Amicus Curiae Brief — Pattern Makers v. NLRB

In THE

Supreme Court of the United States

OCTOBER TERM, 1984

PATTERN MAKERS’ LEAGUE OF NORTH AMERICA,

AFL-CIO, and Its RockrorpD and BELOIT ASSOCIATIONS

V.

NATIONAL LABOR RELATIONS BOARD

and

ROCKFORD-BELOIT PATTERN JOBBERS ASSOCIATION

On Writ of Certic: ari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES AS AMICUS CURIAE

CaRL L. TAYLOR

GLENN SUMMERS

Of Counsel : KIRKLAND & ELLIs

STEPHEN A. BOKAT 655 Fifteenth Street, N.W.

NATIONAL CHAMBER Washington, D.C. 20005

LITIGATION CENTER (202) 879-5000

1615 H Street, N.W. Attorneys for the

Washington, D.C. 20062 Chamber of Commerce of the

(202) 463-5337 United States, Amicus Curiae

Wiso . Eres Printine Co.. Inc. . 769-0096 . WasHineToN, D.C. 20001

QUESTION PRESENTED

Does the establishment of a de facto closed shop

through the dual effect of the union’s failure to notify

new employees of their right not to become full union

members and the anti-resignation rule violate the labor

law policy against closed shops, as well as frustrating the

labor law policy protecting the employee’s right to refrain

from concerted activities?

(i)

CONCLUSION

TABLE OF CONTENTS

QUESTION PRESENTED bb... —

TABLE OF AUTHORITIES ...........................................

INTEREST OF THE AMICUS ...........

I. LEAGUE LAW 153, IN CONJUNCTION WITH

THE UNION’S ADMINISTRATION OF ITS

UNION-SECURITY CLAUSE, VIOLATES

THE LABOR POLICY AGAINST CLOSED

SHOPS AND THEREFORE CANNOT VAL-

e

II. THE LEGISLATIVE HISTORY OF THE

TAFT-HARTLEY ACT DEMONSTRATES

THAT CONGRESS INTENDED NO IMPLIED

EXCEPTIONS TO THE POLICY AGAINST

.

A. The Elimination of Closed Shops Was a

Major Goal of the Taft-Hartley Aet

B. The Legislative History on Which the Peti-

tioners Rely Does Not Demonstrate a Con-

gressional Intent to Permit an Implied Ex-

ception to the Policy Against Closed Shops

Oe eee ꝶcbrõ„kkssũ

(iii)

12

iv

TABLE OF AUTHORITIES

CASES

Chauffeurs, Salesdrivers, & Helpers Union, Local

572, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers (Ralphs

Grocery Co.), 247 NLRB 934 (1980) 000000...

General Teamsters Local 162 v. NLRB, 568 F.2d

RE STEER eee

NLRB v. Allis-Chalmers Manufacturing Co., 388

U.S. 175 (1967) — «8

NLRB v. General Motors Corp., 373 U.S. 734

ü—K—-»- K hacia hail eee iaieibiaaiedaiainns

NLRB v. Local 182, International Brotherhood of

Teamsters, 401 F.2d 509 (2d Cir. 1968), cert.

denied, 394 U.S. 213 (19690) „„

Philadelphia Sheraton Corp., 136 NLRB 888

(1962), enforced, 320 F.2d 254 (3d Cir. 1963)

Scofield v. NLRB, 394 U.S. 423 (1969)0ÿł7

Teamsters Local 122 (August A. Busch & Co.), 203

NLRB 1041 (1973), enforced, 502 F.2d 1160

r... ↄ = alah aidan

United Stanford Employees, 232 N RB 326

(1977) ..... . J 0 ˙—w

LEGISLATIVE MATERIALS

H.R. Rep. No. 245, 80th Cong., Ist Sess. (1947)

S. Rep. No. 105, Soth Cong., Ist Sess. (1947)

H. Conf. Rep. No. 510, Soth Cong., Ist Sess.

RE ES K

93 Cong. Rec. 4398 (April 30, 1947) n

93 Cong. Rec. 6601 (June 5, 1947)

STATUTES

National Labor Relations Act, as amended, 29

U.S.C. 88 157 et seq.

