi-

ple that the man who must live by toil, who must

work if he would eat, have clothing, a home, and be

able to provide for his family—if this Congress

wants to turn its back upon that principle and say

that no man shall work when the employer and the

31a

bare majority of the employees say he cannot work

unless he conforms to their rules and restrictions—

it has the power to do so.

Id. at 3554. Representative Abernathy condemned a sys-

tem that would have workers “paying tribute to someone

else” in order to work. /d. at 3555. Representative Jonk-

man said:

I have, I dare say, thousands of labor constituents

in my district who cannot conscientiously become

members of certain unions because they cannot and

dare not accept joint responsibility for the conduct

of leaders of such type. They should not be com-

pelled by the union-shop provision in this bill to ac-

cept that stigma but have the right to refrain from

joining any union whose leaders engage in disrep-

utable practices.

It is, of course, true that all legislation is the

result of compromise. But to compromise on this

principle is as I said at the outset a further fritter-

ing away of a fundamental American freedom.

Id. at 3560.

These criticisms were unavailing, of course. Congress

added provisions making it more difficult for workers to

obtain a union shop,“ but it retained the union shop as

a mandatory subject of bargaining in section 8 (a). Sev-

eral members emphasized that this policy was required

by simple equity. See, e.g., 93 Conc. Rec. 3546-47 (re-

marks of Representative Celler); id. at 3558 (remarks

of Kepresentative Robsion). It is significant, however,

that when Representative Hoffman offered an amendment

designed to make it clear that a worker could not be

“denied employment unless he joins,” he was persuaded

to withdraw that amendment after Representative Bar-

den called his attention to section 14(b). Id. at 3561-62.

* See text at note 10 & n.10 infra.

82a

C. Section 14(b)

Section 14(b) was not a controversial aspect of the

Taft-Hartley Act because Congress considered it merely

to restate the law under the Wagner Act. The Senate

Report to the 1935 Wagner Act had explained that “the

bill does nothing to facilitate closed-shop agreements or

to make them legal in any State where they may be

illegal.” S. Rep. No. 573, 74th Cong., Ist Sess. 11

(1935); see H.R. Rep. No. 1147, 74th Cong., Ist Sess.

19-20 (1935). By enacting section 14(b) in 1947, Con-

gress reiterated the point that it had not been the inten-

tion of the earlier Congress “to override State laws regu-

lating the closed shop.” S. Rep. No. 105, Soth Cong., Ist

Sess. 6 (1947), Leg. Hist. at 412; see H.R. Rep. No.

245, Soth Cong., Ist Sess. 44 (1947), Leg. Hist. at 335.

It was never the intention of the National Labor Re-

lations Act, as is disclosed by the legislative history

of that act, to preempt the field in this regard so as

to deprive the States of their powers to prevent com-

pulsory unionism. Neither the so-called “closed shop”

proviso in section 8(3) of the existing act nor the

union shop and maintenance of membership proviso

in section 8(a)(3) of the conference agreement

could be said to authorize arrangements of this sort

in States where such arrangements were contrary to

the State policy. To make certain that there should

be no question about this, section 13 was included in

the House bill. The conference agreement, in section

14(b), contains a provision having the same effect.

H.R. Conr. Rep. No. 510, Soth Cong., Ist Sess. 60

(1947), Leg. Hist. at 564.

It may be inferred, of course, that the decision to spell

out the existing law in the Taft-Hartley Act was

prompted by the same reaction against union abuses that

had led Congress to ban the closed shop. The legality of

the union shop had been preserved over the vehement

objections of many opponents, but only after Congress

took steps to correct the abuses of the union shop as well.

The House Report was careful to explain these limita-

tions in detail:

The bill bans the closed shop. Under carefully

drawn regulations it permits an employer and a

union voluntarily to enter into an agreement requir-

ing employees to become and remain members of the

union a month or more after the employer hires

them or after the agreement is signed. Such agree-

ments are lawful, however, only if the employees by

secret ballot have selected the union as their bar-

gaining agent, and if the majority of all the em-

ployees, by a separate secret ballot, authorize the

union to enter into the agreement, and if agreement

is not prohibited by State law. An employee may be

expelled from the union and thus forced to leave his

job only if the expulsion is by reason of his failing

to pay fees and dues imposed upon employees gen-

erally. Under this clause, employers may select their

own employees. Employees have 30 days to decide

whether or not to join the union. Unions may not

cause the discharge of employees by discriminating

against them. The agreement must be voluntary.

Unions may not strike to compel employers to enter

into such agreements. They are subject to loss of

bargaining rights if they do.

H.R. Rep. No. 245, Soth Cong., Ist Sess. 9 (1947), Leg.

Hist. at 300 (emphasis added). Clearly, the predominant

if not the only purpose of section 14(b) was to provide

yet one more check on the abuses that could exist under

“compulsory unionism.”

10 Critics of the Taft-Hartley Act focused less on section 14(b)

than on the other provisions intended to make it more difficult for

unions to obtain a union shop. See, e.g., 98 Conc. Rec. 3554 (1947)

(remarks of Representative Kennedy) (objecting to provision for-

bidding strikes for the purpose of obtaining union shop); id. at

3454 (remarks of Representative Holifield) (objecting to require-

84a

The crucial point to be drawn from the legislative his-

tory of section 14 (b), however, is that Congress never

specifically defined what it meant by “compulsory union-

ism.” The paragraph from the House Report quoted

above is the entire passage of a section headed “com-

pulsory unionism.” The Conference Report stated that

section 14(b) would prevent “any closed shop, union

shop, maintenance of membership, or other form of com-

pulsory unionism agreement in any State where the ex-

ecution of such agreement would be contrary to State

law. Many States have enacted laws or adopted con-

stitutional provisions to make all forms of compulsory

unionism in those States illegal.” H.R. Conr. Rep. No.

510, Soth Cong., Ist Sess. 60 (1947), Leg. Hist. at 564.

But this too leaves the content of the term undefined.

The best evidence of the congressional intent may

therefore lie in the kinds of “cumpulsory unionism” that

members of Congress understood had been banned by the

state right-to-work laws. Representative Holifield, a de-

fender of closed shops as well as union shops and main-

tenance-of-membership agreements, noted that

ment that union shop clauses be approved by majority vote of the

entire bargaining unit, rather than a majority of those voting on

the question) ; id. at 6532 (remarks of Senator Barkley) (objecting

to same provision). The statement of Minority Views attached to

the House Report said little about section 14(b), but bitterly con-

demned a provision in the Act that union shop employees could

not be denied employment if they offered to pay the required dues

and initiation fees:

This, in effect, means that the union is shorn of its power to

discipline its own members for good cause. A spy, a stool

pigeon, an antiunionist, any individual whose sole purpose is

to destroy the union or bring it into disrepute by slander,

defamation, or undisciplined action, can continue his activities

with impunity. ... [The provision] deprives the union's dis-

ciplinary action of any element of sanction or of deterrent

effect.

H.R. Rep. No. 245, Minority Report, Soth Cong., Ist Sess. 80-81

(1947), Leg. Hist. at 371-72.

35a

of the 77 percent of all employees in unions [that

worked] under some form of union security, 30 per-

cent were under closed-shop contracts, 15 percent un-

der union-shop contracts, 29 percent under mainte-

nance-of-membership contracts, and 3 percent under

preferential-hiring contracts—another form of union

security provision.

93 ConG. Rec. 3453. He observed:

Under existing law all of these types of shops are

legal excepting in some few States in which hysteri-

cal legislatures, reckless of constitutional conse-

quences, have banned the closed shop.

Id. Representative Barden contended that

in view of the fact that many of the States have

passed laws dealing with the closed shop, why, then,

the committee felt, and I am sure the whole House

will feel, that the States should be recognized and

their laws should certainly be given full power and

effect as far as a State is concerned.

Id. at 3562. Representative Case of South Dakota urged

adoption of section 14(b) because

it strengthens the provisions of the bill so far as

bans on the closed shop are concerned in the States

which have taken action. I think now that there are

about 12 States that have taken formal action and

another dozen that have that kind of action under

consideration.

d. at 3559. Similarly, in the Senate, the emphasis was

on state laws prohibiting the closed shop. Senator Taft

defended the section 8(3) proviso, noting that it “did not

in any way prohibit the enforcement of State laws which

already prohibited closed shops.” Id. at 6520. His sum-

mary of the bill explained that section 14(b) would allow

states to prevent “compulsory union membership agree-

ments” where such agreements violated state laws

36a

against “compulsory unionism.” Jd. at 6445. Senator

Barkley denounced the bill because union shops would be

prohibited “in any State where a legislature has passed

what we call a nonunion or closed-shop bill,” id. at 6532,

and Senator Morse objected to the “antilabor bias” of the

bill:

Thus, we lay down in the bill a very full and com-

plete national policy as to closed- and union-shop

agreements. At the same time, the bill provides in

section [14(b)], however, that the national policy

may be entirely disregarded and superseded by the

States if they desire to impose a more restrictive

policy on the same subject matter.

Id. at 6456 (emphasis added). At no time, in the com-

mittee reports or during the debates, was it intimated

that “compulsory unionism” meant anything more than

the closed shop, union shop, and conceivably contracts

requiring maintenance of membership or preferential

hiring of union members."'

One final observation, if an obvious one, should be

made about the legislative history of section 14(b). The

debates make it clear that Congress knew that several

states had banned the closed and union shop, but the

legislative history does not suggest that Congress knew

these laws sometimes prohibited payment of “any dues,

fees or charges of any kind to any labor union” as well.

Congress emphatically did not intend to give the states

a free hand in amending federal labor law. Representa-

11 To the extent that other contemporaneous sources are helpful,

it is worth examining the NLRB’s L&GISLATIVE HISTORY OF THE

LABOR MANAGEMENT RELATIONS AcT (1948), published one year

after passage of the Taft-Hartley Act and used by the Supreme

Court as an authoritative guide. See, e.g., Oil, Chemical & Atomic

Workers Int'l Union v. Mobii Oil Corp., 426 U.S. at 416; NLRB v.

General Motors, 373 U.S. at 741. The “sectional index” to this

history simply expresses the topic of section 14(b) as “State Union-

Shop Laws.” Leg. Hist. at xxiv (emphasis added).

37a

tive Kearney suggested, and Representative Hoffman

moved, that section 14(b) be amended by inserting a

period and striking out the rest of the section, to read:

Nothing in this act shall be construed to invalidate

any State law or constitutional provision.

