Opposition Brief — Clipper City Lodge No. 516 v. National Labor Relations Board

No. 90-705

In the Supreme Court of the United Statex— 3

OCTOBER TERM, 1990

CLIPPER CITY LODGE No. 516, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARITOTHE -

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

JERRY M. HUNTER

General Counsel

D. RANDALL FRYE

Acting Deputy General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

DAVID A. FLEISCHER

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the Board reasonably found that the

union violated Section 8(b)(1)(A) and (2) of the

National Labor Relations Act, 29 U.S.C. 158(b) (1)

(A) and (2), by maintaining and enforcing a con-

tract clause denying accrued seniority to an employee

because of his failure to pay union dues while he was

outside the bargaining unit covered by the contract.

2. Whether the Board reasonably found that Sec-

tion 10(b) of the Act, 29 U.S.C. 160(b), did not bar

a determination that a union committed unfair labor

practices by maintaining and enforcing that clause

during the six-month limitations period prescribed by

that Section.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Brown & Williamson Tobacco Co., 227 N.L.R.B.

So easaaupdaashianian

Cooper Vv. General Motors Corp., 651 F.2d 249 (5th

a i EI A nS RE Ea TORE Yaka Sera

Eclipse Lumber Co., 95 N.L.R.B. 464 (1951), en-

forced, 199 F.2d 684 (9th Cir. 1952) 2.000000...

Florida Power & Light Co. v. IBEW Local 641, 417

a OE RR RE eae a

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

IATSE Local 659, 276 N.L.R.B. 881 (1985) ..........

IBEW Local 1212, 288 N.L.R.B. 374 (1988), aff’d

sub nom. WPIX, Inc. Vv. NLRB, 870 F.2d 858 (2d

Cir. 1989) ....... = SR pith Sin Av at ren Prat ae a

Jensen V. Farrell Lines, Inc., 625 F.2d 379 (2d Cir.

1980), cert. denied, 450 U.S. 916 (1981) _..........

Kaiser Steel Corp., 125 N.L.R.B. 1039 (1959) ........

Local Lodge No. 1424, Machinists v. NLRB, 362

I ne cshcecoueabe

Namm’s, Inc., 102 N.L.R.B. 466 (1958) ...................

NLRB Vv. Best Products Co., 765 F.2d 903 (9th Cir.

yt EEA se a eR nA A

NLRB vy. Curtin Matheson Scientific, Inc., 110

Se aCe

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

i ccnspnammmatnncemuasni

NLRB vy. International Union, Auto Workers,

Local 291, 194 F.2d 698 (7th Cir. 1952) ............

NLRB vy. Iron Workers Local 103, 484 U.S. 335

| EIEN lS Sane ee een. ae aera

10

IV

Cases—Continued : Page

Phelps Dodge Corp. V. NLRB, 313 U.S. 177

I tate beeches salen dase eee nee ant acee eee 11

Postal Service Marina Center, 271 N.L.R.B. 397

5 PEERS ONAN ARC eran A Os OS ARTE Aer aCe 15

Radio Officers Union v. NLRB, 347 U.S. 17

AC ay RNR IA ee Ee 7,9

Steelworkers Local 1070, 171 N.L.R.B. 945

ER RE ESC ee ney De eae ie Se 5

Woelke & Romero Framing, Inc. Vv. NLRB, 456

a a Saas emnansiouie 11

Constitution and statutes:

a pencneabecbbecanatuoms 13

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

seq.:

ELC hie eke | |) | ee 11

§ 8(a) (1), 29 U.S.C. 158 (a) (1) -...200 5

§ 8(a) (3), 29 U.S.C. 158 (a) (3) ....... 4, 5, 6, 8, 9-10, 11

§ 8(b) (1) (A), 29 U.S.C. 158 (b) (1) (A) ....... * 5

§ 8(b) (2), 29 U.S.C. 158 (b) (2) ....020 ee... 5,8

OD Cg We Ware ROOD ois eccoweveicccovererencseteess 5, 7, 14

eg tire ND sesios scantencncesiecessecendeiivonc 11

§u the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-705

CLIPPER CITY LODGE NO. 516, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

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

18a) is reported at 909 F.2d 963. The decision and

order of the National Labor Relations Board (Pet.

