Opposition Brief — Linscott v. Millers Falls Co.

2 .

. = - ‘ ® c a

= F

te oe Se te » —- — 1

, ; EL LTD GEG HG A DEERING BER,

a ‘ * e P 7

. . *

- + 7% ‘

. ° %

ee | A :

. i . ‘ . :

: ° q .

, . ‘ ’

. > :

\ \ .

ah ae

‘ A

af ‘ ‘

; - - . G2 ;

‘. : " Kis . ciainacenmnenianeen: Snags ‘ -

4 od ee <

. i be 36 :

. ‘ ;

.

5 F

’ e Pa \ od

‘

2 < e Are, | r ;

. . Ps

. o 3 5 ‘

. * =

P 4

/ . \

* ~ e < 5 : ,

; % x : ;

j ; : . .

. ud ="

. _ 5

‘aaer ; - %

. ; ) : :

¥ ; f . .

7 ; . \ Z fe

a ry . \ .

. e r

ad :

* ‘

. : F se

. ° .

. - : f

: . . . ha :

rc . sae ,

. te! 1 ;

, .

. x : ‘

: 4 “ a ’

; .

wT ah + } . °

3 < F . ‘ . .

; oa we

. F . 7 .

; ; to -

| z : . .

” a . \ d

. a <

2 ; , - . ¢

. a . . :

: >

.

. . \

= Be . : ; :

: : & . i ‘ . ‘ <

, > \ e 4 >

: : seyret &

- . . a

; :

* K

. : - .

‘ : - . ‘

. ; ” . ©

x : Bs , = .

> . . d

) Pe ‘ .

; .

ae < rf ‘ .

“ ‘ Oy

: ; e i

’ . > icf

e . . 4

* e 4 .

* . bd od ri . e

oJ « — . e

.

F o* Ps ° . - . Ld

ot: . a 3 a) . ° i E

. ° ’ : ; ;

bs - hi .

: F

* ; °

. Fs . . 2 °

_ ‘ @ « . : i

; . i : . -

y

. * 2 f “3

* }

‘. 4 . .

- : F .

= - F) rus . :

. : : .

. =. . * 5

“oo

i on : ; ; .

. - = ¥

. be ’ « j

: ite ‘ - 5 A

) te e - . . > a

“ 7 = :

-

. . . . od

. 7 . i . A

; ~

». * ; : r

= . 1 ° j 7

. e :

.

‘ + ° >

e . . a

. 5 ;

. . . ef . 5

: ® : ‘ 2 : * ;

: Ps ; - . . '

is . * ;

. eo ‘ -

. ‘ *

2 aeey a ° Pi ‘ °

rt . A ‘ ae .

F * e % , . ‘ *

| ; xo . ts 7

i

; ,

- te . 7

20-314

_ > dn the

viscceed Court at the Anited

OcTOBER “De RM, 1970

BEATRICE LINSCOTT,

PETITIONER

Vv.

MILLERS FALLS COMPANY,

UNITED ELECTRIC AL, RADIO & MACHINE

WORKERS OF AMERICA (U E), and

‘ UE LOCAL 274,

RESPONDENTS

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT — ‘

ALLAN R. Rosenserc

53 State Street’

Boston, Massachusetts 02109 R

Attorney for Respondents

United Electrical, Radio &

_ Machine Workers of America (UE),

and UE Local 274 - .

* Blanchard Press, Inc., Boston, Mass. — Law Printers.

| In the |

| Supreme Court of the United State

Geneiins Paw 1970 |

. No: 1864

BEATRICE LINSCOTT,

PETITIONER

v.*

“MILLERS FALLS COMPANY,

UNITED ELECTRICAL, RADIO & MACHINE |

WORKERS OF AMERICA (UE), and

UE LOCAL 274,

RESPONDENTS

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO. THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

Question Presented

Whether the non-discriminatory application of a ‘aaa

union shop clause,-made in accordance with §$7 and 8(a) (3) °

of the National Labor Relations Act, 29 U.S.C. 157 and. ©

BERENS BE ELIOT MY

POD AGE PBS PKR NS an WORD

158(a)(3), in’ a collective bargaining agreement between

the Respondent Company and Respondent Unions, under

which Petitioner was discharged from employment for

failure to pay union dues to the Respondent Unions, vio-

lated Petitioner’s rights under’ the’ First, Fifth and Ninth

Amendments to the Constitution of the United - States,

where Petitioner refused to pay suéh dues: because of her

religious beliefs.

