Amicus Curiae Brief — Pattern Makers v. NLRB

In THe

Supreme Court of the Uni

Ocroper Term, 1984

PATTERN MAKERS’ LEAGUE OF NORTH AMERICA,

AFL-CIO, AND ITS ROCKFORD AND

BELOIT ASSOCIATIONS,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD.

AND

ROCKFORD-BELOIT PATTERN JOBBERS ASSOCIATION,

Respondents.

Own Petrrion ror Writ or CERTIORARI TO THE

Unrrep States Court or APPEALS

FOR THE SEVENTH CIRCUIT

AMICUS CURIAE BRIEF ON BEHALF OF

SAFEWAY STORES, INCORPORATED; CALIFORNIA

PORSCHE-AUDI; SAN FRANCISCO AUTO CENTER;

EUROPEAN MOTORS, LTD.; LUCAS DEALERSHIP

GROUP; AND LYNCH COMMUNICATIONS TINCE INC.

IN SUPRORT OF AFFI

Lirruer, Menvevson, Faster & Tichy, — Lrrvuer, Menpetson, Fastirr A Tichy,

A PRoressionaL CORPORATION,

The World Trade Center,

650 California Street, 20th Floor, Suite 1653,

San Francisco, CA 94108-2693. Baltimore, MD 21202-3005,

(415) 433-1940, (301) 528-9545,

By: Wesiey J. Fastirr, By: Warren M. Davison,

Counsel of Record Lest Rovert STELLMAN,

Co R Caine. Roocer Darius Meape,

Attorneys for Amici Curiae Safeway

Stores, Incorporated; California

Porsche-Audi; San Francisco Auto

Center; Motors, Ltd.; Lucas

Dealership and Lynch Com-

munications Systems, Inc.

ly Co., baltimore, 21202

QUESTION PRESENTED

Whether the National Labor Relations Board and the

United States Court of Appeals for the Seventh Circuit

properly found that a union rule that restricts members

from resigning from the union during a strike imper-

missibly abridges the statutory right of employees to

refrain from engaging in union activities, and is therefore

violative of Section 8&(b)(1A) of the National Labor

Relations Act, as amended.

By Substantial Fines For Post-

Resignation Conduct, Constitutes “Re-

straint And Coercion” Violative Of

Section 8(b) 1A) Of The Act ...............

B. The Petitioners’ Contention That Mem-

bership In Labor Unions Is Entered

Into Freely And Voluntarily Is Mis-

leading And Erroneouuhhns

Amicus Curtak Bur)

Belknap, Inc. v. Hale. U.S. __, 103 S. Ct.

CT —ç—äʒẽ2—

Booster Lodge No. 405, Internationai As-

sociation of Machinists v. N.L.R.B., 412 U.S.

11•⁰ ————————————————————————

Buffalo Forge Co. v. United 2 — of

America, AFL-CIO, 428 U.S. 397 (1976)

Evans v. American Federation of Television

& Radio Artists, 354 F. Supp. 823 (S.D.N.Y.

1973), rev'd and remanded sub nom. Buckley

PAGE

wo wo — —

15

15

iii

PAGE

v. American Federation of Television & Radio

Artists, 496 F.2d 305 (2d Cir.), cert. denied,

GED UID. 26BB (IDF) cnccccccccsccccccccecccccccsssccsscsces 21

Haynes v. Annandale Golf Club, 110 Cal.

App. Supp. 765, 289 P. 806 (1930) 18

International Association of Machinists v.

Street, 367 U.S. 740 (1961) 22

International Association of Machinists and

Aerospace Workers, Local Lodge 1414 (Neu-

feld Porsche-Audi, Inc.), 270 NLRB No. 209,

116 LRRM 1257 (1984) 11-13

Leon v. Chrysler Motors Corporation, 358 F.

Supp. 877 (D.N.J. 1973) ...s. 18

Machinists Local 1327 (Dalmo-Victor), 231

NLRB 719 (1977), rev'd and remanded 608

F.2d 1219 (9th Cir. 1979), on remand, 263

NLRB 984 (1982), enforcement denied, 725

F.2d 1212 (9th Cir. 1984), petition for cert.

6 — —„—k—-—-¼¼ 8-11, 13, 14

N.L.R.B. v. Allis-Chalmers Manufacturing

Co., 388 U.S. 175 (1967) . 6, 14, 21, 22

N.L.R.B. v. General Motors Corp., 373 USS.

OT EFF 16,17

NLRB. ». Granite State Joint Board, Tex-

tile Workers Union of America, Local 1029,

AFL-CIO, 409 U.S. 213 (1975) 6-7, 8, 9, 14

N.L.R.B. v. Hershey Foods Corp., 513 F.2d

10GB s Cle. 100 16, 17

N.L.R.B. v. Mackay Radio & Teleg-aph Co.,

le fl, 15

N.L.R.B. v. The Boeing Company, 412 US.