App. 20a-41a) are reported at 291 N.L.R.B. No. 122.

JURISCICTION

The judgment of the court of appeals (Pet. App.

192) was entered on August 2, 1990. The petition

for a writ of certiorari was filed on October 31, 1990.

(1)

2

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. At all times relevant to this case, petitioner,

Clipper City Lodge No. 516, District 10, International

Association of Machinists and Aerospace Workers,

AFL-CIO, represented certain employees of Mani-

towoec Engineering Company (the Company). Pet.

App. 20a. Article V, Section 17, of the collective-

bargaining agreement between petitioner and the

Company permitted unit employees promoted or

transferred to positions outside the bargaining unit

to retain seniority accrued while in the bargaining

unit, and provided that such employees “will be per-

mitted to return to the bargaining unit unless good

cause is shown and provided.” /d. at 21a. However,

the agreement went on to state that any such em-

ployee “shall maintain membership in [petitioner]

or obtain a withdrawal card in accordance with * * *

[petitioner’s] Constitution.” Jbid. The relevant con-

stitutional provision stated that any member of the

international union with which petitioner was affili-

ated who met certain conditions ‘‘may be issued an

honorary withdrawal card by and with the approval

of the [local lodge] in which membership is held.”

Id. at 21a n.1 (emphasis added).

Eugene Ruppelt was a bargaining unit employee

from 1942 until 1972, when he became a foreman,

a supervisory position outside the bargaining unit.

He then requested a withdrawal card from petitioner,

but petitioner’s membership rejected the request on

the recommendation of the shop committee chairman,

who had previously quarreled with Ruppelt. There-

after, Ruppelt stopped paying dues to petitioner.

However, the Company continued to list his name on

3

periodic rosters showing the seniority possessed by

former bargaining unit employees working outside

the unit. Pet. App. 22a.

On January 8, 1986, the Company transferred

Ruppelt back to a position within the bargaining

unit. Petitioner protested that Ruppelt had no sen-

iority, since he had not obtained a withdrawal card

or paid dues, and maintained that he should not be

allowed to work, since several unit employees were on

layoff status. The Company, accepting petitioner’s

position, laid off Ruppelt on January 14. Pet. App.

5a, 28a.

After Ruppelt protested his layoff, the Company

recalled him on April 11. Petitioner filed a grievance,

asserting that the recall of Ruppelt with full senior-

ity violated the collective-bargaining agreement. An

arbitrator ruled that, under the “clear and unambig-

uous language” of Article V, Section 17, Ruppelt had

forfeited his bargaining unit seniority by failing to

pay dues while he was a supervisor. On July 11,

| 1986, the Company again laid off Ruppelt. Pet. App.

| 5a, 23a-24a & n.4.'

| 2. Ruppelt filed an unfair labor practice charge

against petitioner on June 24, 1986. Pet. App. 6a.

On the basis of this charge, the Board’s General

Counsel issued a complaint against petitioner. bid.

The Company was the subject of a later charge and

complaint, which were consolidated with the case in-

volving petitioner. [bid.

a. Applying the three-step test set forth in 7BEW

Local 1212, 288 N.L.R.B. 374, 376 (1988), aff’d

1 The Company filed suit in the United States District Court

for the Eastern District of Wisconsin to vacate or modify the

arbitration award. The suit has been held in abeyance pend-

ing the resolution of the instant unfair labor practice pro-

ceeding. Pet. App. 5a-6a n.1, 24a n.5.

4

sub nom. WPIX, Inc. v. NLRB, 870 F.2d 858 (2d

Cir. 1989), the Board held that Article V, Section 17,

was unlawful on its face.” The Board found that the

clause treated employees differently with respect to

seniority rights on the basis of whether or not they

paid union dues and thus inherently encouraged em-

ployees to participate in that union activity. Pet.

