Opposition Brief — United Paperworkers International Union v. Buzenius

Supreme Court. U S.

; Rtg Be

No. 97-945 JAN 2

OCTOBER TERM, 1997

JNITED PAPERWORKERS INTERNATIONAL UNION

AND UNITED PAPERWORKERS LOCAL UNION No. 1033,

PETITIONERS

v.

ROLAND BUZENIUS AND

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

De partme nit of Justice

FREDERICK L. FEINSTEIN Washington, D.C. 20530-0001

General Counsel (202) 514-2217

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

National Labor Relations

Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether a union-security clause in a collective bar-

gaining agreement that requires employees to

become and remain “members of the Union in good

standing” as a condition of continued employment is

facially violative of Section 8(a)(3) of the National

Labor Relations Act, 29 U.S.C. 158(a)(8), absent a

concurrent definition in the agreement of “member in

good standing.”

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Auciello Iron Works, Inc. v. NLRB, 1168. Ct.

CL pS TR TES cite Neoichny Poiady SL peng SO hat A a

Bloom v. NLRB, 30 F.3d 1001 (8th Cir. 1994) ......

California Saw & Knife Works, 320 N.L.R.B. 224

(1995), enforced sub nom. International Ass’n

of Machinists v. NLRB, Nos. 96-1246, 96-2928 &

96-3467, 1998 WL 10595 (7th Cir. Jan. 14, 1998) .....

Communications Workers v. Beck, 487 U.S. 735

SRE ethno Ub berddecsertksd tebcrbedeverindteciecosves

Fall River Dyeing & Finishing Corp. v. NLRB,

RMIT ARIE T "ou (adaurelocewsdeitoresk vebdecbcaeseeeseasovetess

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) .....

International Union of Electronic Workers v.

NLRB, 41 F.3d 1532 (D.C. Cir. 1994) ................66

International Bhd. of Teamsters, Local 443

(Connecticut Limousine Service, Inc.), 324

Pi Detecwe. FOO. 200 CCE, Z, BOD) on cccncosscccsasccescesesses

Keystone Coat, Apron & Towel Supply Co., 121

PUIG ED UR UINEEL « cncdaventdindadusctorervies chseachtvenineacats

Marquez v. Screen Actors Guild, Inc., 124 F.3d

1034 (9th Cir. 1997), petition for cert. pending,

BE PE hack clashes Rated puanaticaeeoaisaddecekevangepedace

: (III)

Cases—Continued: Page

Monson Trucking, Inc., 324 N.L.R.B. No. 149

(Oct. 31, 1997) ......cccsesscsssesecscsscccceserssserscssencceneesees 7

NLRB vy. Curtin Matheson Scientific, Inc., 494

U.S, FID (ROBB) cccnossocececececsccckensstsdinesnrsoncsscsststncsvonss 9

NLRB v. Food Store Employees Union, Local 347,

AIT US. 1 (2GTE) cncocesovenccscecesncsescesesesssesanetensoreses eee 10

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

(1DBB) oo oocccpecvcssecoconcasencescassuveseossuasscstvonspueseoveedonsess 2

NLRB v. Local Union No. 103, tron Workers, 434

U.S. S86 (1978) ...cccccccesessscccsescsesocecsscevcrrceserssevesseses 9

NLRB v. J. Weingarten, Inc., 420 U.S. 251

(IQTE) cseceorsnssadccccocssnceeisscsncensaitensevosentbnwneonccotoconsqets 9

NLRB vy. Truck Drivers Local Union No. 449,

BBS U.S. 87 (1967) cccceccncccscececcsevsdeccnsonsscovereserseseoees 10

Nielsen v. International Ass’n of Machinists,

94 F.3d 1107 (7th Cir. 1996), cert. denied, 117

S. Ct. 1426 (1997) .....cccccccseccceccceeceseercceeessssreneeeeerees 6, 8, 9

Pattern Makers’ League of North America v.

