Amicus Curiae Brief — Reed v. Transportation Union

No. 87-1031

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

G. P. REED,

Petitioner,

v.

UNITED TRANSPORTATION UNION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

WALTER KAMIAT

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® oe... 60

Ss

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGU-

SITET Scinsbbtincanenininiiehdakabdninstdilditibceniiisiiginiteniapanccneoectpaniubieies

FREE EAE Oe Seen Ne

1. Federal “Borrowing” Doctrine ............................

2. The Close Relationship of LMRDA Title I to

the NLRA and to the Federal Labor Policy

3. The Appropriateness of “Borrowing” the

§ 10(b) Limitations Period for LMRDA Title I

OSE REE ES roo a

Page

25

29

ii

TABLE OF AUTHORITIES

CASES Page

Adkins v. International Brotherhood of Electrical

Workers, 769 F.2d 330 (6th Cir. 1985) —........ 4,19

Agency Holding Corp. v. Malley-Duff & Assoc.,

JA ff Xfi ea Se ee 5, 6

Alexander v. Operating Eng., 624 F.2d 1235 (5th

0 oar 27

Alvey v. General Electric Co., 622 F.2d 1279 (7th

+ er 19

American Postal Workers Union, Local 6885 v.

American Postal Workers Union, 655 F.2d 1096

CID.G. Cle. 2GBE ) —nccncececccicsececsissssiasssunsnne 19

Aquirre v. Automotive Teamsters, 633 F.2d 168

({. -+ See 19

Boilermakers v. Hardeman, 401 U.S. 233 (1971)... 18

Brotherhood of Locomotive Engineers v. Sytsma,

es 8 Kft S| xe 25

Buffalo Newspaper Guild, 220 NLRB 79 (1975)... 21

Capitas v. Retail Clerks, 618 F.2d 1370 (9th Cir.

BOD aececcerecscunecsnvvecennicinesatuminiaaaamnaan 6

Carpenters Local No. 22, 195 NLRB 1 (1972)........ 20, 21

Clift v. UAW, 818 F.2d 623 (7th Cir. 1987), peti-

tion for cert. pending, No. 87-42 _............--.---.. 4

Dantagnan v. ILA, Local 1418, 496 F.2d 400 (5th

Cher, ROTI on accecenccesnnccacesvnsasesnsensesnieene 6

Davis v. UAW, 765 F.2d 1510 (11th Cir. 1985),

cert. denied, 475 U.S. 1057 (1986) _...................... 4

DelCostello v. Teamsters, 462 U.S. 151 (1983) ....passim

Doty v. Sewall, 784 F.2d 1 (1st Cir. 1986) —.......... 4

East Texas Motor Freight, 262 NLRB 868 (1982).. 21

Emporium Capwell v. Community Organization,

yr. is GF hPa 17, 23

Fehd v. Keebler Co., 98 LRRM 2329 (N.D. Ga.

||; | mune anne renee

Finnegan v. Leu, 456 U.S. 431 (1984) .........-22220..

Ford v. Huffman, 345 U.S. 330 (1953) ....................

Garter v. Soloner, 284 F.2d 348 (3d Cir. 1967)...

SS oe 9), 21s OR) Sa.

Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981)...

Raasna

iii

TABLE OF AUTHORITIES—Continued

Page

Hiura v. Electrical Workers, Local 1186, 527 F.

Supp. 1340 (D. Hawaii 1980) ~~... 6

Howard v. Aluminum Workers, 589 F.2d 771 (4th

Nee cecmensnnoscetesosescceees 6

John Wiley & Sons v. Livingston, 376 U.S. 543

SESSLER Co 29

Linder v. Berge, 739 F.2d 686 (1st Cir. 1984) ........ 4

Local 1397 v. United Steelworkers, 748 F.2d 180

Ea 4

Machinists Lodge No. 707, 276 NLRB No. 105

(1985) .. ; 21

Metropolitan Edison Co. v. _ NLRB, “460 U. s. 693,

SS ee 19

Mitchell v. Local 346, International Brotherhood

of Electrical Workers, 100 LRRM 2953 (W. D.

EE ETE 7

Monarch Long Beach Corp. v. Teamsters Local 812,

762 F.2d 228 (2d Cir. 1985) —.........----------2.--.2.- 26

Murphy v. Operating Engineers, 774 F.2d 114 (6th

Ce cescmecapseveonncoos 19

NLRB v. Allis-Chalmers, 388 U.S. 175 (1962) ..8, 9, 11,

16, 22, 23

NLRB v. Jones & Laughlin, 301 U.S. 1 (1937) _..... 24

NLRB v. Marine Workers, 391 U.S. 418 (1968) .. 20, 21,

22, 23

NLRB v. Operating Engineers, Local 139, 796 F.2d

a 22

Nu-Car Carriers, Inc., 88 NLRB 75 (1950) en-

forced, 189 F.2d 756 (3d Cir.), cert. denied, 342

a cssabeieasenssenveces 15, 19

Occidental Life Insurance Co. v. EEOC, 432 U.S.

a 5

Operating Engineers Local 400, 255 NLRB 596

a 21

Operating Engineers Local 139, 273 NLRB 982

(1984) enf. denied, 796 F.2d 986 (7th Cir.

a _sassuwutvanauseoevscocece 21

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

os saccscmaebuersoowens 20, 22, 28

iv

TABLE OF AUTHORITIES—Continued

Page

Plumbers Local 334 v. Plumbers, 452 U.S. 615

(1981) .. - 27

Pruitt v. Carpenters, 128 LRRM 2465 (ND. Ga.

5 GIN... .ensinssitocaiienbicanamadndceatiadbdecisnaiaasalamatiaaase ral 23

Quinn v. DiGuilian, 739 F.2d 637 (D.C. Cir. 1984).. 19

Radio Officers v. Labor Board, 347 U.S. 17 (1954).. 15

Reed v. UTU, 828 F.2d 1066 (4th Cir. 1987) -....... 4

Rodonick v. House Wreckers, 817 F.2d 967 (2d

+ ; EROTIC Rene oneey meC Me SNES RE 4

Scofield v. NLRB, 394 U.S. 423 (1969) .................... 20, 21

Sewell v. Machinists, 455 F.2d 545 (5th Cir.

ii Bio crecislvidsbieeceneeldncnmabeaenneeenen 6

Steel v. Louisville & N. R. Co., 323 U.S. 192

GIO <<: .ccscnincastaicenciiecdscuscntodgntoniiansicetenammmannaln 9

Steelworkers v. Sadlowski, 475 U.S. 102 (1982)... 16

Thomas v. Collins, 323 U.S. 516 (1944) —.............. 24

Trail v. Teamsters, 542 F.2d 961 (6th Cir. 1976).. 19

United Parcel Service v. Mitchell, 451 U.S. 56

CED aaniinnitccsaitnsninsiestteisicecsieisaneepeientibacenardinmvemininicntiion 25, 28

Vaca v. Sipes, 386 U.S. 171, (1982) Pave FTES hed 17

Vallone v. Teamsters, 755 F.2d 520 (7th Cir.

II aaciscccccesivdssesettitilesncocinheibinuteesipendaanadanicnianmensebesn 19

Wilson v. Garcia, 471 U.S. 261 REE ESS . 6

LEGISLATIVE MATERIALS

STATUTES

Labor- Management Reporting and Disclosure Act

FD i, PRE selicitsten denis rnrecacernntevisenictdcnmidasbion 11, 27

29 U.S.C. < EEE Te: ESA ENE Oe 11

8 | REE eeee are cbhecada dela 11, 15

NE i iceccininisdacieectebinssnacieae oe Ae 12

re Oe sccssancuaionemenmmianlanilies 12

29 U.S.C. § 411(a) (1)-(5)................. cS passim

ji |, eee are oe ea 4

I inne hcsiscncinicnviinbipsetipiantuiaianenan stalls 4,14

National Labor Relations Act

ON SERRE SROE Repos spammer. | passim

29 U.S.C. § 158(b) (1) (A) & (2)... passim

29 U.S.C. § 160(b) ......... sab ueckclanneianioiaasinaaaal passim

Vv

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY

H. Rep. No. 741, 86th Cong., Ist Sess. (1959),

pp. 7-8, 11, 15 & 16 reprinted in I NLRB, Legis-

lative History of the Labor-Managament Re-

porting and Disclosure Act of 1959, 765-766,

ES | IE se icihilalidihectoattaeucddidaiieaideti eds.