29 U.S.C. § 157 (1982) „

K 8

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-1894

PATTERN MAKERS’ LEAGUE OF NORTH AMERICA,

AFL-CIO, and Its RockrorpD and BELOIT ASSOCIATIONS

V.

NATIONAL LABOR RELATIONS BOARD

and

ROCKFORD-BELOIT PATTERN JOBBERS ASSOCIATION

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE AMICUS

This case presents the question of whether a union

may lawfully enforce a rule prohibiting a union member

from resigning his membership in anticipation of or dur-

ing a strike. The National Labor Relations Board

(“Board”) held that such a rule improperly burdens the

employee’s right to refrain from concerted activities, a

right protected by Section 7 of the National Labor Rela-

tions Act (“Act”), 29 U.S.C. § 157 (1982). The Board

accordingly found the petitioners here guilty of an un-

fair labor practice for imposing court-collectible fines on

employees who sought to resign their membership and

return to work during a strike. The United States Court

of Appeals for the Seventh Circuit enforced the decision,

while the United States Court of Appeals for the Ninth

Circuit denied enforcement in a case presenting a similar

issue.

The Chamber of Commerce of the United States urges

the Court to affirm the position of the Seventh Circuit

and the Board.“ The Chamber of Commerce is the largest

business and professional organization in the United

States. Its membership includes more than 4,000 state

and local chambers of commerce and trade and profes-

sional organizations as well as 180,000 business firms and

individual direct members. Many of its members are sig-

natories to collective bargaining agreements with unions

that have limitations on resignations similar to the one

at issue here. The Chamber of Commerce thus has a

significant interest in urging the vindication of the right

of its members’ employees to have freedom of choice with

respect to supporting their union or their employer dur-

ing a strike.

SUMMARY OF ARGUMENT

League Law 13 purports to restrict an employee’s right

to resign from the Union during a strike or lockout or

when a strike or lockout appears imminent. The rule

improperly burdens the employee’s Section 7 right to re-

frain from concerted activities, and the Chamber of

1 The parties to this case have provided their written consent to

the filing of this brief. The letters granting consent have been

filed with the Clerk.

Commerce urges affirmance for the reasons stated by the

Court below and by the Board.

The Chamber also urges affirmance of the result be-

low because of an additional labor law policy that is im-

paired in the circumstances of this case: the policy

against closed shops. The Union failed to disclose to new

employees that they were not required to become full

members of the Union. The members’ joining of the

Union therefore was not a voluntary act. League Law

13 compels continued subjection to the Union by preclud

ing resignations at or after the expiration of the collec-

tive bargaining agreement. The members had no mean-

ingful choice as to joining the Union and no meaningful

choice as to leaving the Union, thus creating a de facto

closed shop.“

The Taft-Hartley Act squarely prohibits closed shops,

and the legislative history confirms the congressional de-

termination that the closed shop was an evil to be elimi-

nated. Nothing in the legislative history supports the

view that a union can evade the prohibition through an

anti-resignation rule in conjunction with the union’s

failure to notify the employees in the first instance of

their right not to join. League Law 13 thus “invades or

frustrates an overriding policy of the labor laws,” and

the rule therefore may not be lawfully enforced. Scofield

u. NLRB, 394 U.S. 423, 429 (1969).

2A “closed shop” is an arrangement banned by the Taft-Hartley

Act whereby an individual is required to become a full union

member as a condition of obtaining and maintaining employment.

The Union here creates a de facto closed shop by making it a prac-

tical impossibility for an employee to have his job without being a

full union member.

4

ARGUMENT

I. LEAGUE LAW 13, IN CONJUNCTION WITH THE

UNION’S ADMINISTRATION OF ITS UNION-

SECURITY CLAUSE, VIOLATES THE LABOR POL-

ICY AGAINST CLOSED SHOPS AND THEREFORE

CANNOT VALIDLY BE APPLIED.

The Court provided the analysis for assessing the val-

idity of a union rule in Scofield v. NLRB, 394 U.S. 423,

430 (1969): [A] union [is! free to enforce a properly

adopted rule which reflects a legitimate union interest,

impairs no policy Congress has imbedded in the labor

laws, and is reasonably enforced against union members

who are free to leave the union and escape the rule.”