App. 30a-3la. Further—after noting that petitioner

had substantial discretion to grant or deny a with-

drawal card and that employees had to get a with-

drawal card in order to preserve valuable seniority

rights without undertaking a financial obligation—

the Board also.concluded that the contract encour-

aged employees to remain in petitioner’s good graces

while still in the bargaining unit. Jd. at 3la n.13.

Finally, the Board found that the clause was not jus-

tified by the policies of the Act, since it did not fur-

ther the effective administration of collective-

bargaining agreements, but simply enabled petitioner

to collect dues from individuals whom it was not then

representing. Jd. at 32a.

The Board also determined that the provision could

not be upheld as a valid union-security provision au-

thorized by the proviso to Section 8(a)(3). The

Board explained that the proviso does not authorize

discrimination based upon an individual’s failure to

pay dues at a time when (as was the case with Rup-

pelt here) the employee has no contractual obliga-

tion to make such payments as a condition of employ-

ment. Pet. App. 33a. Further, the Board continued,

That three-step inquiry consists of the following ques-

tions: (1) Does the clause treat employees differently with

respect to a term or condition of employment on the basis of

union membership? (2) Does the difference in treatment en-

courage union membership? (3) Is the disparate treatment

justified by the policies of the Act?

5

a valid union-security clause may not authorize dis-

crimination other than termination of an employee

for nonpayment; here, the contract purported to au-

thorize denial of seniority for nonpayment. [bid.

Accordingly, the Board found that the Company

violated Section 8(a)(8) and (1) of the Act, 29

U.S.C. 158(a) (3) and (1), and that petitioner vio-

lated Section 8(b)(2) and (1)(A) of the Act, 29

U.S.C. 158(b) (2) and (1) (A), by maintaining Arti-

cle V, Section 17 of the contract and by applying it

to lay off Ruppelt. Pet. App. 33a.’

b. The Board rejected petitioner’s contention that

Section 10(b) of the Act, 29 U.S.C. 160(b), which

requires the filing of a charge within six months of

an unfair labor practice, foreclosed it from adjudicat-

ing those violations. The Board explained that the

conduct at issue was not the denial of a withdrawal

-eard, which occurred in 1972, but rather the actions

petitioner took, within the six months preceding Rup-

pelt’s charge, to cause Ruppelt to be laid off. Pet.

App. 34a-35a. The Board acknowledged that Section

10(b)’s six-month limitations period runs from the

date of an allegedly unlawful act, rather than the

date its consequences became effective, provided that

a final and unequivocal adverse employment decision

is made and communicated to the employee. But the

Board found that no final adverse decision or action

was taken with respect to Ruppelt’s employment un-

8 In the instant case, the Board (Pet. App. 29a) overruled

Brown & Williamson Tobacco Co., 227 N.L.R.B. 2005 (1977),

and returned to the position previously taken in Steelworkers

Local 1070, 171 N.L.R.B. 945, 946 (1968), and Kaiser Steel

Corp., 125 N.L.R.B. 1039, 1040-1041 (1959). (Kaiser Steel

Corp., in turn, overruled the Board’s prior decision in

Namm’s, Inc., 102 N.L.R.B. 466 (1953). 125 N.L.R.B. at

1041 n.2.)

6

til after his return to the unit in 1986; although pe-

titioner had denied Ruppelt a withdrawal card in

1972 and he had thereafter ceased to pay union dues,

his name had been carried on the Company’s senior-

ity lists while he was a foreman. Pet. App. 35a.‘

3. The court of appeals enforced the Board’s order.

At the outset, the court rejected the Company’s con-

tention that the collective-bargaining agreement left

petitioner with no discretion to withhold a with-

drawal card from a member who had satisfied his fi-

nancial obligations to the union. The court explained

that, under the contract, the member was required

to obtain such a card in accordance with petitioner’s

constitution, which provided that petitioner “may”

issue the card if the member has satisfied those obli-

gations. Pet. App. 8a-10a. Thus, the court concluded,

the agreement and the constitution “mean exactly what

the Board found them to mean: that [petitioner]

has ‘substantial discretion’ in deciding whether to

issue a withdrawal card.” Jd. at 10a.

