Petition for Writ of Certiorari — Gilbert v. National Labor Relations Board
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Supreme Court, v,@,
(\) FILED
No 9B .c 7 4:4:-Nov 9 - 1995
IN THEQEEICE OF THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1995
JAMES GILBERT,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
and
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
RAYMOND J, LAJEUNESSE, JR.*
National Right to Work
Legal Defense Foundation
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
ATTORNEY FOR PETITIONER
*Counsel of Record
November, 1995
II.
ITI.
QUESTIONS PRESENTE’)
Does a union restrain or coerce employees in violation of
section 8(b)(1)(A) of the National Labor Relations Act
(“NLRA” or “Act”), 29 U.S.C § 158(b)(1)(A) (1988),
when it enforces a compulsory unionism provision against
employees whose membership rights are substantially
impaired or denied:
A. as discipline for their exercise of rights guaranteed by
section 7 of the Act, 29 U.S.C. § 157 (1988), regardless
of whether the discipline itself was lawful; and/or,
B. for any reason other than their failure to tender the dues
and fees uniformly required as a condition of member-
ship, even where the reason is unrelated to the exercise
of rights guaranteed under section 7 of the Act?
Did the National Labor Relations Board fail to exercise its
discretion rationally and consistently with prior law, because
it did not explain its departure from its many prior decisions
holding that a union violates section 8(b)(1)(A) if it enforces
a compulsory unionism provision against employees whose
membership rights are substantially impaired or denied as
discipline for their exercise of rights guaranteed by section 7,
regardless of whether the discipline itself was lawful?
Does the right of employees to self-organization and to
refrain from forming, joining, or assisting labor organiza-
tions, and from bargaining collectively and engaging in
concerted activities, guaranteed in section 7 of the NLRA..
protect employees’ efforts to convince the membership of
their local to remove positions from a bargaining unit
represented by a union that they oppose?
— ee
TABLE OF CONTENTS
Page
QUESTIONS PRREGEIEES nw etc iccusccccvces i
TABLE OF AUTHORITIES ........ ie ree ee BEE Vv |
og eer atnct: «A 2) ]
ARP Sh ata Ae oi Rage Mpaeinate pare 2 Bele 2
STATUTORY PROVISIONS INVOLVED ............ F
STATEMENT OF Tit CARE (ww... cc tcc ee eee 2
REASONS FOR GRANTING THE WRIT ............. 7
I. The Court of Appeals Decided an Important Question
Left Open by This Court in NLRB v. General Motors,
But in a Way Incompatible with the Act’s Terms and
the NLRB’s Consistent Prior Interpretation of the Act . 7
A. Whether a Union Can Compel Workers to Pay
Dues as a Condition of Employment While It
Denies or Substantially Impairs Membership for a
Reason Other Than Nonpayment Is an Important
Question of Employee Rights Left Open in
CRIES cc a dos cat cutee bs ke sos 7
B. The Decisions Below Overrule, Without
Explanation by the NLRB, the Board’s
Longstanding, Consistent Prior Construction of |
the Act as to the Important Question Left Open
CRU EN ow ca othe dren ewietie cs 9
C. The Board’s Prior Rule, But Not the Court of
Appeals’ Decision, Is Consistent with the Act’s
WOUND vivccsccsts¥s40) eee ee 13
Il.
Il.
soe
-lll-
TABLE OF CONTENTS - CONTINUED
Page
The Court of Appeals’ Decision Directly Conflicts
with the Decisions of Two Other Circuits and Is
Inconsistent with the Act’s Policy of Voluntary
Unionism Recognized by This Court in Pattern
EIS Ser 15
The Court of Appeals’ Decision Conflicts with
Decisions of This Court and Other Courts of Appeals
Insofar as It Held That the Employees’ Dissident Free
Speech Activities Were Not Protected by Section 7 of
es ani bv ec vines vc 18
APPENDICES
A.
OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT (June 16, 1995) ..................... la
DECISION AND ORDER OF THE NATIONAL
LABOR RELATIONS BOARD (September 20,
ne eeeccs. 19a
ORDERS OF THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT DENYING REHEARING AND
REHEARING JN BANC (August 16, 1995) ....... 56a
TEXT OF STATUTORY PROVISIONS
ce wc 58a
AMENDED COMPLAINT (December 14, 1989) .. 60a
-iv-
TABLE OF CONTENTS - CONTINUED
Page
F. DECISION AND ORDER OF THE NATIONAL
LABOR RELATIONS BOARD IN
TRANSPORTATION WORKERS LOCAL
S23 Ue. FOO 86 eT BERR 64a
-\V-
TABLE OF AUTHORITIES
Page
CASES
Carpenters Local 1846 v. Pratt-Farnsworth, Inc..,
690 F.2d 489 (Sth Cir. 1982), cert. denied, 464
Be ea A etnias Ayre ea 21
Communications Workers Local 1104 v. NLRB,
520 F.2d 411 (2d Cir. 1975), cert. denied, 423
FR 1 RE a passim
Communications Workers Local 1104, 211 N.L.R.B.
114 (1974), enforced, 520 F.2d 411 (2d Cir.
1975), cert. denied, 423 U.S. 1051 (1976) ... 5, 10, 19, 21
Communications Workers Local 9509 (Pacific Tel.
& Tel. Co.), 193 N.L.R.B. 83 (1971) ............ 10, 14
Communications Workers v. Beck, 487 U.S. 735
| ESIRCIBE SS pi ac page tear alee it hs a aR 8, 15, 17-18
Dillingham Tug & Barge Corp., 278 N.L.R.B. 83
(ITED. “ata Pip tite ii ds eats, eae 10, 15
East Texas Motor Freight, 262 N.L.R.B. 868 (1982)... .. 20
Food & Commercial Workers Local 81, 284 N.L.R.B.
8. RE ae rn ial aa 11
Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981) ........ 20
Hendricks County Rural Elec. Membership Corp.
v. NLRB, 603 F.2d 25 (7th Cir. 1979) ............... 19
-Vi-
TABLE OF AUTHORITIES - CONTINUED
Page
Inland Boatmen’s Union (Dillingham Tug & Barge
Co.), 276 N.L.R.B. 1261 (1985), further
proceedings sub nom. Dillingham Tug & Barge
Cotp., STG Ee PEN i va ods pamonsecnes 10
Laborers Local 806, 295 N.L.R.B. 941 (1989),
enforced, 974 F.2d 1343 (9th Cir. 1992)............. 20
Machinists District 94 (McDonnell Douglas),
283 NLR, Gey ee a i ne en ses passim
Mastro Plastics Corp. v. NLRB, 350 U.S. 270
(1956) |... << ¢ ee ns wx es ss 9, 21
Motor Vehicle Mfrs. Ass'n v. State Farm Mutual
ome wm bie ll hee 12
NLRB v. General Motors Corp., 373 U.S. 734
(1963)... «eda w green rate a ws Go oc passim
NLRB v. Metropolitan Life Ins. Co., 380 U.S.
438 (9965) «ooops ok ease ae 12
NLRB v. Pipefitters Local 120,719 F.2d 178
(6th Cir. 1GBRD. os cia bee hk sk 15-17, 22
Pattern Makers v. NLRB, 473 U.S. 95 (1985) ....... passim
Roadway Express, Inc., 108 N.L.R.B. 874 (1954),
enforced sub nom. Teamsters Local 823 v. NLRB,
227 F.26 459 (IG Gh eho eS A vive 6h ee Kanes 20
Slattery v. NLRB, 961 F.2d 681 (7th Cir. 1992) ......... 11
-vii-
TABLE OF AUTHORITIES - CONTINUED
Page
Steelworkers Local 4186 (McGraw Edison),
ee I nc even cvcceerscsns passim
Telephone Traffic Union, 241 N.L.R.B. 826
ASE AE PD he ee 10, 19
Transportation Workers Local 525 (Johnson
Controls World Servs.), 317 N.L.R.B. No. 62,
149 L.R.R.M. (BNA) 1222 (May 12, 1995) ....... passim
CONSTITUTIONAL AND STATUTORY PROVISIONS
28 U.S.C.A. § 1254(1) (West 1993) .................. 2
Labor Management Relations (Taft-Hartley) Act,
§ 1(b), 29 U.S.C. § 141(b) (1988)... 0.02... 9, 21
National Labor Relations Act:
BO ge fae a 8,9, 21
Say ara. © toate tiSGe) .................-. 2
§ 2(5), 29 U.S.C. § 152(5) (1988) .................. 2
§ 2(6), 29 U.S.C. § 152(6) (1988) .................. 2
oye tk Som De ee): | 2
OF th So oye re passim
§ 8(a)(3), 29 U.S.C. § 158(a)(3) (1988) .......... passim
§ 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) (1988) ..... passim
§ 10(e), 29 U.S.C. §160(e) (1988) .................. 2
§ 10(f), 29 U.S.C. § 160(f) (1988) ................ .
29 U.S.C. § 411(a)(2) (1988) ...................-.. 19
-Viii-
TABLE OF AUTHORITIES - CONTINUED
OTHER AUTHORITIES
S. Rep. No. 105, 80th Cong., Ist Sess. (1947)
eee sveeews -@
IN THE
Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-
JAMES GILBERT,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
afid
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioner James Gilbert respectfully prays that a writ of
certiorari issue to review the judgment and opinion of the United
States Court of Appeals for the District of Columbia Circuit
entered on June 16, 1995.
OPINIONS BELOW
The opinion of the court of appeals is reported at 56 F.3d
1438 (Appendix (“App.”) A, infra, 1a). The opinions of the
tte
National Labor Relations Board (“NLRB” or “Board”) and its
Administrative Law Judge (“ALJ”) are reported, respectively, at
312 N.L.R.B. 218 and 312 N.L.R.B. 220 (App. B, infra, 19a,
27a).
JURISDICTION
The court of appeals entered its judgment on June 16, 1995.
It denied a timely petition for rehearing and suggestion for
rehearing in banc on August 16, 1995 (App. C, infra, 56a-57a).
This Court’s jurisdiction is invoked under 28 U.S.C.A. § 1254(1)
(West 1993) and 29 U.S.C. § 160(e)-(f) (1988).
STATUTORY PROVISIONS INVOLVED
This case involves sections 7, 8(a)(3), and 8(b)(1)(A) of the
National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C.
§§ 157, 158(aX(3), and 158(b)(1)(A) (1988). Their pertinent text
is set out in Appendix D, infra, 58a.
STATEMENT OF THE CASE
This is an unfair labor practice case under the NLRA.
Petitioner James Gilbert (“Gilbert”) is an employee of the Kaiser
Cement Corporation (“Kaiser Cement”). Kaiser Cement is
“engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6) and (7) of the Act,” 29
U.S.C. § 152(2), (6)-(7) (1988). App. B at 29a. At the relevant
time, Gilbert was a member of the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO (“Boilermakers”). The Boilermakers is “a
labor organization within the meaning of Section 2(5) of the
Act,” 29 U.S.C. § 152(5) (1988). App. B at 29a.
. =
In December 1988, the Boilermakers disciplined Gilbert and
three other employees of Kaiser Cement for presenting or
supporting a resolution at a membership meeting, or circulating
a petition, in an effort to convince the members of their local to
agree to removal of certain positions from their bargaining unit.
App. A at 6a. The discipline consisted of a prohibition on holding
union office and attending any union meetings or functions,
except a meeting at which a vote would occur on a contract
directly affecting them, for periods of two to five years. App. B
at 39a-40a.
After they were disciplined, the four employees jointly sent
the Boilermakers’ International President letters asking whether
they must pay dues while their membership rights were sus-
pended, and what penalties would be imposed if they stopped
paying dues. The International President responded in letters
dated May 22 and July 20, 1989. He said that the employees must
continue paying dues to remain members in good standing, and
that the Boilermakers would request their discharge under the
compulsory unionism agreement with Kaiser Cement if they
ceased paying dues. /d. at 40a-44a.
On October 6, 1989, Gilbert filed an unfair labor practice
charge with the NLRB. His charge asserted that the Boilermakers
violated section 8(b)(1)(A) of the Act by threatening to have him
and the other disciplined employees discharged “if they stopped
paying union dues, ‘despite the Union’s failure to offer said
employees membership under the same terms as other employ-
ees.’” /d. at 47a. The NLRB’s General Counsel issued a com-
plaint alleging that the Boilermakers violated section 8(b)(1)(A)
by threatening to cause the employees’ discharge under the
compulsory unionism agreement while the union had “substantial-
ly impaired the[ir] membership rights” as discipline for engaging
in “protected concerted activities within the meaning of Section
7 of the Act.” App. E, infra, 60a, 62a-63a.
The case was tried before an Administrative Law Judge who
issued a decision recommending that the case be dismissed “in its
es
entirety.” App. B at 55a. Although the General Counsel did not
allege that the discipline itself was unlawful, see App. E at 62a-
63a, the ALJ nonetheless first addressed that issue. f.¢ ru!ed that
the discipline did not violate section 8(b)(1)(A), because the
union “was vindicating a legitimate union interest—to prevent
erosion of its status as collective-bargaining representative.” App.
B at 50a-53a.
Without explaining why, the ALJ assumed that this also
meant that the employees “were not disciplined for the exercise
of any rights protected by Section 7.” He then held that, there-
fore, “the invoking of a lawful union security clause is not unlaw-
ful.” Jd. at 53a. The ALJ also rejected the General Counsel’s
contention “that even if the activities of the alleged dis-
criminatee[s] for which they were disciplined were not protected,
their membership rights have been so substantially reduced that
enforcement of the union-security clause against them becomes
unlawful.” Jd. at 54a.
The General Counsel filed exceptions to the ALJ’s decision.
They presented to the Board “the question of whether the
Respondent Union has violated Section 8(b)(1)(A) of the Act by
threatening four dissident employee-members with enforcement
of the union-security clause if these employees discontinued
paying membership dues after the Respondent had imposed
discipline on them that substantially impaired their membership
rights.” However, the Board adopted the ALJ’s recommended
order and dismissed the case. Jd. at 19a.
Like the ALJ, the Board first held that the Boilermakers
could lawfully discipline the four employees for “conduct
designed to oust or undermine the Union in its role as representa-
tive of the employees,” id. at 24a-26a, although the General
Counsel did not contend that the discipline itself was unlawful.
The Board then ruled that, “[bJecause the Respondent’s discipline
of these members did not violate the Act,” it could lawfully
enforce the compulsory unionism clause against the employees
a Lead
~
even though their membership rights had been “impaired.” /d. at
26a.
Unlike the ALJ, the Board did not determine whether section
7 protected the employees’ activity. The Board merely noted that,
“if it does not itself affect the employment relationship, the union
may be able to impose the discipline even if it is aimed at a
Section 7 right.” Jd. at 24a.
The Board also did not explain how it could distinguish this
case from a long line of prior cases that began with Steelworkers
Local 4186 (McGraw Edison), 181 N.L.R.B. 992 (1970). In
those cases, the Board held that a union violates section
8(b)(1 (A) by enforcing a compulsory unionism provision “where
membership is denied or impaired because of employees’ exercise
of rights guaranteed them under Section 7 of the Act,” even if the
discipline itself is lawful. Communications Workers Local 1104,
211 N.L.R.B. 114, 116-17 (1974), enforced, 520 F.2d 411 (2d
Cir. 1975), cert. denied, 423 U.S. 1051 (1976).'
Gilbert then petitioned for review in the United States Court
of Appeals for the District of Columbia Circuit. Jurisdiction lay
in that court under section 10(f) of the NLRA, 29 U.S.C. § 160(f)
(1988). The Boilermakers intervened.
On June 16, 1995, a three-judge panel of the court of appeals
denied Gilbert’s petition for review. The panel held that enforce-
ment of the compulsory unionism clause in the circumstances of
this case was permissible under section 8(a)(3) and, thus, did not
violate section 8(b)(1)(A), because the employees were disci-
plined “for violating valid internal Union rules that applied
uniformly to every other member,” and because the employees’
“membership was never ‘denied’ or ‘terminated,’” but only
impaired. App. A at 10a-1 1a.
' The General Counsel relied on the McGraw Edison doctrine. See App.
B at 53a.
aS
The court of appeals’ panel also concluded that “the Board
has not departed from its precedent.” /d. at 14a. The panel
believed that the Board had applied the McGraw Edison rule only
in cases in which “(1) the discipline imposed on the employee . . .
result[ed] in the denial, termination, or full suspension of the
employee’s membership, and (2) the discipline itself . . . im-
pair[ed] the exercise of a ‘fundamental’ section 7 right . . . ,” id.
at 17a. The panel distinguished this case, because the employees’
membership was merely impaired, and because, the panel held,
“the Board properly concluded that [their] conduct did not
involve one of th{e] so-called ‘fundamental’ section 7 rights.” /d.
at 14a-16a. The panel did not explain why the employees’
conduct was not protected under section 7.
