# Amicus Curiae Brief — Air Line Pilots v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0120%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 866 ## Text = > Supreme Sourt, U.S. _ Fitlkz ib J Q ‘i LS i‘ ra § 1998 } 3. No. 97-428 A GieaK ey IN THE < Supreme Court of The United States OCTOBER TERM, 1997 AIR LINE PILOTS ASSOCIATION, Petitioner, v. ROBERT A. MILLER, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF FOR THE MACKINAC CENTER FOR PUBLIC POLICY AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS Of Counsel: FRANK T. MAMAT* ROBERT P. HUNTER J. WALKER HENRY GEORGE M. MESREY MACKINAC CENTER FOR CLARK HILL P.L.C. PUBLIC POLICY 140 West Main Street 500 Woodward Avenue P.O. Box 568 Suite 3500 Midland. MI 48640 Detroit, MI 48226-3435 (517) 631-0900 (313) 965-8300 Counsel for the Amicus Curiae *Counsel of Record Baimar Legal Publishing Services, Washington. D.C., (202) 682-9800 _ BEST AVAILABLE COPY! i TABLE OF CONTENTS TABLES OF AU TEES te ccevcsiccecesesesecscdeccvesornscencctovescoosers ill INTEREST OF THE AMICUS CURIAE.............ccc0sc00e00eeeee0ees l PRELIMINARY STATEMENT ...............:ccccssessesseeseessneseeeseees 3 SUMMARY OF ARGUMENT .............ccccccsecsesseseeseesssensensenes 6 AIRE SA TOIT ansevinreratenigminesinersinninenintmtetinininiibédsionibeintannened 8 I. THE EXHAUSTION OF REMEDIES REQUIRE- MENT ADVOCATED BY THE PETITIONER IS HARMFUL TO EMPLOYEE RIGHTS AND IN- IMICAL TO THE LEGAL AND POLICY CON- SIDERATIONS WHICH LED THE COURT TO ADOPT THE CONSTITUTIONAL SAFEGUARDS FOR COLLECTION OF AGENCY FEES IN Ee Annccnenacenatinlenisiatiintecbetceiansintarinainsimininnarten 8 Il. IMPOSING AN EXHAUSTION OF INTERNAL REMEDIES REQUIREMENT IN AGENCY FEE DISPUTES SLANTS THE PROCESS IN FAVOR OF UNIONS AND HINDERS EMPLOYEES FROM ASSERTING THEIR CONSTITUTIONAL AND STATUTORY RIGHTS .............cccccseseoseeseeseeeees 13 Il. THE DISTRICT OF COLUMBIA CIRCUIT'S CONCLUSION THAT A UNION CANNOT UNILATERALLY FORCE AN EMPLOYEE TO ARBITRATE HIS OR HER FEE DISPUTE CLAIM IS THE PROPER LEGAL INTERPRETATION OF THE “IMPARTIAL DECISION MAKER” PROCEDURE FORMULATED IN HUDSON.............. 16 IV. THE COURT SHOULD DETERMINE THAT THE STATUTORY IMPOSITION OF AN AGENCY SHOP AGREEMENT CONSTITUTES STATE ACTION AND THUS, EMPLOYEES SUBJECT TO SUCH AGREEMENTS ARE PROTECTED BY THE CONSTITUTION REGARDLESS OF WHETHER THEY WORK IN THE PUBLIC OR PRIVATE SECTOR AND REGARDLESS OF WHICH FEDERAL LABOR LAW REGULATES THE INDUSTRY IN WHICH TABLE OF AUTHORITIES CASES Abrams v. Communications Workers, 59 F 3d 1373 (D.C. RRR Ra Se ea AIRS ATS 2 Oe eae a ee 17 Air Line Pilots Association v. Miller, U.S. ___, 118 EEE ee a ee eee 3 AT&T Technologies, Inc. v. Communication Workers, 475 5B SE LR Oe Re Ae IC 16 Bethlehem Mines Corp. v. Mine Workers, 344 F.Supp. 1161 (W.D. Pa 1972), affd, 494 F.2d 726 Ge Tals PPD crccnennpanpicrnpnannrgicempmmemennsatagmmness 14 Bromley v. Michigan Education Association-NEA, 82 CR ES ee 17 Chicago Teachers Union, Local #1 v. Hudson, 475 U.S. it a 3 2 hs RTD ne ASIII Te passim Communication Workers v. Beck, 487 U.S. 735 (1988) .. passim First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 Rebecca ty de ntl Rint lates Ra iti 16 Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1974)......16 Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992) .ccccccccccccosseesesssen 17 Kroger, Inc. and United Food & Commercial Workers, Local 1099, (Case Nos. 9-CA-31116, 9-CB-8672), I 17 Lenhert v. Ferris Faculty Association, 500 U.S. 507 —_* SAR eS SE 9-10 McCarthy v. Madigan, 503 U.S. 140 (1992) ....c..cc...sseesooee 12 Miller vy. Air Line Pilots Association, No. CTV. A. 91- 3161 (NHJ), 1995 WL 864556 (DDC. FON, Fi acacia itilittianeniearniiihnaninnnitititntiaante 5 Miller v. Air Line Pilots Association, 108 F.3d 1415 ere Sah Be cccnntnntnmemeneuitienmentiiiaiiaemmnmnnen passim NLRB v. Marine and Shipbuilding Workers, 39\ U.S. 418 iv Patternmakers’ League of North America AFL-CIO vy. Pe SERRE Ee eS 8, 16 Railway Employees Dept. v. Hanson, 351 U.S. 225 Cee cnsecactnininabiicnrcnnnncietsiinditediatateaiibeatiabiiininaieiatinonsiadlainnssiiins 19 Soho Segarra v. Sea-Land Serv., Inc., 581 F.2d 291 CR, We ieccetencerennnssiiitisnntinnitinsiintingiarisittinncitialtinaindiiltale 16 United Food and Commercial Workers, Local 951 vy. Mulder, 31 F.3d 365 (6th Cir. 1994) 000... ccccccccccceeceeneees 17 CONSTITUTION AND STATUTES RR Re ee ae passim National Labor Relations Act, 29 U.S.C. §§ 151-69 (SF cereiinintnsinisincisiinthinrslibhiditeiniitiacbiitieil, 7, 10, 17, 19, 20 Railway Labor Act, 45 U.S.C. §§ 151-88 (1988)............. passim Taft-Hartley Act, 29 U.S.C. § 141 ef. $€Qo.........ccccccccecceseeseee 9,19 Wagner Act, July 5, 1935, c. 372, 49 Stat. 449 00 9 MISCELLANEOUS 15 Daily Labor Report (BNA) A-2 (Jan. 23, 1998)................. 