67 (1973) . —.—...—.—./i.....—.—ꝰ3ꝰͤU·:ũ . .—.ͤ 14

Professional Engineers Local 151 (General

Dynamics Corp.), 272 NLRB No. 164, 117

LRRM 1443 (1984) .. 17

iv

PAGE

Radio Officers’ Union v. NL.RB., 347 US. No. 83-1894

0 Lee 16

Scofield v. N.L.R.B., 394 U.S. 423 (1969) ........ 6-7, 8, 9, 14 In THE

Statutes Supreme Court of the United States

National Labor Reiations Act, 29 U.S.C. Sec.

151 et seq.: Ocroser Term, 1984

Section 7, 29 U.S.C. Sec. —— EE passim | PATTERN MAKERS’ LEAGUE OF NORTH AMERICA,

Section 8(b)(1)(A), 29 U.S.C. Sec. BELOIT ASSOCIATIONS,

158(b)( 1 NA — . passim Petitioners,

Section 8(b)(2), 29 U.S.C. Sec. 158(b)(2) ...... 12 ve

NATIONAL LABOR RELATIONS BOARD,

Miscellaneous AND

6 Au. Jur. 2p Associations and Clubs, Section ROCKFORD-BELOIT PATTERN JOBBERS ASSOCIATION,

8908 ———— —-—-— 18 Respondents.

Bureau of National Affairs, Collective Bar- Ow Peririon ror Wait or CERTIORARI TO THE

gaining Negotiations and Contracts, vol. 2, Unrrep States Court or APPEALS

pp. 87:1-87:4 (1983) PPPTTTTITITITITTT 2 TTT 19, 20 FOR THE SEVENTH Crrcult

Ogden, Dalmo-Victor: A Troubled Sleep De-

serves a Hershey Kiss, 35 Lasor LJ. 374 AMICUS CURIAE BRIEF ON BEHALF OF

—— a 16 SAFEWAY STORES, INCORPORATED; CALIFORNIA

Wellington, Union Fines and Workers’ PORSCHE-AUDI; SAN FRANCISCO AUTO CENTER;

Rights, 85 Yate L. J. 1022 (1976) ........ 10, 16, 17, 20-21 EUROPEAN MOTORS, LTD.; LUCAS DEALERSHIP

GROUP; AND LYNCH COMMUNICATIONS SYSTEMS, INC.

IDENTIFICATION OF PARTIES SUPPORTED

This amicus curiae brief is filed in full support of the

positions asserted by the National Labr- Relations Board

(hereinafter referred to as “the NLRB” or “the Board”) and

by the Rockford-Beloit Pattern Jobbers Association

(hereinafter referred to as “the Association” or “the

2

Employers”), the Respondents in this case. We

respectfully urge that this Court affirm the decision of the

United States Court of Appeals for the Seventh Circuit

which, in agreement with the Board, concluded that the

Petitioners’ restriction on its members’ right to resign

their Union membership during a strike violates Section

&(b\ 1A) of the National Labor Relations Act, as

amended.”

INTEREST OF AMICI CURIAE

Safeway Stores, Incorporated is currently signatory to

more than 100 collective bargaining agreements with

various labor unions whose members are covered by those

agreements. California Porsche-Audi; European Motors,

Ltd.; San Francisco Auto Center; and Lucas Dealership

Group are automobile dealerships located in the State of

California, each of whom has collective bargaining

relationships with several labor organizations covering

each dealership’s non-supervisory employees. Lynch

Communications Systems, Inc. is an electronic manu-

facturing corporation whose employees are similarly

represented by a labor organization.

Most of these collective bargaining agreements contain

union security provisions, requiring the employees

* We hereby certify that we have obtained the consent of all

the parties, including the Solicitor General of the United States

on behalf of the Respondent National Labor Relations Board, to

respective parties are attached hereto as Appendices to this

Brief, and are filed simultaneously with the filing of this brief

with the Court.

2 61 Stat. 136, 73 Stat. 519, 29 U.S.C., Section 158(b)\(1)(A),

which is quoted in relevant part on page 2 of the Petitioners’

Brief. Hereinafter, the National Labor Relations Act is referred

to as “the Act”; the Pattern Makers’ League of North America,

AFL-CIO, and its Rockford and Beloit Associations are col-

lectively referred to as “the Union” or “the Petitioners.”

References to the records, appendices, and other relevant

documents will conform to those in the Petitioners’ Brief.

