Petition for Writ of Certiorari — William F. Buckley, Jr. v. American Federation of Television and Radio Artists

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Supreme Couwt of the United States

October Term 1974

No @4-314

FULTON LEWIS, III,

Petitioner,

Vv.

AMERICAN FEDERATION OF TELEVISION AND RADIO

ARTISTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

C. DICKERMAN WILLIAMS

Counszl for Petitioner

444 Madison Avenue

New York, N.Y. 10028

JouN L. KILCULLEN,

EpITH HAKOLA,

Of Counsel

September, 1974

PVRS II EEO Moe en ey ey Ne

TABLE OF CONTENTS

ROE ETRE TROT meres ger ofl

PAGE

Opinions Below .........---+eeeeeeeeeeeeeeees 1

De on cc ee ec tcc wtees cxevvisevewcsens 1

Questions Presented for Review .........-.++++- 2 f

Relevant Constitutional and Statutory Provisions 2

Statement of the Case ..........--:eeeeeeeeeee 2

ee ala sui cavaesinn vhoKs 2 t

The Complaint ............-.eceeeeeeeeeeeeee 4 :

The Decision of the Special Term ...........---- 4

The Decision of the Appellate Division .......... 4

The Decision of the Court of Appeals ...........- 5

The Dissenting Opinion of Jasen, J.: A commenta-

tor on public affairs “whose First Amendment

rights are of peculiar importance is so specially

situated as to have standing to claim freedom

from interference with his right to freely com-

ment on public affairs.” ...........-++-+++++- 6

REASONS FOR GRANTING THE WRIT

1. In conflict with applicable decisions of this

Court, the New York Court of Appeals has up-

held a law authorizing prior restraint of speech

despite the absence of “clear support in public

danger, actual or impending.” ............-- Beet |

2. In conflict with applicable decisions of this

Court, the New York Court of Appeals has held

that, by reason of the doctrine of pre-emption,

the state courts of New York were without juris-

diction to declare that § 57 of the Code of Fair

Practice (radio) was, in so far as requiring pe-

titioner to be a member in good standing of the

9 ANDERE As ROT ie LEE EGET REL SILI fe aA RENAULT IO MOIS WEG S RIP RNORETIAROLED EME LLL OL STE IOP wor ae |

ii

PAGE

respondent union as a condition of comment on

public affairs, “void and of no effect.” ........

EE Sc ca abs a eae ee 6 cee cceokue i

Table of Cases

Booster Lodge No. 405 v. National Labor Relations

meare, 413 USB. GA(1GTB) .... cc cee eQeccecs 6

Buckley v. American Federation of Television and |

Radio Artists, 394 F. Supp. 823 (S.D.N.Y. 1973),

reversed F. 2d (C.A. 2d, 1974) ........ eo

National Labor Relations Board v. General Motors,

ee i, PLE osc kd b> kaa ved kaeeeeeseas 4,6

National Labor Relations Board v. Textile Workers,

OU MERU NOE bch ac andcdkocensesasces 6

Radio Officers Union v. National Labor Relations

Board, 347 U.S. 17(1947) ................... 6

Thomas v. Collins, 8323 U.S. 516(1945) .......... 16

STATUTES CITED |

United States Constitution:

UE MIN 0's hc Gus bad shee Rea ak hau 2,7

eee

Fourteenth Amendment ..................... 7

National Labor Relations Act: |

os li

rrr ’ ati , otis ate AG pe elim OO A ial

ill ;

*

NRE CREE OTA

Index of Appendices

| PAGE i

‘Appendix A (Opinion of Court of Appeals, STEVENS, q

here rrr Cee CeNC LE bKDEC Leas Rake ¥ewew eRe 1A

Appendix AA (Dissenting Opinion of JASEN, J.) .. 138A

Appendix B (Memorandum Decision of Appellate ;

| ee errr reer Pere errr ee ee 18A oF

:

Appendix (Opinion of Special Term, QUINN, J.) ... I19A ;

RAP LINE PLT GE RIG TYTN HT? PETAR, A ON LIONEL ES LEE IID YN

VEPS et OR.

Supreme Court of the United States

October Term 1974

No.

_

FULTON LEwIs, III, .

Petitioner,

—against—

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI TO THF

COURT OF APPEALS OF THE STATE OF NEW YORK

Fulton Lewis III (“petitioner”) prays that a writ of

certiorari issue to review the judgment of the Court of

Appeals of the State of New York entered herein.

Opinions Below

The opinion of the Special Term (QUINN, J.) is reported

at 71 Misc. 2d 253 (Sup. Ct. N.Y. 1972), and appears in the

appendix to this petition at page 19A.

The memorandum decision of the Appellate Division is

reported at 41 A.D. 2d 707 (1973) (1st Dept. 1973), and

appears in the appendix to this petition at page 18A.

The opinion of the Court of Appeals (STEVENS, J.) is

reported at 34 N.Y. 2d 265 (1974) ; it appears in this pe-

tition at page 1A; the dissenting opinion of JASEN, J.,

appears at page 13A.

Jurisdiction

The opinion of the Court of Appeals was entered on

June 12, 1974. On August 12, 1974 Mr. Justice Marshall

extended the time for the filing of this petition until Sep-

1a OG Ie Wis an ah a atl is EIT Ro Neate Se SERENA:

2

tember 28, 1974. (The extension had been sought so as to

coordinate the filing of this petition with that in the related

Buckley case, cf. infra.)

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

§ 1257(3). 28 U.S.C. § 2403 may be applicable.

Questions Presented for Review

The questions presented for review are the same as those

in the related case of Buckley et al. v. American Federation

of Television and Radio Artists (hereinafter “the related

Buckley case”). As it is intended that the petition in that

case be filed immediately prior to the filing of the petition

in this one, in the interests of brevity we do not repeat them

here.

Relevant Constitutional and Statutory Provisions

The First Amendment, §4 8(a) (3) and 9(a) of the

National Labor Relations Act and the Fairness Doctrine

(47 U.S.C. § 315) are also relevant here. As these provi-

sions are quoted in the petition in the related Buckley case

we do not print them in this petition.

Statement of the Case

Facts

At pages 1A - 3A of the opinion of the Court of Appeals

and page 19A of the opinion of the Special Term, the courts

below correctly set forth most of the relevant facts.

Additionally, it is undisputed that petitioner is a com-

mentator on public affairs with a program broadcast by the

Mutual Broadcasting System over 350 stations (A.5, 6, 56).

As such petitioner comes under § 57 of the Radio Code

of Fair Practice by which employer-broadcasting companies

undertake to see to it, as a condition of emplcyment, that

their “performers” join the union.

King, Mutual’s Vice-President of Programs and News

Operations, testified without contradiction that it was the

“policy and practice of Mutual” to respect this obligation

(A.5, 9).

Petitioner was forced by the union to discontinue broad-

casting during an eight-day strike (A.9-10).

Petitioner testified the rear of union discipline under

Article 18 of the Union’s Constitution (quoted at page 6b

of the opinion of the United States Court of Appeals in the

Buclley case) had caused him to censor his broadcasts on

matters relating to labor relations (A.50-53).