17 American Arbitration Association, Rules for Impartial Determination Of Union Fees ...........cccceccceeeveneeenernereenrennvnenes 4 I. Brant, James Madison: The Nationalist 354 (1948)............. 10 George Meany, Foreword to Samuel Gompers, Seventy Years of Life and Labor (V957)...............s--0seeseeseeeneseneeenenes 9 Robert P. Hunter, A Mackinac Center Report: Compulsory Union Dues in Michigan, (1997)......................- 2 Florence Calvert Thorne, Samuel Gompers-American ES Cae aa 8-9 Charles W. Baird, “The Permissable Uses of Forced Union Dues: From Hanson to . Beck,” Policy Analysis 174, at 12-13 (July 24, 1992) ................... 19 No. 97-428 IN THE Supreme Court of Che United States OCTOBER TERM, 1997 AIR LINE PILOTS ASSOCIATION, Petitioner, v. ROBERT A. MILLER, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF FOR THE MACKINAC CENTER FOR PUBLIC POLICY AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS The Mackinac Center for Public Policy (“Mackinac consent of the parties as provided for in the Rules of this Court.’ INTEREST OF THE AMICUS CURIAE The Mackinac Center is a non-partisan research and education organization devoted to improving the quality of life for all Michigan citizens by promoting sound solutions to '—No counsel for a party authored this brief amicus curiae in whole or in part, and no person or entity, other than the amicus curiae, made a monetary contribution to the preparation or submission of this brief. 2 federal, state and local policy questions. The Mackinac ES CRS Se ee ee political and economic understanding among Michigan citizens and decision makers. Committed to its independence, the Mackinac Center neither seeks nor accepts any government funding. Instead, it enjoys the support of foundations, individuals and businesses who share a concern for Michigan’s future and recognize the important role of sound public policy. The Mackinac Center Board of Scholars consists of some of the country’s foremost experts in economics, science, law, psychology, history and related disciplines. Michigan citizens have been a catalyst in establishing constitutional protections in the area of compulsory union dues. In fact, a significant amount of the Court's jurisprudence on this subject has involved Michigan citizens and unions. Thus, the Mackinac Center is particularly interested in the issues raised in this case and believes that its perspective, information and expertise will assist the Court in conducted extensive research on the impact of compulsory which culminated in a recently published treatise considered to be one of the most authoritative and comprehensive publications of its kind.’ In addition, the Mackinac Center has taken an active role in shaping Michigan and national labor policy on this issue. For example, Mackinac Center Director of Labor Policy, Robert P. Hunter, a former member of the National Labor Relations Board (1981-1985), testified before a subcommittee of the United States House of Representatives Committee on Education and the Workforce on January 22, 1998, regarding the impact of compulsory union dues. The Mackinac Center believes that the Court’s decision in this case will have a profound impact on all employees’ 2 Robert P. Hunter, A Mackinac Center Report: Compulsory Union Dues in Michigan, (1997). 