93 Conc. Rec. 3559, 3562. The objections to this amend-

ment were obvious. As Representative Case of South

Dakota stated:

Of course, if you put a period there, it would be

pretty broad because it would deal with subjects

other than the right of the employer to make closed-

shop agreements. You might nullify much of the

bill, because you would establish State rights to deal

with all phases of industrial relations in spite of

any provisions whatsoever in the act.

Id. at 3559. The amendment was withdrawn.

Had Congress chosen, it could have framed section

14(b) in terms identical to existing state right-to-work

laws. Employers could have been precluded from making

agreements “requiring membership in or payments of

any kind to a labor organization,” rather than those

simply “requiring membership in a labor organization.”

On its face, section 14(b) is by no means as broad as

the more restrictive state laws that the majority opinion

now suggests it incorporated. Congressional attention

focused on closed shops and union shops, which were

said to place workers at the mercy of capricious or cor-

rupt treatment by labor organizations. Section 14(b)

was meant to extend associational freedom to employees

in states that had passed legislation dealing with this

subject. But the Taft-Hartley Act did not adopt the

philosophy that labor unions should be destroyed. Noth-

ing in the legislative history of section 14(b) suggests

that Congress meant to give this power to the states.

38a

IV. SeEcTION 14(B) Dogs Nor PERMIT STATES TO BAN

VALID REPRESENTATION F'EES

It cannot be shown that the legislative history of the

Taft-Hartley Act and section 14(b) supports the NLRB’s

ruling in this case. See majority opinion at 7. The legis-

lative history demonstrates only that Congress recognized

the tension between union majorities and the rights of

nonunion minorities, and that in the interest of associa-

tional freedom it allowed the states to ban contracts mak-

ing employment contingent on the “stigma” of joining an

organization with which the worker could not “conscien-

tiously” agree. See 93 Conc. Rec. 3560 (1947) (re-

marks of Representative Jonkman). Debate was framed

in terms of “compulsory unionism,” “paying tribute,”

and “involuntary servitude,” thus taking on ideological

proportions. But section 14(b) fully met co gressional

concerns by referring to compulsory “membership.”

A. The Meaning of “Membership”

The wheel has come full circle, and the question still

remains the meaning of this term. Plain meaning has its

limitations, but it must count for something. “To as-

certain what Congress meant. we would do well to

begin [with] what Congress said.” Shapiro v. United

States, 335 U.S. 1, 39 (1948) (Frankfurter, J., dissent-

ing). There is no suggestion whatsoever in the legisla-

tive history that a worker who pays a fees for services

rendered by the union thereby becomes a “member” of

the union. In any other context, such a proposition would

be facially absurd. A commuter can be required to pay

a toll for crossing a bridge owned by a corporation with-

out therein becoming a “member” of that corporation.

An action for quantum meruit by a contractor does not

make the defendant a “member” of the contracting firm.

The majority’s interpretation is particularly egregious

because it ignores the emphasis on “compulsory union-

ism” that surfaced again and again in Congress. Non-

union employees working under a representation-fee con-

tract would not in any way be required to support the

union, or fund its institutional, union-oriented activities.

They would not sign membership cards or be carried on

the union’s rolls. See NLRB v. Delaware-New Jersey

Ferry Co., 128 F.2d 130, 134 (3d Cir. 1942). They would

not be required to embrace participation in union ac-

tivities and maintain “good standing.” See Plumbers’

Union v. Borden, 373 U.S. 690, 695 (1963); Radio

Officers v. NLRB, 347 U.S. 17, 39-42 (1954). They would

not fill out applications, take oaths, or attend meetings.

See Union Starch and Refining Co. v. NLRB, 186 F.2d

1008, 1011 (7th Cir. 1951). They would not be subject

to union-imposed disciplinary measures enforceable in

state courts. See United Stanford Employees, Local 680

v. NLRB, 601 F.2d 980, 981 (9th Cir. 1979); NLRB v.

Hershey Foods Corp., 513 F.2d 1083, 1085 (9th Cir.

1975). They would not have “fulfilled the requirements

for membership in such organization.” 29 U.S.C. § 402

(o) (Supp. III 1979) (Landrum-Griffin Act definition of

union member“); see In re Carter, 618 F.2d 1093, 1103

(5th Cir. 1980). By no stretch of the imagination could

employees paying a representation fee be considered mem-

bers of the union, “full-fledged” or otherwise. They

would have none of the responsibilities of union member-

ship, none of its “stigma,” and none of its perquisites.

The NLRB has itself concluded that requiring non-

union employees to pay periodic amounts “for the sup-

port of the bargaining unit” does not make those em-

ployees “members” in the union. In Public Service Com-

pany of Colorado, 89 NLRB 418 (1950), the contract

provision at issue stated:

Union membership . . . shall not be required as a

condition of employment, but all employees in the

classifications covered by this Agreement shall, as a

condition of employment, within sixty (60) days after

hiring, or commencing August 1, 1947, pay to the

40a

Union Two ($2.00) Dollars per month for the sup-

port of the bargaining unit.

The initial decision had concluded that because the “sup-

port money provision does not require, and is not related

to a requirement of membership, it did not come with-

in the terms of section 8(3) and could not be lawfully

enforced. Id. at 420. After searching through the legis-

lative history of the Wagner Act, the Board ruled to

the contrary . even though it agreed that the provision

required “as an employment condition something other

than actual ‘membership.’” Id. See id. at 430 (opinion

of General Counsel that requiring nonmembers to pay

union money “for the support of the bargaining unit”

is “clearly distinguishable from a requirement of ‘mem-

bership in a labor organization?)

The argument that the “support money” requirement

in the contract is necessarily contingent upon the

Union’s acceptance of an employee membership ap-

plication finds no support in either the contract or in

the statute. The Wagner Act was not concerned with

an employee’s right to membership in a labor union

and held no guarantee of membership, even where, in

a union security contract, membership is made a con-

dition of employment.

12 The Board reasoned that union security clauses that fell short

of requiring “membership” were nevertheless entitled to protection

under section 8(3) of the Wagner Act. See NLRB v. General Motors,

373 U.S. at 741 (“We find nothing in the legislative history of the

Act indicating that Congress intended the amended proviso to § 8

(a) (3) to validate only the union shop and simultaneously to abolish,

in addition to the closed shop, all other union-security agreements

permissible under state law“); Algoma Plywood Co. v. Wisconsin

Board, 336 U.S. 301, 307 (1949) (“The short answer is that § 8(3)

merely disclaims a national policy hostile to the closed shop or other

forms of union-security agreement”). It should be emphasized,

however, that only union security agreements requiring membership

derive their legitimacy from section 8(a)(3). See pp. 36-37 infra.

4la

Id. at 425. The Board reaffirmed this ruling under the

1947 Taft-Hartley amendments to the Wagner Act in

American Seating Co., 98 NLRB 800 (1952). It now

departs from that reasoning with no legal basis for do-

ing so.

NLRB v. General Motors Corp., 373 U.S. 734, is not

to the contrary, and indeed cuts against the position

adopted by the majority. The “financial core” of member-

ship was defined as the payment of fees and dues.” Id.

at 742. As a matter of the Supreme Court’s definition,

then, payment of service fees in an amount less than

initiation fees and dues cannot constitute membership.

“At its cure, compulsory unionism refers to mandatory

payment by employees of union dues and initiation fees.”

International Union, United Automobile, Aerospace and

Agricultural Implement Workers v. National Right to

Work Legal Defense and Educ. Foundation, Inc., 590

F.2d 1139, 1143 (D.C. Cir. 1978). “[S]uch ‘member-

ship’ includes only the duty to pay dues and initiation

fees.” United Stanford Employees, Local 680 v. NLRB,

601 F.2d at 982 (emphasis added). Accord, NLRB v.

Hershey Foods Corp., 513 F.2d at 1087; Boilermakers

Local 749 v. NLRB, 466 F.2d 343, 344-45 (D.C. Cir.

1972), cert. denied, 410 U.S. 926 (1973). The interpre-

tation of “membership” adopted by the majority ignores

these explicit holdings. See Associated General Contrac-

tors v. Otter Tail Power Co., 457 F.Supp. 1207, 1217

(D.N.D. 1978).

The majority therefore extends the scope of section

14(b) to an unprecedented degree. “Section 14(b) does

18 These cases are part of the long line following Union Starch

and Refining Co. v. NLRB, 186 F.2d 1008 (7th Cir. 1951), holding

that the condition of “membership” for section 8(a)(3) purposes

is satisfied even when an employee in a union shop refuses to re-

spect union-imposed obligations other than the duty to pay dues

and initiation fees. The Supreme Court specifically relied on the

Union Starch rule in NLRB v. General Motors, 373 U.S. at 743 n.10.

42a

not empower states to ban all involuntary relationships

between workers and unions.” Laborer’s International

Union, Local 107 v. Kunco, Inc., 472 F.2d 456, 458 (8th

Cir. 1973). It is now settled law, for example, that

nondiscriminatory union-operated hiring halls may not

be prohibited by state right-to-work laws under section

14(b). See, e.g., NLRB v. Tom Joyce Floors, Inc., 353

F.2d 768 (9th Cir. 1965); cf. Local 357, International

Bhd. of Teamsters v. NLRB, 365 U.S. 667 (1961) (ex-

clusive hiring hall does not violate closed shop prohibition

of section 8(a)(3)). Unions are further permitted to

charge nonmembers a special service or referral fee for

the use of the hiring hall, if the fee is reasonably related

to the expenses of operating the halls. NLRB v. Local

138, International Union of Operating Engineers, 385

F.2d 874, 876-77 (2d Cir.), cert. denied, 391 U.S. 904

(1968); Local 825, International Union of Operating

Engineers, AFL-CIO, 187 NLRB 1043, 1044 (1962) (non-

member must pay his “pro rata share of the cost and

expense of operating the employment list and referrals

therefrom” even though union members pay no fee for

referrals) .'*

The majority contends that these cases are “clearly

distinguishable” because use of a hiring hall “precedes

14 The hiring hall cases again emphasize that the scope of sec-

tion 14(b) does not depend on state interpretations of state right-

to-work laws. In Laborers’ Int'l Union v. Kunco, 472 F.2d 456,

the court set aside the judgment of the Arkansas Supreme Court,

which had held that even nondiscriminatory hiring halls violated

that state’s right-to-work iaws in Kaiser v. Price-Fewell, Inc., 235

Ark. 295, 359 S.W.2d 449 (1962). Compare Florida Education Ass'n

v. Public Employees Relations Comm., 346 So.2d 551 (Fla. App.