NLRB, 473 U.S. 95 (1985) .....ccccecceeeeeeeeeeereeteeteeeees 2, 9

San Diego Bldg. Trades Council v. Garmon, 359

U.S. 286 (1959) .....ccccccerccscssseesseserconserensacesessaseoconens 10

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et seq.:

§ 8, 29 U.S.C. 158 .....cccsccceeceeseseestterensereseeseseeenens 10

§ 8(a)(3), 29 U.S.C. 158(a)(B) ......ceeeeeceeeeeeeeeeeeeees 2

§ 8(b)(1)(A), 29 U.S.C. 158(D)CL)(A) ....ceseeeeeeeeees 4

In the Supreme Court of the Gunited States

OCTOBER TERM, 1997

No. 97-945

UNITED PAPERWORKERS INTERNATIONAL UNION

AND UNITED PAPERWORKERS LOCAL UNION No. 1033,

PETITIONERS

Vv.

ROLAND BUZENIUS AND

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. la-

13a) is reported at 124 F.3d 788. The decision and

order of the National Labor Relations Board (Pet.

App. 14a-20a) and the decision of the administrative

law judge (Pet. App. 23a-35a) are reported at 320

N.L.R.B. 349.

JURISDICTION

The judgment of the court of appeals was entered

on September 8, 1997. The petition for a writ of

certiorari was filed on December 8, 1997. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

1. Section 8(a)(3) of the National Labor Relations

Act (Act), 29 U.S.C. 158(a)(3), makes it an unfair labor

practice for an employer “by discrimination in regard

to hire or tenure of employment or any term or con-

dition of employment to encourage or discourage

membership in any labor organization.” That same

paragraph, however, permits an employer to make an

agreement with a labor organization “to require as

a condition of employment membership therein on or

after the thirtieth day following the beginning of

such employment.” The paragraph further provides,

however, that membership must be equally available

to all employees on the same terms and conditions and

may require employees to do no more than “tender

the periodic dues and the initiation fees uniformly

required.”

This Court has held that, under that paragraph,

“‘membership’ as a condition of employment is whit-

tled down to its financial core.” NLRB vy. General

Motors Corp., 373 U.S. 734, 742 (1963). All that may

be required as a condition of employment is “payment

of initiation fees and monthly dues.” Jbid. An

employee may resign full union membership without

suffering discharge and may not be discharged for

failing to abide by union rules or policies with which

he disagrees. Pattern Makers’ League of North

America v. NLRB, 473 U.S. 95, 106 (1985). Finally,

this Court has made clear that employees who are not

union members need not pay fees or dues to the extent

they “support union activities beyond those germane

to collective bargaining, contract administration, and

grievance adjustment.” Communications Workers v.

Beck, 487 U.S. 735, 745 (1988).

3

2. Petitioners, United Paperworkers Interna-

tional Union and its Local 1033 (Unions), are the

exclusive bargaining representatives for a bargaining

unit of the production and maintenance employees

of Weyerhaeuser Paper Company (Company). The

Unions and the Company entered into a collective

bargaining agreement containing the following union-

security clause:

It is agreed that all employees who are members of

the Union shall remain members of the Union in

good standing. All new employees, who after the

completion of thirty (30) days shall become and

remain members in good standing as a condition of

this employment.

Pet. App. 24a.

Roland Buzenius has worked for the Company for

15 years, was a member of the Unions, and served as

president of Local 1033 in 1990 and 1991. Pet. App.

24a. By letters dated April 30, 1993, he resigned his

membership in both the Local and the International

and requested that the payments required of him

under the union-security clause be reduced to reflect

his right under Beck to object to supporting finan-

cially the Unions’ activities unrelated to collectiy 2

bargaining. Jd. at 24a-25a. The Unions ignored

Buzenius’s letters, and dues continued to be deducted

from his paycheck in the same amount as they had

prior to his letters. Moreover, in November 1993, the

Unions mailed Buzenius a new union-membership

card. Id. at 3a, 25a.