Like the petitioners in Buckley, petitioner personally

negotiates his own employment contracts. By so doing he

has won for himself compensation at the rate of $700 a

week (A.57). Under the Code of Fair Practice his com-

pensation would be only $168 a week (A.168).

Petitioner has no pension benefits.

The union does not purport to be “exclusive repre-

sentatives” in bargaining. In fact the compensation pro-

vided by the Code only purports to be a “minimum” (A.64),

thereby affirmatively inviting individua! negotiations.

Thus, although claiming the rights of a union under

€ 8(a) (3), the union does not provide the consideration

contemplated by § 9(a) and the free rider cases, i.e. negoti-

ation of the terms of “pay, wages, hours of employment” for

members of the collective bargaining unit as their “exclu-

sive representatives.”

The Complaint

The complaint, alleging these facts and that, as applied

to him, 4 8(a) (3), in so far as authorizing the union and

the employer-broadcasting companies and the union to re-

quire him to be a member of the union, pay dues and obey

its orders, as a condition of comment on nublic affairs was

unconstitutional, and that § 57 of the Code was, as to him,

illegal and unconstitutional and sought a declaratory judg-

ment that, as to him, § 57 was void and of no effect.

Jurisdiction. As this suit was brought in a state court

of general jurisdiction, it was, of course, unnecessary to set

forth facts which would bring the case within any statute

defining a limited jurisdiction.

The Decision of the Special Term

The Special Term first overruled the union’s prelimi-

nary objections to jurisdiction, declaratory judgment, ete.

(20A -22A).

The Special Term, on the merits, dismissed the com-

palint. It found that ‘ 8(a)(3) was a valid exercise of

power under the Commerce Clause, and that “ ‘membership’

need be no more than paying dues” citing National Labor

Relations Board v. General Motors, 371 U.S. 734, 741

(23A-24A).

The Decision of the Appellate Division

The Appellate Division modified the judgment of the

Special Term to the extent of substituting, for that part of

the judgment dismissing the complaint, a judgment declar-

ing that ‘ 8(a)(3) did not violate the First Amendment

(18A). The Court wrote no opinion.

5

The Decision of the Court of Appeals

The opinion of the Court of Appeals stated more elabo-

rately the same reasoning as that of Special Term, viz., that

the NLRA was a valid exercise of power under the Com-

merce Clause (4A-5A).

Whatever effect the strike may have had upon peti-

tioner’s speech, the law recognizes a right to picket, the

Court noted. (6A-7A).

As for dues “the fact that plaintiff may elect to bargain

for himself does not relieve AFTRA of its obligation, if

requested to do so.” (8A). “So long as plaintiff remains

a member of AFTRA he is bound to pay dues or their

equivalent by reason of the agreement, the union’s constitu-

tion or its by-laws.” (11A).

The Court found benefit for petitioner in the union’s

activities in that, “The salaries of others provide a standard

by which the value of pluintiff’s services can be measured.”

(12A).

The Court made no specific ruling with respect to peti-

tioner’s prayer that § 57 of the Code, in so far as requiring

him to be a union member, be declared void and of no effect.

The Court did say, however, that a union member might

resign at any time, subject to the union’s rules in that

respect (10A-11A). The Court further noted that when

petitioner “lawfuly severs his ties, he will be free of

AFTRA’s control.” 11A. The Court continued: “Jurisdic-

tion to determine an unfair labor practice, if plaintiff be-

lieves that is what is involved here, lies with the NLRB and

not with this Court.” The Court here cited the decision of

the United States Court of Appeals in the related Buckley

case, that decision having been announced a short time

earlier. 11A.

6

The Dissenting Opinion of Jasen, J.*: A commentator

on public affairs “whose First Amendment rights are of

peculiar importance is so specially situated as to have

standing to claim freedom from interference with his

right to freely comment on public affairs.”

The dissenting opinion held that § 8(a) (3), “insofar as

it authorizes‘ commentator on public affairs to be required

to join a labor organization and comply with its orders, as

a condition of speaking over radio, violates the First

Amendment.” (13A).

Considering Radio Officers Union v. National Labor

Relations Board, 347 U.S. 17 (1947), National Labor Re-

lations Board v. General Motors, 393 U.S. 734 (1963),

National Labor Relations Board v. Textile Workers, 409

U.S. 213 (1972), and Booster Lodge No. 405 v. National

Labor Relations Board, 412 U.S. 84 (1973), the dissenting

judges concluded that, whatever AFTRA may argue in this

particular case, petitioner was required to be a member of

the union and, as such, subject to its disciplinary sanctions

(16A).

This result the dissenting judges found inconsistent with

petitioner’s rights under the First Amendment (16A). The

dissenting judges said (16A):

“The very essence of plaintiff’s trade is the public

discussion of matters of public interest or concern,

an activity which has long held to be preeminent

among the various First Amendment rights (cita-

tions). Such a Commentator, whose First Amend-

ment rights are of peculiar importance, is so spe-

cially situated as to have standing to claim freedom

from interference with his right to freely comment

on the news and public affairs.”

* In which Gaprietui, J. concurred.

Reasons for Granting the Writ

1. In conflict with applicable decisions of this

Court, the New York Court of Appeals has upheld a law

authorizing prior restraint of speech despite the absence

of “clear support in public danger, actual or impend-

ing.”’*

We adopt the presentation in support of this proposition

made in the petition in the related Buckley case, with this

added comment:

The New York Court of Appeals seems more unaware,

we submit, than the United States Court of Appeals that

such considerations as “industrial peace and stability in

labor relations” and “the flow of interstate commerce” do

not control, as we see it, when legislation is challenged

under the First Amendment as distinguished from the Fifth

and Fourteenth Amendment due process clauses.

The Court reached this result although, (1) the union

does not function as “exclusive representatives,” (2) peti-

tioner’s “pay, wages, hours of employment” are governed

by contracts negotiated by him, and (3) union membership

has been, for petitioner, a nuisance, not a benefit.

We adopt the presentation made in the Buckley cage in

so far as the legal analysis is concerned, but not of course

so much as relates to facts peculiar to Buckley and Evans.

As regards this petitioner the allegations of the preceding

paragraph apply as shown supra page 2. We additionally

comment:

There being no evidence in the record that petitioner is

enrolled in the pension plan or otherwise entitled to pen-

* Thomas v. Collins, 323 U.S. 516, 530 (1945).

8

sion benefits (and he is not, in fact), the only benefit that

the Court found as a result of the union’s efforts was,

as we have said, that “the salaries of others provide a

standard by which the value of his services can be meas-

ured.” Supra page 5. That the union negotiated for him

a salary of $168 was hardly a help to petitioner in negotiat-

ing for himself a salary of $700. In fact it made peti-

tioner’s negotiations more difficult. Surely so nebulous a

benefit (assuming that any in fact exists) is not a sufficient

ground for denying petitioner what would otherwise be his

constitutional rights.

2. In conflict with applicable decisions of this Court,

the New York Court of Appeals has held that, by reason

of the doctrine of pre-emption, the state courts of New

York were without jurisdiction to declare that § 57 of the

Code of Fair Practice (radio) was, in so far as requiring

petitioner to be a member in good standing of the

respondent union as a condition of comment on public

affairs, “void and of no effect.”

