Brief for the United States — Local 399, International Brotherhood of Electrical Workers v. National Labor Relations Board

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-2032

LocAL 399, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOAKD

IN OPPOSITION

OPINIONS BELOW

The per curiam opinion of the court of appeals

(Pet. App. A, Al-AS5) is not reported. The Board’s deci-

sion and order (Pet. App. C, C1l-C2) and the Trial Exam-

iner’s Decision, (Pet. App. C, C3-C20) are reported at

200 NLRB No. 159.

JURISDICTION

The judgment of the court of appeals was entered

on April 17, 1974 (see Pet. 2). The petition for a writ

of certiorari was filed on July 16, 1974. The

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

1254(1).

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2

QUESTION PRESENTED

Whether the Board properly found that the union

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

Labor Relations Act by threatening, and attempting to

cause, the discharge of an employee for non-payment of

union dues at a time when the union could not lawfully

compel him to make such payment as a condition of

employment.

STATUTE INVOLVED

The relevant provisions of the National Labor

Relations Act, as amended (61 Stat. 136, 73 Stat. 519,

29 U.S.C. 151, et seq.) are set forth at Pet. 4.

STATEMENT

Illinois Bell Teiephone Company! (the Company) pro-

vides telephone service in Decatur, Illinois (Pet. App.

C, C4). For many years a contractual relationship has

existed between the Company and petitioner Union. The

relevant contract contains a maintenance-of-membership

clause providing that all “employees” who become

members of the Union “shall maintain their membership

in the the Union in good standing as a condition of

employment.” The term “employee” is defined as an

“employee * * * of the Company represented by the

Union.” (Pet. App. C, C5; G.C. Exh. 5, Art. I, Sec. 2,

Art. II.)

Robert Galka first began working for the Company on

September |, 1959, as a frame man. He joined the Union

in March 1960 (Pet. App. C, C5; Tr. 23).2 On March 15,

' Intervenor below.

> “Tr.” refers to the transcript of ihe proceedings before the

Administrative Law Judge: “G.C. Exh.” refers to the General

Counsel's Exhibits.

3

1968, Galka, then employed as a communications mainten-

ance man, was promoted to station installation foreman,

a supervisory position outside of the bargaining unit

represented by the Union (Pet. App. C, C5; Tr. 23). In

April 1968, Galka told Union steward Don Maddox that,

“since | was in management and I wasn’t in the Union

anymore, that I would like to have my Union dues stop-

ped.” Galka did not sign a union withdrawal card, nor

was such a card given to him but his dues were stopped;

he stopped receiving union literature and, for the time,

had no further contact with the Union (Pet. App. C, C6;

Tr. 28-29).

In February 1969, Galka left his supervisory position

and returned to a job within the bargining unit (Pet.

App. C, C5; Tr. 24). In April, Union steward Jim

Nalefskin told Galka that he had some cards for Galka

to sign “in order * **to get [Galka’s] Union dues

started again.” Galka agreed but did not receive any

cards or further communications from the Union (Pet.

App. C, C6; Tr. 29-30).

Fourteen months later, in June 1970, Union steward

Maddox told Galka that he was “in trouble” because he

owed some “back dues.” When Galka asked how he could

owe any dues when he was not a member, Maddox replied

that the Union had “automatically” reinstated him to

membership when he returned to the bargaining unit in

February 1969. Maddox told Galka to sign a payroll de-

duction card and the. Union would bill him later for

back dues. Galka replied that he would not sign any-

thing under those circumstances. Maddox asked Galka if

he “knew what this meant.” Galka answered that he

“didn’t care what it meant.” (Pet. App. C, C6; Tr. 30-

31.)

4

On July 1, 1970, the Union, by letter, a copy of which

was sent to Galka, requested the Company to discharge

Galka if he refused to pay his back union dues imme-

diately, pursuant to the “Union Security” provision

of the collective bargaining agreement (Pet. App. C, C6-

C7). Shortly afterwards, when Maddox asked Galka if he

had received a copy of the letter, Galka stated that he

had no objection to joining the Union. Maddox replied

that that was not the issue, since Galka had automatic-

ally been carried as a member he was therefore obligat-

ed to pay back dues dating from his return to the bar-

gaining unit. When Galka repeated that he did not owe

any back dues, Maddox warned that Galka’s “job was at

stake and he would hate to see [Galka] lose [his] job

for one hundred forty some dollars of back dues

"oe" (ra. Age. C, Cr Te. Jace.

On July 30, 1970, the Company refused to comply

with the Union’s July | request to discharge Galka,

stating that it would be “a violation of the National

Labor Relations Act” to do so (Pet. App. C, C7-C8;

Tr. 47-48). After several similar demands by the Union

both to Galka and the Company (Pet. App. C, C8-C9;

Tr. 24-25, 33-6, 49), Union attorney Robert Fitzgerald

wrote Galka, stating that Galka was delinquent in his

dues, from February 1969 to the present, and that the

Union considered Galka to have been a member continu-

ously from March 1960. The letter continued: “Unless you

tender an amount of money equal to the dues owed or makz

mutually satisfactory arrangements for the payment theref

by December I1, 1970, I will be forced to take appro-

priate action on their behalf.” (Pet. App. C, C9; Tr. 37.)

LL LL ES

5

After conferring with the Company, Galka decided,

in order to protect his job, to pay the back union

dues and sign a payroll authorization card. On December 10,

1970, Galka met with Maddox; he signed a payroll

deduction card and a check for $141.45, writing on the

back of the check the words “paid under protest”

(Pet. App. C, C9-C10; Tr. 40-42). Thereafter, the Company

filed an unfair labor practice charge with the Board

(Pet. App. C, C3).