The court also upheld the Board’s determination

that the agreement violated Section 8(a)(3) of the

Act by unlawfully encouraging union activity. It

was reasonable, the court found, for the Board to

conclude that the agreement resulted in disparate

treatment of employees with respect to employment,

since the agreement created a distinction between

employees—regarding seniority, job security, and the

opportunity to work—based upon the employees’ ac-

tions between their transfer or promotion and their

return to the bargaining unit. Pet. App. 12a-13a.

*The Board found that no timely charge had been filed

against the Company with respect to Ruppelt’s January 14,

1986, layoff; consequently, it did not find an unfair labor

practice against the Company based on that layoff. Pet.

App. 34a.

The court also found that the Board acted reason-

ably in concluding that this disparate treatment en-

couraged union membership: to assure preservation

of their seniority in accordance with the contract, em-

ployees were required either to pay union dues after

transfer or promotion (when neither the law nor

the contract compelled such payment as a condition

of employment) or, in order to increase their chances

of obtaining a withdrawal card, to provide support

and assistance to the union before transfer or promo-

tion. Id. at 12a-13a.

The court also upheld the Board’s determination

that no statutory policy sustained such a contractual

provision. Pet. App. lla-l6a. The court explained

that “[t]he only policy seemingly relevant, that of

insulating employees’ jobs from their organizational

rights and allowing ‘employees to freely exercise

their right to join unions, be good, bad, or indifferent

members, or abstain from joining any union without

imperiling their livelihood,’ [Radio Officers Union v.

NLRB, 347 U.S. 17, 40 (1954)], bolsters, rather

than undermines, the Board’s decision.” Pet. App.

13a-14a.°

Finally, the court concluded that Section 10(b) of

the Act did not bar an unfair labor practice proceed-

ing. The court noted that the six-month period pro-

vided by Section 10(b) begins to run “from the date

a final and unequivocal adverse employment decision

is made and communicated to an employee.” Pet.

App. 16a. Here, the court continued, there had been

no adverse employment decision in 1972, since the

* The court noted that the Board had reversed its position

on the legality of provisions of the type at issue in prior deci-

sions, but ruled that the Board’s interpretation was neverthe-

less entitled to deference. Pet. App. 14a-17a n.10.

8

denial of a union card related only to union member-

ship, and Ruppelt’s decision to cease paying dues was

not an action of the employer or the union. The

court concluded that the decision to take action ad-

verse to Ruppelt with respect to his employment oc-

curred in 1986 and that the Board’s order was prop-

erly limited to unfair labor practices within the six-

month periods preceding the filing of charges against

petitioner and the Company. /d. at 16a-17a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

another court of appeals. Further review by this

Court is not warranted.

l.a. Section 8(a)(3) of the Act a it an un-

fair labor practice for an employer “by discrimina-

tion in regard to hire or tenure of employment or

any term or condition of employment to encourage or

discourage membership in any labor organization,”

except that an employer and a union may agree to a

union-security provision meeting specified statutory

standards. An employer and a union may agree to

make continued employment contingent upon an em-

ployee’s satisfaction of the union’s uniformly im-

posed financial] obligations (“initiation fees” and “pe-

riodie dues’). Section 8(b)(2) prohibits a union

from causing or attempting to cause an employer to

discriminate against an employee in violation of Sec-

tion 8(a) (3).

While the proviso to Section 8(a)(3) of the Act

permits agreements conditioning continued employ-

ment upon an employee’s satisfaction of certain fi-

nancial requirements, it does not allow an employer

and a union to agree to other forms of discrimination

9

—such as granting or withholding seniority—on the

basis of union membership or union activity. See

Radio Officers v. NLRB, 347 U.S. at 39. The Act

also prohibits disparate treatment on the basis of

whether union members engage in union activities or

support the union. As long as employees covered by

union-security provisions satisfy their financial obli-

gations to the union, they are free to “be good, bad,

or indifferent members” without encountering dis-

crimination in terms or conditions of employment.