3 ability to exercise their statutory and constitutional rights in the workplace, and asserts that the District of Columbia Circuit Court of Appeals decision below strikes the proper PRELIMINARY STATEMENT The Court granted the Petition for a Writ of Certiorari to consider the following question:” When nonunion employees wish to challenge the agency fee they are required to pay under an agency-shop agreement, must they exhaust the “impartial decision maker” procedure mandated by this Court’s decision in Chicago Teachers Union, Local #1 v. Hudson, 475 U.S. 292 (1986), before bringing their claim to court? The relevant facts in this case are straightforward and set out at length by the court of appeals below. The Air Line Pilots Association (“ALPA” or “Petitioner”) is the exclusive bargaining representative of all pilots (“Pilots” or “Respondents”) employed by Delta Airlines (“Delta”). In 1991, ALPA and Delta entered into an agency shop collective bargaining agreement (“CBA”) under the Railway Labor Act (“RLA”)’ which requires all Delta Pilots who choose not to be union members to pay a service charge to ALPA “as a contribution for the administration of the [collective bargaining agreement] and the representation of [all] > Air Line Pilots Association v. Miller, US. __, 118 S.Ct. 554 (1997). * Miller v. Air Line Pilots Association, 108 F.3d 1415 (DC. Cir. 1997). > 45 USC. $§ 151-88. 4 employees.” In conjunction with the agency shop agreement, ALPA unilaterally devised and implemented written “Policies and Procedures Applicable to Agency Fees” (“Union Policy”). Under the Union Policy, ALPA calculates, on a yearly basis, which of its expenditures it believes are germane to collective bargaining and which are not and reports those findings in a “Statement of Germane and Nongermane Expenses” (“SGNE”). The SGNE sets forth germane and nongermane project codes and indicates how much money was spent on each code. The SGNE does not, however, provide objecting employees with any precise information concerning ALPA’s expenditures. If a nonmember Pilot objects to ALPA’s use of agency fees for purposes not germane to collective bargaining, ALPA will reduce the objector’s fees by a predetermined amount (as calculated by ALPA). If the objecting employee protests the predetermined calculation, ALPA will unilaterally initiate arbitration proceedings under its Union Policy. The arbitration is conducted pursuant to the American Arbitration Association (“AAA”) Rules for Impartial Determination of Union Fees. At the request of ALPA, AAA will select an arbitrator from “a special panel of arbitrators experienced in employment relations.” | The Union Policy affords the objecting employee no opportunity to participate in the arbitrator selection process. More importantly, an objecting employee is forced to submit his or her dispute to the arbitrator prior to initiating an action in federal court. ALPA will pay for the cost of the arbitration but not for the objecting employee's attorneys fees. ALPA has never allowed the Pilots any role in formulating the Policy, and significantly, none of them ever agreed to be bound by its provisions. In the instant case, a number of nonmember Pilots were dissatisfied with the procedures in the Union Policy as well as the propriety of 1992 SGNE calculations/designations and they complained to ALPA about it. ALPA reacted by unilaterally initiating arbitration proceedings. In response, some of the nonmember Pilots joined together and filed a 5 lawsuit against ALPA in federal district court seeking judicial resolution of their fee dispute. Additionally, they requested the arbitrator not to proceed but he refused. Thereafter, the Pilots filed a motion for a preliminary injunction with the district court seeking to enjoin the arbitration proceeding, but it too was denied. Prior to the arbitration hearing, the Pilots sought discovery in order to properly evaluate ALPA’s summary data conceming germane/nongermane expenditures but the arbitrator refused to exercise the authority he possessed under the AAA rules to permit this critical process. Thus, the only evidence before the arbitrator was summary data created and generated by ALPA which reflected only general. categories of union spending and not the specific expenditures. Without discovery, the Pilots had no way of determining the accuracy, honesty or even the calculation used in reporting the expenditures. Not