Whatever may be said as to dues, it has been abundantly

settled since Radio Officers Union v. National Labor Rela-

tions Board, 347 U.S. 17 (1947), by a long series of cases

in this Court and the Courts of Appeals, that a union may

nct compel membership. Cf. page 13 of petition in the

related Buckley case.

The declaratory judgment procedure of the State of

New York permits a declaratory judgment of petitioner’s

rights in this respect, as demonstrated by the dissenting

opinion. 17A. The opinion of the Court did not dispute this

proposition. ;

The Court indicated by its remark at page 11A that its

failure to grant such a judgment was based upon the United

States Court of Appeals decision in the related Buckley case

holding that the doctrine of pre-emption applied under the

circumstances.

9

The ruling of the New York Court of Appeals, being

based upon that of the United States Court of Appeals is

subject to the other comments made in the petition in the

related Buckley case respecting pre-emption. For the rea-

sons there stated the application of that doctrine here was

in conflict with applicable decisions of this Cuurt.

It is also to be noted that because the trial court here

was a court of general jurisdiction, there can be no doubt

that, apart from pre-emption, the court had jurisdiction.

CONCLUSION

The Court should grant a writ of certiorari to review

the decision of the New York Court of Appeals herein.

Respectfully submitted,

C. DICKERMAN WILLIAMS

Counsel for Petitioner

444 Madison Avenue

New York, N.Y. 10022

JOHN L. KILCULLEN,

EpITH HAKOLA,

of Counsel

September, 1974

OR Ae me ‘ BPR LAB ES EB 1 STL OLOLIBE ALIN VS ee PA. aE Seal

STATE OF NEW YORK

COURT OF APPEALS

~~

FULTON LEwis, III,

Appellant,

Vs.

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Respondent.

eS OS RT ARE NE YRS SIRNA e SRN

>

Opinion of Court of Appeals

KOO eee:

STEVENS, J.:

Plaintiff, a radio commentator on public affairs, states

that he was required by his employer, Mutual Broadcasting

System, Inc. (Mutual) to join defendant American Federa-

tion of Television and Radio Artists (AFTRA), pay dues,

and comply with AFTRA’s orders or directives as a condi-

tion of employment. Plaintiff asserts such requirement is

purportedly authorized by Section 8(a) (3) of the National

Labor Relations Act (NLRA, 29 U.S.C. Sec. 158(a) (3) ).

He seeks a declaratory judgment that such requirement, as

a condition of speaking over radio, violates his rights under

the First Amendment of the Constitution of the United

States.

_ AFTRA admits that it has a union shop contract with

Mutual as exclusive bargaining agent for employees of

Mutual in appropriate bargaining units and as exclusive

bargaining representative for those employees in various

other categories (one of which includes plaintiff, viz. broad-

OP Gp cat ea MIE TENE EP LALIT PE MAELIN ELE ALE, LCOS ELODIE ALE LIE TT aces _|

2A

Opinion of Court of Appeals (Stevens, J.)

casters); that it “is the designated selected or certified

bargaining representative pursuant to the provisions of

Section 9(a) of NLRA, 29 U.S.C. Sec. 158; admits that

AFTRA is empowered to enter into agreements with em-

ployers requiring as a condition of employment membershi p

therein on or after the thirtieth day following the beginning

of such employment or the effective date of such agreement, —

whichever is the later, pursuant to the provisions of Section

8(a) (3) of NLRA, 29 U.S.C. Sec.158;”.

After joinder of issue plaintiff moved for summary

judgment and such motion was denied. AFTRA’s cross-

motion for summary judgment was granted and the com-

plaint dismissed. The Appellate Division modified to strike

the dismissal and to substitute therefore a provision declar-

ing that Sec. 8(a) (3), insofar as it authorizes AFTRA to

require plaintiff to pay dues as a condition to speaking on

radio, does not violate the First Amendment. As so modi-

fied the order was otherwise affirmed.

Under AF TRA’s Code of Fair Practice, and its agree-

ments with Mutual, Mutual bound itself to “employ and

maintain in our employment only such persons covered by

this agreement as are members of the American Federation

of Television and Radio Artists in good standing. ...” Such

a provision is expressly permitted by the language of Sec.

8(a) (3), NLRA, 29 U.S.C. Sec. 158, entitled “Unfair labor

practices”. That section provides, in pertineni _.. +t,

“(a) It shall be an unfair labor practice for an

employer—(3) by discrimination in regard to hire

3A

Opinion of Court of Appeals (Stevens, J.)

or tenure of employment or any term or condition

of employment te encourage or, discourage member-

ship in any labor organization: Provided, That noth-

ing in this subchapter, or in any other statute of the

United States, shall preclude an employer from mak-

ing 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 or the effective date

of such agreement, whichever is the later, (i) if

such labor organization is the representative of the

employees as provided in Section 159(a) of this

| a

It is undisputed that AFTRA is the designated, exclu-

sive representative in accordance with Section 9(a) NLRA,

29 U.S.C. Sec. 159.

Plaintiff is and since 1966 has been a dues paying

member of AFTRA and is under contract to Mutual.

Plaintiff argues that since Section 8(a) (3) authorizes the

union shop or union security provision heretofore quoted,

it violates the First Amendment, particularly the provision

that “Congress shall make no law... . abridging the free-

dom of speech or of the press... .” While plaintiff’s con-

tract with Mutual is a separate agreement, Mutual, respect-

ing its obligations under the Code of Fair Practice, requires

by such contract. that plaintiff be a member of AFTRA.

Plaintiff asserts that AFTRA requires that he remain a -

member in order to continue broadcasting with Mutual,

that in 1967 he was required to interrupt his broadcasting

by reason of a strike, and that he has felt intimidated by

reason of AFTRA’s disciplinary powers. |

The question is do the provisions of Section 8(a) (3), by

requiring plaintiff to pay AFTRA dues, unconstitutionally

4A

Opinion of Court of Appeals (Stevens, J.)

act as a prior restraint on plaintiff’s right of free speech?

In.our view it does not.

Article I, Section 8(3) of the United States Constitution

provides “The Congress shall have power . . . to regulate

commerce with foreign nations, and among the several

States and with the Indian tribes;”. The regulation of

commerce involves not only traffic but commercial inter-

course, and the power to regulate commerce is the power

“to prescribe the rule by which commere® is to be governed”

(Gibbons v. Ogden, 9 Wheat 1,196). This power, including

the power to restrain or prohibit and to prescribe rules by

which commerce is governed for the general welfare, is

complete in itself so long as the specific limitations imposed,

by the due process clause of the Fifth Amendment, are not

violated (United States v. Carolene Products Co., 304 U.S.

144). This power is also a protective power which enables

Congress to adopt measures to foster, protect and control

commerce, as well as to adopt measures to insure its safety.

Acts which impede or burden the free flow of interstate

commerce, including acts which grow out of labor disputes

are within this protective power.