Id. at 40.° Finally, a union-security clause may not

be given retroactive effect. NLRB v. International

Union, Auto Workers, Local 291, 194 F.2d 698, 701-

702 (7th Cir. 1952); Eclipse Lumber Co., 95

N.L.R.B. 464, 467 & n.5 (1951), enforced, 199 F.2d

684, 685 (9th Cir. 1952).

In light of these principles, Section 8(a)(3) may

reasonably be construed to prohibit the contract pro-

vision at issue. Under that provision, when an indi-

vidual returns to a bargaining unit after having

been promoted or transferred from it, he is entitled

to recover previously accrued seniority only if he has

paid union dues during the period he was outside the

unit or has obtained a withdrawal card. It was rea-

sonable for the Board to conclude that each alterna-

tive violates Section 8(a)(3). First, for those indi-

viduals denied withdrawal cards, the provision dis-

criminates, in terms of accrued seniority, between in-

dividuals who engage in the union activity of paying

dues and those who do not: The proviso to Section

®* Indeed, they need not be full members of the union, so

long as they pay the initiation fees and dues. “‘ ‘Membership’

as a condition of employment is whittled down to its financial

core.” NLRB vy. General Motors Corp., 373 U.S. 734, 742

(1963).

10

8(a)(3) does not protect such an agreement, since it

protects only those contractual provisions that make

continued employment in a bargaining unit contin-

gent upon the payment of union dues during the

period of that employment. The contract at issue

here, by contrast, conditions the retention of seniority

(not employment) on the payment of dues during a

period when employment is not contingent upon such

payment. Second, under petitioner’s constitution, the

grant of a withdrawal card is discretionary; thus,

the threat that a withdrawal card will be withheld

creates an incentive for employees to provide support

to the union beyond mere satisfaction of financial ob-

ligations.

The Board’s determination that the agreement un-

lawfully discriminated on its face against those in

Ruppelt’s position embodied a reasonable interpreta-

tion of the Act. Consequently, the court of appeals

was correct in upholding that determination. Ford

Motor Co. v. NLRB, 441 U.S. 488, 497 (1979). Con-

trary to petitioner’s suggestion (Pet. 6-7), no differ-

ent standard of review is appropriate because the

Board has changed its position on this issue in the

past. See note 3, supra. “An administrative agency

is not disqualified from changing its mind; and when

it does, the courts still sit in review of the administra-

tive decision and should not approach the statutory

construction issue de novo and without regard to the

administrative understanding of the statute[].”

NLRB y. Iron Workers Local 103, 434 U.S. 335, 351

(1978). “[A] Board rule is entitled to deference

even if it represents a departure from the Board’s

prior policy.” NLRB vy. Curtin Matheson Scientific,

Inc., 110 S. Ct. 1542, 1549 (1990) (upholding Board

rule formulated after several changes in position).

11

See NLRB v. Best Products Co., 765 F.2d 903, 910-

913 & nn.8-9 (9th Cir. 1985).

b. Petitioner contends (Pet. 7) that Section 8

(a)(3) does not prohibit an agreement requiring

statutory supervisors—who are excluded from the

Act’s definition of “employee,” 29 U.S.C. 152(3)—to

pay dues to preserve their seniority. This contention

is not properly before this Court, because it was never

raised before the Board, and Section 10(e) of the Act

(29 U.S.C. 160(e)) prohibits petitioner from raising

it here. Woelke & Romero Framing, Inc. v. NLRB,

456 U.S. 645, 666 (1982). Section 19(e) provides

that “[n]o objection that has not been urged before

the Board * * * shall be considered by the court, un-

less the failure or neglect to urge such objection shall

be excused because of extraordinary circumstances.”

The court of appeals rejected petitioner’s contention

(Pet. App. 1la-12a nn.5-6) without passing on the

Section 10(e) issue. However, as Woelke cd: Romero

makes clear, the bar of Section 10(e) is jurisdic-

tional.