3

involved to join the union and remain union members

throughout the life of the contract. Some of the unions

with whom these employers have such collective

bargaining relationships also have constitutional pro-

visions similar to that at issue herein, restricting

members’ rights to resign, specifically during strikes.

Moreover, these employers have been, and may in the

future be, faced with union sponsored strikes and work

stoppages. During such strikes, these employers receive

numerous inquiries from employees, faced with financial

hardship, who desire to exercise their statutorily

guaranteed right to refrain from concerted activity, but

who have expressed an inability to exercise their right

due to fear of substantial union fines.

Accordingly, as a party to these numerous collective

bargaining agreements, and faced with strikes in which

their employees’ right to return to work is endangered by

coercive union fines, each amicus curiae has a strong

interest in protecting its employees’ Section 7 rights, as

well as resolving the lawfulness of restrictions upon these

rights.

SUMMARY OF ARGUMENT

Unfair labor practice charges were filed by the

Association against the Union arising out of the Union’s

imposition of substantial fines upon eleven employees

employed by various employer members of the

Association. These employees had resigned from the

5 This right is embodied in Section 7 of the Act, 29 U.S.C.

Section 157, which states, in pertinent part:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose

of collective bargaining or other mutual aid or protection,

and shall also have the right to refrain from any or all such

(Emphasis added.)

(App. 28a n.3.)

It is the position of the ami curiae that the Labor

Board and the Court of Appeals for the Seventh Circuit

correctly concluded that “[t]he Section 7 right to refrain

from union activities encompasses the right of members to

resign from the union,” and that “because League Law 13

discipline, it frustrates the overriding policy of labor law

that employees be free to choose whether to engage in

concerted activities.” (App. 5a-Ga). Recognizing that

unions have an interest in preserving strength during a

strike, we nevertheless submit that such interest, which is

neither embodied in the Act nor reflected in any of the

extensive legislative history recited in the Petitioners’

Brief, does not stand in pari materia with the recognized,

guaranteed statutory right of the individual employee to

refrain from participating in concerted activities. Accord-

ingly, we urge that the interest of a union to adopt rules

that are calculated to require that its employees-members

stand “shoulder-to-shoulder” during a strike or a work

stoppage must yield, when balanced against the statutory

right of employees to refrain from union activities by

resigning from union membership. Although we contend

that such statutory right must always be found to override

the unions’ institutional self interests when the two

5

conflict, we note that such result is particularly warranted

where, as here, employees sought to resign from union

membership during the course of a protracted strike which

had caused them substantisl personal and financial

hardship.

We show below, contrary to the contentions raised by

the Petitioners in their brief, that the imposition of

substantial fines upon employees who have attempted to

resign their union membership in the midst of a pro-

tracted strike is clearly intended as a significant deterrent

to the employees’ attempt to resume employment contrary

to the wishes of their Union. As such, these fines directly

and proximately impinge upon the employment relation-

ship so as to fall squarely outside the limited immunity

afforded to labor organizations by the proviso to Section

&(b\ 1A) of the Act, 29 U.S.C. Section 158(b)\(1)(A), to

“prescribe their own rules with respect to the acquisition

or retention of membership therein.”

Finally, we show that Petitioners’ suggestion that

employees are unconditionally bound by their unions’

rules, including restrictions on their right to resign, is

erroneously premised upon the notion that employees who

become members of labor organizations do so freely and

voluntarily, and thai they are free to resign at times other

than during periods of strikes or lockouts or when such

activities are “imminent.” Such a notion ighores the

their continued employment.

A. Resrrictinc A Unton Memper's Ricut To Resien, Ano

Enrorcine Tuat Restriction By SusstanTiac Fives For

Post-Resicnavion Conpuct, Constrrutes “Restraint AND

Coercion” Viocatrve or Section 8b 1A) Or Tur Act.

In NLAB. v. Granite State Joint Board, Textile

Workers Union of America, Local 1029, AFL-CIO, 409 US.

213 (1972), and later in Booster Lodge No. 405, Inter-

national Association of Machinists v. N.L.R.B., 412 US. 84

(1973), this Court heid that a union violated Section

&(bM1MA) of the Act when it fined an employee who

The unions had contended that this Court's earlier

decisions in N.L.R.B. v. Allis-Chalmers Manufacturing

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409 U.S. at 217. Turning to the bitter realities recited in

the facts of that case, the Court then noted that most of

the affected employees who chose to resign their mem-

bership and work behind the union picket line did so after

the seventh month of a strike which “was still in progress

regime.