League Law 13 prevenis a member from withdrawing

from the Union during a strike or lockout or when a

strike or lockout “appears imminent.” Appendix 2a

(hereinafter “App.”). As found by the Board below and

affirmed by the Seventh Circuit, the rule impairs the

congressional policy establishing the right of an em-

ployee to refrain from concerted activities and therefore

cannot lawfully be enforced. App. 12a, 4a-6a. The

Chamber of Commerce supports the analysis of the Board

and the Seventh Circuit and therefore urges affirmance

for the reasons stated in the Board and the lower court’s

opinions.

The Scofield test is a balancing test. See App. 6a-7a.

It is thus appropriate to consider in the balance a re-

lated congressional policy that is implicated in the cir-

cumstances of this case: the policy against the closed

shop. The record in this case demonstrates that em-

ployees are not advised of their rights and are not given

a meaningful choice as to whether to become full mem-

bers of the Union subject to Union discipline. The em-

ployees are compelled involuntarily to join the Union,

and League Law 13 ensures that the employees cannot

voluntarily leave the Union. The Union thus achieves a

5

functional closed shop, in contravention of the congres-

sional policy imbedded in the Taft-Hartley Act against

such compulsory unionization. League Law 13 does not

reflect a legitimate union interest and impairs the con-

gressional policy against closed shops, providing an in-

dependent ground in further support of the result

reached by the court below.

The closed shop was a particular evil that the Taft-

Hartley Act was enacted te prevent. Sections 8(b) (1),

8(b) (2), 8(a) (1), 8(a) (2), and 8(a) (3)* “form a web

. » + preventing the union from inducing the employer to

use the emoluments of the job to enforce the union’s

rules.” Scofield, 394 U.S. at 429. For that reason,

where a valid union-security clause exists, involuntary

“membership” is restricted to the “financial core” of the

payment of fees and dues, NLRB v. General Motors

Corp., 373 U.S. 734, 743 (1963), and a union may not im-

pose judicially enforceable penalties on an employee who

is not a full member, see NLRB v. Allis-Chalmers Manu-

facturing Co., 388 U.S. 175, 196-97 % n.37 (1967). See

also United Stanford Employees, 232 NLRB 326 (1977)

(union notification to new employees that they were re-

quired to become full members constitutes unfair labor

practice).

The collective bargaining agreements involved in this

case had a union-security clause. See App. lla, l4a &

n.8, 16a n.13. Although the specifics of the clause are

not stated, the record demonstrates that the union did

not advise employees of their right to limit their partici-

pation to the financial core and told employees they had

to become full members of the union to maintain their

jobs. The Board found that the Beloit Association “im-

properly equated continued employment under [the union-

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Act specifically to inform an individual of his obligations

and afford him a reasonable opportunity to satisfy them

before seeking his discharge under a union-security

clause.” Chauffeurs, Salesdrivers, & Helpers Union, Local

572, International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers (Ralphs Grocery Co.), 247

NLB 934, 935 (1980) (emphasis in original). Accord,

Teamsters Local 122 (August A. Busch & Co.), 203

NLRB 1041 (1973), enforced, 502 F.2d 1160 (Ist Cir.

1974); Philadelphia Sheraton Corp., 136 NLRB 888

(1962), enforced, 320 F.2d 254 (3d Cir. 1963). See App.

l5a-16a, n.5 supra. The Courts have confirmed the

Board’s policy. See, e. ., General Teamsters Local 162 v.

NLRB, 568 F.2d 665, 668 (9th Cir. 1978); NLRB ».

Local 182, International Brotherhood of Teamsters, 401

F.2d 509 (2d Cir. 1968), cert. denied, 394 U.S. 213

(1969).

By the same token, the Union cannot have it both ways

here. It cannot compel Union membership by failing to

inform employees of their right not to be full members

and then apply a restriction on their resignation. The

result as a practical matter is a closed shop, a result anti-

thetical to the policy embodied in the Taft-Hartley Act.

League Law 13 “invades or frustrates an overriding

policy of the labor laws” and therefore cannot lawfully be

enforced where the Union initially has failed to inform

the member of his right not to be in the Union. Scofield,

394 U.S. at 429.

Il. THE LEGISLATIVE HISTORY OF THE TAFT-

HARTLEY ACT DEMONSTRATES THAT CON-

GRESS INTENDED NO IMPLIED EXCEPTION TO

THE POLICY AGAINST CLOSED SHOPS.