Meanwhile, however, in another decision that Gilbert’s
counsel did not see until after the panel’s decision in this case, the
Board itself contradicted the panel and explicitly held that its
decision here “overruled sub silentio” the McGraw Edison line of
cases. Transportation Workers Local 525 (Johnson Controls
World Servs.), 317 N.L.R.B. No. 62, slip op. at 1 n.2, 4-6, 149
L.R.R.M. (BNA) 1222 (May 12, 1995). App. F, infra, 64a, 64a
n.2, 73a-82a. Gilbert, therefore, filed a timely petition for
rehearing and suggestion of rehearing in banc, which the court of
appeals denied on August 16, 1995. App. C at 58a-59a.
Fe
REASONS FOR GRANTING THE WRIT
I. The Court of Appeals Decided an Important Question
Left Open by This Court in NLRB v. General Motors,
But in a Way Incompatible with the Act’s Terms and
The NLRB’s Consistent Prior Interpretation of the Act
A. Whether a Union Can Compe! Workers to Pay Dues
As a Condition of Employment While It Denies or
Substantially Impairs Membership for a Reason
Other Than Nonpayment Is an Important Question
Of Employee Rights Left Open in General Motors
A night explicitly guaranteed in section 7 of the NLRA is the
“right to refrain from” union membership “except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in section [8(a)(3)].” 29 U.S.C. § 157. Section
8(a)(3) in turn prohibits the enforcement of such agreements
where membership is “(A) . . . not available to the employee on
the same terms and conditions generally applicable to other
members, or (B) . . . denied or terminated for reasons other than
the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership.” 29 U.S.C. § 158(a)(3), 2d proviso
(1988).
Thus, it is clear from the terms of the Act that a union
restrains the exercise of the right to refrain from union member-
ship—and thus violates section 8(b)(1)(A)}—by enforcing a
compulsory unionism agreement against employees in the
circumstances prohibited by section 8(a)(3).
In NLRB v. General Motors Corp., 373 U.S. 734, 742
(1963), this Court held that, under “the second proviso to
§ 8(a)(3), the burdens of membership upon which employment
may be conditioned [in a union shop] are expressly limited to the
5 =
payment of initiation fees and monthly dues.”? Consequently,
sections 8(a)(3) and 7 authorize an “agency shop arrangement”
which “places the option of membership in the employee while
still requiring the same monetary support as does the union
shop.” Jd. at 744-45.
However, General Motors, 373 U.S. at 745 n.12, expressly
left open whether an employee denied full union membership for
some reason other than nonpayment of dues can be discharged if
he then does not pay dues: “the significance of desired, but
unavailable, union membership, or the benefits of membership, in
terms of permissible § 8(a)(3) security contracts, we leave for
another case.” The Court has not yet addressed this question.
This case presents the question left open in Genera: fers.
As the court of appeals pointed out, Gilbert and the wiher
disciplined employees “chose not to resign” their membership.
App. A at 8a, 1la. Obviously, then, they wanted the benefits of
membership, at least while their positions remained in the
bargaining unit represented by the Boilermakers. Yet, as disci-
pline for attempting to convince their local’ s members to agree to
remove certain positions from the unit, the Boilermakers denied
these employees the most significant benefits of membership, i.e.,
the rights to hold union office and attend and participate in union
meetings and functions. The Boilermakers also threatened these
employees with discharge if they stopped paying union dues while
it thus substantially impaired their membership rights.
Whether a union can enforce a compulsory unionism
provision in these circumstances is an important issue which this
Court should settle. The issue is important, because a requirement
that employees financially support a union impairs a fundamental
congressional policy imbedded in section | of the Act, 29 U.S.C.
? This holding was reaffirmed in Pattern Makers v. NLRB, 473 U.S. 95,
106 n.16 (1985), and Communications Workers v. Beck, 487 U.S. 735, 749
(1988).
ie
§ 151 (1988), and section 1(b) of the Labor Management
Relations (Taft-Hartley) Act, 29 U.S.C. § 141(b) (1988).’ That
policy is the protection of employees’ “full freedom of associa-
tion,” 29 U.S.C. § 151, and “the rights of individual employees
in their relations with labor organizations,” 29 U.S.C. § 141(b).
One particular aspect of that explicit general policy of the Act is
a “congressional policy of voluntary unionism” that is “implicit in
§ 8(a)(3).” Pattern Makers v. NLRB, 473 U.S. 95, 104-05, 114
(1985).
Indeed, protection of employee freedom of choice is the
overriding purpose of the Act. In Mastro Plastics Corp. v. NLRB,
350 U.S. 270, 280 (1956) (quoting 29 U.S.C. § 141(b)), the
Court said that the declared policies of the Act “depend for their
foundation upon assurance of ‘full freedom of association. ’ Only
after that is assured can the parties turn to effective negotiation
as a means of maintaining ‘the normal flow of commerce and _. .
the full production of articles and commodities... . ’”
B. The Decisions Below Overrule, Without Explanation
By the NLRB, the Board’s Longstanding, Consis-
tent Prior Construction of the Act as to the Impor-
tant Question Left Open in General Motors
Another reason for this Court to settle the issue left open in
General Motors is the fact that the Board’s decision here
overruled, without explanation, its well-established prior con-
struction of the Act as to a question that arises repeatedly. The
relevant prior decisions are those in “a line of six Board decisions
beginning with McGraw Edison, and culminating with Machinists
District 94 (McDonnell Douglas), 283 N.L.R.B. 881 (1987).”
App. A at 13a (citation omitted). The other cases in this series are
* Section 1(b) of the Taft-Hartley Act is significant here, because the
“right to refrain” from assisting unions was added to § 7 of the NLRA, and
§ 8(b)(1)(A) was enacted, in Taft-Hartley. Pub. L. No. 80-101, ch. 120, sec.
101, 61 Stat. 136, 140-41 (1947).
ae
Communications Workers Local 9509 (Pacific Tel. & Tel. Co.),
193 N.L.R.B. 83 (1971); Communications Workers Local 1104,
211 N.L.R.B. 114 (1974), enforced, 520 F.2d 411 (2d Cir.
1975), cert. denied, 423 U.S. 1051 (1976); Telephone Traffic
Union, 241 N.L.R.B. 826 (1979); and Jnland Boatmen’s Union
(Dillingham Tug & Barge Co.), 276 N.L.R.B. 1261 (1985),
further proceedings sub nom. Dillingham Tug & Barge Corp.,
278 N.L.R.B. 83 (1986).
As summarized in Communications Workers Local 1104,
211 N.L.R.B. at 116, the McGraw Edison rule was that a union
violates § 8(b)(1)(A) “where membership is denied or impaired
because of employees’ exercise of rights guaranteed them under
Section 7 of the Act,” even if the denial or impairment of
membership itself is lawful.
The court of appeals’ panel, however, concluded that in this
case the Board did not depart from the McGraw Edison line of
cases, because the panel saw those cases, and the Board’s
decision here, as following a different rule:
For a union [un]lawfully to demand, as a condition of
continued employment, the continued payment of dues
from a member who has been disciplined, two condi-
tions must be met: (1) the discipline imposed on the
employee must . . . result in the denial, termination, or
full suspension of the employee’s membership, and (2)
the discipline itself must . . . impair the exercise of a
‘fundamental’ section 7 right (e.g., the right of seeking
access to the Board’s processes).
App. A at 17a.
However, the Board’s recent decision in 7ransportation
Workers Local 525, App. F, infra, establishes that the rule of
McGraw Edison was broader than thus erroneously interpreted
by the court of appeals’ panei. 7ransportation Workers Local
525 also shows that here the Board overruled that rule sub
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silentio even as to the limited circumstances in which the panel
would apply it.
The panel held that the McGraw Edison rule does not apply
where membership is only substantially impaired, as it was here,
rather than wholly denied. App. A at 15a-16a. The panel thus
ignored the fact that membership was only substantially impaired,
not denied entirely, in both McGraw Edison itself, 181 N.L.R.B.
at 992, and Machinists District 94, 283 N.L.R.B. at 892-93.‘ The
panel’s holding also is contrary to the Board’s post-Gilbert
formulation of the McGraw Edison rule in 7, ransportation
Workers Local 525, App. F at 77a (emphasis added): “The Board
in the [McGraw Edison line of] cases . . . made it clear a union
may not invoke a union-security clause of a collective-bargaining
agreement against an employee whose full union membership has
been significantly impaired due to the exercise of Section 7
rights.”
The panel concluded that the Board’s decision in this case
was not an unexplained departure from the McGraw Edison line
of cases, because it thought the Board was following the rule that
the panel deduced from McGraw Edison and its progeny. See
App. A at 12a-18a. To the contrary, however, in 7) ransportation
Workers Local 525 the Board itself concluded that its decision in
this case overruled sub silentio the McGraw Edison rule entirely.
Transportation Workers Local 525 also found no violation of
* The panel viewed Machinists District 94 as not “an ‘impairment’
case,” but “really a case where the union improperly attempted to discipline
employees who were no longer members.” App. A at 16a-17a. That ignored
cases holding that a union does mof violate the Act if it imposes internal union
discipline, such as expulsion or suspension, on employees who have resigned.
E.g., Slattery v. NLRB, 961 F.2d 681, 685 (7th Cir. 1992); Food & Commercial
Workers Local 81, 284 N.L.R.B. 1084, 1086 (1987). The panel’s view also
overlooks the fact that the General Counsel conceded, and the Board acknowl-
edged, that the impairment of membership rights itself was lawful in Machinists
District 94,283 N.L.R.B. at 892 & n.44.
-12-
section 8(b)(1)(A) in the precise circumstances of the rule as
defined by the panel.
In Transportation Workers Local 525, App. F at 77a, the
discipline was expulsion from membership for circulating a
petition seeking to have a rival union designated as the exclusive
bargaining agent. The union conceded that section 7 protected
the employee’s conduct. It argued that, because the employees’
conduct in Gilbert also “clearly was protected,” the Board’s
decision here “overruled McGraw Edison sub silentio.” Jd. at
72a. The Administrative Law Judge recognized that section 7
protected the employee’s conduct in 7ransportation Workers
Local 525, App. F at 77a, concluding that “[ljooking only at [the
McGraw Edison line of] cases I am persuaded counsel for the
General Counsel established a violation of Section 8(b)(1)(A) of
the Act.” However, the ALJ held that the union did not violate
section 8(b)(1){A), because he was “persuaded .. . that the Board
overruled sub silentio all prior contrary cases when it decided”
this case. Jd. at 82a. In adopting the ALJ’s conclusions, the
Board “specifically affirm[ed] his interpretation” of its decision in
this case. Jd. at 64a n.2.
Thus, it is clear that, contrary to the panel’s opinion, the
Board here overruled the McGraw Edison line of precedent
without acknowledging that it was doing so or giving its reasons
for reversing course. That violates the principle that “an agency
changing its course . . . is obligated to supply a reasoned analysis
for the change,” Motor Vehicle Mfrs. Ass'n v. State Farm Mutual
Ins. Co., 463 U.S. 29, 42 (1983). At a minimum then, the court
of appeals should have vacated the Board’s decision and re-
manded the case to the Board for reconsideration and an explana-
tion of its reasons for overruling the McGraw Edison rule. See
NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 442-44
(1965).
PA re a.
ow
» iB
C. The Board’s Prior Rule, But Not the Court of Ap-
peals’ Decision, Is Consistent with the Act’s Terms
The McGraw Edison rule is consistent with the terms of
section 8(a)(3) and the policy of voluntary unionism underlying
the Act as a whole. The court of appeals’ decision is not.
The first circumstance defined in section 8(a)(3)’s second
proviso, under which an employee may not lawfully be discharged
for failure to pay dues, is where “membership was not available
to the employee on the same terms and conditions generally
applicable to other members.” 29 U.S.C. § 158(a)(3), 2d proviso,
pt. (A). Thus, membership need not be formally denied for a
compulsory unionism agreement to be unenforceable, but only
unavailable “on the same terms and conditions generally applica-
ble to other members.” Membership was not available to the
employees disciplined here on the same terms and conditions as
other members, since the Boilermakers denied these employees
the rights that all other members have to hold union office and to
attend all union meetings and functions, App. B at 39a-40a.
The court of appeals’ panel argued that membership “was
offered” to the disciplined employees “on the same terms as it
was to other employees,” because they were “disciplined just as
any other member would have been” for violating the obligations
of membership. App. A at 10a. That misses the point: once
membership is substantially impaired it is no longer “available to
the employee on the same terms and conditions generally
applicable to other members,” 29 U.S.C. § 8(a)(3), 2d proviso,
pt. (A), as the Board recognized in both McGraw Edison and
Machinists District 94.
Membership rights were lawfully substantially impaired in
both McGraw Edison, 181 N.L.R.B. at 992, 994, and Machinists
District 94, 283 N.L.R.B. at 892 & n.44, for failure to obey valid
union rules imposing obligations on all members. Yet, in both
cases, the Board nonetheless “consider[ed] as unlawful and ‘a
continuing form of coercion,’ which restrain[ed] the exercise of
_
Section 7 rights, the labor organization’s continued insistence on
payment of dues or the equivalent thereof during the period of the
membership impairment” imposed as discipline for violation of
those rules. Machinists District 94, 283 N.L.R.B. at 892; see
McGraw Edison, 181 N.L.R.B. at 992, 994-96.
The second circumstance defined in section 8(a)(3)’s second
proviso, under which.an employee may not lawfully be discharged
for failure to pay dues, is where “membership was denied or
terminated for reasons other than the failure of the employee to
tender the periodic dues . . . uniformly required as a condition of
acquiring or retaining membership.” 29 U.S.C. § 158(a)(3), 2d
proviso, pt. (B). This case falls under this prohibition, as well as
that of part (A) of the second proviso, because denial of the
rights to hold any union office and attend any union functions,
except meetings at which a vote on a contract affecting the
disciplined employees would occur, effectively was-a complete
denial of membership. In McGraw Edison, the Board treated a
similar substantial disciplinary impairment of membership as a
denial of membership “for a reason other than the failure to pay
dues” and thus subject to part (B) of the second proviso to
section 8(a)(3). See 181 N.L.R.B. at 994; see also Communica-
tions Workers Local 9509, 193 N.L.R.B. 83, 84 (1971) (case
involving expulsion is “analogous” to one involving significant
impairment of membership rights).°
The court of appeals’ decision insisted that part (B) does not
apply to this case, because the employees’ “membership was
never ‘denied’ or ‘terminated,’” and the discipline “was merely
an incident of [their] continued membership.” App. A at 1 la.
That is a hyper-technical distinction. When “membership is denied
. There is no question that the employees’ membership rights were
substantially impaired here, despite the court of appeals’ panel’s scepticism on
the point, see App. A at 11a. The Board found that “the Respondent had
imposed discipline on [these employees] that substantially impaired their
membership rights.” App. B at 19a.
ies
a8
or terminated” for reasons other than nonpayment of dues, 29
U.S.C. § 158(a)(3), 2d proviso, pt. (B), and dues are still
collected, the invidious practice is not the denial of the title
“member.” It is the “depriv[ation] . . . of the rights attendant [to]
full membership.” Dillingham Tug & Barge Corp., 278 N.L.R.B.
83, 86 (1986) (emphasis added); see NLRB v. Pipefitters Local
120, 719 F.2d 178, 184 (6th Cir. 1983).
Therefore, part (B) of section 8(a)(3)’s second proviso
applies where membership is “merely” suspended, though that is
not literally denial or termination of membership. See Dillingham
Tug, 278 N.L.R.B. at 86. It also must apply to a substantial
impairment of membership. Otherwise, unions will be free to
evade that part of the proviso by, as the Boilermakers did here,
impairing all or most meaningful membership rights, leaving
employees members in name only.
In short, McGraw Edison and its progeny correctly answered
the question left open by this Court in General Motors. The
McGraw Edison rule is the only rule consistent with the structure
and terms of the Act. The Court should grant a writ of certiorari
here to make it plain that the court of appeals erred in permitting
the Board to jettison that longstanding rule without explanation.
Il. The Court of Appeals’ Decision Directly Conflicts with
The Decisions of Two Other Circuits and Is Inconsistent
With the Act’s Policy of Voluntary Unionism Recognized
By This Court in Pattern Makers and Beck
The court of appeals’ panel grounded its decision on a
concern that a rule prohibiting a union from enforcing a compul-
sory unionism provision “against its members, merely because
they were subjected . . . to routine internal discipline, would
create a free rider out of every union member who was subjected
to lawful discipline for violating valid union rules and who no
longer desired to pay dues.” App. A at 18a. That concern was
rejected explicitly by the Second Circuit in Communications
Workers Local 1104 v. NLRB, 520 F.2d 411 (2d Cir. 1975), cert.
-16-
denied, 423 U.S. 1051 (1976), and implicitly by the Sixth Circuit
in NLRB v. Pipefitters Local 120, 719 F.2d 178 (6th Cir. 1983).