409 U.S. at 217-18.

employees who, in the words of the Scofield Court, left

their union in order to “escape the rule,” many unions,

including the Pattern Makers League, were quick to adopt

constitutional or bylaw provisions that have the intention

and effect of locking employees into their union mem-

bership during strikes or lockouts, or when such events

appeared “imminent,” without the opportunity freely to

resign. However, the Board on at least three different

occasions has rejected union attempts to accomplish, by

the mere insertion of restrictive language regarding

resignation, the indirect restriction of resignation rights

which this Court would not permit directly in Scofield and

Granite State

In the first such case, Machinists Local 1327 (Dalmo-

Victor), 231 NLRB 719 (1977), rev'd and remanded 608

F.2d 1219 (9th Cir. 1979), on remand, 263 NLRB 984

(1982), enforcement denied, 725 F.2d 1212 (9th Cir. 1984),

petition for cert. pending, four of the five Board members

concluded (Member Jenkins dissenting) that an amend-

ment promulgated by the International Association of

Machinists in its constitution as a response to this Court's

Granite State decision® constituted a violation of Section

jn a concurring opinion in Granite State, 409 US. at 218,

Chief Justice Burger made the following pertinent observations:

The balance is close and difficult; unions have need for

solidarity and at no time is that need more pressing than

special protection to the associational ri ts of individuals

in a variety of contexts; through Section of the Labor Act,

Bib 1A) of the Act.’ In so ruling, Board Members

Fanning and Zimmerman reasoned that:

Tme Supreme Court's remarks in Granite State,

read in conjunction with the Scofield requirement

that union members must be free to leave the

union and escape the rule, lead inescapably to the

conclusion that a member's right to resign from a

union ies both to strike and nonstrike situ-

ations. We hold today that a union rule which

limits the right of a union member to resign only to

nonstrike periods constitutes an unreasonable

restriction on a member's Section 7 right to resign.

263 NLRB at 986.

Then-Chairman Van de Water and Member Hunter, in

a lengthy concurring opinion in Dalmo-Victor, offered the

following further analysis which led them to conclude that

any restriction imposed upon a union member's right to

resign was unreasonable and thus violative of Section

Bibi 1A):

Foo of the four majority Members (former Member Fanning

and Member Zimmerman) had concluded that “the right of

union members to resign is not absolute,” and, in the interest of

protecting the union’s “right” to maintain its strike objectives

they created a rule permitting unions to restrict resignations for

to 30 days. 263 NLRB at 987. Member Hunter and former

irman Van de Water, however, would have found il any

D at

that the restriction upon resignation contained in the Machin-

> aa Constitution clearly violated Section 3b) 1A) of

10

263 NLRB at 990, 991 n.47.“

Finally, the concurring Board Members rejected the

union’s contention that the institutional interests of the

union in preserving “strike solidarity” stood on equal

their union or its strike:

It is difficult to believe that union leaders are so far

removed from their rank and file that they cannot predict

how many deserters will encounter during a strike. T

the extent that union ials do have honest doubts about

their capacity to wage protracted economic war (a source of

concern if one accepts the underlying rationale of Allis-

— 2 —— —

are

secret ballot. , unions meant to be democratic

institutions. If unfettered freedom to resign so depletes a

union’s ranks over time that the of its strike is

is tempted to say that members have

Scarcely three months after it issued its decision in

Dalmo-Victor, a unanimous Board, this time consisting of

Chairman Van de Water and Members Fanning, Hunter

and Zimmerman, concluded in the case at bar that League

Law 13, which attempted to restrict resignation of the

League’s members during periods of strikes, lockouts, or

when such events appeared “imminent,” contravened

Section 8(b\ 1A) of the Act. The Court of Appeals for the

Seventh Circuit affirmed the Board's decision (App. la-8a)

and granted enforcement of its remedial order requiring

the Union to “[clease and desist from giving force and

effect to League Law 13” and “imposing fines and other

penalties upon former members for conduct in which they

engaged after their effective resignation from (the

Union]. (App. 17a.)

Finally, in June 1984, the Board for a third time struck

down, as violative of Section 8(b)(1)(A), a union's attempt

to restrict its members’ right to resign during a strike in

order to return to work without fear of monetary

sanctions. In International Association of Machinists and

Aerospace Workers, Local Lodge 1414 (Neufeld Porsche-

Audi, Inc, 270 NLRB No. 209, 116 LRRM 1257 (1984), a

Board majority consisting of Chairman Dotson and

Members Hunter and Dennis reaffirmed the Board's

earlier rulings on the issue, determining that:

12

M hen a union seeks to delay or otherwise impede

embership, restrict * a , ‘

mine the policies of Section 2 the cocend

proviso to Section &a\3)" that serve to prohibit a

union from compelling full membership.

Section db of the Act, 29 U.S.C. Section 1582 makes

it an unfair labor practice for a union:

1 aa

contested by the Union, either in the Circuit Court of Appeals or

before this Court.