With the growth and development of this nation and its

commerce it became obvious that industrial peace and sta-

bility in labor relations was essential. If such was ever to

be achieved, there had to be some governmental guarantees

of labor’s right to organize and bargain collectively through

representatives of their own choosing. Continuing labor

disputes, resulting in part in inequalities in the strength of

bargaining power, led to abuses, favored contracts and even

violence. Naturally, the flow of interstate commerce was

seriously affected.

Section 7(a) of the ill-fated National Industrial Recov-

ery Act of 1933 (NIRA) had produced certain real benefits

5A

Opinion of Court of Appeals (Stevens, J.)

and encouraged labor to press forward. When the NIRA

was held unconstitutional on May 27, 1935, it was suc-

ceeded, on July 5, 1935, by the National Labor Relations

Act (NLRA). This act sought to promote industrial peace

by encouraging organization and collective bargaining

through representatives of labor’s own choosing (NLRA

Sec. 7, 29 U.S.C. Sec. 157). Majority representation was

established as a desirable principle (NLRA Sec. 9, 29

U.S.C. Sec 159). The necessary result was some equaliza-

tion of bargaining strength between labor unions and em-

ployers. As a safeguard against abuses by either, certain

acts or conduct were defined as unfair labor practices

(NLRA Sec. 8, 29 U.S.C. Sec. 158). NLRA specifically

forbids “any unfair labor practice affecting commerce.” Its

constitutionality has been upheld as a valid exercise of Con-

gressional power in a case which dealt with manufactured

products, (National Labor Relations Board v. Jones and

Laughlin Steel Corp., 301 U.S. 1), and later, one involving

farm produce, Santa Cruz Fruit Packing Co. v. National

Labor Relations Board, 303 U.S. 453).

In the Jones & Laughlin case, supra., p. 33, the Supreme

Court spoke of the right of employees to self-organization

and to representation of their own choosing, for “collective

bargaining or other mutual protection without restraint or

coercion by their employer”, as a fundamental right on a

par with the right of an employer “to organize its business

and select its own officers and agents.”

It is clear that AFTRA and Mutual acted within the

scope of the law.

Plaintiff has a right to be protected in the exercise of

his freedom of speech. However, plaintiff’s contention that

his right to free speech is affected is totally without merit.

The power of Congress to regulate commerce is contained

es

| oe Der ce alee Mah ke

6A

Opinion of Court of Appeals (Stevens, J.)

in Article 1 of the Constitution. The guarantee of freedom

of speech appears in the Constitution in the First Amend-

ment, which expressly forbids Congress to make any law

abridging the freedom of speech. This prohibition similarly

affects the States by virtue of the due process clause of the

Fourteenth Amendment. (See N.Y. Const. Art. 1, § 8)

“The cardinal principle of statutory construction is to

save and not to destroy . . . as between two possible inter-

pretations of a statute, by one of which it would be uncon-

stitutional and by the other valid, our plain duty is to adopt

that which will save the act. Even to avoid a serious doubt

the rule is the same.” (National Labor Relations Board v.

Jones and Laughlin Steel Corp., supra., p. 30).

Freedom of speech in its essence involves no previous

restraint upon utterance or publication. It does not confer

immunity, for abuse of the right will subject the offender

to legal punishment. (See, De Jonge v. Oregon, 299 U.S.

353, 364). The tests for abuse have been referred to as

“clear and present danger” (Schenck v. United States, 249

U.S. 47; see also Stromberg v. California, 283 U.S. 359), or

the common law test of dangerous tendency, Gitlow v. New

York, 268 U.S. 652 (Holmes and Brandeis, JJ. dissenting).

The prevailing view at present is the “clear and present

danger” test (Terminiello v. Chicago, 337 U.S. 1; Thornhill

v. Alabama, 310 U.S. 88).

We look now to the record of what actually occurred

with respect to plaintiff. In 1967, when a strike occurred

he vas requested to refrain from broadcasting. He did so.

Apparently there was a picket line maintained by the union.

The right to picket peacefully for a legal purpose as a means

of communication and persuasion in labor disputes has been

recognized and upheld as being valid (Thornhill v. Ala-

bama, 310 U.S. 88; Varlson v. California, 310 U.S. 106).

7A

Opinion of Court of Appeals (Stevens, J.)

However, even peaceful picketing “cannot dogmatically be

equated with the constitutionally protected freedom of

speech” (International Brotherhood of Teamsters v. Hanke,

339 U.S. 470, 474). The character, quality and circum-

stances of the act frequently determine its legality. “The

effort in the cases has been to strike a balance between the

constitutional protection of the element of communication

in picketing and ‘the power of the State to set the limits of

permissible contest open to industrial combatans’ ”. (Team-

sters Union v. Hanke supra., p. 474). The request to re-

frain from broadcasting and, in effort, to respect the picket

line, was not a request to do an illegal act, but a request

to a member to aid in strengthening the union. He could

have refused, as the record indicates others did, without

retaliation. Admittedly, future strikes might result dif-

ferently. The request to do a legal act would not wipe out

the obligation to pay dues or to tender an equivalent sum.

There is nothing in the record which suggests, even

remotely, that AFTRA attempts to censor plaintiff’s broad-

casts or that plaintiff is not free to express his views fully

and freely, nor even that he is, or has been, punished or dis-

ciplined for the expression of such views. The contention of

prior restraint must fall for it does not appear that plain-

tiff’s fundamental right of free speech or liberty has been

infringed.

There remains then the question of whether the require-

ment that plaintiff pay dues or tender an equivalent sum,

in order to broadcast over Mutual, violates plaintiffs right

of free speech or personal liberty. The statute permits a

union security shop. Aside from that we look to determine

if such a requirement is reasonable in rational experience.

Laws are made not for the individual but for the benefit

and protection of the whole body. The rights of employees

eae. —

| CERN Kah LAGE AALS

8A

Opinion of Court of Appeals (Stevens, J.)

were only secured through organization and protected by

legislation and organization. Each employee must bear a

fair share of the financial burden of union representation,

with the union’s obligation under the NLRA being to repre-

sent all employees of the class or craft it represents, regard-

less of union affiliation. (International Association of

Machinists v. Street, 367 U.S. 740, 761-764).

“It is a principle of general application that the exer-

cise of a granted power to act in behalf of others involves

the assumption toward them of a duty to exercise the power

in their interest and behalf, and that such a grant of power

will not be deemed to dispense with all duty toward those

for whom it is exercised unless so expressed” (Steele Vv.

Louisville & Northern Railroad Co., 323 U.S. 192, 202).

The union has the obligation to act without hostile dis-

crimination. “This does not mean that the statutory repre-

sentative of a craft is barred from making contracts which

may have unfavorable effects on some of the members of

the craft represented. Variations in the terms of the con-

tract based on differences relevant to the authorized pur-

poses of the contract in conditions to which they are to be

applied, such as differences in seriority, the type of work

performed, the competence and skill with which it is per-

formed, are within the scope of the bargaining representa-

tion of a craft, all of whose members are not identical in

their interest or merit” (Steele v. Louisville & Northern

Railroad Co., supra., p. 203).