Those cases are both on point with this. In both, the courts
of appeals enforced Board orders finding that a union violated
section 8(b)(1)(a) by enforcing a compulsory unionism provision
against employees who had been denied union membership, in
Communications Workers Local 1104 as \awful discipline for
supporting a rival union, and in Pipefitters Local 120 for arbitrary
reasons.
In Communications Workers Local 1104, 520 F.2d at 420,
the union argued, like the panel here, “that enforcement of the
Board’s order would violate fundamental national labor policy in
that it would render unions . . . helpless to prevent free riders
from enjoying the benefits of union representation while avoiding
their fair share of the costs.” The Second Circuit rejected this
argument:
The only free riders will be those who . . . are lawfully
excluded from the union for activity that, though
protected by § 7, is disloyal to the union. And if the
number of such employees rises to the point where the
lack of their dues becomes serious, the union will most
likely be suffering from problems greater than free
riders. Thus, while our decision necessarily entails some
inroads on a union’s ability to protect itself from free
riders, the invasion is not serious. A contrary decision
would create far greater problems of compulsory
unionism, the elimination of which is as much a part
of national labor policy as is the competing goal of
protecting unions from free riders.
Id. (emphasis added).
Similarly, the Sixth Circuit, citing Communications Workers
Local 1104, held in Pipefitters Local 120, 719 F.2d at 184
(emphasis added), that “the Board’s ruling that a union violates
a
of
§ 8(6)(1 (A) by assessing dues and fees from an employee while
affirmatively denying union membership is a fair and reasoned
application of the Act.” The court saw this result as fair, not
because the employees were technically denied the status of
member, but because the denial of membership deprived them of
the significant rights of membership, such as “attend[ing] union
meetings . . . [and] participat[ing] in other internal union affairs,”
id., nights that the Boilermakers denied the disciplined employees
here.
The reasoning of the Second and Sixth Circuits—but not that
of the panel in this case—is consistent with this Court’s most
recent pronouncements of the NLRA’s policy regarding compul-
sory unionism. Thus, in Pattern Makers, 473 U.S. at 104-05,
114, the Court explicitly recognized that a “congressional policy
of voluntary unionism” is “implicit in § 8(a)(3)” of the Act.
With due respect to the panel, Communications Workers v.
Beck, 487 U.S. 735 (1988), did mot “ma[k]e clear that unions
need not tolerate free riders,” App. A at 11a, in these circum-
stances. Beck did not involve, or even discuss in dicta, whether
unions may lawfully compel compulsory dues payments from
employees whose membership rights are denied or significantly
impaired.
Moreover, Beck, 487 U.S. at 755 (quoting S. Rep. No. 105,
80th Cong., Ist Sess., pt. 2, at 8 (1947)) (emphasis added), relied
on the principle that the NLRA “provide[s] only the most
grudging authorization of [union-security] agreements, permit-
ting ‘union-shop agreement[s] only under limited and
administratively burdensome conditions.’” That principle is
consistent with the McGraw Edison rule as enunciated by the
Board before this case, and with the decisions of the Second and
Sixth Circuits in Communications Workers Local 1104 and
Pipefitters Local 120. However, that underlying principle of Beck
is inconsistent with the decisions of the Board, overruling the
McGraw Edison rule sub silentio, and the panel, limiting that
rule, in this case.
=)
In sum, a second reason for granting certiorari here is to
establish uniformity among the circuits on the important question
left open in General Motors. This Court’s intervention is
necessary to ensure that the answer to that question is consistent
with the policy of voluntary unionism that underlies the Act, as
interpreted by the Court in Pattern Makers and Beck.
Ill. The Court of Appeals’ Decision Conflicts with Decisions
Of This Court and Other Courts of Appeals Insofar as It
Held That the Employees’ Dissident Free Speech Activi-
ties Were Not Protected by Section 7 of the Act
Besides the validity of the McGraw Edison rule, this case
presents another important question under the NLRA. That
second question is whether the right of employees to self-
organization and to refrain from union activities, guaranteed in
section 7 of the NLRA, protects employees’ efforts to convince
the membership of their local to remove positions from a
bargaining unit represented by a union that they oppose.
The court of appeals’ panel cryptically held that “the Board
properly concluded that Gilbert’s conduct did not involve one of
[the] so-called ‘fundamental’ section 7 rights.” App. A at 15a.°
Because the panel did not explain this holding, it is not clear
whether it considered all section 7 rights “fundamental,” but
viewed the conduct of Gilbert and the three other employees
disciplined with him as not the exercise of a section 7 right, or
considered the section 7 right that protected their conduct as not
° In fact, the Board itself did not decide whether § 7 protects the conduct
for which discipline was imposed here. Instead, the Board assumed that whether
the discipline was “aimed at a Section 7 right” was irrelevant. See App. B at
24a. The ALJ did rule that the employees’ conduct was not protected by § 7, but
without explanation. He simply assumed, ipse dixit and illogically, that, because
he held that the discipline did not violate the Act, the conduct was unprotected.
See id. at 53a.
« 19.
“fuundamental.””’ In either event, the decisions of this Court, other
courts of appeals, and the Board establish that the employees’
conduct was the exercise of a “fundamental” section 7 right, the
right of self-organization.
The Boilermakers disciplined Gilbert and the other employ-
ees for presenting and supporting a resolution at a union meeting,
and circulating a petition, in an effort to convince the membership
of their local to agree to remove certain positions from their
bargaining unit. App. A at Sa-6a; App. B at 50a. As the union
argued in 7ransportation Workers Local 525, App. F at 72a, this
conduct “clearly was protected” by section 7. Self-evidently,
these were dissident intra-union free speech activities. See 29
U.S.C. § 411(a)(2) (1988) (guaranteeing freedom of speech at
union meetings); cf. Hendricks County Rural Elec. Membership
Corp. v. NLRB, 603 F.2d 25, 27 (7th Cir. 1979) (§ 7 protects
circulation of a petition on a matter of labor-management
relations).
The Board and the federal courts have long held that section
7 protects dissident intra-union activities:
7 The former would have to be true under the Board’s formulation of the
McGraw Edison rule in Transportation Workers Local 525, App. F at 77a,
which literally applies to all section 7 rights, not just “fundamental” section 7
rights: “The Board in the [McGraw Edison line of] cases outlined above has
made it clear a union may not invoke a union-security clause of a collective-
bargaining agreement against an employee whose full union membership has
been significantly impaired due to the exercise of Section 7 rights.” See also
Telephone Traffic Union, 241 N.L.R.B. 826, 826 n.3 (1979) (quoting
Communications Workers Local 1104, 211 N.LR.B. 114, 116 (1974),
enforced, 520 F.2d 411 (2d Cir. 1975), cert. denied, 423 U.S. 1051 (1976))
(the McGraw Edison rule applies to “all situations ‘where membership is denied
or impaired because of employees’ exercise of rights guaranteed them under
Section 7 of the Act’”) (emphasis added).
- 20 -
Among the rights, which are guaranteed by the latter
section of the Act to employee-members vis-a-vis their
representative labor organizations, is the “privilege to
protest and to question the wisdom of their bargaining
representative and to persuade others or take such steps
as they deem necessary to align their union with their
position” and such so-called dissident activities have
long been so held by the Board.
Laborers Local 806, 295 N.L.R.B. 941, 957 (1989) (quoting
East Texas Motor Freight, 262 N.L.R.B. 868, 871 (1982)),
enforced, 974 F.2d 1343 (9th Cir. 1992) (table); see, e.g., Helton
v. NLRB, 656 F.2d 883, 887 & n.31 (D.C. Cir. 1981).
Dissident union activities need not involve access to the
Board’s processes to be protected by section 7 and fall within the
McGraw Edison rule, as the court of appeals’ panel apparently,
and erroneously, thought, see App. A at 14a-15a. For example,
“strikebreaking” has nothing to do with the Board’s processes.
Yet, this Court has held that section 7 protects “strikebreaking.”
Pattern Makers, 473 U.S. at 101. And, the Second Circuit and
the Board have held that a union violates section 8(b)(1)(A) if it
insists on compliance with a compulsory unionism agreement by
an employee whose membership it has denied or substantially
impaired for “strikebreaking.” Communications Workers Local
1104, 520 F.2d at 414, 418-19; Machinists District 94, 283
N.L.R.B. at 892-93.
The right to engage in dissident activities “is inherent in the
employee’s right to self-organization as guaranteed by Section 7
of the Act,” Roadway Express, Inc., 108 N.L.R.B. 874, 875 n.3
(1954), enforced sub nom. Teamsters Local 823 v. NLRB, 227
F.2d 439 (10th Cir. 1955). Moreover, that right is fundamental to
the Act:
One of the principal policies of the national labor
laws—that embodied in section 7—is the protection of
the exercise by workers of full freedom of association,
se
self-organization, and designation of representatives of
their own choosing for the purpose of negotiating the
terms and conditions of their employment.
Carpenters Local 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489,
512 (Sth Cir. 1982), cert. denied, 464 U.S. 932 (1983); see 29
U.S.C. §§ 141(b), 151; Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 280 (1956).
Indeed, all section 7 rights are fundamental to the Act, not
just the right of access to the processes of the Board. As the
Board reasoned in Communications Workers Local 1104, 211
N.L.R.B. at 116-17 (emphasis added) (quoting McGraw Edison,
181 N.L.R.B. at 992),
it is hardly necessary to cite authority for the proposi-
tion that a primary function of the Board has been to
protect Section 7 rights. .. . Accordingly, if the Board
deems it necessary to protect the right of “providing
unimpeded access to its procedures and remedies,”
as it stated in McGraw Edison, . . . in effectuating
the policies of the Act, the Board is equally obligated
to protect the rights of employees arising under
Section 7 of the Act.
Thus, a fundamental section 7 right protected the conduct for
which the Boilermakers disciplined the employees here. Conse-
quently, the court of appeals erred in concluding that this case
does not fall within the McGraw Edison rule because of the
nature of the employees’ conduct. This Court should grant
certiorari to settle the conflict between the court of appeals’
cramped interpretation of section 7 and the more expansive
construction given it by this Court, other courts of appeals, and
the Board in prior cases.
-22-
CONCLUSION
This case presents issues that have great significance to the
respective rights of individual employees and unions under the
NLRA. It also presents a direct conflict between the court of
appeals’ decision and the decisions of the Second and Sixth
Circuits in Communications Workers Local 1104 and Pipefitters
Local 120 on a question left open by this Court in General
Motors. The Court should grant this petition to settle where the
line properly lies between the individual rights of employees and
the institutional interests of unions, and to end the conflict among
the courts of appeals.
Respectfully submitted,
RAYMOND J. LAJEUNESSE, JR.*
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, VA 22160
(703) 321-8510
ATTORNEY FOR PETITIONER
*Counsel of Record
APPENDICES
APPENDIX A
OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
June 16, 1995
- la-
[56 F.3d 1438]
James GILBERT, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Intervenor.
No, 94-1081.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 13, 1995.
Decided June 16, 1995.
x“x* xk *&
[1440]Before: EDWARDS, C.J., and WILLIAMS and
ROGERS, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
HARRY T. EDWARDS, Chief Judge:
In 1988, petitioner James Gilbert was president of Local D-100
of the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers (“Boilermakers” or
“Union”), which represented a unit of employees at the Kaiser
Cement Corporation (“Company”) in California. During that year,
Gilbert and several other members of the local advocated certain
Proposals that would have undermined the strength of the Union
within the bargaining unit. Charges were filed against Gilbert and
the other dissident members, and, upon finding them guilty, the
«See
Union barred them from holding any Union office or attending most
Union meetings for several years. Although Gilbert and the other
officers never resigned their membership in the Union, they asserted
that, because of the discipline imposed on them, they were no
longer obligated to pay membership dues. When Gilbert stopped
paying his dues, the Union threatened to have him discharged from
his employment with the Company pursuant to a union-security
agreement between the Union and the Company, requiring bargain-
ing unit employees to pay Union dues as a condition of continued
employment.
Gilbert thereafter filed an unfair labor practice charge against
the Union with the National Labor Relations Board (“NLRB” or
“Board”), alleging that the Union’s threat to seek his discharge
under the union-security agreement violated the National Labor
Relations Act (“NLRA” or “Act”). The Board dismissed Gilbert’s
complaint, holding that the Union did not violate section 8(b)(1)(A)
of the Act, 29 U.S.C. § 158(b)(1)(A) (1988), by demanding that he
pay dues. The Board found that, because the disciplinary action
itself did not violate the Act, Gilbert remained obligated under the
union-security agreement to pay “periodic dues and the initiation
fees uniformly required.” Jd. § 158(a)(3) (1988). Accordingly, the
Board concluded that the Union acted lawfully when it gave Gilbert
a choice to either pay membership dues or sacrifice his job pursuant
to the union-security agreement.
Gilbert raises two challenges to the Board’s decision. First, he
contends that the result reached by the Board is impermissible under
the second proviso to section 8(a)(3) of the Act, which prohibits a
union from enforcing a union-security provision against an employee
(1) if union membership is not “available” to that employee on the
same terms applicable to other employees, or (2) if the employee’s
membership is “denied or terminated” for reasons other than the
nonpayment of membership dues. Jd. Second, he claims that the
Board’s decision is arbitrary and capricious, because it constitutes
an unexplained departure from a line of Board precedent holding
that a union violates section 8(b)(1)(A) of the Act if it requires the
payment of dues as a condition of employment when the union has
Witeeen secs bee
- 3a-
imposed certain types of discipline on an employee for exercising
a right guaranteed by section 7 of the Act, id. § 157 (1988).
“available” to such employees on the same terms as other
employees, or when the membership of such employees has been
“denied or terminated” for any reason other than nonpayment of
dues. In this case, Gilbert’s membership was always “available” to
him on the same terms as other employees, for the Union never
imposed any conditions on Gilbert’s membership that were not
applicable to other members. Moreover, Gilbert’s membership was
never “denied or terminated,” because he never ceased being a
member of the Union during the relevant period. Rather, the
discipline imposed on him was merely a lawful incident of his
continued membership in the Union, imposed for violating rules that
applied to every other Union member. Furthermore, because we
find that the Board’s dismissal of Gilbert’s complaint in this case is
I. BACKGROUND
A. Union-Security Agreements Under the NLRA
Although section 8(a)(3) of the NLRA generally makes it an
unfair labor practice for an employer “by discrimination in regard
to hire or tenure of employment ... to encourage or discourage
membership in any labor organization,” see 29 U.S.C. § 158(a)(3),
that section contains two Provisos authorizing union-security
agreements between employers and unions. The first proviso
authorizes a union and an employer to contract to require as a
condition of empicyment that all employees in the bargaining unit
establish and maintain “membership” in the union. Jd. The second
proviso requires that such membership must, inter alia, be equally
available to all and obligate employees to do no more than “tender
- 4a -
the periodic dues and the initiation fees uniformly required.” /d.
Thus, under established law, section 8(a)(3) has been construed to
allow an employer and the employees’ exclusive bargaining
representative to enter into an agreement requiring all employees in
the bargaining unit to pay periodic union dues and initiation fees as
a condition of continued employment, whether or not the employees
wish to become full union members.
Despite the broad meaning that might be implied by the term
“membership” in the first proviso of section 8(a)(3), the Supreme
Court has held that the section’s second proviso mandates that such
union membership is “whittled down to its financial core.” NLRB
v. General Motors Corp. , 373 U.S. 734, 742, 83 S.Ct. 1453, 1459,
10 L.Ed.2d 670 (1963); see International Union of Elec., Elec.,
Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1534
(D.C.Cir. 1994) (“JUE v. NLRB”). Accordingly, “[iJt is well settled
that causing or attempting to cause an employer to discharge an
employee for breach of any union membership requirements other
than failure to pay the financial core obligations of uniform
initiation fees and dues violates the Act, specifically sections 8(b)(2)
and 8(b)(1)(A).”’ JUE v. NLRB, 41 F.3d at 1534 (citing Union
Starch & Ref. Co., 87 N.L.R.B. 779, 787 (1949), enforced, 186
F.2d 1008 (7th Cir.), cert. denied, 342 U.S. 815, 72 S.Ct. 30, 96
L.Ed. 617 (1951)). In its most recent decision in this area, Commu-
nications Workers v. Beck, 487 U.S. 735, 745, 108 S.Ct. 2641,
2648, 101 L.Ed.2d 634 (1988), the Supreme Court held that section
8(a)(3) does not oblige employees “to support union activities
beyond those germane to collective bargaining, contract administra-
tion, and grievance adjustment.” The Court thus “limited employee
' In this case, Gilbert charged the Union only with violating section
8(b)(1)(A), which makes it unlawful for a union “to restrain or coerce ...
employees in the exercise of the rights guaranteed in [section 7 of the Act].” 29
U.S.C. § 158(6)(1)(A). Section 7 of the Act gives employees the right to engage
in a range of activities in support of collective bargaining, but also gives employees
“the right to refrain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in section [8(a)(3) of the Act].”