The second proviso to Section 81 of the Act, 29 U.S.

Section 158(a\3), states, in relevant part:

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continue to regula mduct over which it would

otherwise have no control. We find no basis in the

Act for allowing unions to alter unilaterally the

statutory structure so carefully elucidated by the

Supreme Court.

116 LRRM at 1260 (footnote omitted).

In sum, over the past two years, three separate Board

panels comprising a total of six (6) different Members

whose views reflect the entire political spectrum from

liberal to conservative, have unequivocally rejected, as

unlawful, attempts by labor unions to restrict the rights of

their members freely to resign from membership. They

have so ruled even where the resignations have occurred

during periods such as strikes or lockouts when, admit-

tedly, the institutional need of those organizations for

“solidarity” is paramount.

It is disingenuous, we submit, for the Union to rely upon

the aberrational decision of the Ninth Circuit in the

second Dalmo-Victor case (Machinists Local 1327 v.

N.LA.B., 725 F.2d 1212 (1984)), for the proposition that

League Law 13 falls comfortably within the protection of

the proviso to Section 8(b(1)(A), which “reserves to unions

the power to make reasonable rules regarding the

retention and acquisition of membership,” and that,

accordingly, fines against employees for accepting post-

'! Former Member Fanning, a Democrat who ruled to strike

down the Machinists Union's restrictive provisions regarding

resignation during strikes in the Dalmo-Victor case, and who

also concurred with the Board majority in the instart case, was

appointed to his last term by former President Carter. Member

Zimmerman, an Independent who joined Member Fanning in

the majority decision in Da/mo-Victor, as well as the majority

inion in the case at bar, was likewise appointed by President

Former Chairman Van de Water and Member Hunter,

who wrote concurring opinions in Dalmo-Victor, as well as the

opinion in the case at bar, are Republicans who were appointed

by President Current Board Chairman Dotson, a

Republican, and Dennis, a Democrat, both of whom

joined the majority opinion in Neufeld Porsche-Audi, supra,

were also appointed by President Reagan.

14

resignation employment with the struck employer do not

constitute “coercion” within the contemplation of the Act

(Petitioners’ Brief, p. 8, quoting 725 F.2d at 1216). Rather,

as the Court observed in N.L.R.B. v. The Boeing Company,

412 U.S. 67 (1973), contrary to the Union's contention

herein, “all fines are coercive to a greater or lesser

degree.” 412 U.S. at 73. Thus, resolution of the issue

herein centers not upon whether these particular fines

might be deemed “coercive” but, rather, on whether union

imposition of such fines could necessarily be said to

impinge upon the employment relationship. Thus, the

Boeing Court held that:

The underlying basis for the holdings of A/lis-

Chalmers and Scofield |supra| was not that reason-

able fines were non-coercive under the language of

Section 8(b\1)(A) of the Act, but was instead that

those provisions were not intended by Congress to

apply to the imposition by the union of fines not

affecting the employer-employee relationship and

not otherwise prohibited by the Act.

* * * * * *

At least since 1954, it has been the Board's

consistent position that it has not been empowered

by Congress. to pass judgment on the penalties

a union may impose on a member so long as the

penalty does not impair the member's status as an

employee

412 US. 73. 74-5 (footnotes and citations omitted).

We can imagine no greater imposition upon a member's

status as an employee, nor a greater effect upon the

employer-employee relationship as envisioned by this

Court in Boeing, Scofield, Granite State, and their

progeny, than a union rule that purports to restrict a

member's right to resign thereby subjecting that member

to substantial fines should he exercise his right to

abandon a strike in order to return to work to feed his

c

15

family. Indeed, in this very case, the Board's Admin-

istrative Law Judge found that one of the affected

employees was fined “$4,200 for damages due injury the

Beloit Association for deserting the strike by returning to

work” (App. 29a), while the other ten (10) individuals who

attempted to resign their membership in order to return to

work were fined in an amount “approximately commen-

surate with their earnings . for returning to work

during the strike.” (App. 28a.) If the cost of returning to

work is moat, all of, or even more than, the amount the

employee stands to ear1 by doing so, no employee can

safely accept employment for the duration of any strike,

no matter how long the strike laste end without regard to

the economic hardships imposed upon him and his family

or the imminence of his being permanently replaced by his

employer. See N.L.R.B. v. Mackay Radio & Telegraph Co.