S. Rep. No. 187, 86th Cong. 1st Sess. (1959),

pp. 6-7, 8, 14 & 20 reprinted in I NLRB, Legis-

lative History of the Labor-Management Re-

porting and Disclosure Act of 1959, 402-403,

Cn Cd caniesocasad tae ae meeicacaeceetttrrecaies

S. Rep. No. 1684, 85th Cong. 2d Sess. (1958), pp

4-5

93 Cong. Rec. 1023 (1947) reprinted in II Legisla-

tive History of the Labor-Management Relations

FS 5 SRSA WER ore een Caen

105 Cong. Rec. 5806 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1098 __..

105 Cong. Ree. 5811 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1522

105 Cong. Rec. 13091 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1522...

105 Cong. Rec. 14194 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1567 __...

105 Cong. Rec. 14337 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1613 __.

105 Cong. Ree. A8510 (1959) reprinted in II NLRB,

Legislative History of the Labor-Management

Reporting and Disclosure Act of 1959, 1843

MISCELLANEOUS:

Annot., Union Member’s Remedies Against Union

Suit under 29 U.S.C. 412, 40 ALR Fed. 263

a a hol er ae

Page

13

13, 28

16

24-25

13

18

14

14

18

12

18

vi

TABLE OF AUTHORITIES—Continued

Page

Cox, Internal Affairs of Labor Unions Under the

Labor Reform Act of 1959, 58 Mich. L. Rev. 819

CIID vasesiccnscnnevesccenncennsesvinicianstinnnsiinmeaninusgnitiimsanatedstiaines 11

A. Cox, D. Bok, R. Gorman, Labor Law (9th Ed.

I cccctnossiinsncceesssncatesepnatecencgeondisonnnabinenciommnieanens 17

R. Gorman, Basic Text on Labor Law (1976) ........ 17, 20

M. Malin, Individual Rights Within the Union

CIGD) on. ncecncenceeaecsconsnnerecsessosecnnsovsssnngsstesnetesenesnansseses 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1031

G. P. REED,

. Petitioner,

UNITED TRANSPORTATION UNION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

This brief amicus curiae of the American Federation

of Labor and Congress of Industrial Organizations

(“AFL-CIO”), a federation of 90 national and inter-

national labor organizations with a total membership of

approximately 13,000,000 working men and women, is

filed with the consent of the parties, as provided for in

the Rules of the Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

The question in this case is whether civil actions

brought under Title I of the Labor-Management Report-

ing and Disclosure Act of 1959 (LMRDA) should be

subject to the statute of limitations governing duty of fair

representation suits and unfair labor practices as set forth

in § 10(b) of the National Labor Relations Act (NLRA),

or, instead, to the various state statutes of limitations

governing personal injury actions. Under this Court’s de-

cisions, the answer to that question turns on whether

federal law or state law provides a closer analogy to

LMRDA Title I actions, and on whether federal law or

state law would better effectuate federal policy. Pp. 3-5

supra.

2

That Title I bears a strong “family resemblance” with

both the union unfair labor practice provisions of the

NLRA and with the duty of fair representation is un-

deniably. All of these rest on the same premise: Con-

gress, having recognized and regulated the right of

unions under the NLRA and the Railway Labor Act

(RLA} to act as exclusive representatives, determined

that it was necessary to assure that in various contexts

unions use that authority to benefit the represented em-

ployees. That premise is clear from the structure and

legislative history of the LMRDA as well as the decisions

of this Court discussing that Act; indeed the legislative

materials show that in enacting the LMRDA Congress

acted for the purpose of remedying abuses “which dis-

tort and defeat the policies of the Labor Management

Relations Act ... and the Railway Labor Act,” and Con-

gress viewed “the conduct prohibited” to be “generally

comparable to conduct described as an unfair labor prac-

tice.” And because the LMRDA’s form and its raison

d’etre derive from the system of exclusive representation

which is a unique, integral part of the national labor

policy, that Act has no analog in ordinary state law.

Pp. 8-17 infra.

This Court’s decisions, as well as the decisions of the

lower courts and of the National Labor Relations Board

(NLRB), likewise make plain that there is a “substan-

tial overlap” of coverage between LMRDA Title I on the

one hand, and the NLRA unfair labor practice provisions

and the duty of fair representation on the other. This

overlap is clearest in those cases involving union conduct

that affects a union member’s employment rights, as for

example, when a union is alleged to have retaliated

against a dissident member in ‘+ operation of a hiring

hall or in the processing of a grievance, or when a union

is alleged to have sought to blacklist or procure the dis-

charge of a dissident member. Such an allegation states

a claim for relief under Title I, the duty of fair repre-

sentation, and NLRA §§ 8(b) (1) (a) & (b) (2).

2

3

Even absent any employer involvement or any effect

on employment, internal union discipline of a member

ean be said to “restrain or coerce” within the meaning

of NLRA § 8(b)(1)(A) and thus can violate that pro-

vision if the discipline is motivated by the member’s

exercise of a $7 right. And because $7 protects much

activity that is also privileged by LMRDA Title I, at

least in theory virtually all Title I claims alleging dis-

cipline based on “dissident” activities can be brought as

a $8(b)(1)(A) charge as well. Indeed, the NLRB has

held that a union violates that section by disciplining a

union member for e.g., the member's political activity

within the union, for calling an ad hoe membership

meeting to debate union policies, or publishing a news-

letter critical of the union leadership. Pp. 17-22 infra.

In light of the foregoing, it follows that borrowing

the §10(b) limitations period for LMRDA claims will

best effectuate federal policy. To do otherwise would

mean that many, possibly most, Title I plaintiffs could

prosecute stale NLRA §8(b) or fair-representation

claims under Title I, and thereby undermine the estab-

lished policies favoring repose as to these other actions.

Moreover, given that Congress passed the LMRDA to

perfect the federal scheme of collective bargaining, there

is every reason to believe that the Title I limitations

period should faithfully reflect the policy favoring the

relatively rapid disposition of labor disputes. Indeed,

rapidity and repose are especially important in the

LMRDA context because Title I suits can put in issue

the identity of the union officers, the policies of the

union, and the validity of the union’s labor contracts.

Allowing stale claims to linger could undermine the

union’s ability to represent its members in bargaining

and ultimately the collective-bargaining system itself.

And since, as this Court has concluded, the NLRA

$10(b) period is sufficient to provide a plaintiff with a

fair opportunity to litigate his claim, that statute of lim-

itations should be borrowed for LMRDA Title I actions.

Pp. 22-29 infra.

4

ARGUMENT

Title I of the Labor-Management Reporting and Dis-

closure Act of 1959 (“LMRDA”), 29 U.S.C. §§ 411-15

guarantees all members of labor organizations that are

acting (or seeking to act as) as bargaining representa-

tives in industries covered by either the National Labor

Relations Act (“NLRA”) or the Railway Labor Act

(“RLA”) various rights to participate in the delibera-

tions and governance of those organizations. These pro-

visions are, in the main, enforced through private civil

actions brought by members against their labor organi-

zation. See 29 U.S.C. §§ 412 & 529.

As is often the case with federal statutes, LMRDA

Title I does not provide an express statute of limitations

for private civil actions instituted thereunder. This case

presents the issue of whether, to fill that void, Title I

civil actions should be subject to the six-month limitations

period of §10(b) of the NLRA, 29 U.S.C. § 160(b)—

which was held in DelCostello v. Teamsters, 462 U.S.

151 (1983), to govern employees’ duty of fair represen-

tation suits against unions—or instead, to the various

state statutes of limitations governing personal injury

actions.’