1977) (right-to-work law held to prohibit contract requiring all

employees to pay pro rata share of bargaining and grievance costs)

with Meade Electric Co. v. Hagberg, 159 N.E.2d 408, 414 (Ind.

App. 1959) (right-to-work law held not to ban agency shops because

of “the plain, unequivocal language” of the law: “To depart from

the meaning expressed by the words of the statute is to alter it,

and it is not construction but legislation)

43a

hiring,” and because state regulation of union member-

ship under section 14(b) “applies only to post-hiring”

arrangements. Majority opinion at 10. Both assertions

are dubious. The legislative history of section 14(b)

shows that Congress was most concerned about the evils

of the closed shop, which by definition requires that

union membership “precede hiring,” and that Congress

endorsed state right-to-work laws banning closed shops.

Hiring halls were specifically discussed in the legislative

history. See S. Rep. No. 105, Soth Cong., Ist Sess. 6

(1947), Leg. Hist. at 412 (“in the maritime industry

and to a large extent in the construction industry union

hiring halls now provide the only method of securing

employment.”) More important, only a strained concep-

tion of hiring halls would suggest that they have no

post-hiring consequences. In NLRB v. Houston Chapter,

Associated General Contractors of America, Inc., 349

F.2d 449 (5th Cir. 1965), cert. denied, 382 U.S. 1026

(1966), the court explained that the purpose of such a

hall would be to “establish a system of seniority rights

and job priority” in the otherwise “transitory” construc-

tion trade. Such an arrangement undoubtedly affects the

post-hiring relationship between employer and employee.

The court added:

This is a multi-employer situation where the essence

of employee security would rest on job priority stand-

ards being established through a common source—

the hiring hall.

No doubt union membership will be encouraged

under the arrangement, indeed it may be a boon to

the union; nevertheless such an arrangement does

not constitute compulsory unionism so long as the

arrangement is not employed in a discriminatory

manner.

Id. at 452, 453. The Supreme Court has also suggested

that “the very existence of the hiring hall encourages

union membership. We may assume that it does.” In-

44a

ternational Bhd. of Teamsters v. NLRB, 365 U.S. at 675.

See Mountain Pacific Chapter, 119 NLRB 883, 896

(1957) (early decision holding even nondiscriminatory

hiring hall illegal per se because “the inference of en-

couragement of union membership is inescapable.”). De-

spite their clear post-hiring consequences, union hiring

halls cannot be prohibited by states under section 14(b)

because such halls do not meet the test of “compulsory

unionism.” *

The final blow to the majority’s suggestion that section

14(b) governs this case because a “post-hiring” arrange-

ment is involved comes from SeaPak v. Indusrial, Tech-

nical and Professional Employees, 300 F. Supp. 1197

(S.D. Ga. 1969), aff'd per curiam, 423 F.2d 1229 (5th

Cir. 1970), aff'd mem., 400 U.S. 985 (1971). The Georgia

right-to-work statute provided that authorizations for de-

duction of union dues were revocable at the will of the

% In Machinists Local 697, 223 NLRB 832 (1976), the Board

reasoned that hiring hall precedents were not relevant to the ques-

tion whether unions could charge nonmembers the actual cost of

handling their grievances on the ground that unions have no obliga-

tion to operate hiring halls but do have an obligation to represent

all members of the bargaining unit fairly. Id. at 834. As the

NLRB’s chairman observed in dissent, this reasoning is extremely

weak. “Contrary to the majority herein, a nonmember applicant

at an exclusive hiring hall is entitled as a matter of right to the

services of a union without discrimination based on nonunion

status. I know of no rule, by statute or decision, prior to the

instant case, and my colleagues cite none, that a union is obligated

to furnish to all employees in a unit every service without charge.”

Id. at 836; see NLRB v. Lummus Co., 210 F.2d 377, 381 (5th Cir.

1954). In Local 825, Int'l Union of Operating Engineers, 137

NLRB 1043 (1962), the Board found operation of an exclusive

hiring hall nondiscriminatory even though nonunion employees paid

higher monthly fees as their “pro rata share of the cost and ex-

pense of operating the employment list” than union members paid

in monthly dues. “The fact that the fee paid by a nonmember is

roughly equivalent to the monthy dues of a member is not, in our

opinion, sufficient in and of itself to establish that the former has

been required to pay more than his fair share for the use and

operation of the hiring hall.” Jd. at 1044.

45a

employee, but the federal labor statute made such au-

thorizations irrevocable for not more than one year. The

court explained:

Counsel vigorously maintain that employees who ex-

ecute authorizations revocable only after one year

but who within twelve months revoke same become

forced members of the union. The employee’s choice

is either that of continued, compulsory “membership”

in the union or of termination of employment. So

they argue, and the argument has some force.

I am inevitably confronted by the question of

whether there is a Federal preemption of check-off

authorizations and whether §14(b) in prohibiting

agreements requiring union membership as a condi-

tion of employment permits a state to enact check-off

provisions contrary to what is provided for in § 302

of the Federal Labor-Management Relations Act.

300 F.Supp. at 1199-1200. The court’s answer was

emphatic.

I think the state regulation must yield.... I am

confident Congress did not conceive that checkoff of

dues for a limited time after an employee’s revoca-

tion of authorization therefor would amount to com-

pulsory union membership as interdicted by state

“Right-to-Work” laws. . After all, state prohibi-

tion of compulsory unionism is a Congressional dis-

pensation of grace, not the imperious right of a state.

I do not agree that the one year irrevocability provi-

sion in the Act can be varied by a state legislature

under the reservation to the states of the power to

prohibit “agreements requiring membership in a

labor organization as a condition of employment.”

Section 14(b) says that and no more and it reaches

no further. . . . Checkoff authorizations irrevocable

for one year after date do not amount to compulsory

unionism as to employees who wish to withdraw from

membership prior to that time.

46a

Id. at 1200-01. It is obvious that a compulsory check-off

provision is a post-hiring arrangement. It is also obvious

that the critical inquiry in assessing the reach of state

right-to-work laws under section 14(b) is not whether

they ban “post-hirine” arrangements, but whether the

arrangements are a form of “compulsory unionism.”

B. Differences Between Membership Dues and Repre-

sentation Fees.

I suggest that the majority errs in thinking that sec-

tion 14(b) or section 8(a)(3) apply in this case. The

majority relies on an argument that any freshman stu-

dent of philosophy would recognize as invalid: union

members pay dues; the clause in issue would require

workers to pay a fee; therefore the clause requires

workers to become union members. Surely this over-

generalized statement overemphasizes “compulsory” and

ignores “unionism.” Unions may negotiate all manner of

contracts that compel workers in the bargaining unit to

meet particular terms and conditions of employment

without transforming every such worker into a union

member. Congress was not concerned about compulsion,

but compulsory unionism. Paying fees to cover repre-

sentation costs does not constitute “membership in a

labor organization” because it falls short of what the

Supreme Court has called the “financial core” of union-

ism—payment of initiation fees and dues.

The differences between membership dues and repre-

sentation fees are more than a matter of dollars alone.

Representation fees are payments for services rendered;

membership dues support an institution. The Supreme

Court has frequently noted the distinction between a

union’s “institutional costs” and its expenditures for col-

lective bargaining purposes. E. g., Schermerhorn, 373

U.S. at 753; Machinists v. Street, 367 U.S. 740, 769-70

& n.19 (1961). In Abood v. Detroit Board of Education,

431 U.S. 209 (1977), the Court reviewed the constitu-

47a

tionality of an agency shop arrangement under which

the union spent part of its receipts on political activities

with which certain employees disagreed. The Court up-

held the arrangement, but only after it devised “a way

of preventing compulsory subsidization of ideological ac-

tivity by employees who object thereto without restricting

the Union’s ability to require every employee to con-

tribute to the cost of colleetive-barg ning activities.” Id.

at 237.

The right-to-work laws endorsed by section 14 (b) are

clearly analogous to the First Amendment rights pro-

tected in A bood, because in neither setting may employees

be required to support “ideological activity” with which

they disagree. Like the schoolteachers in Abood, the

Natchez mill employees have no obligation to subsidize

the Union’s institutional expenses even if they may be

required to pay their fair share of collective bargaining

costs.“ But as long as these employees pay only their

16 To the extent that a representation fee exceeds these costs and

subsidizes the union’s institutional expenses, of course, it is invalid

under Schermerhorn. The clause proposed by the Union in this

case stated that the fee could not exceed the total of dues and fees

assessed union members, and provided that the fee would only equal

“a pro rata share” of the unit's collective bargaining costs. As the

Supreme Court cautioned in Schermerhorn, however, these safe-

guards must not be “of bookeeping significance only.” 373 U.S.

at «53. The proposed clause could raise such problems because once

a union receives a pro rata share of collective bargaining costs

from nonunion employees, monies in the union treasury that had

formeriy been used to represent those employees will be freed up

to pay other, institutional expenses of the union.

Such problems seem neither significant nor insurmountable, how-

ever. For example, the union’s institutional expenditures could be

frozen during the period when the representation-fee clause goes

into effect, with any surplus rebated in equal shares to union and

nonunion members alike. The permissible outcome would resemble

that in Abood, where the Court suggested an exact method for

separating monies collected for one purpose from monies collected

for the other. Employees who objected to supporting the union’s

political activities were to receive “(1) the refund of a portion of

48a

pro rata share of representation expenses, they cannot

be considered members of the union because they are not

supporting that institution. Section 8(a)(3) has noth-

ing to do with the proposed representation fee, because

such a fee does not require union membership as a con-

dition of employment.

Instead, representation-fee proposals should be consid-

ered mandatory subjects of bargaining pursuant to sec-

tion 8(b) of the Act, 29 U.S.C. § 158(d), which states:

For the purposes of this section, to bargain collec-

tively is the performance of the mutual obligation of

the employer and the representative of the employee

to meet at reasonable times and confer in good faith

with respect to wages, hours, and other terms and

conditions of employment

The test for determining whether a particular matter

comes within the scope of section 8 (d) is whether it

would regulate relations between employer and employee,

or settle any term or condition of employment. NLRB

v. Wooster Division of Borg-Warner Corp., 356 U.S. 342,

350 (1958). The administrative law judge below spe-

cifically found that the representation fee proposed by

the Union was a mandatory subject of bargaining within

the meaning of section 8(d). 252 NLRB at 1303. See

NLRB v. Houston Chapter, Association of General Con-

tractors, 349 F.2d at 452 (contract terms “such as would

provide for the establishment of a seniority system

through the use of a hiring hall, no less than tenure, are

terms and conditions of employment” under section

the exacted funds in the proportion that union political expenditures

bear to total union expenditures, and (2) the reduction of future

exactions by the same proportion.” 431 U.S. at 240; see Railway

Clerks v. Allen, 373 U.S. 113, 120-22 (1963); Machinists v. Street,

367 U.S. 740, 775 (1961). The accounting treatment of particular

expenditures, and the amounts permissibly collectible under the

instant representation-fee clause, are questions for the Board in

the first instance.