304 U.S. 333 (1938); Belknap, Inc. v. Hale. US. __,

103 S. Ct. 3172, 3177 (1983).

Surely, there are far less coercive means of enforcing a

union’s legitimate objective of group solidarity'’ during a

strike than by depriving an employee of his livelihood

through the use of fines equal to or greater than his

strike-period earnings. Aside from the not inconsiderable

peer pressure placed upon the employee by his fellow

workers, such less coercive means include suspension or

even expulsion from the union. While Section 8(a)(3) of the

Act'® protects an employee from losing his job as a result

i? While we agree that the desire to stand “shoulder-to-

shoulder” during a strike is an important union interest, this

interest is significantly diminished in the circumstances of the

so-called “sympathy” strike. In such situations, an employee

may be forced to remain out of work during the life of a

collective bargaining agreement, which is intended to protect

him from strikes or lockout, due to a dispute which has nothing

whatsoever to do with his employment. Buffalo Forge.Co. v.

United Steeworkers of America, AFL-CIO, 428 U.S. 397 (1976).

1 99 U.S.C. Section 158403). See footnote 10, supra, for the

text of its relevant proviso regarding discrimination by employ-

ers against employees for “non-membership in a labor

organization.”

16

of such union action, nevertheless there are both

tangible and intangible losses associated with loss of

union membership which a union member must weigh

before determining whether mid-strike resignation is

appropriate. Those losses may include, inter alia, the loss

Under the Supreme Court's decision in N.L.R.B. v. General

Motors Corp, 373 U.S. 724, 742 (1963), membership as a

condition of employment has been whittled down to its financial

core.” As this Court further observed:

It is permissible to condition employment upon mem-

bership, but membership, insofar as it has significance to

employment rights, may in turn be conditioned only upon

yment of fees and dues... .

Id. In his excellent article on the subject, Professor Wellington

refers to Radio Officers’ Union v. N.L.R.B., 347 U.S. 17 (1954),

where the Court noted that except for the payment of union dues

and fees provided for under a valid union security agreement,

“No other discrimination aimed at encouraging employees to

join, retain membership, or stay in good standing in a union is

condoned. (347 U.S. at 41-2.]” Wellington, supra, at 1050. He

then goes on to note that:

[Ak a matter of federal labor policy, the conclusion that a

worker may not be discharged for resigning is consistent

with the overriding intent of both Section 8(a)(3) and

Section 8(b\(1A) to separate employment rights from

union rights. Just as union discipline cannot be enforced by

either actual or threatened job discrimination, it seems

clear that no union security clause, however broad, can

justify discharge of a former member who has resigned to

escape union discipline, so long as he meets his minimal

financial obligations.

Id. at 1059-51 (footnotes omitted).

Unfortunately, as we discuss more fully at 19-22, infra,

most union members are not sufficiently familiar with this

rather sophisticated concept of labor law to understand or

appreciate their legally recognized right to resign their union

membership while still continuing to pay periodic dues in

accordance with the union security clause of their employer's

collective bargaining agreement. See N.L.R.B. v. Hershey Foods

Corp., 513 F.2d 1083 (9th Cir. 1975); Ogden, Dalmo-Victor: A

— Sleep Deserves a Hershey Kiss, 35 Lasor LJ. 374

(1984).

— — —

17

of union benefits,“ including pensions, insurance, strike

benefits, medical facilities, recreation centers, and de-

pendents’ scholarships, as well as the right to attend union

meetings and social functions or to be heard within the

union’s councils, the right to hold union office, and the

opportunity to participate in the formulation of bargaining

proposals and to vote for or against a proposed contract

once it has been agreed upon at the bargaining table.

General Motors, 373 U.S. at 737.“

Discouraging employees from accepting employment by

means of disciplinary fines is no less coercive than a

union’s overt attempt to force an employee to forego his

right to refrain from supporting its strike by threats and

intimidation.’” General Motors, supra; Hershey Foods,

supra. Both forms of conduct, we submit, are unlawful,

and cannot be condoned by this Court.

TS Such benefits would not, of course, include any that are

provided pursuant to a collective bargaining agreement between

the union and the employee's employer.

16 For a more detailed discussion of the effects of resignation

upon the employee-member, see Wellington, supra, at 1045-48.

Indeed, as recently as November 7, 1984, a unanimous

Board panel consisting of Chairman Dotson and Members

Zimmerman and Dennis determined, contrary to the agency's

administrative law judge, that a union which sought to impose a

reinitiation fee upon two members who had previously resigned

their membership but sought to rejoin in order to comply with

the terms of their employer s union security t with the

union, did so in derogation of the employees’ ion 7 “right to

refrain from joining unions as full members and to meet only

their financial core obligations.” The Board, therefore, concluded

that “the imposition of the additional initiation fees on the

Charging Parties acted as a penalty for the exercise of their

Section 7 rights.” Professional Engineers Local 151 (General

Dynamics Corp.,), 272 NLRB No. 164, 117 LRRM 1443, 1444

(1984).