The fact that plaintiff may elect to bargain for himself

does not relieve AFTRA of its obligation, if requested to do

so. If plaintiff be exempted from payment of dues no good

reasons exists why other members, perhaps not so well

known, should not also be granted exemption. In time

this would mean the end of union organization and the

9A

Opinion of Court of Appeals (Stevens, J.)

return to a species of jungle warfare which inevitably

would impede and obstruct interstate commerce.

However, in Machinists ¢ Aerospace Workers v. NLRB,

412 U.S. 84 (1973), the Supreme Court affirmed a judg-

ment of the Court of Appeals (D.C. Cir.) sustaining the

Board’s finding of an unfair labor practice on the part of

the union. In that case the action had a collective bargain-

ing agreement with the Boeing Company. The day after

expiration of the agreement, the union called a strike which

lasted 18 days, and picketed one of Boeing’s plants. One

hundred forty-three union members crossed the picket line

to work, 61 of whom resigned their membership prior to

returning to work and 58 thereafter. All were fined by

the union. There was no evidence that the union members

either knew or had consented to any limitation on their

right to resign. In fact, neither the constitution nor the

by-laws of the union contained any provision expressly per-

mitting or forbidding resignations. The Board ordered the

union to cease and desist from seeking court enforcement

of the fines as an unfzir labor practice and the union

appealed.

The Court left open “the question of the extent to which

contractual restriction on a member’s right to resign may

be limited by the [National Labor Relations] Act.” It ap-

plied the law “which normally is reflected in our free in-

stitutions—the right of the individual to join or to resign

from associations, as he sees fit ‘subject of course to any

financial obligations due and owing’ the group with which

he was associated.” (Jd., p. 88; see also, NLRB v. Textile

Workers, 409 U.S. 213, 217).

In the instant case, there are agreements extant. Pre-

sumably, the members of AFTRA are aware of their rights

and obligations thereunder. The dues end fees require-

wired br ee Gr

10A

Opinion of Court of Appeals (Stevens, J.)

ment of the agreement does not represent governmental

action, but a contractual obligation. Resort by the union

to the NLRB or to state or federal courts for enforcement

of the requirement could conceivably involve governmental

action (cf. Driscoll v. International Union of Operating

Engineers Local 139, 484 F.2d 682 (7th Cir., 1973).

In Hammond v. United Papermakers and Paperworkers

Union, 462 F.2d 174 (6th Cir., 1972), plaintiff, a Seventh

Day Adventist, refused to join the union or pay the equiv-

alent of dues and was discharged from his employment by

reason of the union shop agreement. The court affirmed

summary judgment dismissing the complaint, noting that

Congress has authorized union shop clauses “as permis-

sible, contractual provisions in a collective bargaining

agreement between a union and management.” (Id., p.

175; see also Linscott v. Millers Falls Co., 440 F.2d 14 (1st

Cir., 1971), cert. den. 404 U.S. 872).

The language used in NLRB v Textile Workers, supra.,

where neither the union-management agreement nor the

union’s constitution or by-laws defined or limited the cir-

cumstances under which a member could resign, is signifi-

cant. The finding by the NLRB of an unfair labor practice

on the part of the union in coercing the employees, by the

imposition of fines, in its exercise of rights guaranteed in

section 7 of the NLRA, was affirmed. The Court said,

“when a member lawfully resigns from the union, its

power over him ends.... Under § 7 of the Act the employ-

ees have ‘the right to refrain from any or all’ concerted

activities relating to collective bargaining or mutual aid

and protection, as well as the right to join a union and par-

ticipate in those concerted activities.” (Id. pp. 215-216).

The associational rights of individuals are protected under

‘7 and restraint or coercion prohibited under ¢ 8. How-

11A

Opinion of Court of Appeals (Stevens, J.)

ever, § 8 does not impair “the right of a labor organization

to prescribe its own rules with respect to acquisition or

retention of membership therein.” (29 U.S.C. § 158 (b)).

Where a collective bargaining agreement contains a

union shop clause, which defines or limits the conditions

under which a union member may resign, until the mem-

ber takes action in accordance with such procedure, he is

bound to pay dues or their equivalent. In the absence of

an unwarranted abridgment of constitutional rights in a

particular case, reasonable regulations should be favored.

reasonable fees, reasonably adjusted to the needs and the

circumstances should be approved. Every tax or every

fee or even dues charged, will not, of necessity, constitute

interference with a constitutional right (See, Matter of

Steinbeck v. Gerosa, 4 NY 2d 302). So long as plaintiff

remains a member of AFTRA he is bound to pay dues or

their equivalent by reason of the agreement, the union’s

constitution or its by-laws. If and when he lawfully severs

his ties, he will be free of AFTRA’s control. Jurisdiction

to determine an unfair labor practice, if plaintiff believes

that is what is involved here, lies with the NLRB and not

with this Court.*

Whether or not one be classified as a “member” is

hardly determinative so long as union obligations are met.

In the absence of a specific provision in the union constitu-

tion or by-laws, a union member may submit a voluntary

resignation at any time (NLRB v. Mechanical & Allied

Production Workers, Local 444, 427 F.2d 883 (1st Cir.,

1970) ; Communication Workers v. NLRB, 215 F.2d 835,

838-839 (2nd Cir., 1954).

*See Evans v. American Federation of Television and Radio

Artists, ....F.2d ..... 42 LW 2597. [decision of U.S. Court of

Appeals. Second Circuit. on April 29, 1974, reversing Evans v.

AFTRA, 354 F. Supp. 823}.

12A

Opinion of Court of Appeals (Stevens, J.)

It has been held that a union can enforce, in a state

court, a fine levied against a strikebreaking member where

the union’s constitution or by-laws contain a provision de-

fining or limiting the circumstances under which a member

could resign (NLRB v. Allis-Chalmers Mfg. Co., 388 US.

175 (1967)). Such action neither violates {7 nor consti-

tutes an unfair labor practice under §8(b) of the NLRA.

Nor is it unreasonable to require payment. “Union

activity is by its very nature group activity, and is

grounded on the notion that strength can be garnered from

unity, solidarity and mutual commitment”, NLRB v. Tex-

tile Workers, supra., at p. 221, (dissenting opinion of Black-

mun, J.). We pay tolls on highways, the licensee of a radio

or television station undoubtedly pays a fee for the privi-

lege, as does the sponsor of or advertiser on a program

aired on television or radio. AFTRA’s services entail

expenses. Since such services are for the benefit of all it

represents, all should share in the cost. The salaries of

others provide a standard by which the value of plaintiff’s

services can be measured. Without them, and without

organization, plaintiff as a single individual might well be

powerless to command the salary presently received.

Freedom of speech and freedom of the press are funda-

mental rights. Denial of the right violates basic principles

of liberty and justice and is not to be tolerated in a free

society. The mere allegation of such denial does not estab-

lish the fact, and that is the weakness of plaintiff’s position.

I would agree with Judge Brieant “It is not necessary to

declare Section 8(a) (3) unconstitutional on its face in

order to effectuate plaintiff’s rights” (Evans v. American

Federation of Television and Rad‘o Artists, 354 F. Supp.

" $23, 847, (U.S.D.C., S.D.N.Y., 1973) ).”