49a

8(d)); NLRB v. Tom Joyce Floors, Inc., 353 F.2d at

771 (same); cf. NLRB v. Andrew Jergens Co., 175 F.2d

130, 133 (9th Cir.), cert. denied, 338 U.S. 827 (1949)

(“Union security [maintenance-of-membership clause] is

properly a ‘condition of employment’ within the meaning

of § 9(a) of the National Labor Relations Act and hence,

is within the statutory area of collective bargaining.“).“

The legitimacy of a representation fee as a subject for

collective bargaining also follows from the duty of fair

representation that caused financial difficulty for Local

681 in the first place. As discussed above, this duty was

“originally restricted to the prevention of racial discrimi-

nation.” Pyzynski v. New York Central R.R., 421 F.2d

854, 862 (2d Cir. 1970); see Tunstall v. Brotherhood of

Locomotive Firemen, 323 U.S. 210, 211 (1944). It has

since been expanded to cover all cases in which the union

draws distinctions that are “irrelevant and invidious.”

Conley v. Gibson, 355 U.S. 41, 46 (1957) (quoting Steele

v. Louisville & Nashville R. Co., 323 U.S. 192, 203

(1944)). Perhaps it may fairly be asked whether the

union discrimination is truly “invidious” if it declines

to prosecute grievances of nonunion employees because

they pay none of the cost. But it clearly seems to con-

stitute discrimination in reverse to suggest that whereas

nonunion employees may obtain free representation, union

employees must cover the costs of their grievances by

paying dues. The asymmetry is itself unfair. Union

efforts to combat it therefore draw an adidtional meas-

17 Section 9(a), 29 U.S.C. 5 159 (a), parallels section 8(d) in

stating:

Representatives designated or selected for the purposes of col-

lective bargaining by the majority of the employevs in a unit

appropriate for such purposes, shall be the exclusive representa-

tives of all the employees in such unit for the pu: poses of col-

lective bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment

(emphasis added).

50a

ure of legitimacy from the union duty to provide fair

representation to its members as well as others in the

bargaining unit.

Common sense and fundamental fairness rebel at the

notion that a private organization can be prohibited from

collecting expenses it incurs on behalf of nonmembers

whom it is required by law to represent. In its most ex-

treme formulation, such a proposition may even raise

questions of a constitutional magnitude. See, e.g., FPC

v. Hope Natural Gas Co., 320 U.S. 591, 602-03 (1944) ;

FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585-86

(1942) (defining “reasonable rates” in utility regulation

as those that are “not confiscatory in the constitutional

sense”). The burden of proof falls on those who sug-

gest that section 14(b) reflects the adoption of such an

extreme view by Congress,“ and that burden has not

been carried.

The NLRB dismisses the inequitable situation facing

Local 681 by asserting that “the change must be made

by Congress, not by the Board or this Court.” Brief for

Petitioner NLRB at 21. The suggestion is inappropriate

because the problem has not been created by Congress.

It is the courts, not Congress, that have required unions

to expand their representational activities as collective

bargaining and contract enforcement have grown in

scope. It is the NLRB, not Congress, that has pro-

hibited unions from collecting special fees from nonunion

employees to cover the cost of their grievances and ar-

18 It is probable that Congress never considered this question at

all, due to the evolution of collective bargaining in the years since

the Taft-Hartley Act was passed. Before the duty of fair rep-

resentation was elaborated by the courts, free riders did not directly

harm unions but simply failed to bene‘it them. See pp. 4-5 supra.

This point underscores the inequity of the view that the majority

now ascribes to Congress. More important, it demonstrates the

total lack of support for such a holding, because Congress could

hardly have intended section 14(b) to govern tensions that did

not yet exist.

5la

bitrations. It does not usurp the role of Congress to

hold section 14(b) to its terms. Nothing on the face of

section 14(b) or in its legislative history allows the

states to ban representation fee arrangements, because

these arrangements do not constitute “compulsory union-

ism” or condition the right to work on loss of associa-

tional freedom. Section 14(b) was enacted to keep unions

from victimizing workers, not to let nonunion workers

victimize unions by demanding services without paying

the costs. Section 14(b) gives the states only the au-

thority to ban compulsory unionism. “Compulsory union-

ism under the Taft-Hartley Act thus has a very limited

meaning.” Rosenthal, The National Labor Relations Act

and Compulsory Unionism, 1954 Wis. L. REv. 53, 68. As

the Supreme Court observed in International Bhd. of

Teamsters v. NLRB, 365 U.S. at 674: “There being no

express ban of hiring halls in any provisions of the Act,

those who add one, whether it be the Board or the courts,

engage in a legislative act.” The same concern should

trouble those who read section 14(b) as allowing the

states to prohibit valid representation fees.

CONCLUSION

Section 14(b) expresses the policy of federal labor law,

however controversial it may be. Organized labor tradi-

tionally opposes right-to-work laws, and seeks eviscera-

tion of section 14(b), but the unions may not be allowed

to accomplish through litigation what they cannot obtain

from Congress. By no account should my views be un-

derstood as urging an end run around the position that

Congress has clearly taken.

But it seems equally injudicious for courts to ascribe

to Congress a position that it has not taken, especially

when doing so contravenes the balancing inherent in fed-

eral labor policy. The legislative history of section 14 (b)

utterly fails to support the majority’s view of this case,

and it seems irrefutable that the majority has misread

52a

Schermerhorn and other judicial interpretations of that

statute. By extending section 14(b) far beyond its terms,

the majority turns a blind eye to the model of trade

union democracy so clearly contemplated by Congress.

The majority offers no reason, whether rooted in judicial

precedent or legislative intent or sound policy, for such a

result.

Trade union democracy as contemplated by Congress

has and will require judicial interpretation that is some-

times complex, but the general principles are simple. In-

dividual workers have certain rights and freedoms that

must be protected from arbitrary union action; section

14(b) is one of the mechanisms that Congress intended

to protect these rights. On the other hand, the union

selected as the bargaining representative is the exclusive

bargaining representative not just of the majority who

support it, but of the entire bargaining unit. The union

therefore has obligation and responsibilities even to non-

union workers that lead to a “corresponding reduction in

the individual rights of the employees so represented.”

Vaca v. Sipes, 386 U.S. at 182. Even in the states that

have enacted laws pursuant to section 14(b), the mesh

between unions and workers has grown tighter over the

years whether that mesh is desired or not. It fully ac-

cords with the intent of Congress to take this fact into

consideration when analyzing the scope of section 14(b).

Workers who pay fees to cover the cost of their direct

representation are not thereby transformed into members

of the union because, as the Supreme Court has empha-

sized, “membership” means payment of dues and initia-

tion fees that support the union’s institutional expenses.

The model of trade union democracy with its problem

of free riders traditionally suggests an analogy to mili-

tary defense or police protection. Taxpayers receive these

services whether they desire them or not, and are not

permitted to reduce their taxes by the amount of “un-

wanted” service. The situation before us now is even

53a

more striking; the better analogy is the taxpayer who

not only declines to support the police department, but

who demands that it send officers to check his home every

day while he is away on vacation. Even in a right-to

work state, nonunion employees cannot avoid union rep-

resentation and frequently benefit directly from particu-

lar union efforts in their behalf. Letting unions recoup

these costs of representation does not constitute coerced

“membership” within the meaning of section 14(b). Be-

cause judicial precedent and sound policy support this

conclusion, and the legislative history of section 14(b)

does not foreclose it, I respectfully dissent.

54a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

September Term, 1981

No. 80-2393

THE INTERNATIONAL UNION OF THE

UNITED ASSOCIATION OF JOURNEYMEN, et al.,

e Petitioners

NATIONAL LABOR RELATIONS BOARD,

Respondent

Argued: 10-29-81

Filed Jun. 2, 1982

Before: Robinson, Chief Judge, Wright, Tamm, Mac-

Kinnon, Wilkey, Wald, Mikva, Edwards, Gins-

burg and Bork, Circuit Judges

ORDER

Petitioners’ suggestion for rehearing en banc has been

circulated to the full Court. A majority of the Court has

not voted in favor of the suggestion. On consideration of

the foregoing, it is

ORDERED by the Court en banc that the aforesaid

suggestion is denied.

Per Curiam

For THE CouRT:

GEORGE A. FISHER

Clerk

BY: /s/Rebert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

Cireuit Judges Wald, Mikva and Edwards would grant

the suggestion for rehearing en banc.

55a

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 15—CB—1964

THE INTERNATIONAL UNION OF THE

UNITED ASSOCIATION OF JOURNEYMEN

AND APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY OF THE

UNITED STATES AND CANADA,

LOCAL UNIONS Nos. 141, 229, 681 AND 706

and

INTERNATIONAL PAPER COMPANY,

SOUTHERN KRAFT DIVISION

DECISION AND ORDER

On June 17, 1980, Administrative Law Judge Benjamin

Schlesinger issued the attached Decision in this proceed-

ing. Thereafter, Respondents filed exceptions and a sup-

porting brief, and the General Counsel filed limited ex-

ceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has de-

cided to affirm the rulings, findings,“ and conclusions of

1 We agree with the Administrative Law Judge’s conclusion of

law that Respondents violated Sec. 8(b)(3) of the Act by insisting

to the point of impasse upon the inclusion of a representation fee

clause “which is a non-mandatory subject of bargaining by virtue

56a

the Administrative Law Judge and to adopt his recom-

mended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of the

Administrative Law Judge and hereby orders that the

Respondents, The International Union of the United As-

sociation of Journeymen and Apprentices of the Plumbing

and Pipefitting Industry of the United States and Canada,

Local Unions Nos. 141, 229, 681 and 706, their officers,

agents, and representatives, shall take the action set forth

in the said recommended Order

Dated, Washington, D.C. September 30, 1980

JOHN H. FANNING, Chairman

HOWARD JENKINS, JR., Member

JOHN A. YENELLO, Member

NATIONAL LABOR RELATIONS BOARD

of any State Statute enacted pursuant to Section 14(b) of the Act

proscribing such clause.“ The Administrative Law Judge, however,

inadvertently failed to make a finding commensurate with this con-

clusion. Accordingly, we so find.