1. Federal “Borrowing” Doctrine. The legal frame-

work for deciding such a choice of statute of limitations

issue is clear. Where Congress has established a cause of

action without specifically establishing a statute of limita-

1 Five courts of appeals, including the court below, have deter-

mined that § 10(b) should govern Title I actions. See Reed v. UTU,

828 F.2d 1066 (4th Cir. 1987); Clift v. UAW, 818 F.2d 623 (7th

Cir. 1987), petition for cert. pending, No. 87-42; Davis v. UAW,

765 F.2d 1510 (11th Cir. 1985), cert. denied, 475 U.S. 1057 (1986);

Adkins v. International Union of Elec. Workers, 769 F.2d 330 (6th

Cir. 1985); Local 1397 v. United Steelworkers, 748 F.2d 180 (3d

Cir. 1984). One court of appeals has rejected the use of § 10(b).

Rodonick v. House Wreckers, 817 F.2d 967 (2d Cir. 1987). And,

one court of appeals has drawn a distinction between LMRDA

claims related to duty of fair representation claims, Linder v. Berge,

739 F.2d 686 (1st Cir. 1984) (applying § 10(b)) and “freestand-

ing” LMRDA claims, Doty v. Sewall, 784 F.2d 1 (1st Cir. 1986).

5

tions the “task is to ‘borrow’ the most suitable statute or

other rule of timeliness from some other source.” Agency

Holding Corp. v. Malley-Duff & Associates, 55 L.W. 4952,

4953 (1987), quoting DelCostello, supra, 462 U.S. at 158.

In so doing, the Court’s “fallback rule of thumb” is to

look to state law; the court does so “on the assumption

that, absent some sound reason to do otherwise, Congress

would likely intend that the courts follow their previous

practice of borrowing state provisions.” 462 U.S. at 158

n. 12.

“But the Court has not mechanically applied a state

statute of limitations simply because a limitations period

is absent from the federal statute.” Occidental Life Ins.

Co. v. EEOC, 432 U.S. 355, 367 (1977). As the Court

concluded in Occidental Life, “[s|tate limitations periods

will not be borrowed if their application would be incon-

sistent with the underlying policies of the federal

statute.” 432 U.S. at 367. In DelCostello, the Court fol-

lowing this principle, borrowed § 10(b), the NLRA lim-

itations period on unfair labor practice charges, as the

proper limitation in an employee’s suit against his or her

union for breach of the duty of fair representation as

implied from the scheme of the NLRA.

The Court based this conclusion on the answers to two

interrelated inquiries: first, does a federal limitations

rule or a state rule correspond to a more closely analo-

gous cause of action; and second, which limitations rule

is more appropriate in terms of fairly effectuating fed-

eral policy.2, Because the Court deemed that a duty of

2 See, e.g., 462 U.S. at 172:

[Wihen a rule from elsewhere in federal law clearly provides

a closer analogy than the available state statute and when the

federal policies at stake and the practicalities of litigation make

that rule a significantly more appropriate vehicle for inter-

stitial lawmaking, we have not hesitated to turn away from

state law.

See also Agency Holding Corp., supra (applying DelCostello for-

mulation to determine that federal rule should govern civil RICO

actions).

6

fair representation suit is in terms of policy and = cov-

erage closely analogous to a union unfair labor practice

charge and has “no close analogy in ordinary state law,”

462 US. at 165, and beeause the Court deemed use of

§10(b) more appropriate in policy and practical terms,

the Court borrowed the federal rule.

All courts that have “borrowed” § 10(¢b)) for use in

Title | suits have done so on the authority of. DelCostello.

“Another issue under the borrowing doctrine “is whether all

claims arising out of the federal statute ‘should be characterized

in the same way, or whether they should be evaluated differ

ently depending upon the varying factual circumstances and legal

theories presented in each individual case” " Agenew Holding Corp.

supra, 66 LW. at 4988, quoting Wilson ve. Gareta, 471 US, 261, 268

(1985). Where one statute “encompass[es| numerous and diverse

topies and subtopics,” Wilson, supra, 471 ULS. at 2738, such that

there will often be doubt as to the characterization of a given case,

a uniform characterization should be applied “to avoid intolerable

‘uneertainty and time consuming litigation.” Ageney Holding

Corp, supra, 6&8 LW. at 4958, quoting Wilson, supra, 471 U.S, at

~ te

No participant in this case has argued that Title [claims should

be ‘analyeed on oa case-by-case basis. Both Petitioner and the

United States areue that a uniform rule is appropriate. Brief for

the Petitioner (Pet. Br") at 488; Brief for the United States

CUS. Be) at 12-18 The Association for Union Democracy

and Public Citizen (collectively “AUD") take no position on this

issue AUD Rr at 28-26

We strongly believe that a uniform rule is appropriate. This

Court has previously noted that “Title UT litigation [involves] ‘facts

and circumstances admitting of almost infinite variety" Hall ev.

Cole, 412 US. 1, 11 (1978), quoting Gartner ev. Soloner, S84 F.2d

448. 348 (Sd Cir. 1967). The confusion and uncertainty that case

by case characterization would generate is amply demonstrated by

the confusion and uncertainty that did exist in the lower federal

courts prior to DelCostello. See, eo. Capitas v. Retatl Clerks, 618

rod Ek7O (Oth Cie. 1980) CCalifornia three-year statute governing

actions over “liability created by statute’); Motard e Almmentem

Workers, ASO BF 2d TT) (4th Cir, 1978) (Virginia two-year tort

statute). Deawfaonan eo LLA. Loeal t3r8, 496 F.2d 400 (Sth Cir.

1974) (Louisiana ten-year contract statute); Sewell vo Machinists,

445 FP Pd S45 (ath Cir, 1971) (Alabama one-vear tort statute);

Hiwra vo Mleeteical Workers, Loeal r186, 527 F. Supp. 40 (CD.

2. The Close Relationship of LMRDA Title 1 to the

NLRA, the RLA and to the Federal Labor Poliey Gen

erally. The first step in determining the proper statute

of limitations here is to compare the plaintiff's underly

ing cause of action and the policies that cause of action

embodies, with those of the state and federal actions of

fered as analogs.

In pursuing this inquiry, the DelCostello Court deter

mined that while the duty of fair representation, which

is implied from the NLRA RLA scheme of exclusive col

lective-bargaining representation, 462 U.S, at 164 n 14,

has “no close analogy in ordinary state law,” 462° US,

at 165, that duty does share a “family resemblance {that |

is undeniable, and indeed... a substantial overlap” of

coverage With the NLRA’s union unfair labor practice

provisions governed by § 10(b), 462 ULS. at 170.) The

Court noted that “duty of fair representation claima are

allegations of unfair, arbitrary and discriminatory treat

ment of workers by unions —as are virtually all unfair

labor practice charges made by workers against unions,”

Id., see 29 ULS.C. § 16K Ob) (1) (AD and (2),

By the same token, the policies behind the LMRDA are

intimately related to the same federal labor policy ex

pressed in the NRLA and the RLA and ‘Tithe T plays a

role in that poliey that, although not identienl, is closely

analogous to the duty of fair representation and the

NLRA union unfair labor practice provisions referred

to in DelCostello, All of these rest on the same premise:

Congress, having recognized and regulated the right of

unions under the NLRA and RLA to act as exclusive

representatives, determined that it was necessary to as

sure in various contexts that unions use that right to

benefit the represented employees.

Hawaii 1940) (six-year debt statute), Mitehell vo Local 446, Inter

nacional Krotherhood of Mleetrical Workers, (0G LAM 2955 OW oF

Wash. 1979) (either two-year statute for “actions for relief not

otherwise provided for” or three-year tort statute, KMehd w Keebler

Co,, 94 LNRM 2429 (ND. Ga. 197%) (two-year statute governing

actions seeking backpay )

8

It is for this reasons of labor policy that Congress has

acted to regulate the internal structure of private-sector

labor unions, while leaving the internal structure of most

other private voluntary associations largely unregulated.