3. Based on charges filed by Buzenius, the General

Counsel of the National Labor Relations Board

(Board) issued a complaint alleging that the Unions

had violated their duty of fair representation under

dq

Section 8(b)(1)(A) of the Act, 29 U.S.C. 158(b)(1)(A),

by failing to acknowledge Buzenius’s resignation

from full membership, and by failing to inform him

and other employees of their rights under General

Motors to refrain from full membership and under

Beck to object to paying the costs of union activities

unrelated to collective bargaining. Pet. App. 23a. The

Board sustained the allegations of the complaint. Jd.

at 14a-19a.

The Board explained that, in California Saw

& Knife Works, 320 N.L.R.B. 224 (1995), enforced sub

nom. International Ass’n of Machinists v. NLRB,

Nos. 96-1246, 96-2928 & 96-3467, 1998 WL 10595 (7th

Cir. Jan. 14, 1998), issued the same day, the Board had

ruled that a union Violates its duty of fair

representation by failing to provide notice of Beck

rights to unit employees covered by a union-security

agreement who are not members of the union. Pet.

App. 15a. The Board further explained that, in so

ruling, it had stated that, “in order to fully inform

non-member employees of their Beck rights, a union

must [also] tell them ... of their General Motors

rights to be and remain nonmembers.” /d. at 15a-16a

(quoting California Saw, 320 N.L.R.B. at 235 n.57).

Noting *hat the “complaint in the instant case

alleges vne unlawful failure to inform all unit

employees, including those who are still members of

the Union, of their rights under Beck and General

Motors,” the Board concluded that “the rationale of

California Saw for concomitant notice of Beck and

General Motors rights applies with no less force to

those who are still full union members and who did

not receive those notices before they became

members.” Pet. App. 16a. Accordingly, the Board

ordered the Unions to honor Buzenius’s resignation

=—_—_— az

—_—-<

5

from full membership, to refund excess deductions

from his pay and reduce future deductions, and to

notify all employees covered by the union-security

clause of their rights to refrain from full union

membership and to object to the payment of full union

dues. /d. at 20a-22a, 34a-35a.

4. Buzenius sought review in the court of appeals

of the Board’s failure to order expunction from the

collective bargaining agreement (CBA) of the union-

security clause requiring employees to become and

remain “members of the Union in good standing.”

Pet. App. 2a-4a.'_ The court agreed with Buzenius’s

contention that the clause is “facially invalid”

because “the express language of this clause is incon-

sistent with [the] employees’ right to refuse to join

the Union or pay full dues, so long as they pay

that portion of dues related to core representational

activities, and because the clause cannot be inter-

~ preted without resort to material outside of the

CBA.” Id. at 12a. Therefore, the court held that “the

Board abused its discretion in refusing to order that

the clause requiring that employees be ‘members of

the Union in good standing’ either be modified to

define that requirement or be removed from the

CBA.” Id. at 12a-13a.

' The parties did not raise, and the court of appeals did not

discuss, whether the Board’s failure to require expunction of

the clause caused Buzenius injury-in-fact sufficient to give him

standing to challenge the order in the court of appeals. Nor do

we press that issue now, because, as we explain below, further

review of this case is not warranted given the Board’s decis-

ion to reconsider its position on whether clauses of the type

Buzenius challenges here are in fact facially invalid and should

be expunged.

ARGUMENT

Petitioners contend (Pet. 7-8) that the decision of

the Sixth Circuit in this case is in accord with the

decision of the Eighth Circuit in Bloom v. NLRB, 30

F.3d 1001 (1994), but conflicts with decisions of the

District of Columbia, the Seventh, and the Ninth

Circuits. See Internationa’ Union of Electronic

Workers (.U.E.) v. NLRB, 41 F.3d 1532, 1538-1539

(D.C. Cir. 1994); Nielsen v. International Ass’n of

Machinists, 94 F.3d 1107, 1113-1115 (7th Cir. 1996),

cert. denied, 117 S. Ct. 1426 (1997); Marquez v. Screen

Actors Guild, Inc., 124 F.3d 1034, 1039 (9th Cir. 1997), -

petition for cert. pending, No. 97-1056. Petitioners

further claim (Pet. 9) that the Sixth Circuit’s

decision “flies in the face of the plain language of

[Section] 8(a)(3), that provision’s legislative history

and this Court’s decisions construing that statutory

language.” Finally, petitioners argue that “the

thousands of employers and unions, who for the last

40 years have negotiated union shop clauses in pre-

cisely the form provided by the NLRB,” are left in

complete uncertainty as to the continued validity of

their agreements,” absent resolution of the issue.