Argument

I. Tuts Case Ratses No New or. Important QUESTION OF

ConsTITUTIONAL Law. |

_ Substantially the same question has been raised in the

Courts of Appeals for the Second, Ninth and Fifth Circuits,

‘in cases arising under the union shop provisions of the

Railway Labor Act. In each case this Court has denied

- certiorari. See Otten v. Baltimore and O. R. Co., 205 F2d

58, final judgment affirmed sub nom. Otten v. Staten:Island

Rapid Transit Railw ay Co., 229 F2d 919 (CA 2) cert. den.,

351 U.S. 983; Wicks v. So. Pac. Co., 231. F2d 130 (CA 9)_

cert. den., 351 U.S. 946; Gray v. Gulf Mobile & Ohio R. Co.,

429 F2d 1064 (CA 5) cert. den. 400 U.S. 1001.

This Court also denied certiorari in Russell v. Cather-

wood, 399 U.S. 936, involving the related issue as to

whether, under the New York Unemployment Insurance

Law, an applicant for- unemployment benefits: must stand

ready to accept suitable employment, when tendered, even

though acceptance of the employment would compel him to

join a union as to which he has ‘‘eonscientious secruples’’.

were Railway Employers’ Department v. Hanson, 351 U.S.

25 this.Court sustained the constitutionality of the union

a provisions of the Railway Labor Act (45 U.S.C. §152

Eleventh) against an attack that it violated the First and

et)

Fifth Amendments by. forcing men into ‘ideological and

political associations which violate their freedom of con-

science, freedom of association and freedom of thought

protected by the Bill of Rights. In NLRB v.. General Motors

Corporation, 373 U.S. 734, this Court upheld as ‘valid the

~ agency shop clause of a collective bargaining agreement,

similar to the union shop clause of the collective bargaining —

agreement in this case (Pet..p. 6), under the provision of

the National Labor Relations Act [29 U.S.C. 158(a)(3)].

The Court below found that there is no suggestion in the

‘case at bar that the dues of the Respondent Unions were

sought to be applied to non-union objectives or that the

Union was one that is devoted to forcing its members into

ideological molds via membership ‘restrictions (Pet. p. 21).

On the present record, therefore, there is no more infringe-

ment of constitutional rights than this Court found in

ITanson. ~~ *

The result reached by the majority in the Court below

in construing the union shop provisions [29 U.S.C. §$158

(a)(3), 164(b)] of the National Labor Relations Aot is in

accord with the decisions in the Otten, Wicks - Gray

cases, supra, construing the union shop provisions of: the

Railway Labor Act. The majority held that federal action

was embodied in the application of the union shop pro-

‘visions of the National Labor Relations Aét to Petitioner

here but that the federal interest or congressionally sup-

ported principle of the. union shop, on balance, outweighed

the injury to Petitioner (Pet. pp. 18-20, 22-23). Under the

concurring opinion of Judge Coffin and the similar interpre-

tation by the Court of Appeals for the Tenth Cireuit in

- Reid v: McDonnell Douglas Corporatien (No. 417-70, June

8, 1970, 77 LRRM 2609, 40 U.S. Law Week 2003) of the ¢

union shop prov isions of the National Labor Relations Act,

no federal action is involved and the plaintiff ’s complaint

or ees See ee . |

* Bite icin tot . a

Mishel Silemceafe) br 6

cates 4

does not describe a violation of her constitutional rights

as the result of any federal action (Pet. p. 24). On either

basis, there is no support for Petitioner’s claim that this

case raises an important question of constitutional law

not previously decided by this Court. aan ‘

Il. Tiere Is No Coxrutct, 1x Prixciece, or 1x Decistons,

Between THE Decision or THE Court or APPEALS IN-

Tus Case’ anv oF Tus Court 1s Sherbert v. Verner,

37+ U.S. 398, on or Orner Courts. , .