The system of regulation thus has no analog in ordinary

state law since its form and its raison d’etre derives from

the system of exclusive representation, which is a unique

integral part of the collective bargaining policy of our

national labor relations scheme.

a. Taken together, the NLRA and the RLA establish

as federal] policy a system of industrial democracy through

collective bargaining. First, employees are guaranteed

the right to self-organization, to form, join, or assist

labor organizations, . . . and to engage in other con-

certed activities for ... the purpose of collective bar-

gaining.” 29 U.S.C. § 157. Once so empowered, those

employees can, through majority action, designate labor

organizations to bargain with their employers:

National labor policy has been built on the premise

that by ... acting through a labor organization

freely chosen by the majority, the employees of the

appropriate unit have the most effective means of

bargaining for improvements in wages, hours, and

working conditions.” [NLRB v. Allis-Chalmers,

388 U.S. 175, 180, (1967).]

A labor organization so designated gains a legally con-

ferred power of exclusive representation. Although the

system is correctly premised on the belief that exercise

of that power immeasurably enhances the bargaining

position of the employees as a group, exclusive represen-

tation also significantly and necessarily alters the legal

rights of each individual in the group:

The policy extinguishes the individual employee’s

power to order his own relations with his employer

and creates a power vested in the chosen representa-

tive to act in the interest of all employees. “Con-

9

gress has seen fit to clothe the bargaining represent-

ative with powers comparable to those possessed by a

legislative body both to create and restrict the rights

of those whom it represents... .” Steele v. Louisville

& N.R. Co., 323 U.S. 192, 202. Thus only the union

may contract the employee’s terms and conditions

of employment. . . . The employee may disagree with

many of the union decisions but is bound by them.

The majority-rule concept is today unquestionably

at the center of our federal labor policy. |[Allis-

Chalmers, supra, 388 U.S. at 180.)

It is the establishment of majority rule and its effect

on individual rights that creates the tension that—over

the years—has repeatedly led to certain refinements in

this scheme. The duty of fair representation, the provi-

sions of NLRA §§ 8(b) (1) (A) and (2), and the LMRDA,

must al! be understood in these terms: each is premised

on the notion that exclusive representation will only serve

its humane goal of enhancing employee welfare, industrial

democracy, and stability if the bargaining representative

is constrained to act for the benefit of those for whom

the representative is authorized to bargain. A more com-

plicated system of balanced interests thus emerges, with

the bargaining representative granted significant powers

and legal protections, but made subject to certain public

policy limits. Together, these grants and limitations take

into account the employee group’s need for effective power

and the dangers of that power’s abuse.

The first comprehensive articulation of this system of

balances may be found in Steele v. Louisville & N.R. Co.,

323 U.S. 192 (1944) where this Court first inferred

from the exclusive representation power, a corresponding

duty of fair representation. Although an exclusive repre-

sentative’s status is the result of majority choice, once

chosen,

[t]he organization . . . [must] represent all its

members, the mz*u~ity as well as the minority, and

it is to act for ar. -.ot against those whom it repre-

10

sents. It is a principle of general application that

the exercise of a granted power to act in behalf of

others involves the assumption toward them of a duty

to exercise the power in their interest and behalf.

(Id. at 202. ]

It should be noted, however, that in defining the duty’s

scope, the Court has always recognized that the duty must

be limited by the nature of the exclusive representa-

tive’s legitimate needs as a representative. Thus, for ex-

ample: “The complete satisfaction of all who are repre-

sented is hardly to be expected. A wide range of reason-

ableness must be allowed a statutory bargaining repre-

sentative in serving the unit it represents.” Ford v. Huff-

man, 345 U.S. 330, 338 (1953).

The adoption in 1947 of union unfair labor practice

provisions that limit a union’s ability to use its powers

to “restrain or coerce” individual employees follows much

the same rationale. As DelCostello noted, like the duty of

fair representation, these provisions were designed to pre-

vent “unfair, arbitrary or discriminatory treatment of

workers.” 462 U.S. at 170. Like the duty, these provi-

sions were, moreover, intended to operate within Congress’

continued commitment to the system of exclusive repre-

sentation. Thus, although § 8(b)(1)(A) declared that

unions could not “restain or coerce . . . employees in the

exercise of [protected] rights”, its proviso reserved to

unions the power to “prescribe [their] own rules with

respect to the acquisition or retention of membership

therein.” 29 U.S.C. § 158(b) (1) (A). The proviso re-

flected that

Integral to . . . federal labor policy has been the

power in the chosen union to protect against erosion

its status under that policy through reasonable disci-

pline of members who violate rules and regulations

governing membership. * * * Congress [did not]

limit{[] unions in the powers necessary to the dis-

charge of their role as exclusive statutory bargaining

11

agents. .. . [Allis-Chalmers, supra, 388 U.S. at 181-

183. |

The understanding that LMRDA Title I is part of the

same tradition—viz. the tradition of balancing the need

for constraints on the power of the exclusive representa-

tive to protect against abuses, while protecting that pow-

er’s continued effective use for legitimate ends— is well

accepted. For example, Archibald Cox—who, as a prin-

ciple advisor to the Senate Labor Committee, drafted

much of the LMRDA—explained in his leading article on

the Act how its origin’s are clearly found in the exclu-

sive representation power:

In retrospect it seems plain that the enactment of

the LMRDA became inevitable when Congress, by

enacting the Wagner Act, not only granted employees

the right to bargain collectively but also transported

the political principle of majority rule into labor-

management relations by giving the union designated

by the majority the exclusive right to represent all

the employees in an appropriate unit. . . . The gov-

ernment which confers this power upon labor organi-

zations has a duty to insure that the power is not

abused. [Cox, Internal Affairs of Labor Unions

Under the Labor Reform Act of 1959, 58 Mich. L.

Rev. 819, 819-20 (1960).]

The most telling evidence that Congress rested the

LMRDA on this pre-existing national labor policy is in

the text of the statute itself. For example, the statute

begins with a “Congressional Declaration of Findings,

Purposes, and Policy,” 29 U.S.C. § 401, which declares

both a continued congressional commitment to the policies

of collective bargaining representation set out in the

NLRA and RLA, § 401(a), and a determination that the

LMRDA would correct certain abuses “which distort and

defeat the policies of the Labor Management Relations

Act ... and the Railway Labor Act.” 29 U.S.C. § 401(c).

The LMRDA’s scope of coverage reinforces the connec-

tion to pre-existing labor policy. The Act only regulates

12

labor organizations governed by the NLRA or RLA, 29

U.S.C. §$ 401(i) and (j), and Senator Goldwater, who

sponsored the amendment that specifically excluded public-

employee unions from coverage—and thus limited cover-

age to NLRA and RLA unions—made clear that this

decision in large part rested on the nature of the federal

labor law’s exclusive-representation principle:

Inasmuch as these [public employee] unions, in most

instances, do not have the right . . . to compel their

governmental employers to bargain with them, .. .

I believe they should be free from the regulations

imposed by the new bill. [105 Cong. Rec. A8510

(1950), reprinted in II NLRB, Legislative History

of the LMRDA (“Leg. Hist.”) 1844.]

Not surprisingly, references to the LMRDA’s roots in

the exclusive-representation system are plentiful through-

out the legislative history. Indeed, Title I itself was ex-

plicitly put in such terms by its sponsor, Senator McClel-

lan, at the time he introduced it:

Sometimes the question is asked, “Why should

we enact legislation protecting such rights for union

members and not for members of any other organi-

zation? ... It is through unionization and bargain-

ing collectively that [the individual worker] is able

to make himself heard at the bargaining table. It

seems clear, therefore, that this . . . becomes mean-

ingless when the individual worker is just as help-

less within his union as he was within his industry.

* * *

I deem it appropriate that we insure by law

internal democracy in unions and provide for proper

protection of union members and their rights, be-

cause unions themselves exist and operate under

powers and protection conferred by the Federal Gov-

ernment in a unique manner and to an unequal

degree. Once a union has been certified by the Na-

tional Labor Relations Board, for example, the em-

ployer is compelled to bargain with that union as the

13

exclusive representative of all the workers within the

bargaining union, irrespective of whether they are

members of the union or not. If unions are to have

such federally-bestowed, tremendous powers in indus-

trial government, they should be compelled by law

to represent their members in accordance with demo-

cratic principles. ... [105 Cong. Rec. 5806 (1959),

reprinted at II Leg. Hist. 1098. |

Similarly, the Senate Report introducing the bill that

emerged as the LMRDA declared:

Under the National Labor Relations Act and the

Railway Labor Act, a labor organization has vast

responsibility for economic welfare of the individual

members whom it represents. Union members have

a vital interest, therefore, in the policies and conduct

of union affairs.

