# Opposition Brief — Linscott v. Millers Falls Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1526%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1971
- **Citation:** 404 U.S. 872

## Text

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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}.

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

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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 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1526%3A2. Public record. Not legal advice.