The Board, adopting the findings of its Administrative

Law Judge, concluded that, “when Galka left the bargain-

ing unit in March 1968, to take a supervisory position

with the Company, he did so with a bona fide intention

of not returning, that his obligation to retain membership

in the Union under the collective bargaining agreement

ceased as of that time, and that, upon his return to

his job within the bargaining unit in February 1969, he

was in the position of a new employee, with no obliga-

tion under the contract to resume payment of union dues.”

Therefore, it held that in requesting the Company to

discharge Galka because of his failure to tender union

dues for which he was not obligated, the Union violated

Section 8(b)(2) and (1)(A) of the Act. (Pet. App. C,

C14.) The Board also found that the Union violated

Section 8(b)(1)(A) by threatening Galka, through the letter

of its agent, Fitzgerald, with discharge if he failed to

pay union dues for which he was not obligated (Pet.

App. C, C14-C15). The Board ordered the Union, inter

alia, to cease and desist from the unfair labor practices

found, to reimburse Galka for all union dues collected

since December 10, 1970, and to advise the Company

that no further dues deductions would be made from

Galka’s pay unless, and until, he executed a new payroll

deduction card (Pet. App. C, C2, C17-C18).

The court of appeals sustained the Board’s findings and

conclusions, and enforced its order (Pet. App. A, Al-A5).

6

ARGUMENT

The decision of the court of appeals is correct

and does not conflict with the decision of any other

court of appeals. Thus, no issue warranting further re-

view is presented.

1. Section 8(b)(2) of the Act makes it unlawful for a

union to cause, or attempt to cause, an employee’s dis-

charge for failure to pay dues or fees to the union, ex-

cept where such obligation is sanctioned by a valid

union security provision. See Radio Officers’ Union v.

National Labor Relations Board, 347 U.S. 17, 40.

Under settled Board principles, an employee who term-

inates his relationship with an employer and is then

rehired by him, or who transfers out of the bargaining

unit and then returns to it, “stands in the same shoes

as one being hired by the * * * Company for the first

time, who nas never been a member of the * * * Union”

(Convair, 111 NLRB 1055, 1056) — insofar as applica-

tion of a union security provision is concerned. See

also Kaiser Steel Corp., 125 NLRB 1039,1041; Yellow

Cab Co., 148 NLRB 620, 623-625. When Galka was ele-

vated to the position of foreman, his status as an “em-

ployee” within the bargaining unit was terminated?

just as it would have been had he left the Company and

gone to work elsewhere. Therefore, the Board properly

concluded that, when he rejoined the bargaining unit,

he was entitled to a fresh choice, under the mainten-

ance-of-membership clause of the contract (supra, p.

2), whether to rejoin the Union.

'‘ The contract defined “employee” as an “employee of the Company

represented by the Union™ (supra, p. 2). Section 2(3) of the Act

excludes supervisors from the definition of “employee.”

7

There is no substance to the Union’s contention that

the Board’s decision allows an employee to “void the

effect of valid internal Union rules concerning the re-

tention of membership, by working as a supervisor and

then returning to the bargaining unit” (Pet. 16). This

contention is predicated on the Union’s assertion,

before the Board and the court below, that, although

Galka had left the bargaining unit to become a super-

visor, he remained subject to union membership obliga-

tions because he was put on “honorary withdrawal

status.” However, the Union’s Constitution provides

for two methods of conferring “honorary withdrawal

status” on a member: by the issuance of an “honorary

withdrawal” card, or by having a member “shown as on

honorary withdrawal without actual issuance of the

card” (Pet. App. D, DI-D2). The Board found, and the

court below agreed, that Galka was neither issued an

“honorary withdrawal” card, nor did the Union intro-

duce any evidence to indicate that he was “shown on

honorary withdrawal” (Pet. App. A, A4-A5; Pet. App. C,

C11-C16).

2. Contrary io petitioner's contention (Pet. 8-12),

the decision below does not conflict with National

Labor Relations Board v. Industrial Towel and Uniform

Service, 473 F. 2d 1258 (C.A. 6). In that case, employ-

ee Durham executed a check-off authorization that was

self-renewing annually unless the signer took affirm-

ative action. Durham left work in 1966 because of ill-

ness but returned in 1969, at which time the employer

reinstated the dues checkoff without fresh authoriza-

tion. The Sixth Circuit held that the Company did not

act unlawfuily. It found that the “unambiguous lang-

uage” of the self-renewing checkoff was controlling,

“since the parties were presumed to have known what

8

they were signing.” /d. at 1260. Further, the court

found that the circumstances surrounding Durham’s leav-

ing and re-employment indicated that neither the union

nor the company treated her as a new employee. /bid.

In the instant case, there was no independent checkoff

authorization. Moreover, when Galka left the bargaining

unit for a supervisory position, he severed all connec-

tion with the Union (supra, p. 3). When he returned

to the bargaining unit, the Company treated him as a

new employee and the Union, except for an offer on

which it did not follow through to bring him the cards

necessary to “get [his] Union dues started again” (p.

3 supra), ignored him for 14 months and then sought

to collect past dues.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Peter G. NASH,

General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

PATRICK HARDIN,

Associate General Counsel,

NorTOn J. COME,

Deputy Associate General Counsel,

LAURA Ross BLUMENFELD,

Attorney,

National Labor Relations Board.

SEPTEMBER 1974.

DO1-1979449