* * *

Under the National Labor Relations and Railway

Labor Acts the union which is the bargaining repre-

sentative has power, in conjunction with the em-

ployer, to fix a man’s wages, hours, and conditions

of employment. The individual employee may not

lawfully negotiate with his employer. He is bound

by the union contract. In practice, the union also

has a significant role in enforcing the grievance

procedure where a man’s contract rights are en-

forced. The Government which gives unions this

power has an obligation to insure that the officials

who wield it are responsive to the desires of the

men and women whom they represent. [S.Rep. No.

187, 86th Cong. 1st Sess. (1959), pp. 6-7, 20

(“S.Rep.”), reprinted in I Leg. Hist. 402-403, 416. |

This Senate Report was written before Title I was added

to the bill, but the analogous House Report containing

Title I included almost identical language. See H. Rep.

No. 741, 86th Cong., Ist Sess. (1959), pp. 7-8, 15-16

(“H. Rep.”), reprinted in I Leg. Hist. 765-766, 773-774.

See also S. Rep. at 8, 14, reprinted in I Leg. Hist. at 404,

410; H. Rep. at 11, reprinted in I Leg. Hist. at 769.

14

The legislative materials go beyond showing a connec-

tion between national labor policy and the perceived

need for LMRDA. Specifically, Congress saw itself as

offering remedies for conduct viewed as analogous to the

unfair labor practices of the NLRA. Indeed, this was

the precise analogy drawn in one of the most authorita-

tive of legislative documents, the “Analysis of the Lan-

drum-Griffin Reform Bill,” authored by Representatives

Landrum and Griffin, and offered to explain the nature

of their bill. Among their changes to the prior bill was

one regarding the prohibition on union disciplining of

members for exercising LMRDA rights. In the version

of the 1959 labor bill passed by the Senate this was a

criminal prohibition. Representatives Landrum and Grif-

fin explained that their amendment made this a civil pro-

hibition because union discipline of members for asserting

LMRDA rights is “comparable” to an unfair labor prac-

tice:

In our judgment, the conduct prohibited by this sec-

tion is generally comparable to conduct described as

an unfair labor practice under the Taft-Hartley

Act, and accordingly, we do not believe that criminal

sanctions are warranted. [105 Cong. Rec. 13091

(1959), reprinted in II Leg. Hist. 1522.]

See also 105 Cong. Rec. 14194 (1959), reprinted in II

Leg. Hist. 1567 (Rep. Griffin) (retaliatory discipline

is “roughly comparable to . . . unfair labor practice

under National Labor Relations Act’).

This civil enforcement provision mirrored the language

of Title I, and eventually became § 609 of the LMRDA,

29 U.S.C. § 529, one of the principal authorizations for

Title I suits.

We would add that it is only to be expected that the

authors of the LMRDA viewed the conduct they were

proscribing to be comparable to unfair labor practices.

Not only had the legislative debate focused on how such

15

conduct was “distort{ing] and defeat[ing] the policies”

of the NLRA and RLA, 29 U.S.C. § 401(c¢), but the Board

and courts were already interpreting the NLRA as

applying to many of the matters at issue. For example,

the NLRB and the courts had already established that it

was protected concerted activity under the NLRA, 29

U.S.C, 157, for an employee to try to influence his union’s

policies, criticize his union’s leadership, and generally

debate the goals of his bargaining representative with

other members. See Nu-Car Carriers, Inc., 88 NLRB 75,

76 (1950), enforced, 189 F.2d 756 (3d Cir.), cert. denied,

342 U.S. 919 (1951). And this Court had held that it is

an unfair labor practice for unions to enforce union mem-

bers’ internal membership obligations by affecting their

ae Radio Officers v. Labor Board, 347 U.S. 17

r

LMRDA Title I is also in the tradition of prior labor

policy in another respect. Like the duty of fair represen-

tation and NLRA § 8(b) (1), Title I’s provisions are

limited by the legitimate needs of the bargaining repre-

sentative. The guarantee of equal participation rights is

subject “to reasonable rules and regulations in such or-

ganization’s constitution and bylaws,” 29 U.S.C. § 411

(a) (1); the guarantee of members’ freedom of speech

and assembly is subject to “the right of the labor organi-

zation to adopt and enforce reasonable rules as to the

responsibility of every member toward the organization

as an institution and to his refraining from conduct that

would interfere with [the organization’s] performance

of its legal or contractual obligations,” § 411(a) (2); and

the right to sue is subject to a possible 4-month exhaus-

tion of internal union appeals procedures, § 411(a) (4).

Even where specific procedural requirements are placed

on unions—viz., in the sections on dues increases and on

the disciplinary process, §§ 411(a) (3) and (5)—only the

basic procedures are set out and substantial leeway is left

to the unions. This Court has appropriately noted that

16

under Title I, union rules “need not pass the stringent

tests applied” in the constitutional area “so long as they

are reasonable.” Steelworkers v. Sadlowski, 457 U.S. 102,

111 (1982).*

The “family resemblance” of LMRDA, § 8(b) (1) (A),

and the duty of fair representation that we have de-

scribed herein—viz., their related roles within the overall

national labor policy—has been repeatedly recognized in

the opinions of this Court. For example, Allis-Chalmers,

supra, explicitly states that Congress passed the LMRDA

“for the same reasons” that motivated the Court in craft-

ing the duty of fair representation, viz., to_avoid abuses

of the exclusive representation system:

It was because the national labor policy vested unions

with power to order the relations of employees with

their employer that this Court found it necessary to

fashion the duty of fair representation. That duty

“has stood as a bulwark to prevent arbitrary union

conduct against individuals stripped of traditional

forms of redress by the provisions of federal labor

*The proposition that union autonomy is an important policy

goal that generally limits the scope of LMRDA rights appears

throughout the statute. This Court recognized this in Sadlowski,

supra:

Congress regarded the union’s desire to maintain control over

its own affairs as legitimate .... In drafting Title II through

VI, Congress was guided by the general principle that unions

should be left free to “operate their own affairs, as far as

possible.” S. Rep. No. 1684, 85th Cong. 2d Sess. 4-5 (1958).

It believed that only essential standards should be imposed by

legislation, and that in establishing those standards, great care

should be taken not to undermine union self-government ... .

Thus, for example, in Title IV, which regulates the conduct of

union elections, Congress simply set forth minimum standards.

So long as unions conform to these standards, they are free “to

run their own elections. Wirtz v. Glass Bottle Blowers, 389 U.S.

[463, 471 (1968) ].” [457 U.S. at 117]

In Sadlowski, the Court treated these provisions from elsewhere

in the LMRDA as instructive for interpreting Title I.

—

17

law.” Vaca v. Sipes, 386 U.S. 171, 182. For the

Same reasons Congress in the 1959 Landrum-Griffin

amendments, 73 Stat. 519, enacted a code of fairness

to assure democratic conduct of union affairs by pro-

visions guaranteeing free speech and assembly, equal

rights to vote in elections, to attend meetings, and to

participate in the deliberations and voting upon the

business conducted at the meetings. [388 U.S. at

181].

Similarly, in Emporium Capwell v. Community Org.,

420 U.S. 50, 64-65 (1975) the Court described a “back-

ground of long and consistent adherence to the principle

of exclusive representation tempered by safeguards for

the protection of minority interests.” The “temper[ing]

safeguards” that the Court listed included the LMRDA,

the duty of fair representation, and § 8(b) (1) (A):

In vesting the representatives of the majority with

this broad power [of exclusive representation,] Con-

gress did not, of course, authorize a tyranny of the

majority over minority interests. ... [I]t undertook

in the 1959 Landrum-Griffin amendments to assure

that minority voices are heard as they are in the

functioning of a democratic institution. ... [Wle

have held, [that] by the very nature of the [power

of exclusive representation,] Congress implicitly im-

posed upon [the union] a duty fairly and in good

faith to represent the interests of minorities within

that unit. ... And the Board has taken the position

that a union’s refusal [to represent minorities] is an

unfair labor practice. [420 U.S. at 64-65].