Id. § 157.
(ey Mila Ride
- 5a -
obligations under union-security agreements to comport with the
congressional purpose of eliminating the problem of ‘free riders,’
i.e., employees who would receive the benefits of union representa-
tion but refuse to pay their fair share of the costs.” JUE v. NLRB,
41 F.3d at 1535 (citing Beck, 487 U.S. at 747-54, 108 S.Ct. at
2649-53).
B. The Present Dispute
The facts in this case are not in dispute. Prior to 1984, Local
100 of the Cement, Lime, Gypsum and Allied Workers International
Union (“Cement Workers”) represented the relevant bargaining unit
employees at the Company’s Permanente, California facility. The
collective bargaining representative for all bargaining unit employ-
ees at that facility was the AFL-CIO Building Trades Council. In
April 1984, the Cement Workers merged with the Boilermakers,
and Local 100 became Local D-100 of the Union.
Gilbert had been president of the local since 1977 and remained
president after the merger. He and several other employees became
dissatisfied with the Union when it terminated four long-term
Cement Workers’ [1442]international representatives. In a letter
dated September 16, 1986, Gilbert requested that the termination of
one of the fired international representatives be reconsidered, but the
Union refused. Later, in July 1988, Gilbert prepared and circulated
a petition requesting a Board election so that the bargaining unit
employees could replace the Union with a new bargaining represen-
tative. All but one of the employees in the unit signed the petition,
but it was never filed with the Board.
On September 22, 1988, at a meeting of Local D-100’s
membership, Gilbert presented a “Letter of Understanding” written
by the Company, which Proposed to convert the jobs of 17 unit
employees, including Gilbert’s, to salaried Supervisory positions,
thereby removing them from the bargaining unit. While Gilbert took
no formal position on the proposal, he described the proposal’s
benefits as the Company had represented them. Local D-100
Financial Secretary Donald Hall attended the meeting, but also took
no position on the proposal. Unit employee Arthur Rose spoke in
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favor of it. The bargaining unit employees ultimately rejected the
proposal by a vote of 23 to 11. About two weeks after the Septem-
ber 22 meeting, Joseph Gaxiola, a trustee of Local D-100, circulat-
ed a petition asking for the members’ views on a proposal to make
all bargaining unit positions salaried, thereby eliminating the unit.
Gaxiola supported the proposal, but again a majority of the unit
employees opposed it.
In October 1988, a bargaining unit employee filed internal
Union charges against Gilbert, Hall, Rose, and Gaxiola, alleging
that the four employees had engaged in activities in support of
removing a number of persons from the bargaining unit. After a
hearing before an international representative, the Union found the
four employees guilty of all charges and subsequently barred them
from holding any Union office or attending any Union meetings,
except those called to vote on the ratification of a contract directly
affecting them. These penalties were to apply to Gilbert for five
years, Hall for three years, and Gaxiola and Rose for two years.
In April 1989, in a joint letter to Union president Charles W.
Jones, the four disciplined employees asserted that they had been
effectively suspended from the Union and therefore no longer were
obligated to pay union dues. In a letter dated May 22, 1989, Jones
responded that the four employees had not been suspended and must
continue to pay dues in order to remain members of the Union in
good standing. In a subsequent letter dated July 20, 1989, the
disciplined employees inquired as to what penalties might be
imposed on them if they stopped paying dues. Jones replied that the
Union’s contract with the Company contained a union-security
clause and that, if the four employees ceased paying dues, the Union
would so notify the Company, and the employees would no longer
be permitted to work at the plant. Nevertheless, Gilbert stopped
paying his dues for two months. He resumed payment, however,
when the Company notified him that the Union had requested his
discharge under the union-security agreement. Gilbert was thus
never dismissed from his employment.
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C. Board Proceedings
On October 6, 1989, Gilbert filed an unfair labor practice
charge against the Union with the NLRB, and, on December 14,
1989, the General Counsel issued a complaint. The Administrative
Law Judge (“ALJ”) rejected the General Counsel’s first contention
that the Union had unlawfully disciplined Gilbert and the three other
subject employees. He found that the Union had the right to protect
itself against the activities of the four disciplined employees, which
could have resulted in the erosion or elimination of the bargaining
unit that the- Union represented. Kaiser Cement Corp., 312
N.L.R.B. 218, 227-28, 1993 WL 371612 (1993) (“NLRB Deci-
sion”) (reprinting ALJ decision). Therefore, the ALJ concluded that
the General Counsel had not established a prima facie case that the
discipline violated section 8(b)(1)(A). Id. at 228, 1993 WL 371612.
On this point, the judge noted that the Union’s internal rules had
been reasonably enforced against the four employees, who at all
times were free to leave the Union to escape those rules, but had not
done so. Id.
[1443]The ALJ next held that the Union did not violate the Act
by threatening to invoke the union-security agreement. In this
regard, the judge first found that the union’s threat to invoke the
agreement was lawful, because the employees had not been
disciplined for the exercise of any rights protected by section 7 of
the Act. Jd. Because no section 7 rights were involved, the ALJ
distinguished this case from cases relied on by the General Counsel,
in which the Board held that a union violated section 8(b)(1)(A) of
the Act by threatening to invoke a union-security clause against
employees who had been disciplined in various ways for the
exercise of certain section 7 rights. /d. (citing Steelworkers Local
4186 (McGraw Edison Co.), 181 N.L.R.B. 992 (1970)).
Finally, the ALJ rejected the General Counsel’s alternative
argument that, even if the activities for which the subject employees
were disciplined were not protected, their membership rights were
so substantially reduced that enforcement of the union-security
clause against them became unlawful. Jd. This argument, in the
ALJ's view, presented the Union with the “Hobson’s choice” of
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either forgoing its right to discipline members under the proviso to
section 8(b)(1)(A),” thereby rendering that proviso a nullity, or
relinquishing its right to enforce the provisions of a valid
union-security agreement, thereby ultimately self-destructing without
the dues of disciplined members. Jd. The ALJ concluded that the
General Counsel’s position, if implemented, would induce any
members who are unwilling to pay dues in the first place for
financial or philosophical reasons to subject themselves to union
discipline “so they would be ‘punished,’ by not having to pay union
dues, although they would continue their employment.” Jd.
The Board affirmed. The Board first found that the Union had
lawfully disciplined Gilbert and the other employees. Jd. at 220,
1993 WL 371612. The Board initially noted that there are certain
limitations on a union’s right to discipline members. For instance,
employee-members are always free to resign their membership, and
thus escape union rules and discipline. However, the Board stated
that employees who “have opted for continued membership ...
cannot be heard to complain if the union enforces the rules of
membership.” /d. Another limitation on internal union discipline,
the Board continued, is where a union rule “impairs a policy that
Congress has embedded in the labor laws.” Jd. For example, a
union may not discipline a member for exercising the “fundamental”
section 7 right of seeking access to the Board (i.e., filing a petition
or charge with the Board). Jd. In this case, however, the Board
found no such fundamental policy implicated by the disciplined
members’ actions. The Board also found that Gilbert and the others
were at all times free to resign their membership, but chose not to
do so. Thus, the Union was free to discipline them, and “[t}he fact
that the Union chose to discipline them by impairing their member-
ship, rather than by expelling them or fining them, does not
transform lawful discipline into unlawful discipline.” Jd.
2 The proviso to section 8(b)(1)(A) provides that the prohibitions of that
section “shall not impair the right of a labor organization to prescribe its own rules
with respect to the acquisition or retention of membership therein.” /d.
§$158(b)(1)(A).
- 9a -
The Board next held that the Union’s enforcement of the
union-security agreement against the employees whose membership
lawfully had been impaired did not violate the Act. The Board stated
that, “[bJecause the [Union’s] discipline of these members did not
violate the Act, the members continued, as unit employees, to be
required under the union-security agreement to satisfy the sole
obligation a union may enforce under a union-security provision:
the tendering of uniform initiation fees (if any) and dues.” Jd.
(internal quotations and footnote omitted). The Board thus conclud-
ed that the Union “did not violate Section 8(b)(1)(A) of the Act by
threatening to invoke the union-security clause against Gilbert and
the three other employee-members if they ceased paying dues after
the [Union] disciplined them.” Jd.
Il. ANALYSIS
Gilbert challenges the Board’s decision on two grounds. He
initially claims that the result reached by the Board is impermissible
[1444]under the second proviso to section 8(a)(3) of the Act. He
next argues that the NLRB’s decision is arbitrary and capricious,
because the Board departed from its own precedent without adequate
explanation. We reject both contentions.
A. NLRA Section 8(a)(3)
As noted above, a union’s threat to invoke a facially valid
union-security agreement to cause the discharge of an employee for
any reason other than nonpayment of dues or initiation fees violates
section 8(b)(1)(A) of the Act. See JUE y. NLRB, 41 F.3d at 1534.
Gilbert contends that the result reached by the Board—that the
Union did not violate the Act by threatening to invoke the
union-security agreement unless Gilbert paid his union dues—was
impermissible under the second Proviso to section 8(a)(3). In
making this argument, Gilbert first contends that the Union’s
discipline against him “substantially impaired” his membership
rights, because he no longer was permitted to hold office in the
Union, attend most Union meetings, or vote on most Union matters.
This substantial impairment, Gilbert argues, placed him squarely
within both of the conditions set forth in section 8(a)(3)’s second
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proviso because: (1) membership was not “available” to him on the
same terms and conditions as other employees; and (2) his
membership had been effectively “denied or terminated” for reasons
other than nonpayment of periodic dues uniformly required.
Accordingly, Gilbert concludes, the Union’s threat to enforce the
union-security agreement against him (unless he paid his dues)
violated section 8(a)(3), and was thus an unfair labor practice under
section 8(b)(1)(A).
The Board rejected Gilbert’s contention, finding that he
remained obligated under the union-security agreement to pay dues
after he was disciplined, and concluding that the Union’s threat to
invoke the union-security agreement unless he paid those dues did
not violate the Act. We agree. In reviewing the Board’s decision,
we must accept the NLRB’s reasonable construction of section
8(a)(3). See Chevron USA, Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81
L.Ed.2d 694 (1984). We also must uphold the Board’s factual
findings if, viewing the record as a whole, they are supported by
substantial evidence. See JUE v. NLRB, 41 F.3d at 1536—37. Here,
we conclude that the Board’s decision is based on a reasonable
construction of section 8(a)(3) and is supported by substantial record
evidence.
First, with respect to the first condition of section 8(a)(3)’s
second proviso, the mere fact that Gilbert was deprived of certain
membership privileges as discipline for violating valid internal
Union rules that applied uniformly to every other member’ does not
mean that membership was not “available” to Gilbert on the same
terms and conditions as other employees. Membership was offered
to Gilbert on the same terms as it was to other employees. This
membership, however, included both rights and obligations. When
Gilbert freely chose to violate his obligations, he was disciplined
just as any other member would have been. And nothing in the
> Gilbert does not dispute that the Union's internal rules were valid and
applied uniformly to all members.
- lla-
record suggests that other members found guilty of similar viola-
tions of the Union’s internal rules were punished less severely than
Gilbert. Absent any such evidence, the only reasonable conclusion
is the one reached by the Board—membership in the Union was
“available” to Gilbert on the same terms and conditions as it was to
other employees. \
It is equally clear that the Union’s impairment of Gilbert’s
membership rights did not place him within the second condition to
section 8(a)(3)’s second proviso. This part of the proviso protects
employees from discharge under a union-security agreement if their
union membership is “denied or terminated” for any reason,
however lawful, other than nonpayment of dues. 29 U.S.C.
§158(a)(3). However, even accepting Gilbert’s characterization that
his membership rights were “substantially impaired” for reasons
other than nonpayment of dues, the fact remains that his Union
membership was never “denied” or “terminated.” Gilbert was
[1445]specifically told by the Union following his discipline that his
membership had not been suspended, and Gilbert chose not to resign
his membership. Gilbert thus remained at all relevant times a full
member of the Union. The discipline imposed on him was merely
an incident of that continued membership in the Union. Moreover,
the Board’s decision not to equate the discipline imposed on Gilbert
with a “denial” or termination” within the meaning of the final
proviso to section 8(a)(3) is clearly reasonable.
Furthermore, Gilbert’s contention that a union may not lawfully
compel the payment of dues from a member against whom the union
has imposed lawful discipline flies in the face of the Supreme
Court’s decision in Beck. While the Court in Beck held that unions
may not, pursuant to union-security agreements, exact from
unwilling employees sums used to finance activities that go beyond
the union’s collective bargaining and representational obligations,
487 U.S. at 745, 108 S.Ct. at 2648, the Court made clear that
unions need not tolerate free riders, i.e., employees who would
receive the benefits of union representation but refuse to pay their
fair share of the costs, id. at 750, 108 S.Ct. at 2651 (“Congress’
decision to allow union-security agreements af ail reflects its
concern that ... the parties to a collective bargaining agreement be
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allowed to provide that there be no employees who are getting the
benefits of union representation without paying for them.”) (internal
quotations omitted). Yet, free riders are exactly what Gilbert urges
this court to sanction. Under Gilbert’s theory, an employee would
be free to avoid his or her financial obligation to a union merely by
flouting the union’s rules, submitting to discipline similar to that
imposed on Gilbert, and then refusing to pay any membership dues
on the ground that his or her membership rights had been “substan-
tially impaired.” Remaining in the bargaining unit, such an
employee still would be entitled to the benefits of union representa-
tion, but would not be required to pay dues. Such a result is surely
inconsistent with Beck.
B. Prior Board Precedent
Gilbert next contends that, even if the result reached by the
Board is permissible under section 8(a)(3), the Union’s actions in
this case still violated section 8(b)(1)(A). Gilbert points to a line of
authority, beginning with Steelworkers Local 4186 (McGraw Edison
Co.), 181 N.L.R.B. 992 (1970), holding that unions may not
demand, on pain of discharge under a union-security agreement, that
members who have been subjected to certain types of discipline for
activity protected by section 7 of the Act continue to pay dues.
Thus, according to Gilbert, the Board’s determination in this case
that there was no violation of section 8(b)(1)(A) is arbitrary and
capricious, because it constitutes an unexplained departure from the
Board’s prior decisions. We disagree.
It is, of course, elementary that an agency must conform to its
prior decisions or explain the reason for its departure from such
precedent. See Greater Boston Tel. Corp. v. FCC, 444 F.2d 841,
852 (D.C.Cir.1970) (“[A]}n agency changing its course must supply
a reasoned analysis indicating that prior policies and standards are
being deliberately changed, not casually ignored, and if any agency
glosses over or swerves from prior precedents without discussion it
may cross the line from the tolerably terse to the intolerably mute.”)
(footnote omitted), cert. denied, 403 U.S. 923, 91 $.Ct. 2229, 29
L.Ed.2d 701 (1971); see also Motor Vehicle Mfrs. Ass'n v. State
- 13a -
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874,
77 L.Ed.2d 443 (1983). However, as we stated in Hail y. McLaugh-
lin, 864 F.2d 868, 872 (D.C.Cir.1989), “[wJhere the reviewing
court can ascertain that the agency has not in fact diverged from
past decisions, the need for a comprehensive and explicit statement
of its current rationale is less pressing.” We further noted in Hall
that, where the circumstances of the prior cases are sufficiently
different from those of the case before the court, an agency is
justified in declining to follow them, and the court may accept even
a “laconic explanation as an ‘ample’ articulation of its reasoning.”
Id. at 873 (citing United Mun. Distribs. Group v. FERC, 732 F.2d
202, 211 (D.C.Cir.1984)); see also West Coast Media, Inc. v.
FCC, 695 F.2d 617, 621 (D.C.Cir. 1982) (holding that agency had
engaged in “eminently reasonable” decision-[1446]making when it
distinguished an asserted precedent by merely reciting factual
differences between prior case and one before it), cert. denied, 464
U.S. 816, 104 S.Ct. 74, 78 L.Ed.2d 87 (1983). We thus concluded
that, “if the court itself finds the past decisions to involve materially
different situations, the agency’s burden of explanation about any
alleged ‘departures’ is considerably less.” Hall, 864 F.2d at 873;
see also New England Grain & Feed Council v. ICC, 598 F.2d 281,
285 (D.C.Cir.1979) (“While we are somewhat disturbed by the
Commission’s failure to explain why [an asserted precedent] is
inapplicable here, that case is sufficiently distinguishable to assure
that the Commission’s oversight does not present a danger that it
has arbitrarily departed from its own precedents.”). Following this
rationale, we recently held that an agency “may distinguish
precedent simply by emphasizing the importance of considerations
not previously contemplated, and that in so doing it need not refer
to the cases being distinguished by name.” Environmental Action vy.
FERC, 996 F.2d 401, 411-12 (D.C.Cir. 1993).
Applying these standards to the case at hand, we find that the
decision of the Board must be upheld. Gilbert argues that this case
is controlled by a line of six Board decisions beginning with
McGraw Edison, and culminating with Machinists District 94
(McDonnell Douglas), 283 N.L.R.B. 881, 1987 WL 89622 (1987).