57a

APPENDIX D

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case No. 15-CB-1964

THE INTERNATIONAL UNION OF THE

UNITED ASSOCIATION OF JOURNEYMEN

AND APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY OF THE

UNITED STATES AND CANADA,

LocaL UNIONS Nos. 141, 229, 681 AND 706

and

INTERNATIONAL PAPER COMPANY,

SOUTHERN KRraFT DIVISION

Lee J. Romero, Jr., Esq., of

New Orleans, LA, for the

General Counsel.

Jerry L. Gardner, Jr., Esq.

(Barker, Boudreaux, Lamy,

Gardner & Foley), of New

Orleans, LA, for the

Respondent.

Michael Markowitz, Esq., of

New York, NY, for the

Charging Party.

DECISION

Statement of the Case

BENJAMIN SCHLESINGER, Administrative Law

Judge: This case was heard before me in New Orleans,

Louisiana, on February 12, 1980. The unfair labor prac-

tice charge was filed on October 20, 1977, by International

584

Faper Company, Southern Kraft Division, and a com-

plaint thereon issued alleging that International Union of

the United Association of Journeymen and Apprentices

of the Plumbing and Pipefitting Industry of the United

States and Canada and its Local Unions Nos. 141, 229,

681, and 706 (referred to collectively as “Respondents”

or individually by their respective local numbers), in-

sisted to the point of impasse and conditioned the execu-

tion of any collective bargaining agreement upon the in-

clusion of a clause requiring employees to pay to the

Respondents, as a condition of continued employment of

the employees, a “representation fee,” which General

Counsel alleges is violative of “right-to-work” laws in

Arkansas, Florida, Louisiana, and Mississippi, and have

threatened to strike and picket International Paper’s

Natchez, Mississippi plant in furtherance of the bargain-

ing demand. Respondents deny any violation of the Act,

contending that the “representation fee“ may be used

only for the discharge of their obligations as representa-

tive of employees imposed by the Act, and that Section

14(b) of the Act does not authorize the four States to

enact statutes prohibiting the collection of such “repre-

sentation fees” as a condition of employment.

Upon the entire record in this proceeding,’ including

my observation of the witness and his demeanor and the

1 The complaint is not completely clear that the International is

named as a separate party Respondent. However, because the clause

contested herein was insisted upon by the International, a party to

the collective bargaining agreement and negotiations, because the

unfair labor practice charge named the International as well as its

Locals, because the attorneys for the International were served with

all pleadings, and because full relief would not be afforded if the

International were not named, the International is treated herein

as a Respondent.

2 Much of the evidence presented herein was contained in a writ-

ten stipulation of facts. In addition, oral testimony was presented

by Respondents. General Counse! moved to correct the record in

certain respects and, there having been no opposition interposed,

the motion is granted and the record is corrected accordingly.

59a

briefs filed by General Counsel and the Respondent, I

make the following:

Findings of Fact

I. Jurisdiction

International Paper is a corporation duly organized

under and existing by virtue of the laws of the State of

New York, with offices and facilities located in Camden,

Arkansas; Panama City, Florida; Springhill, Louisiana;

and Natchez, Mississippi, where it is engaged in the man-

ufacture, sale, and distribution of paper and related prod-

ucts. During the 12 months preceding the date of the

complaint, a representative period, International Paper,

in the course and conduct of its business operation, sold

and shipped from each of its facilities, goods and mate-

rials valued in excess of $50,000 directly to points located

outside each respective State. As a consequence, I find;

as the parties have stipulated, that International Paper

is now and has been at all times material herein an em-

ployer engaged in commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

I further find, as Respondents admit, that they are and

have been at all times material herein labor organizations

within the meaning of Section 2(5) of the Act, and have

engaged in group bargaining with International Paper as

representative of all pipefitters, their helpers and leadmen

at the four plants—Local 706 (located at El Dorado, Ar-

kasas), representing the Arkansas facility; Local 229 (lo-

cated at Panama City, Florida), Florida; Local 141 (lo-

cated at Shreveport, Louisiana), Louisiana; and Local

681 (located at Jackson, Mississippi), Mississippi.

60a

II. The Alleged Unfair Labor Practices

A. The Facts

1. The Respondents’ Proposal

and Negotiations

All of International Paper’s facilities employed less than

50 pipefitters—the Louisiana plant employed the largest

number of employees within the bargaining unit, 46 em-

ployees; the smallest was Arkansas, with only 29 employ-

ees. Even though the plants were located in “right-to-

work” States, union membership was high, with the most

obvious exception being in Mississippi, where Local 681’s

membership refused in 1974 to pay a yearly working as-

sessment of 2 percent of wages, over and above monthly

dues of $8.25; and membership declined from 38 to 1, the

latter being the shop steward who by virtue of his posi-

tion was not required to pay dues.

As a result of that condition —a union which had no

paying membership, yet which was required as collective

bargaining agent to represent all of the members of the

bargaining unit in negotiations and grievances—the Re-

spondents proposed on May 24, 1977, the first negotiating

session for a new contract to replace the one expiring on

May 31, that the clause providing for the payment of

union dues be amended by providing

.. for an administrative fee or lective bargain-

ing fee, for employees that elect not to be members of

the contracting unit and, for whom there are no

signed authorization checkoffs.

The administrative fee or contract or representa-

tion fee, shall be the same as to which members of

The other Locals did not have similar problems. All of the 46

and 37 employees represented by Local 141 and 229, respectively,

continued to maintain their membership. Only two of the 29 em-

ployees represented by Local 706 refused to pay their dues.

All dates refer to the year 1977, unless otherwise stated.

6la

the collective bargaining unit shall be obligated to pay

under the constitution and bylaws of the bargaining

unit for that mill.

International Paper’s representatives immediately ques-

tioned the legality of this proposal, in view of the various

States’ prevailing “right-to-work” laws. Respondents,

however, argued the fairness of their proposal, explaining

that the Locals had a legal obligation to fairly represent

all members of the bargaining unit, both dues-paying and

non-members, and that particularly Local 681 had a fi-

nancial obligation which it could not otherwise meet.

Negotiations continued in July and August, all the Re-

spondent’s initial proposals had been thoroughly negoti-

ated, and agreement had been reached, save for the ques-

tioned “representation fee” proposal; and negotiations

continued until December 8, when the parties finally exe-

cuted an agreement, effective retroactively to June 1 and

expiring by its terms on May 31, 1979, covering all of

the terms and provisions of employment. The parties, by

separate stipulation, left the question of the legality of

the “representation fee” proposal for resolution in this

proceeding.

Ir. the meantime, on or about August 12, the Respond-

ents amended their initial demand for a “representation

fee,” proposing as follows:

Each employee covered by this agreement and rep-

resented in collective bargaining by the union, who is

not now or who at anytime fails to become and re-

main a member of the union shall after 30 days and

within 60 days after the date of this agreement or

the date he drops out of the union, either directly or

through assigned check-off, pay a pro rata service fee

to the union which shall be less than monthly union

dues to cover the cost of representation by the union.

This fee shall be paid on a monthly basis and shall

not in any way entitle the employees to the benefits

and emoluments or subject him to the requirements

62a

of union membership. The above clause shall apply

to all employees hired while this agreement is in

effect.

Employees who are union members in good stand-

ing shall not be required to make this payment. The

Employer agrees that any employee who fails to pay

timely within 5 days after the first of each month the

monthly pro rata service fee shall be terminated by

the company from his employment upon 10 days writ-

ten notice given to said employee and to the company

by the union.

This proposal constitutes a change from the May 24

proposal, which required non-members to pay an amount

equal to union dues, to a pro rata service fee . . . which

shall be less than monthly union dues.” Harry Rosenthal,

Local 681’s business manager, explained that this fee

amounted to only the 2 percent working assessment which

was part of Local 681’s dues. Although the other three

Locals had no significant problem with depletion of their

membership and payment of expenses incurred in repre-

senting them, both Locals 141 and 706 explained that the

representation fee they sought was the same as their

members’ dues.

Finally, by letter dated September 19, the Respondents’

proposal was further refined, as follows:

The cost and expenses of representing all members

of the bargaining unit, without regard to union af-

filiation or lack of same must be borne by all bargain-

ing unit employees.

All bargaining unit employees who voluntarily

chose to become members of the union shall be re-

quired to pay periodic dues, initiation fees and assess-

ments uniformly required as a condition of acquiring

or retaining union membership.

Those unit employees who voluntarily choose not

to become union members shall be required to con-

63a

tribute a pro rata share of the costs and expenses in-

curred by the union that are directly related to en-

forcing and servicing the collective bargaining agree-

ment. The representation fee will apply only when a

collective bargaining agreement is in effect. Further-

more, in no case will the fee exceed the dues and as-

sessments required of union members.

Failure of any permanent employee to make pay-

ment of the representation fee each month and to

maintain the payments during employment under this

agreement shall constitute grounds for dismissal

after ten (10) days written notice to the employee

and the company.

The amount of the representation fee will be based

upon an independent audit to determine those services

performed by the union directly related to the collec-

tive bargaining process. Upon receipt of the results

of the audit the company will begin effective the fol-

lowing payroll period to check off the representa-

tion fee. The first payment will be due 31 days

after the effective date of the agreement.

This clause will be effective in all states where sub-

division (A) is prohibited by law.“

On September 28, International Paper rejected the Re-

spondents’ proposal, stating that: “Settled legal authority

makes it clear that in the states of Arkansas, Louisiana,

Florida and Mississippi all such clauses are versions of

agency shop clauses and hence prohibited by the Right-

To-Work laws of those states.” Further negotiations in

October to resolve the dispute proved unsuccessful; and

5 Subdivision (A) contained a union shop agreement, requiring

permanent employees to become members of the “Union” (described

as the International and all four Locals) not earlier than the 31st

day and not later than the 37th day following the beginning of

their employment, or the effective date of the agreement, which-

ever is later.

64a

by letter dated October 17, Respondents gave notice of

their intent to terminate the agreement because Interna-

tional Paper refused “to meet and bargain further or

agree to a proposed representation fee.” Respondents fur-

ther advised that picketing would commence at the Missis-

sippi plant on October 31. Upon receipt of Respondents’

letter, or shortly after, International Paper filed the

charge herein.