See generally A. Cox, D. Bok, & R. Gorman, Labor

Law (9th ed. 1981), pp. 379-380; R. Gorman, Basic

Text on Labor Law (1976), pp. 379-381.

b. The foregoing demonstrates that in terms of the

policies motivating, and served by, LMRDA Title I, there

is here, as in DelCostello, a strong “family resemblance”

between Title I claims, on the one hand, and both unfair

18

labor practice and duty of fair representation claims, on

the other. Moreover, as in De/Costello, there is also a

“substantial overlap” of coverage.

The “overlap” is undeniably clearest in those cases in-

volving union conduct that affects a union member’s em-

ployment rights. The legislative history of Title I makes

plain that one of the principal reasons that Title was

enacted was to protect dissident members from economic

reprisals by unions. See, e.g., 105 Cong. Rec. 5811 (1959),

II Leg. Hist. 1103 (Sen. McClellan), 105 Cong. Ree.

14337 (1959), II Leg. Hist. 1613 (Rep. Loser); see

also Finnegan v. Leu, 456 U.S. 431, 435-436 (1984)

(noting congressional concern that union disciplinary ac-

tions “could mean .. . loss of livelihood”) ; Boilermakers

v. Hardeman, 401 U.S. 233, 250-251 (1971) (Douglas J.

dissenting) (same).

Thus, an allegation that a union has retaliated against

a dissident member in the operation of a union hiring

hall or in the processing of grievances, or an allegation

that a union has sought to blacklist or procure the dis-

charge of a dissident member, clearly states a claim for

relief under Title I. Indeed, a large volume of Title I

litigation involves claims of these types for lost wages

and benefits. See M. Malin, Individual Rights Within

the Union 124-26 (1988) (describing cases); Annot.,

Union Member’s Remedies Against Union in Suit under

29 U.S.C. § 412, 40 A.L.R. Fed. 263, 293-94 (1978)

(same).

With few if any exceptions, these same claims could

be filed as claims for breach of the duty of fair repre-

sentation. As we have seen, it is the precise office of that

duty to prohibit a union from exercising its responsibilities

as exclusive representative in an invidiously discrimina-

tory manner. Penalizing dissidents for their views and

activities constitutes a core violation of that duty. Thus,

this Court observed in DelCostello: “|mjany fair repre-

19

sentation claims . . . include allegations of discrimination

based on . . . dissident views.” 462 U.S. at 170 (emphasis

added). And large numbers of suits alleging retaliatory

grievance handling, hiring hall manipulation, manipulation

of contract ratification procedures, and the like are filed

as both fair-representation and LMRDA Title I claims.”

Of equal importance, such claims of economic retaliation

could be filed as unfair labor practice charges. As pre-

viously noted, under NLRA § 8(b) (1) (A) it is an unfair

labor practice for a union to restrain or coerce, or, under

NLRA § 8(b) (2), to cause or attempt to cause, an employ-

er to discriminate against an emp'oyee based on that em-

ployee’s exercise of rights protected by NLRA § 7. Section

7, in turn, protects much activity that is also privileged

by LMRDA Title I including the right of employees to

“(hjold|] union office,’ Metropolitan Edison Co. v.

NLRB, 460 U.S. 693, 703 (1983), and the right of em-

ployees to “question the wisdom of their representatives”

or to seek “to align their union with their position.”

Nu-Car Carriers, Inc., supra, 88 NLRB at 76. Thus, an

allegation that a union sought to penalize a dissident by

affecting that individual’s employment rights indisputably

states a violation of NLRA § 8(b) (1) (A) or (b) (2) as

well as a fair-representation claim and a Title I claim.

See, e.g., Quinn v. DiGuilian, 739 F.2d 637 (D.C. Cir.

1984) (LMRDA and duty of fair representation suits

filed after successful prosecution of unfair labor practice

charge).

The extent of the relevant overlap of coverage, moreover,

is far greater than this class of cases. Petitioner and his

5 See, e.g., Murphy v. Operating Engineers, 774 F.2d 114 (6th

Cir. 1985); Adkins v. Electrical Workers, 769 F.2d 330 (6th Cir.

1985); Vallone v. Teamsters, 755 F.2d 520 (7th Cir. 1984); Quinn

v. DiGuilian, 739 F.2d 637 (D.C. Cir. 1984); Aquirre v. Automotive

Teamsters, 633 F.2d 168 (9th Cir. 1980); American Postal Workers

Union Local 6885 v. American Postal Workers Union, 665 F.2d

1096 (D.C. Cir. 1981); Alvey v. General Elec. Co., 622 F.2d 1279

(7th Cir. 1980); Trail v. Teamsters, 542 F.2d 961 (6th Cir. 1976).

20

supporting amici curiae claim that “the only cases which

are covered by Title I and are also considered unfair

labor practices under the NLRA are those in which the

union causes a member to be discharged or otherwise in-

jured by the employer.” Pet. Br. at 29 (emphasis added) ;

see also U.S. Br. at 15; AUD Br. at 20.° That contention

could not be more wrong. See Pattern Makers v. NLRB,

473 U.S. 95, 109 n.20 (1985) (explicitly rejecting same

contention). For in NLRB v. Marine Workers, 391 U.S.

418 (1968), this Court held that even absent any em-

ployer involvement or any effect on employment, internal

union discipline of a union member, can in and of itself

constitute “restrain[t] or coerc{ion]” within the mean-

ing of NLRA § 8(b) (1) (A), and thus can violate that

provision if the discipline is motivated by the member’s

exercise of a §7 right. And in Scofield v. NLRB, 394

U.S. 423, 429 (1969), this Court reaffirmed Marine Work-

ers and held that a union rule which ¢invades or frus-

trates an overriding policy of the labor laws .. . may not

be enforced, even by fine or expulsion, without violating

§ 8(b) (1).”

As Professor Gorman has observed, Marine Workers

and Scofield have “led the Board and courts . . . dramati-

cally, [to] depart[] from the literal text of section 8(b)

(1)(A) and... ecreate[] what might be called a ‘com-

mon law’ of union discipline,” R. Gorman, Basic Text on

Labor Law 677-78 (1976). Under this doctrine, the Labor

Board has held that a union violates § 8(b) (1) (A) by

disciplining a union member for e.g., the member’s polit-

ical activity within the union, Carpenters Local No. 22,

® Petitioner then discounts the importance of this class of cases

with the unsupported assertion that “[t|his convoluted and devious

means of retaliating against a union member for exercising his

right within the union is not the conduct at issue in . . . most

Title I cases.” Pet. Br. at 29. Suffice it to say that, as noted in

text, Congress had a very different view as to the importance of

this category of cases.

21

195 NLRB 1 (1972); Machinists Lodge No. 707, 276

NLRB No. 105 (1985); writing the Labor Department

alleging union election improprieties, Buffalo Newspaper

Guild, 220 NLRB 79 (1975); calling an ad hoc member-

ship meeting to debate union policies, Operating Engi-

neers Local 400, 255 NLRB 596 (1976); or publishing a

newsletter critical of the union leadership, Operating

Engineers Local 139, 273 NLRB 982 (1984), enf. denied,

796 F.2d 986 (7th Cir. 1986). Generally, the Labor Board

has reasoned in these cases as follows: (1) that the con-

duct for which the union member was disciplined (in-

volvement in the internal affairs of the bargaining rep-

resentative) is protected conduct under § 7; (2) that the

discipline restrained or coerced the member in the exer-

cise of that protected activity; and (3) that disciplining the

union member for such conduct “invaded” the policies

of the labor laws in general and the LMRDA in partic-

ular. By that same reasoning, all Title I claims alleging

retaliation based on “dissident” activities could be brought

as § 8(b) (1) (A) charges as well.