As noted above, these cases have held, under varying factual
circumstances, that a union violates section 8(b)(1)(A) of the Act by
- 14a -
invoking a lawful union-security clause to enforce the payment of
dues where employees have been subjected to certain types of
discipline for exercising a right guaranteed by section 7 of the Act.
However, because all but one of these cases are “sufficiently
distinguishable” from the case at hand, and because we can discern
the path of the Board’s position, we are satisfied that the Board has
not departed from its precedent. With respect to the one case cited
by Gilbert that is arguably on point, McDonnell Douglas, we find
that the Board’s decision here provided adequate reasoning for and
notice of the Board’s departure from that case.
First, the McGraw Edison line of cases all involved unions’
discipline of members for exercising rights guaranteed under section
7 of the Act. Indeed, if no section 7 rights had been involved, the
Board in McGraw Edison and its progeny could not have found
violations of section 8(b)(1)(A), because that section creates an
unfair labor practice only when a union restrains or coerces an
employee “in the exercise of the rights guaranteed in [section 7].”
29 U.S.C. § 158(b)(1)(A). In this case, however, the ALJ found
that Gilbert was disciplined for activity that did not constitute
conduct protected by section 7. NLRB Decision, 312 N.L.R.B. at
228 (“I have found that the alleged discriminatees were not
disciplined for the exercise of any rights protected by Section 7 of
the Act.”). Based on this conclusion, the ALJ properly held that the
McGraw Edison \ine of cases are inapplicable. In affirming the
ALJ’s findings and conclusions, the Board did not take issue with
the ALJ’s conclusion that the activity resulting in Gilbert’s discipline
was not conduct protected by section 7. See id. at 218-20. Obvious-
ly, if the Board meant to say that section 7 rights were not involved
here—and there is no reason to believe that they meant to say
otherwise—then McGraw Edison and its progeny are inapplicable to
this case.
In any event, it seems quite clear that McGraw Edison is
inapposite. In McGraw Edison, 181 N.L.R.B. at 992, the union
disciplined an employee for filing a decertification petition with the
Board. When the employee indicated his intention not to pay dues
after the significant impairment of his membership rights (the union
had suspended his rights to attend union meetings for over one year
- 15a -
and barred him from holding office indefinitely), the union threat-
ened to invoke a union-security clause to enforce payment of the
dues. Jd. The Board held that the union’s threat violated section
8(b)(1)(A), because it “constituted a continuing form of coercion
tending to operate as a serious restraint upon access to Board
processes.” Jd. In this case, the Board stated that the right of
seeking access to the Board is a “fundamental” section 7 right,
because all other rights under the Act are dependent on it. NLRB
Decision, 312 N.L.R.B. at 220 & n. 7. [1447]However, the Board
properly concluded that Gilbert’s conduct did not involve one of
those so-called “fundamental” section 7 rights.
Moreover, four of the five post-McGraw Edison cases relied on
by Gilbert are clearly distinguishable from this case. In each of
those four cases, the union sought to enforce a union-security clause
on employees who had either been denied membership, see
Communications Workers Local 1104 (New York Tel. Co.), 211
N.L.R.B. 114, 116-17, 1974 WL 5130 (1974), enforced, 520 F.2d
411 (2d Cir.1975), cert. denied, 423 U.S. 1051, 96 S.Ct. 778, 46
L.Ed.2d 639 (1976), expelled from membership, see Communica-
tions Workers Local 9509 (Pacific Tel. & Tel. Co.), 193 N.L.R.B.
83, 83 (1971), or fully suspended from membership, see Inland
Boatmen’s Union (Dillingham Tug & Barge Co.), 276 N.L.R.B.
1261, 1262-66, 1985 WL 46305 (1985), further proceedings, 278
N.L.R.B. 83, 1986 WL 54066 (1986); Telephone Traffic Union
(New York Tel. Co.), 241 N.L.R.B. 826, 827, 1979 WL 8958
(1979), for engaging in various section 7 activities. Thus, each of
these cases involved situations in which a union stripped an
employee-member of all rights and privileges of union membership.
However, no such situation is involved here, for in this case the
Union merely imposed routine discipline on an employee who
voluntarily retained his membership in the union.‘ Thus, the
to violating section 8(b)(1)(A), the union had also violated sections 8(a)(3) and
8(6\(2). See Dillingham Tug & Barge, 276 N.L.R.B. at 1271, 1985 WL 46305;
New York Telephone, 211 N.L.R.B. at 116-18, 1974 WL 5130; Pacific
- 16a -
Board’s failure to address these cases in its opinion can hardly be
deemed an unexplaiied “departure” from precedent, because the
rule of these cases is simply inapplicable to the case before us.°
Finally, the only post-McGraw Edison case cited by Gilbert that
is arguably on point is Machinists District 94 (McDonnell Douglas
Corp.), 283 N.L.R.B. 881, 1987 WL 89622 (1987). In affirming an
ALJ’s decision, the Board in McDonnell Douglas held that a union
violated section 8(b)(1)(A) of the Act when it threatened to invoke
(for nonpayment of dues) a union-security agreement against several
employees who had been forbidden by the union from holding union
office for five years as discipline for engaging in certain section 7
activities. Jd. at 892-93. Thus, the Board appeared to extend the
holding of McGraw Edison and its progeny to a case where the
union’s discipline resulted in only the substantial impairment of an
Telephone, 193 N.L.R.B. at 83-84. The unions’ actions in these cases fell within
the literal language of section 8(a)(3)’s second proviso, the Board found, because
the unions had invoked or threatened to invoke union-security agreements against
employees whose membership had been “denied” or “terminated” for reasons other
than failure to pay dues. On this point, while the employees in Dillingham Tug &
Barge were technically “suspended” for 15 years, the Board found that this was the
practical equivalent of expulsion or termination for purposes of sections 8(a)(3) and
8(6\(2). 278 N.L.R.B. at 85-86, 1986 WL 54066. Under this rationale, even
though no section 8(a)(3) and 8(6)(2) violations were alleged in the fourth case,
Telephone Traffic Union, 241 N.L.R.B. at 827, 1979 WL 8958, the union's
one-year full suspension of the employee in that case would have supported a
finding of a violation of those sections. Thus, each of these post-McGraw Edison
cases involved action of a fundamenially different nature from that involved in the
case before us. The action in those cases was sufficient to find a violation of
sections 8(a)(3) and 8(b)(2), but, as we have already held, the discipline involved
in this case clearly did not amount to the “denial” or “termination” of membership
necessary to support such « finding. While this fact is not dispositive of the issue
before us, it obviously supports our conclusion that the post-McGraw Edison cases
cited above are entirely distinguishable from, and thus inapplicable to, the case at
hand.
> Our conclusion is unaltered by the fact that two of these cases contained
dicta suggesting that the holding of McGraw Edison might extend to cases where
membership is “impaired,” see Telephone Traffic Union, 241 N.L.R.B. at 826 n.3,
1979 WL 8958; New York Telephone, 211 N.L.R.B. at 116-17, 1974 WL 5130,
for dicta does not create a rule.
- 17a-
employee’s membership rights. Jd. However, the Board’s actual
holding in McDonnell Douglas is of little moment here, because (1)
the employees were disciplined for engaging in section 7 activities,
and (2) the subject employees had actually resigned from the union
prior to being disciplined. Jd. at 885, 892-93, 1987 WL 89622.
Where an employee [1448]}has resigned from a union, the union has
no power to discipline the former member. See NLRB v. Textile
Workers Local 1029, 409 U.S. 213, 217, 93 S.Ct. 385, 387, 34
L.Ed.2d 422 (1972). Thus, it is hard to view McDonnell Douglas
as an “impairment” case, as Gilbert would have it. Rather, it is
really a case where the union improperly attempted to discipline
employees who were no longer members. In short, McDonnell
Douglas is clearly inapposite to this case.
Even if McDonnell Douglas is fairly viewed as an “impair-
ment” case, we think the Board’s decision in this case provided
adequate reasoning for and notice of the Board’s departure from that
precedent. The contours of the Board’s holding in this case are
readily discernable—a union security clause may “be enforced
against those whose membership has been lawfully impaired.”
NLRB Decision, 312 N.L.R.B. at 220 (emphasis added). And when
the case before us is read in conjunction with McGraw Edison and
its progeny, we can discern the following rule: For a union
lawfully to demand, as a condition of continued employment, the
continued payment of dues from a member who has been disci-
plined, two conditions must be met: (1) the discipline imposed on
the employee must not result in the denial, termination, or full
suspension of the employee’s membership, and (2) the discipline
itself must not impair the exercise of a “fundamental” section 7
right (e.g., the right of seeking access to the Board’s processes).°
Id. Thus, even though the Board never mentioned McDonnell
Douglas by name, we can discern the Board’s position based on its
holding and reasoning in this case, which in relatively clear terms
signals the Board’s departure from any contrary rule that arguably
might be gleaned from McDonnell Douglas. And, by emphasizing
° Obviously, petitioner does not challenge the rule of McGraw Edison and its
Progeny, and we thus have no occasion to rule on it in this case.
- 18a -
that mere impairment of membership rights is insufficient in cases
such as this to support an unfair labor practice finding under section
8(b)(1)(A), and by stressing the overriding importance of “funda-
mental” section 7 rights, the Board has adequately signaled the
reasons for its changed position.
Furthermore, the Board’s decision is eminently reasonable in
light of the Supreme Court’s decision in Beck.’ Beck, in clear
terms, permits unions to use union-security provisions to avoid the
problem of free riders. A rule prohibiting a union from enforcing
such a provision against its members, merely because they were
subjected (as Gilbert was here) to routine internal discipline, would
create a free rider out of every union member who was subjected to
lawful discipline for violating valid union rules and who no longer
desired to pay dues. Such a result is clearly inconsistent with the
Act, specifically section 8(a)(3), and the Court’s interpretation of the
Act in Beck.
III. CONCLUSION
For the foregoing reasons, the petition for review is denied.
So ordered.
” All of the McGraw Edison cases relied on by Gilbert were decided prior to
Beck.
APPENDIX B
DECISION AND ORDER
OF THE
NATIONAL LABOR RELATIONS BOARD
September 20, 1993
DECISION AND RECOMMENDED ORDER
OF THE ADMINISTRATIVE LAW JUDGE
June 20, 1990
- 19a -
(312 N.L.R.B. 218]
and James Gilbert. Case 32-CB-3316
September 20, 1993
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions to the judge’s decision in this case! present the
question of whether the Respondent Union has violated Section
8(b)(1)(A) of the Act by threatening four dissident employee-
members with enforcemeut of the union-security clause if these
employees discontinued paying membership dues after the Respon-
dent had imposed discipline on them that substantially impaired their
membership rights.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings, and conclusions as
modified and to adopt the recommended Order.
' On June 20, 1990, Administrative Law Judge Michael D. Stevenson issued
the attached decision. The General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief to the General Counsel's exceptions.
. In the section of his decision entitled “2. The Letter of Understanding,” the
judge found in the second and fifth paragraphs that James Gilbert, who then served
as president of the Local Union, presented the Employer’s proposed “Letter of
Understanding” to the membership for their approval or rejection on September 9,
1988. The record shows, however, that the actual date was September 22 as the
judge stated later in his decision.
- 20a -
The judge found that the Respondent did not unlawfully
threaten to cause the Employer to discharge members James Gilbert,
Donald Hall, Joseph Gaxiola, and Arthur Rose under the union-
security clause if they discontinued paying membership dues. For
the reasons fully discussed below, we adopt the judge’s finding that
the Respondent has not violated the Act here.
The record shows that before April 1984, Local 100 of the
Cement, Lime, Gypsum and Allied Workers International Union
(CL&G) represented the relevant bargaining unit employees at the
Employer’s Permanente, California facility. The collective-bargain-
ing representative for all bargaining unit employees at that facility
was the AFL-CIO Building Trades Council. In April 1984, CL&G
merged with the Respondent and Local 100 became Local D-100 of
the Respondent.
Charging Party James Gilbert served as the Local president
both before and after the merger. Although Gilbert and other Local
members had not favored the merger, it was not until 1986 that they
began actively opposing the Respondent. Gilbert’s dissatisfaction
resulted in part from the Respondent’s termination of four long term
CL&G International representatives. On September 16, 1986,
Gilbert wrote a letter to the Respondent’s president, Charles W.
Jones, asking that he reconsider the discharge of International
Representative Kent Weaver. Jones refused.
Before the 1984 merger, the Employer had proposed removing
four job classifications from the bargaining unit and making them
nonunion. The membership voted to reject the proposal. During
early 1987, Gilbert met with the Employer’s officials to discuss the
possibility of changing all 37 or 38 bargaining unit positions into
nonunion salaried positions. No change in the unit composition
resulted from these discussions.
- 2la -
In July 1988,’ Gilbert prepared and circulated a petition to
Local members stating:
As members of Lodge D-100, employed at the Kaiser Perma-
nente Cement Plant, we do not want the Boilermakers Interna-
tional Union to represent us and request an election by the
NLRB to chose [sic] a new International Union to affiliate
with.
All but one of the members signed the petition. Gilbert, however,
did not submit the petition to the Respondent or file it with the
Board.
On September 22, Gilbert conducted a membership meeting
during which he presented a “Letter of Understanding” the
Employer had prepared that would have removed 17 jobs, including
Gilbert’s, from the bargaining unit and made them salaried,
supervisory positions. Although Gilbert testified that he did not
favor dividing the bargaining unit, Gilbert repeated to the employees
the benefits of the proposal as the Employer had represented them.
Gilbert told the employees that pensions for supervisors were double
those provided to unit employees under the collective-bargaining
agreement. He also emphasized that the Employer had made a
commitment that those employees remaining in the unit would
receive preferential consideration for later vacancies in the 17 new
supervisory positions created for former unit employees. Arthur
Rose, who held no union office, attended the meeting and publicly
About 2 weeks later, Joseph Gaxiola, an elected trustee for the
, Circulated a petition to the unit employees that sought to turn
all the unit jobs into salaried positions and thereby eliminate this
’ All dates are in 1988, unless otherwise noted.
- Me -
portion of the larger collective-bargaining unit represented by the
AFL—CIO Building Trades Council. A majority of the unit
employees opposed Gaxiola’s petition.
{[219}About October 16, James Ellsworth, another unit
employee, filed internal union charges against Gilbert, Hall,
Gaxiola, and Rose. Ellsworth charged that Gilbert “bargained with
[the] company in order to disband the union and have the jobs
[turned] into the salaried position [sic]”; that Hall and Rose “aided”
or “abetted” Gilbert’s “illegal activities”; and that Gaxiola circulat-
ed a petition seeking to eliminate the bargaining unit. About
December 19, the Respondent found the alleged discriminatees
guilty of all charges. As discipline for his misconduct, the Respon-
dent suspended Gilbert from union office, barred him from holding
any union office for a period of 5 years, and prohibited him from
attending union meetings for 5 years “except a meeting at which a
contract directly affecting him is to be voted upon.” The Respondent
imposed the same discipline on Hall except that it was for a period
of 3 years. Gaxiola and Rose also received this discipline but for a
2-year period.
About April 24, 1989,* the four alleged discriminatees jointly
wrote a letter to Charles W. Jones, the Respondent’s president,
stating their belief that the Respondent had “in effect” suspended
them from union membership and that, therefore, they were no
longer required to pay union dues. Jones responded by letter, dated
May 22, in which he advised the four employees that the Respon-
dent had not suspended them from membership and that they had an
obligation to continue paying dues in order to remain members in
good standing. On July 20, the four employees jointly sent Jones
another letter inquiring about the penalties the Respondent would
impose on them if they ceased paying dues. Jones subsequently
replied on August 7 that the contract contained a union-security
clause and that if the employees ceased paying union dues the
* All subsequent dates are in 1989.
| rT a ee a
- 23a -
Respondent would inform the Employer and “you would no longer
be allowed to work at the plant.”
The judge rejected the General Counsel’s contention that the
Respondent had unlawfully disciplined the four alleged discrimi-
natees. He found that the Respondent had the right to protect itself
General Counsel had not established a prima facie case that the
discipline violated Section 8(b)(1)(A).
The judge found that the Respondent also did not violate the
Act by threatening to invoke the union-security clause. Because the
alleged discriminatees were attempting to change either half or all
of the bargaining unit jobs into Supervisory positions, the judge
found that the Respondent had a legitimate union interest in
preventing the erosion of its status as collective-bargaining represen-
tative. He stressed that the Present case is distinguishable from
Steelworkers Local 4186 (McGraw Edison Co.), 181 NLRB 992
(1970), in that the Board there found that the union had unlawfully
threatened to invoke the union-security clause against a member
whose membership it had significantly impaired because of the
employee’s protected conduct in filing a decertification petition.