B. Discussion

General Counsel contends that the proposed “representa-

tion fee” clause is a non-mandatory subject of collective bar-

gaining—and, as such, Respondents were not permitted to

bargain upon it to impasse by virtue of State statutes °

The relevant statutes are as follows:

Arkansas STAT. ANN. §§ 81-201 - 81-205, entitled “Right to

Employment.” § 81-202 reads:

Affiliation with or failure to join union as condition of em-

ployment prohibited.—No person shall be denied employ-

ment because of membership in, or affiliation with, a labor

union; nor shall any person be denied employment be-

cause of failure or refusal to join or affiliate with a labor

union; nor shall any person unless he shall voluntarily

consent in writing to do so, be compelled to pay dues, or

any other monetary consideration to any labor organiza-

tion as a prerequisite to, or condition of, or continuance

of, employment.

Louisiana Rev. STAT. ANN. §§ 23:981-987 (West). Sections

983 and 984 state:

Sec. 983. Freedom of choice.—No person shall be required,

as a condition of employment, to become or remain a mem-

ber of any labor organization, or to pay any dues, fees,

assessments, or other charges of any kind to a labor or-

ganization.

Sec. 984. Certain agreements declared illegal.—Any agree-

ment, understanding ur practice, written or oral, implied

or expressed, between any employer and any labor organiza-

tion in violation of the provisions of this Act is hereby de-

clared to be unlawful, null and void, and of no legal effect.

65a

or constitutional provisions enacted under the authority

of Section 14(b) of the Act* Respondents defend on the

ground that Section 14(b) of the Act does not authorize

States to prohibit the collection or assessment of neces-

sary fees, expenses, or costs from non-union employees

for the maintenance of legal obligations imposed upon the

Respondents by virtue of their duty to bargain collectively

for and fairly represent all employees within the bargain-

ing unit.

I. Section 8(a) (3)

No party argues that the proposed clause violates Sec-

tion 8(a) (3) of the Act,“ which makes it illegal for an

7On June 22, 1960, the right-to-work amendment to Article VII

of the Mississippi State Constitution went into effect by the adop-

tion of Miss. Cope ANN. § 198-A, which reads in pertinent part

as follows:

Sec. 198-A. ... 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.

Article I, Section 6 of the Constitution of the State of Florida

provides that the right of persons to work shall not be denied or

abridged on account of membership or non-membership in a labor

organization. The State Sup eme Court has held that the Constitu-

tion forbids agency shop clauses or agreements. Schermerhorn v.

Local 1625, Retail Clerks, 141 So. 2d 269 (1962), aff'd 373 U.S.

746 (1963). In Florida Education Association/United v. Public

Employees Relations Commission, 34€ So. 2d 551 (Ist Dist., Fla.,

1971), an intermediate appellate court ad that a “fair share fee

for services” provision similar to the representation fee involved

herein is an agency shop provision within the meaning of Schermer-

horn and, accordingly, is prohibited by the Constitution of Florida.

Section 14(b) provides:

Nothing in this Act shall be consv. d as authorizing the execu-

tion or application 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 pro-

hibited by State or Territorial law.

® Section 8 (a) (3) provides that it shall be an unfair labor prac-

tice for an employer:

66a

employer to discriminate against employees “to encourage

or discourage membership in any labor organization.” In-

deed, Respondents, without discussing the matter in their

brief, assume the legality of their proposal under Fed-

eral law, while arguing that the proposed “representation

fee” clause does not require membership in a union and

this does not clash with the literal language of Section

14(b) permitting the States to prohibit agreements which

require such membership.

It is clear that the Respondents’ proposal is, as a matter

of law, permitted by Section 8(a)(3). The Supreme

Court, in N.L.R.B. v. General Motors Corp., 373 U.S. 737

by discrimination in regard to hire and tenure of employ-

ment or any term or condition of employment to encourage or

discourage membership in any labor organization: Provided,

That nothing in this Act, or in any other statute of the United

States, shall preclude an employer from making an agr nent

with a labor organization (not established, maintained, or as-

sisted by any action defined in Section 8(a) of this Act 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 organiza-

tion is the representative of the employees as provided in Sec-

tion 9(a), in the appropriate collective-bargaining union cov-

ered by such agreement when made, and (ii) unless following

an election held as provided in Section 9(e) 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 employee 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 mem-

bership was denied or terminated for reasons other than the

failure of the employee to tender the periodic dues and the

initiation fees uniformly required as a condition of acquiring

or retaining membership.

67a

(1963), held that an agency shop, but rather requires

payment of initiation fees and dues equal to that of mem-

bers, to be nonviolative of Section 8(a) (3). In so doing,

the Supreme Court found the agency shop proposal in Gen-

eral Motors to be the “practical equivalent“ of member-

ship. (373 U.S. at 743.) The respondent there further

contended that, because the union’s proposal did not re-

quire actual membership in a union, but only that fees

and dues had to be paid, the clause was not saved by

Section 8 (a) (3)’s proviso. The Court answered, 373 U.S.

at 742-743:

This position, of course, would reject administra-

tive decisions concerning the scope of § 8(3) of the

Wagner Act, e.g., Public Service Co. of Colorado,

supra. [89 NLRR 418 (1950)] reaffirmed by the

Board under tile .'t-Hartley amendments, American

Seating Co., 98 .«LRB 800.“ Moreover, the 1947

amendments not only abolished the closed shop but

also made significant alterations in the meaning of

“membership” for the purposes of union security con-

tracts. Under the second proviso to § 8(a) (3), the

burdens of membership upon which employment may

be conditioned are expressly limited to the payment

8 In that case, the Board stated:

As to the requirement in paragraph 4 that religious

objectors who do not become members pay to the Inter-

venor sums equivalent to dues, the Board has ruled that

closed-shop agreements providing for “support money”

payments did not violate the proviso to Section 8(3) of

the Wagner Act. As the precise language of the 8(3)

proviso in the Wagner Act was continued in the amended

Act with certain added qualifications not pertinent here,

and because the legislative history of the amended Act

indicates that Congress intended not to illegalize the

practice of obtaining support payments from nonunion

members who would otherwise be “free riders,” we find

that the provision for support payments in the instant

contract does not exceed the union-security agreements

authorized by the Act. 98 N.L.R.B., at 802.

68a

of initiation fees and monthly dues. It is permissible

to condition employment upon membership, but mem-

bership, insofar as it has significance to employment

rights, may in turn be conditioned only upon pay-

ment of fees and dues. “Membership” as a condition

of employment is whittled down to its financial core.

This Court has said as much before in Radio Officers

Union v. Labor Board, 347 U.S. 17, 41:

This legislative history clearly indicates that

Congress intended to prevent utilization of union

security agreements for any purpose other than

to compel payment of union dues and fees. Thus

Congress recognized the validity of unions’ con-

cern about “free riders,” i.e., employees who re-

ceive the benefits of union representation but

are unwilling to contribute their fair share of

financial support to such union, and gave unions

the power to contract to meet that problem

which with-holding from unions the power to

cause the discharge of employees for any other

reason 1

In Algoma Plywood & Veneer Co. v. Wisconsin Em-

ployment Relations Board, 336, U.S. 301, 307 (1949), a

pre-Taft-Hartley Act case involving the validity of a

maintenance of membership agreement under the then Sec-

tion 8(3), the Supreme Court stated that that Section

“merely disclaims a national policy hostile to the closed

shop or other forms of union-security agreement.” (Em-

phasis supplied.) The board long since has construed the

proviso as shielding from an unfair labor practice charge

less severe forms of union security arrangements. See,

for example, M. & J. Tracy, 12 NLRB 916, 934-934

(1939); J. E. Pearce Contracting and Stevedoring Co.,

Inc., 20 NLRB 1061, 1070-1073 (1940). The Supreme

Court added, in General Motors, 373 U.S. at 741, that:

There is much to be said for the Board’s view

that, if Congress desired in the Wagner Act to per-

69a

mit a closed or union shop and in the Taft-Hartley

Act the union shop, then it also intended to preserve

the status of less vigorous, less compulsory contracts

which demanded less adherence to the union.

I conclude that the “respresentation fee” clause, de-

manding less adherence to the Respondents, is not the type

of “compulsory unionism” or “union security” Congress

sought to outlaw and is therefore permissible under Sec-

tion 8(a) (3).

2. Permissive or Mandatory

Subject of Bargaining

Section 8(d) of the Act requires that an employer and

union representing its employees must “. . . bargain col-

lectively . . . with respect to wages, hours, and other

terms and conditions of employment.” The Board has long

held that “union security” is a condition of employment.

Andrew Jergens Co., 76 NLRB 363 (1948), enf’d 175

F.2d 130 (C.A. 9, 1949), cert. denied, 338 U.S. 827

(1949). The “representation fee” proposal in issue is a

type of union security device that conditions continuing

employment upon regular tender of such fee. I conclude,

without considering the effect of the various State laws,

that the representation fee clause is a mandatory subject

of bargaining within the meaning of Section 8(d).

3. State Laws Enacted

Pursuant to Section 14(b)

Even though the particular “representation fee” clause

is lawful under Section 8(a) (3), General Counsel urges

that such clause is still unlawful by virtue of either State

statute or constitutional provision in each of the States

in which the collective-bargaining agreement would ap-

ply. The agreement would be applicable at Respondent’s

facilities in Arkansas, Florida, Louisiana, and Mississippi,

States in which “right-to-work” laws have been enacted.

70a

Arkansas, Louisiana and Mississippi have in effect stat-

utes which expressly prohibit agreements which require

non-union members to pay dues, fees, assessments, or any

other form of monetary consideration to any kind of labor

organization as a condition of employment. Clearly, in

these States, any fee such as one proposed by Respondents

is prohibited. Florida’s constitutional provision, although

not specifically outlawing any required payments to a

labor organization, has been construed to prohibit both

the agency shop and a “fair share“ requirement,“ equiv-

alent to the pro rata share requirement proposed by Re-

spondents. I agree with Genera! Counsel that the proposed

“representation fee” clause is violative of State laws en-

acted pursuant to Section 14(b), in each of the States

involved."