Thus, in spite of petitioner’s and his supporting amici

curiae’s insistence that this class of cases does not exist,’

7 The only mention of this entire line of authority in any of the

submissions urging reveral is a brief statement in a footnote in the

AUD’s brief. AUD Br. at 20 n.7. Citing one of the leading cases,

Carpenters Local No. 22, supra, AUD implies that the NLRB has

rejected that case’s holding and rationale in a subsequent case, East

Texas Motor Freight, 262 NLRB 868, 870 (1982).

In fact, East Texas Motor Freight has never been interpreted

by the NLRB as limiting Carpenters Local No. 22 or its progeny,

the language from East Texas Motor Freight quoted by AUD has

never been quoted or relied on by the NLRB, and in cases subse-

quent to Fast Texas Motor Freight the Board has continued to

adhere to the logic of Carpenters Local No. 22 and the line of au-

thority discussed in text. See, e.g., Machinists Lodge No. 707, 276

NLRB No. 105 (1985).

Marine Workers and Scofield it must be noted are entirely ignored

by Petitioner and his supporting amici curiae.

22

the decisional law shows that there is an overlap between

the LMRDA and the NLRA that is more than “sub-

stantial.” *

c. Petitioner and his supporting amici curiae offer virtu-

ally nothing to counter the foregoing showing of LMRDA

Title I’s genesis in the national labor policy and the Title’s

8 The NLRB doctrine set forth in text has been explicitly embraced

by one federal appellate court. See Helton v. NLRB, 656 F.2d 883

(D.C. Cir. 1981). But in NLRB v. Operating Engineers Local 1389,

796 F.2d 985, 990 (7th Cir. 1986), the United States Court of

Appeals for the Seventh Circuit disagreed and ruled that “[a]l-

though any disciplinary charge or fine is ‘coercive’ to some degree,

the provisions of § 8(b)(1)(A) were not intended by Congress to

apply to the imposition by the union of fines not affecting the

employer-employee relationship.”

As the Seventh Circuit noted, its decision in Operating Engineers

Local 139 follows logically from this Court’s decision in Allis-

Chalmers in which the Court ruled that disciplining union members

for crossing a picket line does not “restrain or coerce” the members

in the exercise of their § 7 right to refrain from engaging in con-

certed activities, for Allis-Chalmers is best understood as resting

on the theory that “since membership in the union is purely volun-

tary, it is not unlawful for a union to punish a member by fine,

suspension or expulsion for an infraction of the union rules.” 786

F.2d at 990. And as the Seventh Circuit also noted, this theory of

Allis-Chalmers has been reinforced by this Court’s more recent

decision in Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985),

which holds that union members have a right to resign from their

union at any time even where union rules prohibit suen resignation.

But see id. at 109 n.20 (noting Marine Workers doctrine).

Given the tension between Marine Workers on the one hand and

Allis-Chalmers and Pattern Makers’ on the other, this Court may

on an appropriate occasion wish to reconsider the continuing vitality

of Marine Workers and/or of the NLRB and lower court rulings

Marine Workers has spawned. But for present purposes what is

determinative is that—whatever the ultimate fate of Marine Work-

ers and its progeny—there can be no doubt that under the current

state of the law, the overlap between LMRDA Title I and NLRA

$ 8(b)(1)(A) is near total. Cf. DelCostello, 462 U.S. at 170 (declin-

ing to pass upon, but treating as instructive, NLRB position with

respeca to overlap between § 8(b)(1)(A) and the duty of fair repre-

sentation).

23

close resemblance to, and overlap with, the duty of fair

representation and NLRA union unfair labor practice

provisions.® Yet they insist that no such resemblance or

overlap exists and they assert that “the proper sibling[s]”

of Title I are such federal civil rights statutes as 42

U.S.C. §§ 1981 & 1983. Pet. Br. at 31. See also AUD

Br. at 12-15; U.S. Br. at 13.

Two points need to be made. First, all the evidence

thus far cited in this brief on the issues of resemblance

and overlap—viz., the statutory language, the legislative

materials, the discussions of this Court in Allis-Chalmers

and Emporium Capwell, the Marine Workers doctrine

and the myriad NLRB and lower court decisions apply-

ing that doctrine—is ignored in the briefs urging rever-

sal. The very existence of this evidence is not acknowl-

edged. Second, the counter “evidence” raised is plainly

not of comparable weight. Principally, petitioner and his

Supporting amici curiae raise arguments in favor of the

* We would be derelict if we did not note that Petitioner and

amici curiae AUD do argue that the 1959 Congress specifically

intended to authorize a limitations period of at least 18 months.

Pet. Br. at 39; AUD Br. at 18. The only provision they point to,

however, offers them absolutely no support.

Title III of the LMRDA regulates the use of trusteeships by

international unions to manage the affairs of local unions. Al-

though actions can be brought to challenge trusteeships, the law

adopts a strong presumption as to their validity for the first 18

months. 29 U.S.C. § 464(c). Petitioner and AUD thus argue that,

at least in Title III, the Congress that passed the LMRDA must

have presumed at least an 18 month limitation.

This simply doesn’t follow, since a Title III suit is not necessarily

about the creation of the trusteeship, but about the validity of its

maintenance. See 24 U.S.C. § 464 (authorizing actions to chal-

lenge trusteeships that are “not established or maintained in good

faith”) (emphasis added). There is no evidence that the 18-month

preemption has any intention other than to minimize government

interference in the trusteeship decisions of a union, until there is

reason to suspect wrongdoing. See Pruitt v. Carpenters, 128 LRRM

2465 (N.D. Ga. 1987).

24

civil rights analogy at such a high level of abstraction

as to be content free.

Thus, it is urged on the other side that the LMRDA

is a “civil rights” statute because its focus is on such

participatory and political rights as free speech and as-

sembly which have their roots in the Constitution; numer-

ous quotes from the legislative debates, where LMRDA

rights are referred to as “fundamental,” or “inherent”

constitutional rights are cited in support of this sugges-

tion. In contrast, the NLRA is asserted to protect “eco-

nomic” rights. See, e.g., Pet. Br. at 31-32, 35; U.S. Br.

at 13; AUD Br. at 4, 12-15.

This “distinction” does not distinguish anything at is-

sue. Even if the myriad evidence of Congress’ belief that

the LMRDA is working within the same legislative scheme

and policies as the NLRA is to be ignored, see pp. 11-15,

supra, petitioner and his amici curiae never explain why

guaranteeing free speech in a union hall is a “civil rights

guaranty,” while guaranteeing free speech in a union

organizing context is not. Compare 29 U.S.C. § 411 (a) (1)

with 29 U.S.C. § 157; or why the worker’s interest in

participating in the union’s internal debate over collec-

tive bargaining goals is a “vital non-economic interest”

in “participation,” see Pet. Br. at 35, while a worker's

interest in deliberations on whether or not to unionize is

something different. The various quotations regarding

the “civil rights” content of he LMRDA generally is

equally meaningless in distinguishing the LMRDA from

the NLRA. The rhetoric of the LMRDA debates and the

relevant reviewing court opinions are no more “civil

rights” oriented than the rhetoric of those who passed or

reviewed the Wagner Act. See, e.g., Thomas v. Collins,

323 U.S. 516, 533-534 (1944) (comparing $7 rights to

First Amendment); NLRB v. Jones & Laughlin, 301

U.S. 1, 33 (1937) ($7 “is a fundamental right” whose

suppression “is a proper subject for condemnation by

competent legislative authority”). See also 93 Cong. Rec.

ee Att cate te Se

ee ae

le A es

25

4023 (1947), reprinted in II Legislative History of the

Labor-Management Relations Act of 1947, at 1032 (Sen.

Taft) ($8(b)(1)(A) designed to protect workers’

“rights as American citizens”).

3. The Appropriateness of “Borrowing” the § 10(b)

Limitations Period for LMRDA Title I Cases. a. The pol-

icy and practical considerations component of the Del-

Costello test, like the family resemblance and overlapping

coverage component, clearly support the appropriateness

of “borrowing” § 10(b) in LMRDA Title I cases.