* Reversed by U.S. Court of Appeals, Second Circuit on April 29,

} 1974 (.... F.2d ....), See 42 LW 2597.

~

13A

Dissenting Opinion of Jasen, J.

The conclusion here reached, however, is that the re-

quirement for payment of dues, and the union shop provi-

sion are not shown on this record to violate plaintiff’s rights,

nor does such payment amount to a tax upon his right of

free speech, authorized by government by reason of Section

8(a) (3). The dues and union shop requirement do not

become government action by reason of a protected right

under federal law to organize and bargain collectively.

(See Driscoll v. International Union of Operation En-

gineers, Local 139, supra.).

The rights and obligations under NLRA meet a social

and economic need and such rights and duties are within

the power of Congress to guarantee. The union shop pro-

vision in AFTRA’s contract with Mutual might bar access

of Mutual’s channels to plaintiff if he ceased to pay dues or

their equivalent to AFTRA. It would not limit his right to

freely express his views, or to utilize other channels or

avenues not so bound by agreement. Section 8(a) (3) also

bars an employer from discriminating against a non-mem-

ber of a union under stated conditions not here relevant.

Accordingly, the order of the Appellate Division should

be affirmed with costs.

JASEN, J. (dissenting) :

I concur in so much of the court’s opinion which holds

that plaintiff, a radio commentator on public affairs, may

be compelled to pay dues to AFTRA as a condition of his

employment. However, I would hold that section 8(a) (3)

of the National Labor Relations Act, insofar as it authorizes

a commentator on public affairs to be required to join a

labor organization and comply with its orders, as a condi-

tion of speaking over radio, violates the First Amendment.

The term “membership in a labor organization” in sec-

tion 8(a) (3) has been interpreted narrowly to provide that

14A

Dissenting Opinion of Jasen, J.

any person is a member of a union and thus satisfies the

condition of employment under a union shop agreement if

that person tenders the customary initiation fees and dues

to the labor organization. (Radio Officers v. Labor Board,

347 U. S. 17; NLRB v. General Motors, 373 U. S. 734.)

“ ‘Membership’ as a condition of employment is whittled

down to its financial core.” (NLRB v. General Motors,

supra, at p. 742 [emphasis supplied ].)

However, that is not to say that “membership” as a con-

dition of employment is identical with “membership” as a

description of the relationship between the labor organiza-

tion and the employee. For example, in NLRB v. General

Motors (supra), the United States Supreme Court discussed

the difference between an agency shop and a union shop.

The agency shop arises from a union security agreement

between an employer and a union whereby “all employees

are required as a condition of employment to pay dues to

the union and pay the union’s initiation fee, but they need

not actually become union members.” (/d., at p. 736.) On

the other hand, under a union shop agreement, “if the union

chooses to extend membership even though the employee

will meet only the minimum financial burden, and refuses

to support or ‘join’ the union in any affirmative way, the

employee may have to become a ‘member’ under a union

shop contract, in the sense that the union may be able to

place him on its rolls. The agency shop arrangement * * *

removes that choice from the union and places the option of

membership in the employee * * * *” (Jd., at p. 744.)

Thus, where there is a union shop agreement, as here, the

labor organization and not the employee has the “option of

membership.”

This being so, it is relevant to inquire whether there is

a constitutional infirmity in section 8(a) (3) as applied to

persons, such as commentators on public affairs, whose

15A

Dissenting Opinion of Jasen, J.

First Amendment protection is of marked importance.

Plaintiff contends that the element of union discipline as

set forth in Article XVIII of the AFTRA Constitution!

constitutes an unlawful and unreasonable prior restraint

of his right to broadcast his commentary and analysis of the

news. He argues that this provision authorizes the labor

organization to discipline him ior any “aci, omission or

conduct * * * prejudicial to the welfare of the Association.”

The chilling effect of this provision should be readily ap-

parent. As a member of the labor organization, plaintiff

is obligated to observe the orders issued by the organiza-

tion. For example, in event of a strike, he would be ordered

to refrain from crossing the picket line and thereby pre-

vented from speaking on the radio as a commentator on

public affairs. If he then chose to cross the picket line and

violate his obligations as a union member, his conduct would

undoubtedly be considered “prejudicial to the welfare of the

Association”, thereby subjecting him to disciplinary sanc-

tions, including a fine.”

AFTRA argues that there is no real danger inherent in

the power of the union to fine plaintiff for violating a strike

order since the United States Supreme Court has held that

1. “Section 1. Any member who shall be guilty of an act,

omission, or conduct which in the opinion of the Board is prejudicial

to the welfare of the Association, or of any of its Locals, or of any

of its members, as such, or any member who shall fail to observe

any of the requirements of the Constitution, or of any By-Laws, rules,

regulations or orders lawfully issued by the Association, any Local

or any duly authorized committee or agent of said Association or

Local, or any member who shall in any way be indebted to the

Association or any Local thereof. may, in the discretion of the Board,

be either fined, censured, suspended or expelled from membership.”

2. AFTRA concedes in its brief that “[a]Jn AFTRA member

might * * * be subject to discipline enforced by fines * * * for such

acts or omissions as crossing picket lines or failing to take part

in a strike.”

ae se haan sD a

ee ee Se

16A

Dissenting Opinion of Jasen, J.

a union member may avoid such fines by resigning from the

union before returning to work. (Booster Lodge No. 405,

Machinists & Aerospace Workers v. NLRB, 412 U. S. 84;

NLRB V. Textile Workers, 409 U.S. 213.) In both of these

decisions, it should be observed, the court was careful to

point out that there were no restrictions on the union mem-

bers’ right to resign from the union. (Booster Lodge No.

405, Machinists & Aerospace Workers v. NLRB, supra, at

p. 88; NLRB v. Textile Workers, supra, at p. 216.) Indeed,

the court implied that such a right to resign does not exist

under a union shop agreement. (NLKB V. Textile Work-

ers, supra, at p. 216, n. 4; at p. 219, n. 3; see also, NLRB Vv.

Mechanical & Allied Production Workers, Local 444, 427

F 2d 883; Communications Workers V. NLRB, 215 F 2d

835, 838-839.) Hence, plaintiff, broadcasting under a

union shop agreement, is required to be a member of

AFTRA, and, as such, is subject to all of the disciplinary

sanctions to which members may be subjected.

In my view, the relationship betwe-.. plaintiff, as a

commentator on public affairs, and defendant, as a labor

organization, imposed upon plaintiff under authority of

section 8(a) (3) of the National Labor Relations Act, is

constitutionally infirm. The very essence of plaintiff’s

trade is the public discussion of matters of public interest

or concern, an activity which has long been held to be pre-

eminent among the various First Amendment rights.

(Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 43-44;

Garrison V. Louisiana, 379 U. S. 64, 74; Thornhill v. Ala-

bama, 310 U. S. 88, 101-102.) Such a commentator, whose

First Amendment rights are of peculiar importance, is so

specially situated as to have standing to claim freedom from

interference with his right to freely comment on the news

and public affairs. The threat of disciplinary sanctions, as

stated before, constitutes an unlawful and unreasonable

17A

Dissenting Opinion of Jasen, J.

prior restraint of his right to broadcast his commentary and

analysis of the news.