Turning to Respondents’ claim that Section 14(b) of

the Act does not authorize the States to pass laws which

prohibit the collection of any amount based solely on the

labor organization’s cost of servicing bargaining unit

employees, the answer is less apparent. In Retail Clerks

International Association, Local 1625 v. Schermerhorn,

373 U.S. 746, the union and employer had agreed upon a

provision requiring all employees who chose not to join

the union to pay to the union, as a condition of employ-

ment, an initial service fee and monthly service fees for

the purpose of aiding the union in defraying costs in con-

nection with its legal obligations and responsibilities as

the exclusive bargaining agent. The service fee was “ad-

mittedly the exact equal of membership initiation fees and

monthly dues,” 373 U.S., at 753; and the Court found that

there was no difference between the clause in dispute,

which it found to fall within the purview of Florida’s

1% See footnote 7, supra.

11 Respondents do not suggest a contrary result. Cf., United

Steelworkers of America, AFL-CIO (Midland Rose Corporation),

199 NLRB 153 (1972).

71a

“right-to-work” constitutional provision and thus illegal,

and the agency-shop clause in General Motors, which it

found legal under Section 8(a) (3) of the Act.

The more difficult question presented herein is the re-

lationship between Section 8(a) (3) and 14(b), a matter

left open in Retail Clerks v. Shermerhorn, 373 U.S., at

751-752, where the Court wrote:

. . . $14(b) was designed to prevent other sections

of the Act from completely extinguishing state power

over certain union-security arrangements. And it

was the proviso to § 8(a) (3), expressly permitting

agreements conditioning employment upon member-

ship in a labor union, which Congress feared might

have this result. It was desired to “make certain”

that § 8(a)(3) could not “be said to authorize ar-

rangements of this sort in States where arrangements

were contrary to the State policy.” H.R. Conf. Rep.

No. 510, 80th Cong., Ist Sess. 60, 1 Leg. Hist.

L. M. R. A. 564.

The connection between the § 8 (a) (3) proviso and

$ 14(b) is clear. Whether they are perfectly coinci-

dent, we need not now decide, but unquestionably

they overlap to some extent. At the very least, the

agreements requiring “membership” in a labor union

which are expressly permitted by the proviso are the

same “membership” agreements expressly placed

within the reach of state law by § 14(b). It follows

that the General Motors case rules this one, for we

there held that the “agency shop” arrangement in-

volved here—which imposes on employees the only

membership obligation enforceable under § 8(a) (3)

by discharge, namely, the obligation to pay initiation

fees and regular dues—is the “practical equivalent”

of an “agreement requiring membership in a labor

organization as a condition of employment.” What-

ever may be the status of less stringent union-security

arrangements, the agency shop is within § 14(b). At

72a

least to that extent did Congress intend § 8(a) (3)

and § 14(b) to coincide. (Footnote omitted.)

The issue herein, then, is whether Section 14(b) and

8 (a) (3) are coincident to the extent that even a service

fee clause requiring a non-member to pay to the Re-

spondents less than normal dues, may be barred by the

State statutes and constitutional provisions. The answer,

in turn, depends upon what Congress meant by the terms,

“union security” and “compulsory unionism,” which Con-

gress in 1947 sought to remove entirely from federal

preemption and to permit as subjects of State action.

The 1947 amendments, known as the Taft-Hartley Act,

had their genesis in H.R. 3020, introduced by Representa-

tive Hartley in the 80th Congress, First Session. In rele-

vant part, H.R. 3020 banned the closed shop provisions

(by which all employees must be members of a union in

order to obtain employment) only if the employees had

selected the union by secret ballot and if a majority of

the employees had authorized the union to enter into such

an agreement. No strike was permitted to compel such

agreement, which in any event might be entered into

only “if the agreement is not prohibited by State law.”

H.R. Rep. No. 245, Soth Cong., Ist Sess. 9, 1 Leg. Hist.

L.M.R.A. 300.

In its “Analysis of Provisions,” the Report noted that:

“While the bill abolishes the closed shop, it permits

It is unciear what amount non-member employees would be

required to pay. At the bargaining table, Rosenthal maintained

that they would pay 2 percent of their earnings, an amount which

exceeded Rosenthal’s computations, apparently prepared for this

proceeding and never discussed at the bargaining table, of the pro

rata share due under the September 19 proposal. Two of the

other Locals merely stated that their service fee was the equivalent

of membership dues. The posture assumed by these two Locals was

contrary to the teaching of Retail Clerks v. Schermerhorn. How-

ever, the complaint places at issue only the validity of the last

of Respondent’s proposals and does not rely upon the bargaining

history ; and I limit this decision to that issue.

73a

such forms of compulsory unionism as the union shop and

maintenance of membership.” However, those agreements

are valid “only if they are valid under the laws of any

State in which they are to be performed,” and by the

predecessor to Section 14(b) as enacted, “the United

States expressly declares the subject of compulsory union-

ism one that the States may regulate concurrently with

the United States, . . . notwithstanding that the State

laws limit compulsory unionism more drastically than

does Federal law.” H.R. Rep. No. 245. p. 34, 1 Leg. Hist.

L.M.R.A. 325; emphasis supplied.

Similarly, Senate Committee Report No. 105 recog-

nized, at page 6, 1 Leg. Hist. L.M.R.A. 412, that in 1935,

when Congress reported the bill which became the Na-

tional Labor Relations Act, Congress . . made clear

that the proviso in Section 8(3) [the predecessor to Sec-

tion 8(a)(3)] was not intended to override State laws

regulating closed shops.” Senator Taft, presenting the

Senate Conference Report during open Senate debate,

noted that a new subsection had been added to Section

14, namely Section 14(b), to make it “perfectly clear that

nothing in the act is to be construed as authorizing com-

pulsory union membership agreements, in States where the

execution or enforcement of such agreements would be

contrary to State law,” adding that many States had

enacted laws or adopted constitutional provisions “to

make all forms of compulsory unionism in such States

illegal” and that it was not the intent to deprive the

States of such power. 93 Cong. Rec. 6602, 2 Leg. Hist.

L.M.R.A. 1543.

When the House Conference reported on Section 14(b),

H.R. Conf. Rep. No. 510, p. 60, 1 Leg. Hist. L.M.R.A.

564, it noted that it had included a new Section 13 (its

predecessor to Section 14(b)} “to assure that nothing in

the act was to be construed as authorizing any closed shop,

union shop, maintenance of membership, or other form

of compulsory unionism agreement in any State where the

74a

execution of such agreement would be contrary to State

law.“ It added: It was never the intention of the Na-

tional Labor Relations Act... to deprive the States of

their powers to prevent compulsory unionism. ... To

make certain that there should be no question about this,”

the Conference agreement noted that Section 14(b) “con-

tains a provision having the same effect.”

H.R. 3020, as amended in conference, finally passed both

Houses of Congress, but President Truman vetoed the bill

on June 20, 1947, noting with reference to Section 14(b)

that:

{[I]n one important area the bill expressly aban-

dons the principle of uniform application of national

policy under Federal law. The bill’s stated policy of

preserving some degree of union security would be

abdicated in all States where more restrictive policies

exist. In other respects the bill makes clear that Fed-

eral policy would govern insofar as activities affect-

ing commerce are concerned. This is not only an in-

vitation to the States to distort national policy as

they see fit, but is a complete forsaking of a long-

standing constitutional principle. 93 Cong. Rec. 7503,

1 Leg. Hist. L.M.R.A. 920-921.

It thus appears that both proponents and opponents

fully understood that the scope of Section 14(b) granted

to the States the power to enact legislation covering the

breadth of compulsory unionism. Union security would be

“abdicated in all States where more restrictive policies

exist.” [Other form[s] of compulsory unionism,” in

addition to closed shops, union shops, and maintenance of

membership, could be contrary to State law; and “all

forms of compulsory unionism” could be made illegal.

Indeed, Congress was aware that by 1947, 12 States had

made .mpulsory union agreements illegal and in 14

other States proposals for abolishing such contracts were

then pending. S. Rep. No. 105, p. 6, 1 Leg. Hist. L. M. R. A.

75

412; H.R. Rep. No. 245, p. 34, 1 Leg. Hist. L. M. R. A.

325. Included in the 12 States were Arkansas, involved

herein; Georgia, GA. Cop ANN, § 54-904; and Tennessee,

TENN, CopDE ANN. § 50-210—each of which had legislated

against any payment to a union by an employee as a con-

dition of his employment. There is nothing to demonstrate

that such a broad prohibition by States had not been con-

templated by Congress when it enacted Section 14(b) of

the Act.

Union security and compulsory unionism have as their

object a forced adherence of an employee to the union.“

The Respondents herein sought pro rata payments to them

as a condition of employment of non-members. That was

as much a “financial core” of compulsory unionism to non-

members, N. LR. B. v. General Motors Corp., 373 U.S.

at 742, as was payment of full dues and initiation fees by

Respondents’ members.“

1 Union security clauses have been defined as “[c]lontract pro-

visions requiring employees to become or remain union members

under certain circumstances, or to pay the union a fee for serving

as their bargaining agent.” Bureau of National Affairs, Labor

Relations Expeditor, p. 835 (1980).

1 Respondents’ contentions raise the additional question of

whether a “representation fee” clause may be declared valid solely

because a union does not expend the equivalent of members’ dues.

There are many times that a union is so involved in lengthy ne-

gotiations, critical grievances, and litigations that it must expend

monies in excess of its dues receipts. Query, whether a “representa-

tion fee” clause, valid under Respondents’ analysis because their ex-

penses were less than dues, becomes invalid once expenses approach

or exceed members’ dues so that the effect of the clause “is the

same as the General Motors agency shop arrangement.” Retail

Clerks v. Schermerhorn, 373 U.S., at 754. Indeed, under Respond-

ents’ proposal, which states that “in no case will the fee exceed

the dues and assessments required of union members,” there is the

possibility that a non-member may lose employment because he did

not pay more than “periodic dues and . . . initiation fees,” the limit

permitted by Section 8(a)(3). Peerless Took and Engineering Co.,

111 NLRB 853 (1955), enf’d 231 F.2d 298 (C.A. 7, 1956), cert.

denied 352 U.S. 833 (1956).

16a

Respondents’ argument—that their “representation fee”

clause is valid because such fees are necessary for them

to meet their duty to fairly represent all employees, both

union members and non-members—misses the point. It

is entirely accurate, as Respondents contend that the Su-

preme Court has often noted the paramount importance of

the duty of fair representation to the Federal labor law,

Vaca v. Sipes, 386 U.S. 171 (1967) ; International Associ-

ation of Machinists, 367 U.S. 740 (1961) ; and that meet-

ing this duty often entails “expenditure of much time and

money.” Abood v. Detroit Board of Education, 431 US.