surprisingly, the arbitrator subsequently sustained most of the challenged union fee determinations as being germane to collective bargaining. The district court thereafter granted ALPA’s motion for summary dismissal of the Pilots’ claim that ALPA breached its duty of fair representation by failing to properly calculate its germane and nongermane expenses.” The district court did not review the arbitrator’s findings of fact de novo but instead, evaluated them based merely on a “clearly erroneous” standard. The district court also rejected the Pilots’ argument that ALPA could not unilaterally force them to arbitrate their claims pursuant to the internal union procedure before bringing an action in federal court. The court of appeals reversed the district court’s decision holding, inter alia, that the pilots were not required to submit their fee dispute to the ALPA arbitration procedure before bringing an action in federal court. In reaching this decision, the court of appeals stated: * Miller v. Air Line Pilots Association, No. CIV.A. 91-3161(NH)J), 1995 WL 864556 (D.D.C. Aug. 30, 1995). 6 we simply see no legal basis for forcing into arbitration a party who never agreed to put his dispute over federal law to such a process. Nor is there anything in the Hudson majority opinion that even suggests that the Court thought it was putting protesting agency shop employees in that position. We therefore align ourselves with the Sixth and Third Circuits in holding that an employee who wishes to bring an action in federal court is not obliged to proceed first to arbitration, at the union’s option.” Miller, 108 F.3d at 1421. “ SUMMARY OF ARGUMENT The Mackinac Center is a staunch advocate of employee rights. Therefore, it is particularly concerned about the destruction of employees’ rights, whether it be by unions, employers or the government. The first argument centers on the Mackinac Center’s belief that the central purpose behind Hudson was to protect employees’ rights. The exhaustion of internal union remedies requirement advocated by Petitioner - and its amici curiae is contrary to this Court’s stated objective in Hudson to broaden the constitutional protections for employees subject to agency shop agreements. Therefore, the Mackinac Center contends that any exhaustion requirement would be a step backward and seriously undermine the positive protection and impact that Hudson has had upon employees’ constitutional and statutory rights. The second argument advanced by the Mackinac Center originates from the same pro-employee ideological perspective. Simply stated, due to the unique nature of agency fee disputes, an exhaustion requirement would likely discourage individual employees from pursuing their resources of the Unions, and in many cases, only serve to “exhaust” the employee and effectively prevent judicial review. These risks are magnified ten-fold in the instant case because the internal union procedure here, which was never 7 agreed to by Respondents, is inherently one-sided and provides no safeguards to assure a fair and cost effective forum for objecting employees to resolve agency fee disputes. The Mackinac Center further contends, in accord with the decision of the court of appeals below, that there is no legal basis whatsoever for forcing a party to participate in a one-sided arbitration procedure when it never agreed to do so in the first place. This simple principle is well grounded in the jurisprudence of the Court and should be applied in the instant case to prevent a mandatory exhaustion requirement. Finally, the Mackinac Center urges the Court to use this case as an opportunity to clear up the law pertaining to the constitutional impact of union security agreements upon private sector employees covered by the NLRA.’ As described in detail below, the Mackinac Center believes that there is no difference in the government action present through the imposition of agency fee agreements whether it is imposed upon employees by the RLA or the NLRA. Thus, the Court should conclude that all agency fee agreements authorized and perpetuated by federal labor law constitute state action and should be subject to constitutional scrutiny. 