# Amicus Curiae Brief — Pattern Makers v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0773%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 473 U.S. 95 ## Text 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 1 g . il Ei f ' iH N ö 4 1 et 1 t i | 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: | ; 7 1 2 { 5 g i 1 | 1? 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0773%3A08. Public record. Not legal advice.