Nor may defendant successfully argue that the nite

action is not “ripe” for a declaratory judgment. Plaintiff

has once refrained from broadcasting because of an

AFTRA strike in 1967. The threat to plaintiff’s First

Amendment rights is as close as the next union-industry

dispute. In a situation such as this, where there is an

uncertain and disputed jural relationship, a declaratory

judgment has the practical effect of quieting or stabilizing

that relationship and is particularly appropriate. (See

James v. Alderton Dock Yard, 256 N. Y, 298; Somberg v.

Somberg, 263 N. Y.1.) Plaintiff need not defy the union’s

demands and suffer the consequences in order to obtain an

adjudication of his rights. It is the purpose of a declara-

tory judgment to obtain a determination of a controversy

before obligations are repudiated and rights invaded.

(Post v. Metropolitan Cas. Ins. Co., 227 App. Div. 156,

affd. 254 N. Y. 541.) ‘If plaintiff were to wait until he

suffered actual interference with his right to free speech,

any court proceeding could only result in prospective relief

and would be too late to remedy the immediate harm he

would suffer. In short, a declaratory judgment should be

available where resort to ordinary actions would not afford

adequate relief. (Gaynor v. Rockefeller, 15, N Y 2d 120,

132.)

Accordingly, I would declare that section 8(a) (3) of

the National Labor Relations Law is constitutionally infirm,

insofar as it authorizes a prior restraint upon a person such

as the plaintiff, a commentator on public affairs.

* * *

Order affirmed, with costs. Opinion by Stevens, J. All

concur except Jasen, J., who dissents in part and votes to

modify in an opinion in which Gabrielli, J., concurs.

I8A

Memorandum Decision of ‘Appellate Division

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

ine

FuLton Lewis, III,

| | Plaintiff-A ppellant,

—against— |

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS,

Defendant-Respondent.

C. D. WILLIAMS

E. SCHLESINGER

ORDER, Supreme Court, New York County (Quinn, J. i

entered on September 8, 1972, denying motion of plaintiff

_ for summary judgment and granting cross-motion of de-

fendant for summary judgment, unanimously modified, on

the law, to the extent of striking therefrom so much of that

paragraph which dismisses the complaint and by substitut-

ing therefor a provision declaring that § 8(a)(3) of the

National Labor Relations Act, insofar as it authorizes de-

fendant to require plaintiff to pay dues as a condition of

speaking on radio, does not’ violate the First Amendment.

As so modified, the order is affirmed, without costs and

without disbursements,

We are not unaware of the succinct opinion of Brieant,

J., in Evans, Buckley v. American Federation of Television

and Radio Artists, U.S. District Court, Southern District

of New York, January 23, 1973.

Order filed.

19A ne

Opinion of Special Term (Quinn, J.)

SUPREME COURT OF THE STATE OF NEW YORK

CouNTY OF NEW YORK

—_>——

FULTON Lewis, III,

Plaintiff,

v.

AMERICAN FEDERATION OF TELEVISION AND RapDIO ARTISTS,

Defendant.

—e

This is a motion by plaintiff for summary judgment.

Defendant cross-moves for summary judgment in its favor.

Plaintiff’s motion for summary judgment, pursuant to

CPLR 3212, seeks a judgment (1) declaring a: that plain-

tiff may continue to appear on radio irrespective of mem-

bership in the defendant American Federation of Television

and Radio Artists (“AFTRA”), b: that section 8(a) (3)

of the National Labor Relations Act, insofar as it au-

thorizes or purports to authorize AFTRA’s agreement with

radio broadcasters which requires or purports to require

that plaintiff be a member of AFTRA, pay dues, or com-

ply with AFTRA’s orders and segulations violates the

First and Ninth Amendments to the United States Con-

stitution; and (2) enjoining AFTRA from taking or

threatening «ny action against plaintiff by reason o* his

withdrawal from AFTRA, failure to pay AFTRA’s dues

or comply with any AFTRA order.

Defendent’s cross motion for summary judgment seeks

to dismiss the complaint on the grounds that (a) the com-

plaint fails to place a present justiciable controversy before

the court, (b) because the complaint fails to state a cause

of action or claim upon which relief can be granted, and

(ec) that the court has no jurisdiction over the subject

matter of the cause of action.

ace art alta as &

20A

Opinion of Special Term (Quinn, J.)

Plaintiff is a news commentator and has his own radio

shows over the Mutual Broadcasting System. Defendant

has entered into an agreement with Mutual by which

membership in AF TRA is required as a condition of em-

ployment by Mutual for broadcasting purposes. Under this

agreement Mutual can maintain in employment only those

persons who are members of the Union in good standing, or

making application for membership within 30 days of em-

ployment and thereafter maintain membership in good

standing as a condition of employment. It is the policy

and practice of Mutual to comply with its “union shop”

obligations to AFTRA. Thus, plaintiff has joined AFTRA.

Plaintiff alleges that he has been coerced by AFTRA to

stay in the union at the risk of losing his employment.

He also alleges that he had been intimidated by AFTRA

into stopping broadcasting during an AFTRA strike in

1967. He alleges that he feared that if he did not “play

ball” with the union he would be open to disciplinary

action by the union and thus possibly lose his membership

in the union and therefore his job. Plaintiff also alleges

that fear of possible disciplinary action by the union has

made him feel a certain intimidation as to expressing on

the air certain of his views that are contrary to the interests

of the union. In general, plaintiff contends the require-

ment of membership in the union violates his right of

freedom of speech and is thus unconstitutional. Defendant

disputes the factual allegations of any coercion or intimida-

tion on its part.

The first question that must be dealt with is whether

the court has jurisdiction to entertain this case.

“The Supreme Court is a court of general juris-

diction, and it is competent to entertain all causes

of action unless its jurisdiction has been specifically

proscribed.” (N.Y. Const., Art. VI)

21A

Opinion of Special Term (Quinn, J.)

Here, the complaint asserts that § 8(a) (3) of the National

Labor Relations Act, under the authority of which defend-

ant has negotiated a contract with Mutual Broadcasting

System, giving it the right to prevent plaintiff from ap-

pearing on Mutual’s network unless he is a member of

defendant union violates, to that extent the First Amend-

ment to the U.S. Constitution. Thus, there is a clear claim

under the U.S. Constitution, and there is no doubt that state

courts of general jurisdiction may entertain such claims.

The fact that plaintiff is continuing to pay his dues

rather than possibly be put off the air does not mean

that there is not a justiciable controversy for this court to

hear. “An action for a declaratory judgment is the ap-

propriate determination of a justiciable controversy where

the plaintiff is in doubt as to his legal rights and wishes.

to avoid the hazard of taking action in advance of the

determination of such rights. Bunis v. Conway, 17 A D

2d 207, 208. The remedy of an action for declaratory

judgment is particularly appropriate for the determination

of constitutional questions.” (Bunis v. Conway, supra,

210.) If the remedy of declaratory judgement were not

available, the constitutionality of the union shop would

never be adjudicated as no public commentator would be

willing to be put off the air for the period of time neces-

sary to litigate the issue.