209, 221 (1977).

If the Congress was unaware of the duty of fair repre-

sentation, it certainly knew that in the absence of union

security provisions, “many employees sharing the benefits

of what unions are able to accomplish by collective bar-

gaining will refuse to pay their share of the cost.” How-

ever, even with the knowledge that unions have a duty to

bargain under Section 8 (b) (3) of the Act, the Congress

compromised the issue of permissible union security pro-

visions under the Act.

As noted, supra, the amendment to Section 8(a) (3)

was intended to remedy serious abuses of the closed shop

while perm’tting the elimination of “free riders” after 30

days’ employment. “As far as the federai law was con-

cerned, all employees could be required to pay their own

way.” N. L. R. B. v. General Motors Corp., 373 U.S., at

741. However, the cession to the States of power to enact

their own legislation limiting “compulsory unionism more

drastically then does federal law” was a deliberate judg-

ment of Congress to permit the States to make their own

judgment on the issue of “free riders.”

I do not suggest that there is no justification for the

Respondents’ “free rider” argument. Not only are Re-

spondents required to render services to all employees, at

great expense; but also, if they do not render such serv-

ices, they may be held liable for damages. Yet, I recognise

77

that under this Decision, in the four States, they have no

power to force the employees who reap the benefits of rep-

resentation to contribute their fair share to enable Re-

spondents to perform the functions they are legally re-

quired to perform.

However, Respondents fail to recognize that they be-

came the exclusive collective-bargaining representative not

because of any inherent and inalienable right. Rather,

their status was determined by the exercise by Interna-

tional Paper’s employees of their right to self-organization

under Section 7 of the Act. If those employees sought Re-

spondents’ aid as exlusive representative, but withheld

financial support so that Respondents could not afford to

carry out their legal responsibilities, except at their own

expense, then Respondents might merely disclaim any in-

terest in representing those employees.

Obviously, the “right-to-work” laws merely make more

difficult a union’s task of ensuring the adherence of em-

ployees, because their jobs may not be jeopardized if they

refuse such financial support. This is not to say that,

under Federal law, in non-“right-to-work” States, the same

situation may not apply. The first proviso to Section 8(a)

(3) permits employees to rescind the authority of a labor

organization to enter into a union security clause, and if

the employees do so, a labor organization is placed in the

same dilemma that it always faces in a “right-to-work”

State—where to obtain sufficient assets to pay for its ob-

ligations. That is the practical problem Respondents pose

in this proceeding; but it is a problem previously consid-

ered by Congress and rejected.

Although the issue presented in this proceeding has

never been decided by the Board, two related decisions

lend support to the conclusion I have reached. In Hughes

Tool Company, 104 NLRB 318 (1953), a union in a

“right-to-work” State attempted to protect the dues paid

by its members by charging non-members a service fee

78a

for pursuing grievances and arbitration. The Board

wrote, at page 329:

The independent is barred, by the law of the State of

Texas, from obtaining compulsory membership. We

do not believe that, in the alternative, it may require

a fee from nonmember employees for services which

are due the latter as a matter of right. By adopting

such a procedure, the Independent has, in effect, taken

the position that it will only represent its members

in the important area of contract administration.

In International Association of Machinists and Aero-

space Workers, Local Union No. 697, AFL-CIO (The

H. O. Canfield Rubber Company of Virginia, Inc.), 223

NLRB 832 (1976), the union was charged with a viola-

tion of Section 8 (b) (1) (A) for failing and refusing to

arbitrate grievances of a non-member unless the em-

ployee paid the cost of arbitration. The union contended

that doing so was reasonable and necessary to protect dues

paid by its members from being eroded by expenditures

to protect non-members and argued that it must be able

to protect itself from “freeriders.” The Board concluded

that the union, “by charging only nonmembers for griev-

ance representation, has discriminated against nonmem-

bers. We further find that a grievance procedure is vital

to collective bargaining and that grievance representation

is due employees as a matter of right. To discriminate

against ronmembers by charging them for what is due

them by right restrains them in the exercise of their

statutory rights.” 223 NLRB at 835.

Faced with these decisions, Respondents argue merely

that they are incorrect and should be summarily reversed.

That argument, of course, is more properly addressed

to the Board, since the powers of an Administrative Law

Judge are limited “to apply established Board precedent

which the Board or the Supreme Court has not reversed.”

See, e.g., Capitol Foods, Inc. d/b/a Schulte’s IGA Food-

79a

liner, 241 NLRB 855 (1979). Applying Board law, I

conclude that Respondents’ “representation fee” clause

would permit them to charge for grievances and for col-

lective bargaining which is due non-member employees

as a matter of right and would violate Section 8(b) (1)

(A) of the Act. The clause is, therefore, a non-

mandatory subject of bargaining; and Respondents vio-

lated Section 8(b) (3) by insisting upon its inclusion in a

collective-bargaining agreement.

III. The Effect of the Unfair

Labor Practices Upon Commerce

The activities of Respondents, set forth in Section II

above, occurring in connection with International Paper’s

operations, described in Section I above, have a close, inti-

mate and substantial relationship to trade, traffic, and

commerce among the several States. and lead to labor dis-

putes burdening and obstructing commerce and the free

flow thereof.

Conclusions of Law

1. The Respondents are labor organizations within the

meaning of Section 2(5) of the Act.

2. International Paper is an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of the

Act.

3. By refusing to bargain in good faith with Interna-

tional Paper by insisting to a point of impasse, as a con-

dition of reaching any collective-bargaining agreement

with International Paper, upon the inclusion of a repre-

sentation fee clause or any other similar fee which is a

non-mandatory subject of bargaining by virtue of any

State statute enacted pursuant to Section 14(b) of the

Act proscribing such clause and by threatening to strike

and/or picket facilities of International Paper in further-

80a

ance of bargaining demands for inclusion of a non-

mandatory subject of bargaining in a collective-bargaining

agreement, Respondents have engaged in and are engaging

in unfair labor practices within the meaning of Section

8(b) (3) of the Act.

4. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning of

Section 2(b) and (7) of the Act.

The Remedy

Having found that the Respondents violated Section 8

(b) (3) of the Act, I shall order the Respondents to cease

and desist therefrom.

Normally, I would also recommend that Respondents

affirmatively bargain in good faith. However, General

Counsel has not requested such relief, which, I agree, is

unwarranted because none of the International Paper’s

four facilities are presently represented by Respondents,

as u result of sales, change of operations, or decertifica-

tions. No party claims, however, that this proceeding is

moot: all of Respondents are still viable organizations,

and International Paper still operates its Arkansas and

Mississippi facilities. A notice to employees will, there-

fore, serve as important function in effectuating the pur-

poses of the Act.“

Upon the basis of the entire record, the findings of fact,

and the conclusions of law, and pursuant to Section 10(c)

of the Act, I hereby issue the following recommended:

15 International Paper has another facility at Vicksburg, Missis-

sippi. The employees are represented Uy the International and its

Local Union No. 619. A similar issue has been raised in collective-

bargaining negotiations there; and the parties entered into an

agreement covering all terms and conditions of employment, but

preserved the demand for a “representation fee” pending the out-

come of this proceeding.

8la

ORDER

The Respondents, the International Union of the United

Association of Journeymen and Apprentices of the Plumb-

ing and Pipefitting Industry of the United States and Can-

ada, and Local Unions Nos. 141, 229, 681, and 706, their

officers, agents, and representatives, shall:

1. Cease and desist from:

(a) Refusing to bargain in good faith with Interna-

tional Paper Company, Southern Kraft Division, by in-

sisting to a point of impasse, as a condition of reaching

any collective-bargaining agreement with International

Paper, upon the inclusion of a representation fee clause

or any other similar fee which is non-mandatory subject

to bargaining by virtue of any State statute enacted pur-

suant to Section 14(b) of the Act proscribing such clause.

(b) Threatening to strike and/or picket facilities of In-

ternational Paper in furtherance of bargaining demands

for inclusion of a non-mandatory subject of bargaining

in a collective-bargaining agreement.

(e) In any like or related manner refusing to bargain

collectively with International Paper by insisting upon the

inclusion in a collective bargaining agreement of provi-

sions or proposals not related to wages, hours, and other

terms or conditions of employment.

2. Take the following affirmative action to remedy the

unfair labor practices found herein and to effectuate the

policies of the Act:

1% In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Relations

Board, the findings, conclusions, and recommended Order herein

shall, as provided in Section 102.48 of the Rules and Regulations,

be adopted by the Board and become its findings, conclusions, and

Order, and all objections thereto shall be deemed waived for all

purposes.

82a

(a) Post at Respondents’ business offices and meeting

halls, copies of the attached notice marked Appendix.“

Copies of said notice, on forms provided by the Regional

Director for Region 15, after being duly signed by Re-

sponderts’ representatives, shall be posted by Respondents

immediately upon receipt thereof, and be maintained by

them for 60 consecutive days thereafter, in conspicuous

places, at the International’s and each Local’s office, in-

cluding all places where notices to employees and members

are customarily posted. Reasonable steps shall be taken

by Respondents to insure tnat said notices are not altered,

defaced, or covered by any other material.

(b) Sign and mail to the Regional Director for Region

15, sufficient copies of said notice, on forms provided by

him, for posting at the premises of International Paper,

if the latter is willing.

(e) Notify the Regional Director for Region 15, in

writing, within 20 days from the date of this Order, what

steps Respondents have taken to comply herewith.

Dated, Washington, D.C. June 17, 1980

BENJAMIN SCHLESINGER

Administrative Law Judge

7 In the event that this Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice read-

ing “POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEAL3 EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELA-

TION BOARD.”

83a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-168

INTERNATIONAL UNION OF THE UNITED

ASSOCIATION OF JOURNEYMEN AND

APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY, ETC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner (s),

It Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including October 15,

1982

/s/ WARREN E. BURGER

Chief Justice of the United States

Dated this 24th

day of August, 1982

84a

APPENDIX F

SUPREME COURT OF THE UNITED STATES

No. A-168

INTERNATIONAL UNION OF THE UNITED

ASSOCIATION OF JOURNEYMEN AND

APPRENTICES OF THE PLUMBING

AND PIPEFITTING INDUSTRY, ETC.,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD

FURTHER

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner (s),

It Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, further extended to and including Oc-

tober 30, 1982

/s/ WARREN E. BURGER

Chief Justice of the United States

Dated this 10th

day of October, 1982