7 29 U.S.C. §§ 151-69. 8 ARGUMENT L THE EXHAUSTION OF REMEDIES RE- QUIREMENT ADVOCATED BY THE PETI- TIONER IS HARMFUL TO EMPLOYEE RIGHTS AND INIMICAL TO THE LEGAL AND POLICY CONSIDERATIONS WHICH LED THE COURT TO ADOPT THE CON- STITUTIONAL SAFEGUARDS FOR COL- LECTION OF AGENCY FEES IN HUDSON The rights contained in the First Amendment’ are among the most fundamental tenets of a free society. As this Court has acknowledged, “|. . at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and conscience rather than coerced by the State.” Hudson, at 302 n.9. Closely intertwined with the First Amendment is the longstanding federal labor policy of voluntary unionism. See, e.g., Patternmakers’ League of North America AFL-CIO v. NLRB, 473 U.S. 95 (1985). In fact, the great leader of the American labor movement, Samuel Gompers once wrote that: “[t}here may be here and there a worker who for certain reasons unexplainable to us does not join a union of labor. This is his right, no matter how * The First Amendment to the Constitution of the United States provides as follows: “Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the nght of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 9 morally wrong he may be. It is his legal right and no one can dare question his exercise of that legal right.” Florence Calvert Thorne, Samuel Gompers- American Statesman 24 (1957). The late George Meany, the legendary and fiery president of the AFL-CIO (an amicus curiae in this case), later said of Gompers on this issue, “[{hje founded the American Federation of Labor on the bedrock of voluntarism.” George Meany, Foreword to Samuel Gompers, Seventy Years of Life and Labor (1957). This notion of freedom of association is the fundamental underpinning of the concept of voluntary unionism and led Congress, through passage of the Taft-Hartley Act in 1947,” to reject the Wagner Act’s regime of compulsory unionism. Communication Workers v. Beck, 487 U.S. 735, 755 (1988). This critical policy decision.was the product of extensive hearings wherein Congress determined that the closed shop and the abuses associated with it “created too great a barrier to free employment to be longer tolerated.” Beck, 487 U.S. at 748 (citing from S.Rep. No. 105, 80th Cong., Ist Sess., 6 (1947) (S.Rep.), Legislative History of the Labor Management Relations Act, 1947 (Committee Print compiled for the Senate Committee on Labor and Public Welfare, p. 412 (1974)(Leg.Hist.). In 1951, Congress amended the Railway Labor Act to extend “to railroad labor the same rights and privileges of the union shop that are contained in the Taft-Hartley Act.” Beck, at 487 U.S. at 746 (citing from 96 Cong.Rec. (1951) - remarks of Rep. Brown). Congress and the Court have acknowledged that agency shop agreements and their inherent requirement that objecting employees still financially support their collective bargaining representative, significantly shrink employees’ First Amendment and statutory rights. See, e.g., Lenhert v. Ferris Faculty Association, 500 U.S. 507, 516 (1991) (constitutional * 29 U.S.C. § 141 ef. seq. 10 rights); Beck, 487 U.S. at 755 (statutory rights). In this regard, the Lenhert Court observed that: “fuJnions have traditionally aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individuals. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns.” Lenhert, 500 U.S. at 516. However, Congress and the courts have allowed limited interference with employees’ constitutional and statutory rights through the imposition of agency shop agreements in order to promote the government’s policy interest in securing labor peace through the elimination of the “free rider” problem that would otherwise accompany union recognition. See, e.g., Lenhert, 500 U.S. at 516, 520-21; Hudson, 475 U.S. at 301-02. Acknowledging the harmful impact that agency shop agreements have had upon employee rights, the Court has determined that both the RLA and the NLRA authorize the exaction of only those fees and dues necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” Beck, 487 U.S. at 762-63. Thus, a union is prohibited from collecting from objecting employees any sums for the support of ideological causes 9