18

B Tue Prrrrioxkks Conrention THat Membersuir In Laon

Unions Is Enterep Iro Freety AND Voiuntarity Is

Misteapinc AND Erroneous.

The Petitioners rely heavily upon the notion (see

Petitioners’ Brief, pp. 34-38) that the Union's con-

stitutional restriction against resignation is further

justified by common law concepts concerning the right of

voluntary associations to restrict the conditions under

which their members may resign their membership. To

support this contention, the Petitioners recite a line of

cases in which various courts have determined that

voluntary associations such as country clubs, medical

societies, and automobile dealership advertising consortia

were free to promulgate rules restricting the manner and

method in which members could tender their resignation

from those associations. The common thread in those

cases, however, is that the persons who sought to resign

their membership from the particular organization “volun-

tarily submitted to the rule of the majority. Leon v.

Chrysler Motors Corporation, 358 F. Supp. 877, 885

(D.N.J. 1973) (emphasis added.

Clearly, the linchpin of each of these cases and, indeed,

of the Petitioners’ argument regarding the applicability of

the common law of voluntary associations, is the freedom

indeed. there is serious doubt as to the efficacy of

associational restrictions upon its members’ right to resign, even

assuming, arguendo, that its members do, in fact, freely and

voluntarily enter the association. According to one leading

treatise referred to by the Petitioners in their Brief (at p. 36):

A member may lawfully resign at any time from an

association or club and te.minate his liability for dues and

fees, upon payment of all accrued charges, and a bylaw

which restricts this right or makes the withdrawal subyect to

19

and voluntariness with which members joined their

respective associations. Thus, Petitioners argue:

with the further ing that other mem-

dictates that he may be bound by a union

he agreed requiring him to continue his

membership

(Petitioners’ Brief, p. 38; emphasis added.)

The underscored language recited above reflects the

Petitioners’ misleading and erroneous premise that, like

members of a golf club or medical society, union members

acquire their membership voluntarily, and that they are

free to leave at times other then p-.iods of strikes,

lockouts, or when such events are “imminent.” As we show

below, this premise is clearly invalid.

According to a recent comprehensive survey conducted

by the Bureau of National Affairs of over 400 collective

bargaining agreements from across the U.S. covering

bargaining units which include 50 or more employees,

some 73 percent of those contracts contained either union

ees to become and remain members of a labor union as a

condition of their continued employment. To the average

~ 1 Bureau of National Affairs, Collective Bargaining Nego-

tiations and Contracts, vol. 2 pp. 87:1-87:4 (1983).

20

worker covered by such provisions, which are contained in

a collective bargaining agreement dictating the terms and

conditions of his employment, mandatory membership

requires not simply that the employee pay an initiation

fee and periodic monthly dues, but that he join the union,

thereby assuming whatever might be the duties and

obligations of union membership, as well.

Most contractual union security agreements, including

the provisions contained in collective bargaining agree-

ments between the League and the Union in the case at

bar, are silent with respect to the rights of members to

resign from full membership, retaining only their “finan-

cial core” obligatioris to pay periodic dues and initiation

fees. Indeed, the only class of union security provision that

affirmatively notifies the worker of his limited financial

obligation is the “agency shop” clause, under which

employees are not required to join the union, but mere:y to

pay a service charge equal to or less than union dues.

However, the “agency shop” clause, according to the

above-referenced survey of nationwide collective bar-

gaining agreements, appears in only five percent of the

contracts surveyed.”

As Professor Wellington has cbserved:

[Most union security clauses fail to inform the

worker that his statutory obligation is limited to

payment of dues. This failure is hardly surprising.

... There is little reason to believe that the

So long as unions do not affirmatively discluse to newly

hired employees of unionized establishments — by a

specific constitutional provision, by less all-encompassing

union security agreements, or by clear and unambiguous

Wellington, supra, at 1051-52, citing and quoting from

Allis Chalmers, 388 US. at 215 (Black, J., dissenting). See also

Evans v American Federation of Television & Radio Artists, 354

F. Supp. 823 (S.D.N.Y. 1973), rev'd and remanded sub nom.

v. American Federation of Television & Radio Artists,

496 F.2d 305 (2d Cir.), cert. denied, 419 US. 1093 (1974).

22 23

have tended to obscure, rather than to emphasize, the CONCLUSION

financial core obligations so fervently espoused by the

Petitioners in their Brief. Thus, this Court has suggested For the foregoing reasons, Safeway Stores, Incorporated;

that even those employees who join labor unions and California Porsche-Audi; San Francisco Auto Center;

retain their membership in those organizations solely

under the assumption that such membership is a condition

of their continued employment, are presumed to have

undertaken full-fledged membership, absent clear evi-

dence to the contrary. Allis- Chalmers, 388 U.S. at 196-97,

citing International Association of Machinists v. Street, 367

U.S. 740, 774 (1961).