There is no conflict between the decision. of the Court

below and the decisions of every other Court of Appeals

which has considered the question here presented. Indeed,

insofar as the union shop provisions of the’ National Labor

Relations’ Act are more neutral and permissive than those

of the Railway Labor Act and do not involve governmental

action necessary to bring the First Amendment in play

(Pet. p..24, Reid v. McDonnell Douglas Corp., supra), the

decision of the Court below has additional and oe.

support for its result.

Petitioner asserts, however, that in a variety of other

cases, not involving the union shop provisions of the Rail-

way Labor Act, National Labor Reliztions Act, or any other

similar act, there is a conflict in principle with the decision

of the Court below i in. this case. Petitioner’s prime reliance

is on Sherbert v. Verner, 374 U.S. 398, which upheld the

right of a Seventh Day Adventist to receive unemployment

benefits from the State of South Carolina notwithstanding

her unavailability for Saturday work based on her rel gious

beliefs. Petitioner seeks to attaek-the application by the

Court below of the balancing or ‘‘compelling state interest’’,

test of NAACP v. Button, 371 U.S. 415, 458, on the ground

that it applied that test in general rather than specific

CLE REEL NT (OS OGRE RA RS Ss CR RTP

4)

terms, contrary to the. way it was applied, Petitioner

asserts, in Sherbert v. Verner and other cases.

The short answer to this contention is that the Court

below properly balanced the competing interests involved,

but that Petitioner is dissatisfied with the result. The Court

below referred.to the strong governmental interest in the

union shop, as found in Hanson, supra, the objective of in-

dustrial pee ace along the arteries of commerce, and the valid-

ity and i impor tance’of the congressional purpose to achieve

uniform union membership, both to further peaceful labor

relations and to’ require a fair sharing of the cost -of .

collective bargaining (Pet: pp. 20-21). It considered Peti-

tioner’s argument that the effect on granting the exemp-

tion sought for religious objectors would be de minimis

(Pet. p. 15) and rejected that argument, in view of the

disruptive effects of union members being required to igual

their achievements and their work with non-union workers?

It considered the burden on.the Petitioner as not involving

the denial of physical sustenance, as in Sherbert v. V erner,

but in being-forced to take employment -in a non-union shop,

in less remunerative employment (Pet. p. 23) as Petitioner

in fact alleges in her complaint and argument (Pet. pp. 7,

7

1 Petitioner seeks in her argument to justify her claim of exemption

on the basis that she has proposed payment of the equivalent of union

dues to a non-union charity, and is ‘willing to’be excluded from certain

benefits of union membership (Pet. p. 15). This argument misstates

the Complaint. .The Complaint does not state that Petitioner is willing

to be excluded from any union benefits. On the contrary, the Complaint

-

alleges (Pet. p. 7) that she will abide by the regulations of the shop.

and the union with regard to wages and working conditions and in

the event of strike she would side with neither the employer by

remaining at work nor with the union by participating in. strike

activities and would refrain from any interference with union picketing:

(Italics supplied). The Court below rightly noticed the disruptive

‘effect of a non-union worker, paying no dues ‘to the union and not

participating in strike activities while obtaining the beneftts of ynion

wages and union working conditions (Pet. p. 23 ftn. 3}.

¢

/

/

/

16). Having thus made a specific application of the balancing / |

fs ERK IS

. -

he Rte REE Cs Rt a EN

Ae

=]

+

“e

j

a

4

z

a

3

x

6

test in this case, the Court below properly concluded that

the compelling state interest in the, congressionally sup-

ported principle of the union shop outweighed the injury

to the Plaintiff.

Respectfully submitted,

ALLAN R. RosenserG

53 State Street

Boston, Massachusetts 02109

‘Attorney for Respondents -

United Electrical, Radio &

Machine W orkers of America (UE), .

and UE Local. O74 -