The judge also rejected the General Counsel’s alternate
contention that even if the activities for which the Respondent
disciplined the alleged discriminatees were not protected, the
view, presented the Respondent with the “Hobson’s choice” of
either forgoing its right to discipline members under the proviso to
Section 8(b)(1)(A) (thereby rendering the proviso to Section
8(b)(1)(A) a nullity) or relinquishing its right to enforce the
provisions of a valid union-security clause (thereby ultimately
self-destructing without the dues of disciplined members). The judge
concluded that the General Counsel’s position, if implemented,
- 24a -
would induce any members who are unwilling to pay dues in the
first place for financial or philosophical reasons to subject them-
selves to union discipline “so they would be ‘punished’ by not
having to pay union dues, although they would continue their
employment.” For these reasons, the judge dismissed the complaint.
Discussion
There are two actions involved herein: (1) the Union’s internal
discipline of certain employees, which discipline impaired their
membership in the Union; and (2) the enforcement of a union-
security clause against those employees, notwithstanding the fact
that their membership was impaired.
These two matters are analytically distinct, although in a given
case they may be related. If discipline is wholly internal, i.e., if it
does not itself affect the employment relationship, the union may be
able to impose the discipline even if it is aimed at a Section 7 right.
For example, in NLRB v. Allis-Chalmers, Mfg. Co., 388 U.S. 175
(1967), the Supreme Court held that a union could fine employee-
members for exercising their Section 7 right to cross a picket line.
In commenting on Allis-Chalmers, the Board has said:*
The Supreme Court in Allis-Chalmers recognized that the
right of collective bargaining is a paramount policy of national
labor law, and that in order for a union to fulfill this obligation
it must be able to promulgate its own rules and have the right
to impose reasonable discipline on mem-{220]bers who do not
obey such rules. The Court further found that integral to this
policy is the union’s right to protect itself against the erosion
of its status of collective-bargaining representative by reason-
ably disciplining members for violating internal regulations.
[Footnote omitted .]
* Meat Cutters Local 593 (S & M Grocers), 237 NLRB 1159, 1160 (1978).
- 25a -
To be sure, there are limitations on the union’s right to impose
discipline on members. One of these limitations is that the
employee-members must be free to resign their membership and
thereby escape the rule.° That is, employees have a right to resign
from the union. If they resign prior to engaging in the Section 7
conduct deemed offensive by the union (e.g., crossing a picket line),
the union cannot discipline them. If they have opted for continued
membership, they cannot be heard to complain if the union enforces
the rules of membership.
There is another important exception to the general rule
concerning a union’s right to impose internal discipline on members.
If the union’s rule impairs a policy that Congress has embedded in
the labor laws, the union may not enforce the rule, even against a
member. Of course, as we have seen, the mere fact that the
discipline is in reprisal for a Section 7 right is not sufficient to
condemn the discipline. See Allis-Chalmers. However, if the Section
7 right is the fundamental one of seeking access to the Board, the
discipline in reprisal therefor may be unlawful.’ Thus, for example,
if the employee files a petition or a charge with the Board, the
union cannot fine him for that action.*
In the instant case, the employees were all members of the
Union at the time that they engaged in the conduct deemed offensive
to the Union. They were free to resign from the Union but they
chose not to do so. Although they were members, they engaged in
conduct designed to oust or undermine the Union in its role as
representative of the employees. Thus, as discussed above, the
Union was free to impose discipline on them. The fact that the
* Scofield v. NLRB, 394 U.S. 423, 430 (1969).
” The Sec. 7 right of seeking access to the Board is fundamental in the sense
that all others are dependent on it. If the employee cannot come to the Board, he
cannot vindicate any of his rights.
* See NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418 (1968);
Molders Local 125 (Blackhawk Tanning Co.), 178 NLRB 208 (1969).
- 26a -
Union chose to discipline them by impairing their membership,
rather than by expelling them or fining them, does not transform
lawful discipline into unlawful discipline.
Based on the above, we agree with the judge that the discipline
was lawful. The next issue is whether union security could be
enforced against those whose membership has been lawfully
impaired. Because the Respondent’s discipline of these members did
not violate the Act, the members continued, as unit employees, to
be required under the union-security agreement to satisfy the sole
obligation a union may enforce under a union-security provision:
“the tendering of uniform initiation fees (if any) and dues.”° In so
finding, we stress that the Union, as the unit’s exclusive bargaining
representative, has a duty of fair representation toward all unit
employees, and thus must continue to represent the disciplined
employees without hostility, discrimination, or arbitrary conduct and
with complete good faith and honesty."
We therefore conclude that the Respondent did not violate
Section 8(b)(1)(A) of the Act by threatening to invoke the union-
security clause against Gilbert and the three other employee-
members if they ceased paying dues after the Respondent disciplined
them. Accordingly, we shall dismiss the instant complaint.
* Electrical Workers TUE Local 444 (Paramax Systems), 311 NLRB 1031,
1034 (1993). Member Devaney, who dissented in part on other grounds in
Paramax, agrees with the Paramax majority's characterization of the union-security
obligation and the duty of fair representation cited here.
No party has raised the issue of whether members whose membership rights
have been impaired but who do not resign their membership may object to the
expenditure of a portion of his/her dues on nonrepresentational activities. See
Communications Workers v. Beck, 487 U.S. 735 (1988) (unions may not expend
dues and fees collected under a union-security provision from objecting nonmem-
bers on activities unrelated to their role as bargaining representative).
© Id. at 1033.
sv
- 27a -
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and the complaint is dis-
missed.
Gary M. Connaughton, for the General Counsel.
Michael Stapp, Esq. (Blake & Uhlig, P.A.), of Kansas City,
Kansas, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Oakland, California on February 20,
1990," pursuant to an amended complaint issued by the Regional
Director for the National Labor Relations Board for Region 32 on
December 14, 1989, and which is based on a charge filed by James
Gilbert (Gilbert or Charging Party) on October 6, 1989. The
complaint alleges that International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers (Respondent)
has engaged in certain violations of Section 8(b)(1)(A) of the
National Labor Relations Act (the Act).?
. All dates herein refer to 1988 unless otherwise indicated.
. Section 8(b)(1)(A) of the Act provides:
(b) It shall be an unfair labor practice for a labor organization or its
agents—
(1) to retrain or coerce (A) employees in the exercise of the rights
guaranteed in section 157 of this title: Provided, That this paragraph shall not
impair the right of a labor organization to [221 }prescribe its own rules with
respect to the acquisition or retention of membership therein . . . .
Sec. 157 of the Act further provides that:
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
- 28a -
Issues
{221]}(1) Whether this case should be dismissed because Gilbert
filed the unfair labor practice charge outside the applicable statute
of limitations.
(2) Whether Respondent disciplined Gilbert and other alleged
discriminatees because of their protected concerted activities.
(3) Whether Respondent unlawfully threatened to cause Kaiser
to discharge the alleged discriminatees if they discontinued paying
membership dues to Respondent.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of General Counsel
and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. THE EMPLOYER’S BUSINESS
Respondent admits that the Employer is a California corpora-
tion which manufactures, sells, and distributes cement and related
products and has an office and place of business located in Perma-
nente, California. Respondent further admits that during the past
year, in the course and conduct of its interstate business operations,
the Employer sold and shipped goods or provided services valued
collective bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in section 158(a)(3)
of this title.
ee
- 29a -
in excess of $50,000 directly to customers located outside the State
of California. Accordingly, it admits, and I find that the Employer
is engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
Il, THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor Organization
within the meaning of Section 2(5) of the Act.
lll. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Prior to April 1, 1984, Local 100 of the Cement, Lime,
Gypsum and Allied Workers International Union (CL & G)
represented certain employees at the Kaiser Cement Corporation.
Other unions such as the Teamsters, Operating Engineers and the
Laborers, represented other employees at the same plant. The
collective-bargaining representative for all employees represented
by unions at Kaiser is the AFL-CIO Building Trades Council.
On or about April 1, 1984, CL & G merged with Respondent;
Local 100 became Local D-100 of Respondent. The president of the
Local both before and after the merger (1977-1988), was Charging
Party James Gilbert, a Kaiser employee since 1951. Prior to April
1984, Gilbert and others in Local 100 had opposed the merger, but
thereafter, opponents took no action to express disagreement with
the merger until 1986.
In August, 1986, Gilbert and other representatives of Local
D-100 attended Respondent’s convention. Based on events at the
convention and the subsequent termination of long-time CL & G
International representatives, Ken Weaver, Mike Philips, Jack
Hammond and Ernie Lamaro, Gilbert began to actively oppose
Respondent during meetings of the Local and in other ways.
- 30a -
None of the terminated International representatives testified in
this case. However, it appears that Weaver in particular had been
a close professional and personal acquaintance of Gilbert. More-
over, Weaver had been involved in litigation on behalf of Local 100
against Kaiser and against other union locals who represented Kaiser
employees. The termination of Weaver was followed not long after
by Respondent withdrawing funding for the lawsuit in progress. Not
long after this, the lawsuit collapsed. Gilbert’s anguished letter of
September 16, 1986, to Respondent’s President, Charles W. Jones
(G.C.Ex. 14), asking that the discharge of Weaver be reconsidered
was unsuccessful.
During early 1987, Gilbert met with certain company officials
to discuss the possibility of changing all 37 or 38 bargaining unit
employees represented by Local D-100 into nonunion salaried
positions. These negotiations led nowhere, and it is not clear
whether Respondent or other members of Local D-100 knew about
Gilbert’s activities. However, this was not the first time such a
move had been discussed.
A short while before the merger, Kaiser had proposed remov-
ing four bargaining unit jobs out of the unit and making them
nonunion. These jobs were the control room operators whose
positions were to be again included within a later proposed letter of
understanding, as explained below. In any event, Gilbert presented
the company’s premerger proposal to the membership for discussion
and a vote, where it was soundly defeated. In presenting the
proposal, Gilbert was acting within the scope of his position as
president of Local 100 to present various proposals of Kaiser to
clarify what in some cases was a “grey area” not specifically
covered by the collective-bargaining agreement (G.C.Exh. 17).
In July, Gilbert prepared and circulated a petition among
members of his local. The petition reads:
As members of Lodge D-100, employed at the Kaiser Perma-
nente Cement Plant, we do not want the Boilermakers Interna-
tional Union to represent us and request an election by the
=
itt
-3la-
NLRB to chose a new International Union to affiliate with.
[G.C.Exh. 15]
Ultimately 37 out of 38 members signed this petition. Signers
included a Respondent witness named James Ellsworth, who was
elected president of the Local after Respondent disciplined and
removed Gilbert as president for certain conduct not yet reported in
these facts. Ellsworth explained his signa-[222]}ture on the petition
by testifying that Gilbert had misled signers to believe that Respon-
dent had not been doing enough for the local. This notion was based
in part on the alleged failure of Weaver’s replacement, John
Holaday, to make a timely appearance in the plant. In his testimony,
Respondent witness Holaday blamed his tardy appearance on
Gilbert.
As he circulated this petition, Gilbert took no official position
on the issue, but he conceded in his testimony that he had stated his
position in favor of the petition to all members solicited to sign.
Indeed, Gilbert signed his name on the first line of the petition. For
reasons that do not appear of record, Gilbert did not submit this
petition to Respondent.
The disaffiliation petition was followed in December by another
petition first referred to in the record as a decertification petition,
and later clarified on cross-examination of Gilbert to be a certifica-
tion petition for a labor organization called the Independent Workers
of North America (WNA).’ An official of this organization is
Kent Weaver, former international representative of the CL & G
fired by Respondent.
Weaver sent Gilbert a number of union authorization cards for
Gilbert to distribute to members of Local D-100 and to solicit
members’ signatures. Gilbert returned a number of signed cards to
* According to Gilbert, the IWNA is the old Cement, Lime & Gypsum Locals
that had disaffiliated from Respondent and formed a new International Union (Tr.
48).
- 326 -
Weaver. Ultimately, Gilbert withdrew the petition because he felt
the multiunit bargaining unit at Kaiser made success unlikely.
Notwithstanding Gilbert’s withdrawal of both petitions referred
to above, sometime after he had been removed from his position as
president of Local D-100, he convened a “rump” session of some
members of the local. About 20 members voted for and about 7
against an affiliation with IWNA. There was no official recognition
of these results.
2. The letter of understanding
As recited above, Gilbert and the other alleged discriminatees
were disciplined for certain conduct. However, the parties to this
case do not agree on what conduct was punished. For now, it
suffices to say that the ostensible reason for the discipline involved
the role of the alleged discriminatees in presenting the employer's
proposed letter of understanding to the membership of Local D-100
for discussion and a vote.
On or about September 9, Gilbert presented this letter to the
membership in a meeting long enough to accommodate both the day
and evening shifts. No advance notice of the details of the letter was
provided. In addition, Gilbert refused to provide copies of the letter
to the membership. Instead, he purported to read the letter to the
members and then led discussion on it. A faction of the member-
ship, loyal to the Respondent, requested copies of the letter and a
postponement of the vote for a few days while members discussed
it and perhaps sought additional information. Gilbert denied all such
requests and insisted on a vote then and there. Those members who
were employed on the evening shift had to vote and leave without
hearing the remarks of the majority of the members who were
employed on the day shift and came to the meeting later.
- 33a -
The letter of understanding reads as follows (G.C. Exh. 16):
9/22/88
DRAFT
LETTER OF UNDERSTANDING
We have been engaged in discussions over the past several
weeks concerning the evolution of and the need for changing
the job responsibilities, functions, and authority of several
classifications heretofore within the jurisdiction of the Cement,
Lime, Gypsum and Allied Workers, Division of Boilermakers,
International Local Lodge D-100 (CL&G). Specifically, we
have discussed and reached agreement regarding the following
classifications: Quality Control Analyst, Quality Control A,
Quality Control B, Finish Miller, and Process Operator.
Plant, these changes mean that the people enjoy a greater
community interest, and their functions are more aligned with
the management of the operation. For many, if not all the same
reasons, we have agreed that the Finish Miller and Process
Operator classifications should be made supervisory. Therefore,
the Company has restrucured (sic) our organizational chart and
is prepared to assign the new job responsibilities, functions,
and authority upon execution of this Agreement. It is under-
stood and agreed that the effect of this agreement will be to
remove those classifications listed above and all related work
from the bargaining unit. Hereafter, the individuals selected for
the Management/Supervisor positions created pursuant to this
LOU, will be salaried or salaried (end of sentence missing
from exhibit).
- Si-
It is also agreed that when permanent vacancies occur in
the management positions dealt with in this LOU, members of
the CL&G will be given first consideration for promotion to
such positions. Likewise, it is agreed that management may
temporarily upgrade members of the CL&G to the management
positions dealt with herein for purposes of training and/or
coverage.
Any action by any federal agency, court, or arbitrator
which materially affects this LOU as to the salaried status of
the affected employees will render the Company’s obligation to
provide them with salaried compensation and benefits null and
void, as if their status had never changed.
Agreed this day of , 1988.
For Kaiser Cement Corporation For CL&G, D-100
All agree that the primary effect of this letter if it had been agreed
to by the membership would have been to remove from the
bargaining unit 17 jobs out of the 37 or 38 represented by Local
D-100 (Total number of bargaining unit positions represented by all
unions at Kaiser is 170-180). The 17 jobs would then have become
salaried, supervisory positions under the complete control of Kaiser
management.
[223]According to Gilbert, company officials drafted the letter.
However, Gilbert testified the letter was drafted as a result of his
initiating contact with Joe Hobby, the Employer’s Industrial
Relations Supervisor, with whom Gilbert had held prior discussions
about taking all 37-38 bargaining unit positions into nonunit status.
Gilbert held 2-3 meetings with Hobby, who did not testify,
regarding the content of the 1988 letter of understanding. Because
the company offered to take only about half of the bargaining unit
jobs into salaried positions, Gilbert allegedly did not favor the end
product. Nevertheless, Gilbert agreed to present it to the member-
ship.
- 35a -
Gilbert’s job was one of those included in the 17 jobs to be
removed from the unit. In presenting the letter on September 9,
Gilbert repeated what had been represented to him by Hobby, that
pensions for supervisors were much more generous—about dou-
ble—than those provided to bargaining unit employees. As for those
members who might be reluctant to approve the letter, because
unlike Gilbert, their jobs were not slated to be converted to
management, Gilbert emphasised to them the commitment contained
within the letter of understanding: that where later vacancies
occurred in the 17 new management positions, bargaining unit
employees would be considered on a preferential basis.
When all the votes were counted, the letter of understanding
was defeated by a vote of 23 to 11.
The second alleged discriminatee is Donald Hall, a witness for
General Counsel. A Kaiser empioyee for 38 years and financial
secretary of Local D-100 between 1969-1988, Hall, like Gilbert,
resented the termination of Weaver and other International represen-
tatives by Respondent. Hall signed the petition (G.C. Exh. 15)
circulated by Gilbert in July to measure the sentiment for disaffiliat-
ing from Respondent.