It is sheer sophistry for the Petitioners to suggest that

‘their members joined “freely and voluntarily” and thereby

agreed to be bound by Union rules and regulations. To the

contrary, the typical employee's initial decision is not to

join or not join the union, but rather is to accept or not

accept a job with a unionized employer, governed by a (415) 433-1940, (301) 528-9545,

union security provision. Accordingly, in most cases, an By Wesuey J. Faser By Warren M Davison,

employee-member has not voluntarily chosen to join the Counsel of Record Li Rogert STELLMAN,

union, but instead has voluntarily chosen to work for an Cen R Caine. — —

employer, and joins the union merely as an imposed .

condition of that employment. Petitioners’ reliance upon Porsche-Audi, San Francisco Auto

cases purporting to construe the “common law of volun- — 111

tary associations” is, therefore, utterly misplaced and munications Systems. Inc

should be rejected by this Court.

APPENDIX

ApPpENDIXx 1

AMERICAN FEDERATION OF LABOR AND CONGRESS

or INDUSTRIAL ORGANIZATIONS

(Lego) 815 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 637-5000

November 19, 1984

Carol R. Caine, Esq.

Littler, Mendelson, Fastiff & Tichy

650 California Street, 20th Floor

San Francisco, CA 94109-2693

Re: Pattern Makers, et al v.

NLRB, et al., No. 83-1894

Dear Ms. Caine:

On behalf of the petitioners in the above-noted case, I

hereby consent to your request to file a brief amicus curiae

in support of the position of the respondents; my consent is

premised on the understanding that the brief will be filed

on or before the due date for respondents’ brief.

Sincerely,

Laurence Go tp,

Counsel of Record.

AppENDIX 2

Fany & Cueney, Lrp.

Attorneys at Law

Suite 202 NOV 26 1984

303 North Main Street ‘Stamped Date’

Rockford, Ilinois 61101

November 19, 1984

Wesley J. Fastiff, Esq.

Littler, Mendelson, Fastiff & Ticky

Attorneys at Law

20th Floor

650 California Street

San Francisco, California 94108

Re: Pattern Makers’ League of North America,

AFL-CIO, et al. v. National Labor Relations

Board and Rockford-Beloit Pattern Jobbers

Association, No. 83-1894

Dear Mr. Fastiff:

In response to your telephone request, Respondent,

Rockford-Beloit Pattern Jobbers Association consents to

your filing an amicus curiae brief in the above-captioned

case on behalf of Safeway Stores, Inc., European Motors,

California Porsche-Audi Lincoln-Mercury, San Francisco,

California, Auto Center, Lucas Dealership Group and

Lynch Communications Co., Inc. and supporting the

position of Respondents.

Very truly yours,

Fany & Cueney, Lro.,

Epwarp J. Fany,

Attorney for Rockford-Beloit

Pattern Jobbers Association.

EJF :|kj

ce: Lawrence Gold, Esq.

Rex E. Lee Esq.

Wilford W. Johansen, Esq.

Norton J. Come, Esq.

APPENDIX 3

U.S. DepartTMeENT or JusTICE

(Logo) Office of the Solicitor General

Washington, D.C. 20530

November 20, 1984

Carol R. Caine, Esq.

Littler, Mendelson, Fastiff & Tichy

650 California Street, 20th Floor

San Francisco, California 94108-2693

Re: Pattern Makers’ League of North America, et

al. v. National Labor Relations Board, et al.,

No. 83-1894

Dear Ms. Caine:

As requested in your letter of November 13, 1984, I

hereby consent to the filing of, a brief amicus curiae on

behalf of Lucas Dealership Group and Lynch Com-

munications Systems, Inc. (Nev.).

Sincerely,

Rex E. Les,

Solicitor General.

AppENDIX 4

U.S. DepaRTMENT OF JUSTICE

(Logo) Office of the Solicitor General

Washington, D.C. 20530

November 6, 1984

Carol R. Caine, Esq.

Littler, Mendelson, Fastiff & Tichy

650 California Street, 20th Floor

San Francisco, California 94108-2693

Re: Pattern Makers’ League of North America, et

al. v. National Labor Relations Board, et al.,

No. 83-1894

Dear Ms. Caine:

As requested in your letter of October 30, 1984, I hereby

consent to the filing of a brief amicus curiae on behalf of

Safeway Stores, Incorporated, California Porsche-Audi.

San Francisco Auto Center and European Motors, Ltd.

Sincerely,

Rex E. Lee,

Solicitor General.