Pet. 7.

Even if there were some substance to petitioner’s

contentions, the petition should be denied, because the

Board has decided to reconsider its position on the

validity of clauses conditioning employment on union

“membership” when the clauses are contained in

collective bargaining agreements that do not spell

out the limited membership obligations that can be

* See Keystone Coat, Apron & Towel Supply Co., 121

N.L.R.B. 880, 884 (1958).

7

compelled under the clauses. Because the Board’s

reconsideration may render obsolete any present

disagreement among the courts of appe?ls and any

attendant uncertainty created by that disagreement,

resolution by this Court of the issue presented in this

case is not warranted at this time.

Board Chairman Gould has indicated that he agrees

with the Sixth Circuit’s holding that union-security

clauses requiring unit employees to become “mem-

bers of the Union in good standing” are facially

invalid. He has explained that, because “a union-

security clause may lawfully compel only the pay-

ment of fees and dues related to representational

activities,” a “collective-bargaining agreement that

speaks in terms of ‘membership’ or ‘membership in

good standing’ without further definition misleads

employees into believing that they can be terminated

if they do not become formal, full-fledged union

members” and pay “full dues.” Monson Trucking,

Inc., 324 N.L.R.B. No. 149 (Oct. 31, 1997), slip op. 7

(Chairman Gould concurring);’ see also Internation!

Bhd. of Teamsters, Local 442 (Connecticut Limou-

sine Service, Inc.), 324 N.L.R.B. No. 105 (Oct. 2,

Ee

| % Chairman Gould added that “a union-security clause

| that requires ‘membership’ or ‘membership in good standing’

| without concurrent definition of that term in the collective-

| bargaining agreement [also] undercuts and dilutes the notice

which the Board established in California Saw & Knife

(Works,]” 320 N.L.R.B. 224, 231-235 (1995), enforced sub nom.

International Ass'n of Machinistgv. NLRB, Nos. 96-1246, 96-

2928 & 96-3467, 1978 WL 10595 (7th Cir. Jan. 14, 1988), for

“{t}his notice is not adequate where the collective-bargaining

agreement sends a contrary message and instruction to employ-

ees within the bargaining unit.” Monson Trucking, Inc., slip

op. 7-8.

8

1997), slip op. 6 n.1 (Chairman Gould dissenting in

part).

Although the other Board members have not yet

reached a decision on the issue, they have agreed that

reconsideration of the Board’s former position is

warranted. Accordingly, the Board has authorized its

General Counsel to seek a remand of cases pending

decision in the courts of appeals that present the

issue of the facial validity of union-security clauses

requiring employees to become and remain “members

of the union in good standing” as a condition of

continued employment.‘

The Board’s reconsideration of its position on the

issue in this case may well lead to resolution of

the conflict in the courts of appeals, a conflict that

petitioners overstate in any event.? The Board is

4 Motions for remand were filed in Bloom v. NLRB,

No. 97-1582 (8th Cir.); Orce v. NLRB, No. 97-4038 (2d Cir.);

and Cecil v. NLRB, No. 97-5302 (6th Cir.). The Eighth Circuit

has granted the Board 90 days in which to reconsider its

decision in Bloom. The Second Circuit denied a remand in

Orce, but, after hearing oral argument, entered, on December

9, 1997, a summary order dismissing as moot Orce’s petition for

review. The Sixth Circuit has not acted on the motion for

remand in Cecil. The Board does not seek remand in the

present case because the court of appeals has already issued a

decision.