On September 22, Hall attended the union meeting to discuss
the letter of understanding presented by Gilbert. Hall testified he
followed the lead of Gilbert at the meeting and took no public
position on the letter.
The third alleged discriminatee is Joseph Gaxiola, also a
witness for General Counsel.‘ Employed by Kaiser for 20 years and
$ That portion of the transcript purporting to contain the testimony of Gaxiola
is close to incomprehensible. The fault is not that of the court reporter. Because
of language difficulties and/or a speech impediment, Gaxiola was barely an
intelligible witness. He was warned repeatedly by the court reporter of the
techmical problems created by his manner of testifying (e.g., Tr. 135). Little or no
improvement resulted from these admonitions. Apparently, the witness did the best
hé could and so have | in trying to ascertain what he said.
- S6a-
elected a trustee of Local D-100 for 4 years through 1988, Gaxiola
attended the September 22 union meeting and participated in
discussions. Because Gaxiola had to leave the meeting early to work
the evening shift, he prepared a written vote on the letter of
understanding which he then showed to one or more other members
who had not yet voted. Gaxiola voted “No” on the letter of
understanding.
About two weeks later, Gaxiola prepared a petition which he
circulated to the local’s members. The introductory paragraph reads
as follows (G.C. Exh. 22):
This petition is to determine the support of the members
of Local D-100 on a Letter of Understanding that makes all
classifications in D-100 salaried or salaried non-exempt.
This time Gaxiola signed in favor of the proposition,’ but most
other signers opposed the proposition. In preparing the petition,
Gaxiola testified he acted on his own, and not as trustee of the
local. Although he had been a secretary-treasurer of the Local for
13 years, Rose had not held that position or any position in the local
for 10-12 years prior to 1988.
The final alleged discriminatee is Arthur Rose, a Kaiser
employee for 39 years. Unlike the other alleged discriminatees,
Rose had not been a current officer of Local D-100 during the times
material to this case.
Rose attended the September 22 meeting and took a public
vocal position in favor of the letter read by Gilbert. Rose argued
that the jobs would be a good deal for the 17 incumbents. Because
those remaining in bargaining unit positions were much younger
than the incumbents, Rose continued, they would eventually succeed
* Instead of affecting only 17 positions, Gaxiola’s petition affected al) Local
D-100 positions. The purported linkage to a letter of understanding cannot be
explained.
in the letter itself, that where possible, any openings down the line
would be filled from D-100 members.
3. Respondent discipline of alleged discriminatees
On or about October 16, James Ellsworth, a Kaiser employee
for 17 years, and current president of Local D-100 filed charges
against the four alleged discriminates. More specifically, Ellsworth
On or about November 1, the four alleged discriminatees were
notified of a hearing to be held on November 19 to adjudicate the
charges filed by Ellsworth (R. Exhs. 1-4).
At the November 19 disciplinary hearing, International
- 38a -
of removing a number of persons from the bargaining unit.
Seaman’s report reads as follows:
[224)]BEFORE THE INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS & HELPERS, AFL-CIO
INTERNATIONAL EXECUTIVE COUNCIL
In the matter of:
Charges filed against James Gilbert, Arthur Rose, Donald Hall
and Joseph Gaxiola of Local Lodge D-100 by James H.
Ellsworth for alleged violations of Article XVII, Section 1(a),
(e), (), (), (kK), and (1) of the International Brotherhood
Constitution.
Hearing Date: November 19, 1988, Los Gatos, California
Before: G. Ross Seaman, International Executive Council
Hearing Officer
BACKGROUND
The issues in this case as contended by the charging party
are that Mr. Gilbert bargained with the company for the
purpose of removing certain classifications and jobs from the
bargaining unit. He contends further that Mr. Rose and Mr.
Hall aided and abetted Mr. Gilbert to this end by attempting to
convince the membership to support a memorandum of
agreement that was prepared by the company for that purpose.
He also contends that Mr. Gaxiola prepared and circulated a
petition that was intended to give added support to the memo-
randum of agreement.
INFORMAL HEARING
An informal hearing was held on November 19, 1988
commencing at approximately 8:30 A.M. The charging party
- 39a -
Offered to withdraw the charges against all of the charged
parties in exchange for their resignation from office and the
the charges against Mr. Hall and Mr. Gaxiola as he felt theirs
was a relatively minor role in the entire matter. This offer was
rejected on the grounds that they felt they were innocent of any
wrong and wanted to clear their names by way of a formal
hearing.
FORMAL HEARING
prepare for a formal hearing. Mr. Gilbert asked if Kent
Weaver would be allowed to represent the charged parties and
was promptly denied his request. The hearing proceeded and
was concluded at approximately 6:07 P.M.
FOOT NOTE
On or about December 19, Respondent notified the alleged
discriminatees of the dispositions of their cases:
(1) Gilbert found guilty of all charges; Punishment:
Suspension from office and ineligible to hold any elected or
appointed office in Respondent for five years; Also for five
years—prohibited from attending all Union meetings or
- 40a -
functions; except a meeting at which a contract directly
affecting him is to be voted upon [G.C. Exh. 6].
(2) Hall found guilty of all charges; Punishment: same as
Gilbert except duration is three years rather than five [G.C.
Ex. 7].
(3) Rose found guilty of three out of four charges;
Punishment same as Gilbert except duration is two years [G.C.
Ex. 8).
(4) Gaxiola found guilty of all charges; Punishment: same
as Rose [G.C. Exh. 9].
All four letters above also informed Gilbert, Hall, Rose, and
Gaxiola that Holaday would supervise the day-to-day administration
of Local D-100 and election of Local Lodge officers.
In his testimony as a Respondent witness, Ellsworth described
the 17 jobs which were the subject of the letter of understanding as
quality control and computer operator type jobs. These positions,
according to Ellsworth, were critical to operation of the plant in the
event of a strike. Because management would control these jobs,
lower skilled persons could be recruited to cross picket lines and
keep the plant operating during a strike, thereby lessening tiie
bargaining power of the Union.
4. Postdiscipline events
On or about April 24, 1989, Gilbert and the other alleged
discriminatees sent the following letter to C.W. Jones, president of
Respondent (G.C. Exh. 10):
- $la -
Mr. C.W. Jones
International President
International Brotherhood of Boilermakers
753 State Avenue, Suite 570
Kansas City, Kansas 66101
Dear Sir:
In December of 1988 we, the undersigned, were suspend-
ed from holding offices and attending union meeting of the
Boilermakers International.
We have been advised that we have been “in effect
suspended” from the Union and are not required to pay union
dues.
We have been keeping our dues current until we could
contact you and get your confirmation. If you are in agree-
ment, please advise us and also arrange for the union to refund
our union dues retroactive to December 1988.
We are awaiting your reply. Thank you.
[225]Sincerely,
/s/ James Gilbert /s/ Don Hall
James Gilbert Don Hall
/s/ Arthur Rose /s/ Joe Gaxiola
Art Rose Joe Gaxiola
About | month later, Jones wrote back (G.C. Exh. 11):
- 428 -
May 22, 1989
D100-88-1
D100-88-2
D100-88-3
D100-88-4
Mr. James Gilbert
Mr. Arthur Rose
Mr. Donald Hall
Mr. Joseph Gaxiola
c/o 1595 Laurelwood Rd., #28
Santa Clara, CA 95054
Dear Gentlemen and Brothers:
This will acknowledge receipt of your letter wherein you
request clarification of whether or not you are required to
continue to pay union dues as a result of penalties imposed
under Article XVII.
Please be advised, although penalties were imposed
subsequent to Article XVII Hearings, you were not suspended
from membership. You are still required to pay monthly dues
if you want to remain members in good standing of the
International Brotherhood of Boilermakers.
Trusting you will be guided accordingly and, with best
wishes, I am
Fraternally yours,
/s/ Charles W. Jones
Charles W. Jones
International President
On July 20, 1989 (misdated as 1988) Gilbert, Rose, Hall, and
Gaxiola sent a second letter to Jones (G.C. Exh. 12):
- 43a -
Mr. Charles W. Jones
International President
Boilermakers Union
New Brotherhood Building
Kansas City, Kansas 66404
Dear Mr. Jones:
This letter is in response to your letter to us dated May
22, 1989.
Please explain what penalties might be imposed if we
discontinued paying union dues to Local D-100.
We would appreciate your response.
Sincerely,
/s/ Jim Gilbert /s/ Don Hall
Jim Gilbert Don Hall
/s/ Art Rose /s/ Joe Gaxiola
Art Rose Joe Gaxiola
Jones responded on August 7, 1989 (G.C. Exh. 13):
- 44a -
D100-88-1
D100-88-2
D100-88-3
D100-88-4
Mr. James Gilbert
Mr. Arthur Rose
Mr. Donald Hall
Mr. Joseph Gaxiola
c/o 1595 Laurelwood Road #28
Santa Clara, CA 95054
Dear Gentlemen and Brothers:
This is in response to your letter dated July 20, 1989.
The existing contract between the Company and Local
Lodge Di00 contains a union security clause. Should you
discontinue paying union dues, the Union would have no
choice but to notify the Company and you would no longer be
allowed to work at the plant.
Trusting you will continue to maintain your membership
in Local Lodge D100, and with best wishes, I remain
Fraternally yours,
/s/ Charles W. Jones
Charles W. Jones
International President
Monthly dues for all four members amounted to $32.50 per
month. Only Gilbert actually stopped paying dues. He first testified
that he fell behind in the payment of his dues (Tr. 42); later, Gilbert
testified that he took the position that he didn’t have to pay dues on
the grounds he had been suspended from the Union. So he didn’t
pay for about 2 months (Tr. 43). Then on about September 30,
1989, John Morrison, a member of Local D-100 associated with
Ellsworth, wrote a letter to Pete Horton, the industrial relations
- 45a -
supervisor at the plant. In this letter, Morrison asked that article 2,
section B of the contract be enforced against Gilbert (G.C. Exh.
20). That is, Morrison was asking that Gilbert be dismissed for
nonpayment of dues. Instead of dismissing Gilbert, Horton called
him into his office and showed him Morrison’s letter. Gilbert
promised to and did in fact pay all union dues then in arrears and
his job security was not affected.
B. Analysis and Conclusions
1. The statute of limitations issue
In its Answer to amended complaint and notice of hearing,
Respondent raised an affirmative defense, contending “the Amended
Complaint should be dismissed, because the unfair labor practice
charge was filed outside the applicable statute of limitations
provided for in 29 U.S.C. Sec. 160(b)” (G.C. Exh. 1(h)). Respon-
dent reiterated its position in its opening statement at hearing (Tr.
17). Because this issue was raised in an appropriate manner, it is
puzzling to say the least—and annoying—that neither side had seen
fit to address the statute of limitations in its brief.
In Nickles Bakery of Indiana, 296 NLRB 927 (1989), the Board
had occasion to review basic law regarding Section 10(b) of the Act:
In considering the general sufficiency of a charge to
support an allegation in the complaint, the Board has [226]gen-
-erally required that the complaint allegation be related to and
arise out of the same situation as the conduct alleged to be
unlawful in the underlying charge, although it need not be
limited to the specific violations alleged in the charge. This
requirement is derived from Section 10(b) of the Act, which
provides in pertinent part as follows:
*Stainless Steel Products, 157 NLRB 232, 234 (1966); El Cortez Hotel,
160 NLRB 1442, 1446-1447 (1966), affd. 390 F.2d 127 (9th Cir.1968).
- 46a -
Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice, the
Board, or any agent or agency designated by the Board for
such purposes, shall have the power to issue and cause to
be served upon such person a complaint stating the
charges in that respect.... [Emphasis added.]
The Supreme Court in NLRB v. Fant Milling Co., 360 U.S.
301, 309 (1959), in discussing the Board’s authority to
discharge its duty of protecting public rights, held that a
complaint alleging violations not specifically alleged in the
charge is proper if the matters asserted in the complaint “are
related to those alleged in the charge and ... grow out of them
while the proceeding is pending before the Board.” Consistent
with Fant Milling, the Board has long required a sufficient
factual relationship between the specific allegations in the
charge and the complaint allegations.‘
In Redd-I, Inc., 290 NLRB 1115 (1988), the Board held
that in deciding whether complaint amendments are closely
related to charge allegations, it would apply the closely related
test, comprised of the following factors. First, the Board will
look at whether the otherwise untimely allegations involve the
same legal theory as the allegations in the pending timely
charge.’ Second, the Board will look at whether the otherwise
‘See Red Food Store, 252 NLRB 116 (1980), and cases cited therein.
allegations, we noted in Redd-/] that usually the same section of the Act will be the
basis for both the timely and untimely allegations. Id. at 1118. However, it is not
necessary that the same actions of the Act be invoked. Thus, we note that in
Whitewood Oriental Maintenance Co., 292 NLRB 1159, 1169 (1989), the Board
found that even though the otherwise untimely amendment invoked Sec. 8(a)(2) of
the Act and the timely charge referred to Sec. 8(a)(5), the allegations satisf.::d this
relatedness requirement because they were predicated on essentially the same legal
theory. See also Proctor & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 984-985
(4th Cir.1981), cert. denied 459 U.S. 879 (1982) (8(a)(3) allegation found closely
related under Fant Milling, supra, to 8(a)(5) allegations).
- 47a -
untimely allegations arise from the same factual circumstances
or sequence of events as the pending timely charge. Finally,
the Board may look at whether a respondent would raise
similar defenses to both allegations. Id. at 1118° Although the
facts of Redd-/ involved a complaint amendment, the precedent
relied on in Redd-/ applies a similar closely related requirement
to both initial complaints and amended complaints. See
particularly NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d
Cir. 1952), discussed in Redd-I, supra, at 1116.
The charge in this case was filed on October 6, 1989, and
alleged that Respondent violated the Act by threatening to have
Kaiser discharge the alleged discriminatees if they stopped paying
union dues, “despite the Union’s failure to offer said employees
membership under the same terms as other employees” (G.C. Exh.
1(a)). Based on this charge, the complaint alleges that Respondent’s
threat to enforce the union-security clause, was unlawful.
It is also alleged in the complaint that on December 17, the
alleged discriminatees were disciplined for engaging in protected
concerted activities. The first allegation is within and the second
allegation is outside the 6-month statute of limitations. The issue
then is whether the untimely allegations of the complaint are closely
related to the timely allegation contained in the charge. To answer
this question, I turn to those factors from Redd-I, Inc., supra and
apply them to the present case.
(a) Does the untimely allegation involve the same legal
theory as the allegations in the timely charge?
To answer this question, I need look no further than General
Counsel’s brief, p. 17. There, General Counsel makes clear that as
“in doing so, however, the Board will not rely on a respondent's mere claims
of different unlawful reasons for taking different action alleged in the complaint as
unlawful, but will look to whether the timely and otherwise untimely allegations
allege the same unlawful object. See Davis Electrical Constructors, 291 NLRB
115, 116 fn. 9 (1988).
- 48a -
a result of the timely charge, he raises a “broader theory, [whether]
a union security clause can be enforced against an employee, whose
membership rights are substantially reduced, for whatever reason,
protected or otherwise.” General Counsel’s theory for the untimely
allegation is that the alleged discriminatees were disciplined for
engaging in protected concerted activities. I find sufficient connec-
tion between the two theories as to satisfy the first legal test.
(b) Does the untimely allegation in the complaint arise
from the same sequence of events as the pending
timely charge?
As shown by the facts, this question must be answered in the
affirmative, and further discussion is not warranted.
(c) Will Respondent raise similar defenses
to both allegations?
Again, I find the answer to be in the affirmative. Respondent’s
basic theory of its defense is that at all times material to its defense,
Respondent was acting within the scope of its legal authority. | will
address that contention below on the merits. For now, I find that
this case should not be dismissed in whole or in part on statute of
limitations grounds. See Kelly-Godwin Hardwood Co., 269 NLRB
33, 36-37 (1984).
2. Did Respondent discipline the alleged discriminatees
for protected concerted activities?
I begin with the relevant provisions of Respondent’s constitu-
tion which were alleged to have been violated. As noted above,
Gilbert was found guilty of violating art. xvii, secs. 1(c), (e), (f),
(k) and (1) which read as follows (R. Exh. 5):
Section 1. The basis of charges against officers or members of
a subordinate body, against officers of the [227]International
Brotherhood or against a subordinate body itself shall include,
- 49a -
but shall not be limited to, any one or more of the following
offenses:
(a) violation of any provision of this Constitution or the
By-Laws of a subordinate body or failure to perform duties or
functions specified therein;
(e) engaging in any activity or course of conduct contrary
or detrimental to the welfare or best interest of the International
Brotherhood or of a subordinate body;
(f) the commission of any unlawful, dishonest, dishonor-
able or discreditable act in connection with union duties or
responsibilities;
(k) engaging in or fomenting any acts or course of conduct
which are inconsistent with the duties, obligations and fealty of
the members of a trade union and which violate sound trade
union principles or which constitute a breach of any existing
collective bargaining agreement;
(1) failure to exercise responsibility toward the Internation-
al Brotherhood as an institution or engaging in conduct which
would interfere with the International Brotherhood’s perfor-
mance of its obligations. . . .