In any event, petitioner’s reliance upon the statu-

tory exclusion of supervisors from the definition of

“employee” is misplaced. As the court of appeals rec-

ognized (Pet. App. lla n.5, 12a n.6), petitioner was

not heid liable on the basis of discrimination against

a supervisor as such; the unlawful discrimination oc-

curred when Ruppelt had lost his status as a super-

visor and was seeking to return to his status as an

employee in the bargaining unit. In that capacity, he

was entitled to statutory protection. Phelps Dodge

Corp. v. NLRB, 313 U.S. 177, 182-187 (1941). See-

tion 8(a)(3) prohibits discrimination in employment

based upon union activity predating the employment.

As the court of appeals noted, “[i]t is the timing of

the disparate treatment regarding employment that

12

is important—not the timing of the disparate treat-

ment’s cause—and in this case the disparate treat-

ment does not occur until the affected individuals are

statutory employees, ex-supervisors returned to the

fold of the bargaining unit.” Pet. App. lla n.5.’

Even if the Act’s exclusion for supervisors were

construed to protect agreements requiring supervisors

to pay union dues to preserve accrued seniority, it

would not sustain the contractual provision at issue,

for two reasons. First, that provision was not limited

to individuals who leave the bargaining unit to be-

come supervisors; it applied equally to those pro-

moted to rank-and-file positions outside the bargain-

ing unit. Since the clause, on its face, did not dis-

tinguish between supervisors and non-unit statutory

employees, the Board reasonably declined (Pet. App.

28a n.8) to rewrite it to draw such a distinc-

tion. Second, the agreement went beyond requiring

a supervisor to pay dues at a time when he was em-

ployed in that capacity. The Board and the court of

7 As petitioner points out (Pet. 6), an employer may dis-

charge a supervisor who joins a union while he is a super-

visor. However, it does not follow that an employer may

adopt a policy under which it will refuse to hire as employees

individuals who were members of a union while they were

supervisors. The latter situation involves discrimination

against employees.

The statutory provisions denying protection to supervisors

were designed to give employers the option of ensuring the

undivided loyalty of supervisors by requiring them, on pain

of discharge, to refrain from union membership or activity.

Florida Power & Light Co. v. IBEW Local 641, 417 U.S. 790,

808-812 (1974). Enforcement of a contractual provision re-

quiring supervisors to pay union dues to preserve accrued

seniority would not advance that purpose. To the contrary,

the effect would be to encourage supervisors to engage in

union activity while they are supervisors.

*

13

appeals both noted (Pet. App. 8a-12a, 3la n.13) that

the provision giving petitioner discretion to issue a

withdrawal card to an employee leaving the unit,

thereby excusing him from paying dues to preserve

seniority, encouraged the individual to stay in peti-

tioner’s good graces while still an employee in the

unit. Thus, even as applied to an individual (such as

Ruppelt) who became a supervisor, the agreement

tended to encourage union activity at a time the in-

dividual was not a supervisor.

ce. Contrary to petitioner’s contention (Pet. 6, 7-

8), the Board’s determination did not rest on the

proposition that supervisors have a statutory right to

retain seniority previously accrued when they worked

in the bargaining unit; rather, the Board ruled that,

regardless of its source, seniority could not be made

contingent on financial or other support for the union.

Thus, the Board’s decision is in no way inconsistent

with Cooper v. General Motors Corp., 651 F.2d 249

(5th Cir. 1981). See Pet. 8. In Cooper, the court

upheld a contract provision that precluded all super-

visors from accumulating seniority while holding non-

unit positions and did not distinguish between super-

visors on the basis of union activity or membership.

' The fact that Ruppelt may not have enjoyed “vested

seniority rights” does not mean, as petitioner sug-

gests (Pet. 8), that the Act conferred no protection

from a discriminatory withdrawal of seniority.

Nor is there any inconsistency between the deci-

sions below and Jensen v. Farrell Lines, Inc., 625

F.2d 379 (2d Cir. 1980), cert. denied, 450 U.S. 916

(1981). See Pet. 6. In Jensen, the Second Circuit

held that requiring supervisors to pay union dues in

order to retain their positions as supervisors did not

violate the First Amendment, 625 F.2d at 387-389;

the question whether such a requirement would vio-

14

late the Act was not before the court, id. at 381 n.1.