A. The Elimination of Closed Shops Was a Major Goal

of the Taft-Hartley Act.

The closed shop was a major target of the Taft-Hartley

Act. The report of the House Education and Labor Com-

mittee accompanying the House bill stated categorically:

“The bill bans the closed shop.” H.R. Rep. No. 245, 80th

Cong., Ist Sess. (1947), reprinted in National Labor

Relations Board, Legislative History of the Labor Man-

agement Relations Act of 1947, 300 (1948) [hereinafter

cited as Leg. Hist.“ ]. “he Senate Committee on Labor

and Public Welfare was more expansive in detailing the

evils of the closed shop, but no less certain in its opposi-

tion: “It is clear that the closed shop which requires

preexisting union membership as a condition of obtain-

ing employment creates too great a barrier to free em-

ployment to be longer tolerated. . . . Numerous examples

were presented to the committee of the way union leaders

have used closed-shop devices as a method of depriving

employees of their jobs, and in some cases a means of

securing a livelihood in their trade or calling, for purely

capricious reasons.” 8. Rep. No. 105, Soth Cong., 1st

Sess. (1947), Leg. Hist. 412.

The Act thus set up the “web” of stat

noted by the Supreme Court in 42

vent the closed shop. Perhaps the most important of these

sections was Section 8(a) (3), which, along with the com-

panion Section 8(b) (2), prohibited the employer and the

union from discriminating against an employee whose

union memb rship has been denied or terminated “for

reasons other than the failure of the employee to tender

— IN = oe initiation fees uniformly re-

qu as a iring or retaini

ship.” 29 U.S.C. § 158 (a) (3) (1982), —

The House Conference Report noted that these provi-

sions “abolished the closed shop.” H. Conf. Rep. No. 510,

80th Cong., Ist Sess. 41 (1947), Leg. Hist. 545. This

3

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1

1

a

tion 8(b) (1) (A)

League Law 13." That proviso, however, is

with a union’s power to admit and expel

nothing in the legislative history bespeaks a congressional

understanding that the proviso permits the Union to em-

ploy a resignation rule in derogation of the congressional

policy against closed shops.

Section 8 (b) (1) makes it an unfair labor practice for

a union to restrain or coerce employees in the exercise of

their Section 7 rights, with the proviso that “this para-

graph shall not impair the right of a labor organization

to prescribe its own rules with respect to the acquisi-

tion or retention of membership therein.” 29 U.S.C.

§ 158(b)(1)(A) (1982). The proviso had the narrow

purpose of ensuring that the congressional prohibition of

5

f

I:

4 9

As noted before, Section 8 (b) (2) in conjunction with

Section 8 (a) (3) bans the closed shop while permitting

detail the petitioners’ arguments regarding the legislative history

of §7, but rather expresses its support of the respondent Board's

i

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i

b

questions of membership.” 93 Cong. Rec.

1947), Leg. Hist. 1139 (emphasis added). There is no

indication that the proviso was intended to cut a broad

swath for union rules permitting them to override other

congressional the

policies, particularly the policy against

Similarly, Congress’ determination not to enact the pro-

posed Section 8 (e (4) in the House bill cannot be taken

“employee bill of rights,” House Section 8(c)(4) would

have specifically made it an unfair labor practice for the

union “to deny to any member the right to resign from

the organization at any time.” Leg. Hist. 53. The Sen-

ate conferees rejected almost the entire House package

yecause “the language which protected an employee from

losing his job if a union expelled him for some reason

other than nonpayment of dues and initiation fees, uni-

12

formly required of all members, was considered sufficient

protection.” 93 Cong. Rec. 6601 (June 5, 1947), Leg.

Hist. 1540 (remarks of Sen. Taft) (emphasis added).

prohibition because it was the very existence of

shop provisions that to

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led

The Taft-Hartley Act contains a broad prohibition

in the legislative history indicates an intent to

union rules to evade that prohibition.

CONCLUSION

In the guise of “maintaining a united front,”

13, the Union here has promulgated a rule

the members and forces them to remain in

against their will. Because in the first

failed to disclose to the members their

membership, the rule creates a de facto

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1615 H Street, NW. Attorneys for the

Washington, D.C. 20062 Chamber of Commerce of the

(202) 463-5337 United States, Amicus Curiae

Dated: December 19, 1984