The arguments that the court lacks jurisdiction on

theories of preemption or failure to exhaust remedies are

without merit. This is not a case which is preempted by

a federal board. The policy behind the preemption doctrine

is not served by deferring to the Board where a con-

stitutional question is validly presented. The Board’s

special expertise does not extend to the interpretation of

22A

Opinion of Special Term (Quinn, J.)

the Constitution. The field has been traditionally reserved -

to the courts. In addition, the plaintiff is clearly not bring-

ing an action under the Federal Communications Act of

1934, Further, this is not a grievance against an employer

under a collective bargaining agreement that he must first

process under the procedures in the collective bargaining

agreement. This rather, is a case asserting rights under

the First Amendment in which the court has a clear right to

take jurisdiction.

On the merits of the case there are two main issues to

be decided. The first is whether the proviso of NLRB,

section 8(a) (3) by requiring plaintiff to be a member of

AFTRA and pay dues unconstitutionally acts as a prior

restraint on free speech. The second question is whether

the factual disputes as to coercion or intimidation by

AFTRA are relevant to the above legal question, thus

rendering summary judgment impossible.

It is clear that newscasters as well as all radio and

T.V. performers are entitled to the protection of the First

Amendment. Freedom of speech including expression not

limited to the written or spoken word. However, it is clear

that freedom of speech is not absolute. Near v. Minnesota,

283 U.S. 697 (1931); Konigsberg v. State Bar of Cali-

fornia, 366 U.S. 36 (1961).

The state has the power to regulate, despite what may

be some incidental infringement, individual rights. The

helpful means devised by the state to deal with “evils”

has been weighed by the courts against any infringement

on rights. Mine Workers v. Illinois Bar Association, 389

U.S. 217 (1967). Congress has exercised its constitutional

power to regulate labor relations. enacting the Wagner Act

of 1936, the Taft-Hartley Act of 1947, and the Landrum-

ee ae

23A

Opinion of Special Term (Quinn, J.)

Griffin Act of 1959. Under the National Labor Relations

Act (NLRA), Congress empowered the National Labor

Relations Board to regulate labor relations. NLRA com-

mands, as its purpose and policy, that the peaceful pro-

cedures of collective bargaining supersede the jungle war-

fare which caused industrial strife. Thus collective bar-

gaining is a private undertaking by employer and labor

organizations in the public interest. The case of National

Labor Relations Board v. Jones & Laughlin, 301 U.S. 1

(1937), affirmed the validity of the Wagner Act, and this

has been the basis of all future labor regulations. The

only source of revenue for the union is membership dues

and initiation fees. The Supreme Court has made it clear

that requiring a reasonable fee for membership by a “union

shop” provision is not in itself a violation of constitutional

rights. Railway Employees Department v. Hanson, 351

U.S. 225 (1956) ; Machinists v. Street, 367 U.S. 740 (1961).

The viability of unions is part and parcel of Congress’s

intention to promote industrial peace through collective

bargaining. The beneficiaries of collective bargaining,

being all the members of the laboring force, should con-

tribute to the cause and not have a “free ride”. Thus, Rail-

way Employees Department v. Hanson, supra, decided that

it was permissible for the legislature to require all who

gain from collective bargaining to contribute to it. AFTRA

has been explicitly and particularly selected by a majority

of the employees in the same bargaining unit as plaintiff

as their bargaining agent. Its services, consequently, are

expressly solicited and wanted by these employees for the

full, fair and faithful pursuit of the collective bargaining

objects and purposes of these employees in the exercise of

the rights guaranteed to all employees under the NLRA.

Although the plaintiff derides the benefits accruing to him

24A

Opinion of Special Term (Quinn, J.)

by reason of the collective bargaining of AFTRA, whether

he wants such benefits or not, AFTRA is obligated to pro-

vide such benefits to him as an employee in the bargaining

unit under the doctrine of Vaca v. Sipes, 386 U.S. 171, 177

(1967) :

“Under this doctrine, the exclusive agent’s statu-

tory authority to represent all members of a desig-

nated unit includes a statutory obligation to serve

the interests of all members without hostility or dis-

crimination towards any, * * *.”

The decision of National Labor Relations Board +.

General Motors Corp., 373 U.S. 734, makes clear that

“membership” need be no more than paying dues.

“If an employee in a union shop unit refuses to

respect any union-imposed obligations other than the

duty to pay dues and fees, and membership in the

union is therefore denied or terminated, the condi-

tion of ‘membership’ for § 8(a) (3) purposes is

nevertheless satisfied and the employee may not be

discharged for nonmembership even though he is

not a formal member. Of course, if the union

chooses to extend membership even though the em-

ployee will meet only the minimum financial burden,

and refuses to support or ‘join’ the union in any

other affirmative way, the employee may have to

become a ‘member’ under a union shop contract in a

sense that the union may be able to place him on

the rolls.”

The right of access to radio and T.V. is not an absolute

right open to all. It is secured to plaintiff by his employer

> as an incident to his employment. Plaintiff seems to be

* arguing that in requiring him to be a member of AFTRA

ae: eee Tee ee

te

25A

Opinion of Special Term (Quinn, J.)

and pay dues, he is being denied free speech because if he

fails to remain a member he will not have access to the

radio network on which he gives his views. It may be true

that by failing to pay dues plaintiff would not be allowed

access to the radio programs he now has, but he would

also be denied access if his pregram was cancelled by the

network or if his program was preempted by what the net-

work considered a more important show. There are many

impediments to having access to air one’s view on the radio

and T.V. networks. If there were no impediments, such

access would be an absolute right that all persons would

have.

Thus, it is clear that the “union shop” requirement does

not violate the constitutional rights of plaintiff.

The second question to be answered is whether the alle-

gations of coercion and intimidation affect the legal issue

discussed above.

Basically, the allegations contend that plaintiff was

coerced and intimidated by being told and having knowl-

edge that if he.left or was forced out of the union he would

not be able to continue broadcasting. However, the court

has already made clear that denying the right to broadcast

because he is not a member of the union, in the sense that

he does not pay dues, is not a violation of his rights. Thus,

even if the allegations were true and plaintiff was told that

he could not broadcast if he did not remain a “member” of

the union (“member” being interpreted by the General

Motors case as paying dues), this was not coercion or intimi-

dation. As long as plaintiff pays his dues employment can-

not be impaired. Labor Board v. General Motors, supra.

This is clear and there is no allegation of facts that in any

way shows a violation of the above principle. There has

Beco Ae o Coe ee ee ae ec ee toe

LS NLC LS ge MON OR TAT Ln nT

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Opinion of Special Term (Quinn, J.)

also been no allegation of union disciplinary action which

has interfered with plaintiff’s employment. Thus, the fac-

tual cispute between the parties does not bear on the legal

issue involved and does not prevent the granting of sum-

mary judgment. There are not triable issues involved.

The union shop agreement does not, as a matter of law,

violate any of the plaintiff’s constitutional rights.

Accordingly, summary judgment is granted in favor of

defendant.

Settle order.

Dated: July 13th, 1972.

P.A.Q.

J.S.C.

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