In any event, even if supervisors may lawfully be

discharged for refusing to pay union dues, it does not

follow that, if they fail to pay dues and are retained

as supervisors, their failure to pay dues may be made

the basis for a denial of seniority when they subse-

quently become rank-and-file employees. As the court

of appeals noted (Pet. App. 1la-12a n.6), discrimina-

tion against supervisors for their conduct in a super-

visory capacity is clearly distinguishable from dis-

crimination against rank-and-file employees for their

prior conduct as supervisors.

2. There is no merit in petitioner’s contention

(Pet. 8-10) that Section 10(b) foreclosed the Board’s

determinations. Section 10(b) provides, in pertinent

part, that “no complaint shall issue based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge and the service of a

copy thereof upon the person against whom such

charge is made.” Ruppelt filed a charge against peti-

tioner on June 24, 1986. Pet. App. 6a. Thus, the

Board was free to adjudicate unfair labor practice

charges arising from petitioner’s conduct on or after

December 24, 1985. The Board determined that after

that date petitioner committed unfair labor practices

(1) by maintaining the unlawful contractual provi-

sion and (2) by causing the Company to lay off

Ruppelt after that date (see Pet. App. 33a).

There is no conflict between this case and Local

Lodge No. 1424, Machinists v. NLRB, 362 U.S. 411,

416 (1960). In Local Lodge No. 1424, the union and

the employer entered a contract containing a facially

valid union security provision at a time when the

union lacked majority support—an action which, if

timely challenged, would have been adjudicated an

unfair labor practice. More than six months later, a

15

charge was filed alleging that continued enforcement

of the clause violated the Act. This Court held that

the charge was time-barred, explaining (id. at 419

(emphasis added) ) :

Where * * * a collective bargaining agreement

and its enforcement are both perfectly lawful

on the face of things, and an unfair labor prac-

tice cannot be made out except by reliance on the

fact of the agreement’s origitial unlawful execu-

tion, an event which, because of limitations can-

not itself be made the subject of an unfair labor

practice complaint, we think that permitting re-

sort to the principle that § 10(b) is not a rule of

evidence, in order to convert what is otherwise

legal into something illegal, would vitiate the

policies underlying that section.

The Court took care to distinguish situations involv-

ing “an agreement invalid on its face or * * * one

validly executed, but unlawfully administered.” /d.

at 423. That is this gase. Both the Board and the

court of appeals found the clause unlawful on its

face (Pet. App. 17a-18a n.12, 35a) ; thus, the reason-

ing of Local Lodge No. 1424 did not preclude the

Board from holding that the maintenance and en-

forcement of the clause during the limitations period

was unlawful.

Petitioner’s reliance (Pet. 9) on Postal Service

Marina Center, 271 N.L.R.B. 397 (1984), is likewise

misplaced. The Board held in that case that the stat-

utory limitations period begins to run when an em-

ployee receives unequivocal notice of a final decision

to take adverse action against him, not when the ad-

verse action is actually taken. 271 N.L.R.B. at 400.

However, this holding was limited to “unconditional

and unequivocal decisions or actions” and does not

16

apply to actions conditioned on future events that

may never occur. [ATSE Local 659, 276 N.L.R.B.

881, 882 (1985). In this case, although Ruppelt was

denied a withdrawal card and stopped paying dues

in 1972, neither petitioner nor the Company took any

action with respect to his employment at that time.

In fact, as the Board noted (Pet. App. 35a), the Com-

pany continued to show Ruppelt’s name and accrued

seniority on its seniority list until he was terminated

as a foreman. Accordingly, he had no unequivocal

notice that he would be denied seniority when and if

he tried to return to the bargaining unit.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JERRY M. HUNTER

General Counsel

D. RANDALL FRYE

Acting Deputy General Counsel

NorTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

David A. FLEISCHER

Attorney

National Labor Relations Board

JANUARY 1991

Wy U.S. GOVERNMENT PRINTING OFFICE, 1991 282061 20291