° The decision by the court of appeals in this case does

conflict with the decisions of the D.C. Circuit in J.U.E., supra,

and the Seventh Circuit in Nielsen, supra. Neither the Eighth

Circuit in Bloom v. NLRB, 30 F.3d 1001 (1994), however, nor

the Ninth Circuit in Marquez, supra, decided the precise issue

presented here—whether a clause requiring employees to

become “members of the Union in good standing” is facially

unlawful absent furtner definition of the relevant terms. The

Eighth Circuit ruled that a similar clause should have been

expunged “[bJecause the overly broad union security clause waS~

entitled to “considerable deference” in its interpreta-

tion of the Act. See NLRB vy. Curtin Matheson

Scientific, Inc., 494 U.S. 775, 786 (1990). Accord

Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754.

1759 (1996); Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 42 (1987). The courts must defer

to the Board’s construction of the Act if its inter-

pretation is “reasonable” even if the courts would

interpret the statuté differently. Pattern Makers’

League of North America v. NLRB, 473 U.S. 95, 114

(1985) (citing Ford Motor Co. v. NLRB, 441 U.S.

488, 497 (1979)); International Ass’n of Machinists v.

NLRB, Nos. 96-1246, 96-2928 & 96-3467, 1998 WL

10595, at *7 (7th Cir. Jan. 14, 1998). The deference due

the Board is not defeated because the Board changes

its position. See Curtin Matheson, 494 U.S. at 787

(citing NLRB v. J. Weingarten, Inc., 420 U.S. 251,

265-266 (1975), and NLRB vy. Local Union No. 108,

Iron Workers, 434 U.S. 335, 351 (1978)).

Both courts of appeals decisions that conflict with

the decision in this case rested in part on deference to

the Board’s prior position that union security clauses

of the type challenged here are not facially invalid.

See /.U.E., 41 F.3d at 1536 (noting that the NLRB

found that the challenged clause was not facially

invalid and later noting deference due the Board’s

decision); Nielsen, 94 F.3d at 1114-1115 (relying in

part on the position of the NLRB and its General

unlawfully interpreted and applied” but did not find that the

clause was “facially invalid.” See Bloom, 30 F.3d at 1005. The

Ninth Circuit held that a union did not violate its duty of fair

representation by negotiating a clause of the type challenged

here, and, although it relied on J.U.E. and Nielsen, the court of

appeals did not expressly rule on the facial validity of the

clause. See Marquez, 124 F.3d at 1039.

10

Counsel in holding the challenged union security

clause to be facially valid). If a majority of the Board

were to agree with Chairman Gould and change the

Board’s position to accord with the holding of the

Sixth Circuit in this case, the other courts of appeals

would likely uphold that interpretation of the Act.

The task of “effectuat[ing] national labor policy” by

“striking th[e] balance” among competing interests

in the work place is “often a difficult and delicate

responsibility, which the Congress committed pri-

marily to the National Labor Relations Board,

subject to limited judicial review.” NLRB v. Truck

Drivers Local Union No. 449, 353 U.S. 87, 96 (1957).

Because of the complex and competing interests

involved, the Board generally has exclusive juris-

diction in the first instance to interpret Section 8

of the Act. See San Diego Bldg. Trades Council v.

Garmon, 359 U.S. 236 (1959). And, if a reviewing

court finds the Board’s interpretation unjustifiable,

the court should generally remand to the Board

to allow it to reconsider the interpretation in the first

instance. See NLRB vy. Food Store Employees

Union, Local 347, 417 U.S. 1, 9-10 (1974). The con-

cerns undergirding those principles also suggest

that, when the Board has clearly indicated its

intention to reconsider its interpretation of the Act,

this Court should await the Board’s reconsideration

before rendering a definitive interpretation. Accord-

ingly, it would be premature in the present cir-

cumstances for the Court to undertake to resolve the

question that the petition for certiorari presents.

1]

CONCLUSION

The petition for a writ

denied.

Respectfully submitted.

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate Genera Cow iLSeé i}

NORTON J. COME

Deputy Associate General

Counsel

National Labor Relations

Board

JANUARY 1998

of certiorari should

SETH P. WAXMAN

aaa : ;

Solicitor General