First, the substantial overlap of Title I coverage and

the coverage of other actions governed by §$ 10(b), see

supra pp. 17-22, would mean that—if Title I had a longer

limitations period—many, possibly most, Title I plaintiffs

could prosecute stale § 8(b) or duty of fair representa-

tion claims under Title I. There is simply no evidence

of a congressional determination to give complainants

who chose Title I litigation such a preference. And, of

course, such a preference would undermine the estab-

lished policies favoring repose as to these other actions.

Second, as we have shown, the Congress that passed

the LMRDA viewed the statute as a means of perfecting

the federal scheme of collective bargining. Given the well-

established federal labor policy of favoring the relatively

“rapid disposition of labor disputes,” United Parcel Serv-

ice v. Mitchell, 451 U.S. 56, 63 (1981), there is every

reason to believe that Congress intended the Title I limi-

tations period to faithfully reflect that policy.’

10 This is bolstered by the fact that elsewhere in the LMRDA,

Congress provided an even shorter limitations period than that pro-

vided by NLRA § 10(b), see 29 U.S.C. §§ 482 & 483 (authorizing

suits by the Secretary of Labor to overturn regularly scheduled

officer elections; member has one month from election to file chal-

lenge with Secretary; Secretary then has two months to file suit).

In certain contexts, officer election suits also can arise under Title

I. E.g., Brotherhood of Loc. Eng. v. Sytsma, 802 F.2d 180 (6th Cir.

1986) (international president’s recall election).

26

Third, the NLRA §10(b) period is plainly sufficient

to provide a plaintiff a fair opportunity to litigate his

claims. The DelCostello decision to subject duty of fair

representation plaintiffs to §10(b), and the fact that

bringing a LMRDA claim involves no more effort than

bringing a fair representation claim conclusively demon-

strate that the six-months period accords meaningful ac-

cess to the courts."

b. Petitioner and his supporting amici curiae respond

that the federal policy of §10(b), promoting rapid dis-

position of labor disputes, has no application to “internal”

union disputes such as Title I involves. Thus petitioner

argues that § 10(b)’s policy of repose should apply only

to cases involving “the formations of the collective agree-

ment and the private settlement of disputes under it.”

Pet. Br. at 43 quoting De/Costello, 462 U.S. at 163.”

Section 10(b), first of all, represents Congress’ judg-

ment on the proper policy of repose for all unfair labor

practice cases, regardless of their apparent effect on ex-

tant “bargaining relationships,” or “agreements.” The

statute governs charges regarding all the myriad forms of

employer or union misconduct delineated in the NLRA,

whether in the organized or unorganized contexts. The

repose policy embodied in § 10(b) must therefore be sub-

stantially broader than that stated by petitioner and his

11To be sure, petitioner and his supporting amici curiae AUD

argue the unfairness of the §$10(b) period; arguments, however,

that would equally lead to the conclusion that DelCostello was work-

ing unfairness. Pet. Br. at 49-51; AUD Br. at 21-22.

12 The United States argues that a case should have to impli-

cate “the national interests in stable bargaining relationships and

finality of private settlements.” U.S. Br. at 14, quoting 462 U.S. at

170-171. Finally, AUD argues that § 10(b) “should apply only to

suits which “inevitably involve an immediate and direct impact on

labor management relations.” AUD Br. at 11, quoting Monarch Long

Beach Corp. v. Teamsters Local 812, 762 F.2d 228, 231 (2d Cir.

1985).

titi: zz,

27

supporting amici curiae and their reformulations of that

policy must be unfaithful to what Congress intended.”

At its core, moreover, petitioner’s argument rests on

the notion that intra-union disputes do not affect labor-

management relations and industrial stability. That no-

tion is in direct conflict with the legislative findings on

which the LMRDA is premised. Congress explicitly found

that the sorts of internal controversies present in Title I

suits do have the potential for disrupting labor manage-

ment relations, much as do traditional unfair labor prac-

tices governed by $10(b). Compare 29 U.S.C. § 401

with 29 U.S.C. § 151.

And looking at the matter objectively, the petitioner’s

position misperceives the realities of how the industrial

relations system functions. The disputes in Title I cases

are not “internal” in the sense that those disputes are

distant from employer-union controversies. Rather, Title

I governs the very processes whereby a labor organiza-

13 The effort to carve up labor law causes of action according to

a subjective theory of the closeness of the fit to collective bargaining

is, moreover, in conflict with this Court’s jurisprudence under § 301

of the LMRA, 29 U.S.C. § 186. See Plumbers Local 34 v. Plumbers,

452 U.S. 615 (1981). In that case, this Court held that § 301

governs suits between labor unions based on union constitutions,

rejecting a position with respect to § 301 almost indistinguishable

from that now urged regarding § 10(b). Although such suits were

within the plain meaning of §301, and there was no evidence of

any congressional desire to exclude some or all intra-union disputes,

a number of lower federal courts adopted the view that the potential

import of such disputes for labor relations and industrial stability

must be independently assessed. This Court rejected that construct,

noting that “surely Congress could conclude that the enforcement

of the terms of union constitutions . . . would contribute to the

achievement of labor stability.” 452 U.S. at 624. Here, petitioner

and his amici curiae seek to revive the same (and now discredited)

view. Indeed, AUD cites Alexander v. Operating Eng., 624 F.2d

1235 (5th Cir. 1980), a pre-Plumbers § 301 decision as authority,

and then admits that Alerander did not survive the Plumbers de-

cision. AUD Br. at 17-18.

28

tion formulates its positions in these controversies. The

Title I disputes may, for example, involve the iden-

tity of the union officers who deal with the employer, the

freedom of those officers to enter contracts, or the posi-

tions taken by the representative on any issue.

- Excessive instability in that process will make labor-

management agreement more difficult, and, indeed, may

lead to pressures to reopen isues long-settled or circum-

vent earlier understandings. Congress was aware that

the litigation authorized in the LMRDA, by potentially

unsettling the internal governance structures of the bar-

gaining representatives, could produce instability in col-

lective bargaining relationships. The Senate Report thus

cautioned that “in . . . enforcing statutory standards

great care should be taken not to undermine union self-

government or weaken unions in their role as collective

bargaining agents.” S. Rep. No. 187, supra, at 7.™

What unites most cases governed by §10(b) then is

not that the case grows out of events involving the nego-

tiation or administration of collective agreements but that

the cases concern a dispute between the various partici-

pant groups in our labor relations system who have con-

tinuing—and not always entirely consensual—relation-

ships, and that the nature and stability of those continu-

ing relationships are the subject, of that system’s public

concerns. Cf. Pattern Makers v. NLRB, 473 U.S. 95, 18

n.25 (“Membership in a union contemplates a continuing

relationship . . . a special relationship . . . as far removed

from the main channel of contract law as the relationship

14 We do not contend, of course, that all Title I cases would in-

volve issues with potentially serious consequences to the collective

bargaining process. But, neither do all duty of fair representation

claims implicate the concerns for industrial stability expressed in

DelCostelio. No such uniformity is needed. See United Parcel

Service v. Mitchell, 462 U.S. at 169 (“Although the present case

involves a fairly mundane and discrete wrongful-discharge com-

plaint, the grievance and arbitration procedure often processes dis-

putes involving interpretation of critical terms.”)

29

created by marriage. . .”) ; John Wiley & Sons v. Living-

ston, 376 U.S. 543, 550 (1964) (“Central to the peculiar

status and function of a collective bargaining agreement

is the fact .. . that it is not in any real sense simply the

product of a consensual relationship.” )

The relationship of union members to their union is

one of the basic continuing relationships upon which the

labor relations scheme is built, and the LMRDA repre-

sents a Congressional determination that the proper func-

tioning of the collective bargaining system depends in part

on the nature of the continuing union-member relation-

ship. The continued public interest in the nature of that

relationship and the harm that can be done by allowing

stale claims to linger are powerful reasons for the ap-

propriateness of borrowing § 10(b).

State law tort limitation periods, in contrast, involve

no considerations of early repose, because they are de-

signed with no expectation of regulating such specialized

continuing relationships. That is a powerful reason for

not “borrowing” those limitation periods.

Section 10(b) should thus be borrowed for use in Title

I actions.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

WALTER KAMIAT

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390