Hall and Rose were found guilty of violating sections I(e), (k) and
(1) and Gaxiola was found guilty of violating Secs. I(e) and (k) of
the same article.
A union constitution has beer [sic] described as a “fundamental
agreement of association.” Plumbers v. Plumbers Local 334, 452
U.S. 615, 619 (1981). Both the Board (Telephone Traffic Union,
287 NLRB 998, 1002 (1986)) and the courts (Nelson v. Iron
Workers, 131 LRRM 2025, 2029 and cases cited therein (D.C.D.C.
1988); Stage Employees IATSE Local 776 v. Stage Employees IATSE
Local 695, 123 LRRM 2784, 2785 (9th (9th Cir. 1986)) have held
- 50a -
that a union’s interpretation of its constitution is entitled to consider-
able deferance.
With these preliminary principles of law in mind, I turn to the
record. There General Counsel contends that Gilbert was disci-
plined, at least in part, for certain activities different from those
actually charged: for example, circulating a petition opposing
Respondent’s representation and supporting IWNA, a rival union.
These activities are protected under the Act. Cf. Service Employees
Local I-J (1. Shor Co.), 273 NLRB 929 (1984). However, I agree
with Respondent (Br. pp. 10-12) that General Counsel has failed to
prove a nexus between Gilbert’s prior activities and the discipline
at issue. Sheet Metal Workers Local 22 (Miller Sheet Metal), 296
NLRB 1146, 1147 (1989). Accordingly, the issue is whether
Gilbert, Hall and Rose were properly disciplined for presenting the
letter of understanding on September 22, and whether Gaxiola was
properly disciplined for preparing and circulating a subsequent
petition to remove all the members of D-100 from the bargaining
unit and place them in salaried positions.
In Sheet Metal Workers Local 22, supra at 1147-1148, the
Board stated:
The Board and courts have long recognized that Congress
in enacting Section 8(b)(1) did not intend to regulate the
internal affairs Of unions, and that the proviso to that
section preserves the rights of unions to impose fines as
well as well as to expel members.’ As the Board has
stated:*
The Supreme Court in Allis-Chalmers recognized that
the right of collective bargaining is a paramount policy of
national labor jaw and that, in order for a union to fulfill
’NLRB vy. Allis-Chalmer Mfg. Co., 388 U.S. 175, 191-192 (1967).
*Meat Cutters Local 593 (S & M Grocers), 237 NLRB 1159, 1160 (1978).
- 5la-
this obligation, it must be able to promulgate its own rules
and have the right to impose reasonable discipline on
members who do not obey such rules. The Court further
found that integral to this policy is the union’s right to
protect itself against the erosion of its status of collective-
bargaining representative by reasonably disciplining
members for violating internal regulations. [Footnote
omitted. ]
The Supreme Court, in the seminal case of Scofield v. NLRB,
observed:°
. . « Sec. 8(6)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and escape the
rule.
In all those cases where the Board has found union discipline
to have violated Section 8(b)(1)(A) of the Act, the discipline has
impeded union member access to the Board’s processes. See, for
example, Sheet Metal Workers Local 22, supra. However, the union
discipline in the present case has nothing at all to do with restricting
access to the Board’s processes. Rather it has to do with Respon-
dent’s right to protect itself against the erosion of its status as
collective—bargaining representative.
I note the Board’s decision in Buffalo Newspaper Guild Local
26 (Buffalo Courier Express), 265 NLRB 382 (1982). In that case,
the union disciplined its member for filing a unit clarification issue
with the Board. The intended result would have been a Board
determination that certain individuals be excluded from the bargain-
ing unit due to their supervisory status (at 383). While the Board
admitted that such an action was against a union’s interest, the
*Scofield v. NLRB, 394 U.S. 423, 430 (1969).
- §2a -
member was immune from internal union discipline, because of an
overriding public policy in permitting access to the Board’s
processes. The Board found that the union violated Section 8(b)(1)-
(A) by disciplining its member.
In the instant case, by comparison, the result of Gilbert, Rose,
and Hall’s activities would have been to remove about half of the
bargaining unit positions into salaried and supervisory positions.
The result of Gaxiola’s activities would have been to remiove all the
bargaining unit positions into salaried positions. It is difficult to
imagine any greater erosion of Respondent’s collective-bargaining
Status than what may have been caused by the alleged discriminate-
es.°
The case of Meat Cutters (S & M Grocers), 237 NLRB 1159
(1978) supports Respondent’s theory. In that case, the [228]Board
dismissed a case alleging that Section 8(b)(1)(A) of the Act had been
violated. The issue presented involved reconciling a union’s right to
solidarity during an organizing drive with the public policy of
employees being free of coercion or restraint in choosing their
collective-bargaining representative. (Union had threatened to
discipline members who did not support or participate in or who
actively opposed the organizing drive at the Employer’s store). In
dismissing the case, the Board held that the Union’s threat of a fine
was aimed not at deterring members from invoking the Board’s
procedures, but at requiring its members to support the organiza-
tional efforts.
In sum, I find that General Counsel has failed to prove a prima
facie case that Respondent violated Section 8(b)(1)(A) of the Act.
Compare NLRB v. Iron Workers (Walker Construction Co.), 130
LRRM 2585 (Sth Cir.1983). Instead, I find that in enforcing the
various provisions of its constitution quoted above, Respondent was
* In focusing purely on the numbers at this point, | have not forgotten the
testimony of Ellsworth that some or all of the 17 positions were especially critical
to Respondent’s bargaining power. | credit Elisworth’s testimony and find it
supports Respondent's theory.
- 53a -
vindicating a legitimate union interest—to prevent erosion of its
status as collective-bargaining representative. In addition, I find that
the provisions were reasonably enforced against union members who
are free to leave the union and escape the rule.’
Because I have found that the alleged discriminatees were not
disciplined for the exercise of any rights protected by Section 7 of
the Act, the invoking of a lawful union-security clause is not
unlawful. Accordingly, the cases cited by General Counsel at p. 8
of his brief, e.g., Steelworkers Local 4186 (McGraw Edison Co.),
181 NLRB 992 (1970), do not apply to the instant case. In any
event, it was the alleged discriminatees who first raised the issue
regarding enforcement of the union-security clause. I can find no
reason why, under the facts and circumstances of this case,
Respondent’s written answer violated the Act.
In this case only Gilbert failed to pay his union dues for 2
months. It is unclear whether he was unable or unwilling to pay
these dues. Pursuant to a valid union-security agreement, a union
may cause an employr [sic] to discharge an employee who by
nonpayment of dues fails to maintain union membership. 29 U.S.C.
§158(a)(1) (1976). Sheet Metal Workers’ Local 355 v. NLRB, 716
F.2d 1249, 1254 (9th Cir. 1983). Before a union may do this,
however, certain procedural formalities must be observed. In this
case, as soon as Gilbert was counseled about his obligations, under
the lawful union-security clause, he paid his back dues, and so far
as the record shows is now current.*
” That the alleged discriminatees may be members of Respondent pursuant to
a union-security clause does not affect their ability to resign, albeit they will still
be required to meet their financial obligations thereunder. Meat Cutters, supra, 237
NLRB 1159, 1161, fn. 7.
* I find that Respondent met its fiduciary obligations to deal fairly with its
members. Respondent gave the alleged discriminatees reasonable notice of their
dues-related obligations and an opportunity to make good any delinquency.
Teamsters Local 122, 203 NLRB 1041 (1973), enfd. without opinion, 502 F.2d
1160 (1st Cir. 1974). And Respondent properly specified that discharge would
result from a failure to pay. Western Publishing Co., 263 NLRB 1110 (1982).
- 54a -
As an alternative argument, General Counsel contends (Br. p.
17) that even if the activities of the alleged discriminatees for which
they were disciplined were not protected, their membership rights
have been so substantially reduced that enforcement of the union-
security clause against them becomes unlawful. Not surprisingly,
General Counsel finds no cases to support this contention.
The basic flaw in General Counsel’s argument is that it presents
Respondent or any labor organization with a Hobson’s choice: either
forgo its right to lawfully discipline its members, thereby rendering
the proviso to Section 8(b)(1)(A) a nullity, or relinquish its right to
enforce a lawful union-security clause, thereby ultimately self-
destructing without the dues of disciplined members. Moreover,
General Counsel’s positions, if implemented, would induce members
who for financial or philosophical reasons, are unwilling to pay dues
in the first place, to subject themselves to union discipline, so they
would be “punished,” by not having to pay union dues, although
they would continue their employment. General Counsel’s argu-
ments fall of its own weight and further discussion is unwarranted.
For the reasons stated above, I will recommend to the Board
that this case be dismissed.
CONCLUSIONS OF LAW
1. The Employer, Kaiser Cement Corporation, is an employer
within the meaning of Section 2(2) of the Act, engaged in commerce
and in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent, International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor practices
alleged in the complaint.
- 55a -
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended?®
ORDER
It is recommended that the complaint be dismissed in its
entirety.
9
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order herein shall,
as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections
to them shall be deemed waived for all purposes.
APPENDIX C
ORDERS OF THE UNITED STATES
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
DENYING REHEARING AND
REHEARING IN BANC
August 16, 1995
For THe District OF COLUMBIA CIRCUIT
No. 94-10$1 September Term, 1994
James Gilbert, FILED: United States Court
of Appeals For the
Petitioner, District of Columbia
Circuit
v. August 16, 1995
National Labor Relations Board,
Respondent
BEFORE: Edwards, Chief Judge; Williams and Rogers, Circuit
Judges
ORDER
Upon consideration of petitioner’s petition for rehearing filed
July 28, 1995, it is
ORDERED, by the Court, that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Robert A. Bonner
Deputy Clerk
- 57a -
Anited States Court of Appeals
For Tue District OF COLUMBIA CiRCurT
No. 94-1081 September Term, 1994
James Gilbert, FILED: United States Court
of Appeals For the
Petitioner, District of Columbia
Circuit
v. August 16, 1995
National Labor Relations Board,
Respondent
BEFORE: Edwards, Chief Judge, Waid, Silberman,
Buckley, Williams, Ginsburg, Sentelle,
Henderson, Randolph, Rogers, and Tatel,
Circuit Judges
ORDER
Upon consideration of Petitioner’s Suggestion for Rehearing In
Banc, and the absence of a request by any member of the court for
a vote, it is
ORDERED that the suggestion be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Robert A. Bonner
Deputy Clerk
bea te
Sere 8S dE ME hes
APPENDIX D
TEXT OF
STATUTORY PROVISIONS INVOLVED
‘ee ta tain he Rai nd A GS Rta OO aa Ne ah
- 58a -
NATIONAL LABOR RELATIONS ACT,
$$ 7, 8(a)(3), and 8(b)(1)(A)
29 U.S.C. §$§ 157, 158(a)(3), and 158(b)(1)(A)
$157. Right of employees as to organization, collective
bargaining, etc.
Employees shall have the right to seif-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
Organization as a condition of employment as authorized in section
158(a)(3) of this title.
$158. Unfair labor practices
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer—
x** kK *
(3) by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization: Provided, That nothing in
this subchapter, or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any action
defined in this subsection as an unfair labor practice ) 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 title, in the appropriate collective-bargaining
unit covered by such agreement when made, and (ii) unless
- 59a -
following an election held as provided in section 159(e) of this title
within one year preceding the effective date of such agreement, the
Board shall have certified that at least a majority of the employees
eligible to vote in such election have voted to rescind the authority
of such labor organization to make such an agreement: Provided
further, That no employer shall justify any discrimination against an
employee for nonmembership in a labor organization (A) if he has
reasonable grounds for believing that such membership was not
available to the employee on the same terms and conditions
generally applicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the periodic
dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership;
*xx* *
(b) Unfair labor practices by labor organization
It shall be an unfair labor practice for a labor organization or its
agents—
(1) to restrain or coerce (A) employees in the exercise of
the rights guaranteed in section 157 of this title: Provided, That this
paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention
of membership therein * * * .
APPENDIX E
AMENDED COMPLAINT
December 14, 1989
i ee ee
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 32
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS AND HELPERS
(Kaiser Cement Corporation)
and Case 32-CB-3316
JAMES GILBERT, An Individual
AMENDED COMPLAINT AND NOTICE OF HEARING
It having been charged by James Gilbert, an individual, that
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, herein called Respondent, has
engaged in, and is engaging in, certain unfair labor practices
affecting commerce as set forth and defined in the National Labor
Relations Act, as amended, 29 U.S.C., Sec. 151, et seq., herein
called the Act, the General Counsel of the National Labor Relations
Board, herein called the Board, on behalf of the Board, by the
undersigned, pursuant to Section 10(b) of the Act and Sections
102.15 and 102.17 of the Board’s Rules and Regulations, Series 8,
as amended, hereby issues this Amended Complaint and Notice of
Hearing and alleges as follows:
1.
The charge was filed by James Gilbert on October 6, 1989, and
a copy thereof was served on Respondent by certified mail on or
about that same date.
y
(a) At all times material herein, Kaiser Cement Corporation,
herein called Kaiser, a California corporation with an office and
place of business in Permanente, California, has been engaged in the
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manufacture, sale and non-retail distribution of cement and related
products.
(b) During the past twelve months, Kaiser, in the course and
conduct of its interstate business operations, sold and shipped goods
or provided services valued in excess of $50,000 directly to
customers located outside the State of California.
3.
Kaiser is now, and has been at all times material herein, an
employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
4.
Respondent is now, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of the Act.
5.
At all times material herein, Charles Jones occupied the
position of Respondent’s President and is now, and has been at all
times material herein, an agent of Respondent within the meaning
of Section 2(13) of the Act.
6.
(a) At all times material herein Respondent, as a constituent
member of a joint representative, and Kaiser have been parties to a
collective bargaining agreement, herein called the Agreement,
covering certain of Kaiser’s employees in an appropriate bargaining
unit, herein called the Unit. The Agreement is effective by its
terms from March 1, 1989 to March 1, 1992.
(b) The Agreement contains, inter alia, a provision requiring
certain classifications of Unit employees serviced by Respondent to
become members of Respondent and to maintain their membership
in Respondent as a condition of continued employment with Kaiser.
> igi
oes
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(c) At all times material herein James Gilbert, Donald Hall,
Joseph Gaxiola and Arthur Rose, herein called the Protestors, have
been, and are, members of Respondent employed in the Unit.
A
(a) In and about mid- to late-1988, the Protestors engaged in
activities protesting a merger involving Respondent, seeking the
removal from the Unit of a number of job classifications, including
their own job classifications, and substitution of an alternative
representation scheme not involving Respondent, herein called the
Protest Activities.
(b) The Protest Activities were protected concerted activities
within the meaning of Section 7 of the Act.
(c) On or about December 19, 1988, Respondent disciplined
the Protestors, including by suspending them from office and
barring them from holding any elected or appointed office or
position in Respondent for varying periods of time, and prohibiting
them from attending any meetings or functions of Respondent for
varying periods of time excepting only those meetings involving the
ratification of Unit collective bargaining agreements, herein called
the Discipline.
(d) The Discipline substantially impaired the membership
rights of the Protestors.
(e) The Discipline was imposed because of the Protestors’
protected concerted activities, including the Protest Activities.
8.
On or about August 7,1989, Respondent, by letter, threatened
to cause Kaiser to discharge the Protestors if they discontinued
paying membership dues to Respondent.
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9.
By the acts and conduct described above in paragraph 8, and
by each of said acts, in the circumstances described above in
subparagraph 7(d) or, alternatively, the circumstances described
above in subparagraphs 7(a) - (e), Respondent has restrained and
coerced, and is restraining and coercing, employees in the exercise
of their rights under Section 7 of the Act, and Respondent thereby
has been engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7)
of the Act.
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[Notice of hearing omitted]
DATED AT Oakland, Califo #2. this 14th day of December,
1989.
/s/
JAMES S. SCOTT, REGIONAL DIRECTOR
National Labor Relations Board
Region 32
P.O. Box 12983
Oakland, California 94604
APPENDIX F
DECISION AND ORDER
OF THE
NATIONAL LABOR RELATIONS BOARD
IN
TRANSPORTATION WORKERS LOCAL 525
May 12, 1995
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[317 NLRB No. 62]
Transportation Workers Union of America, AFL-
CIO and its Local 525 (Johnson Controls
World Services, Inc.) and Douglas J. Nelson.
Case 12-CA-3801
May 12, 1995
DECISION AND ORDER
By MEMBERS BROWNING, COHEN, AND
TRUESDALE
On February 21, 1995, Administrative Law Judge William N.
Cates issued the attached decision. The General Counsel filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority
in this proceeding to a three-member panel.
The Board has considered the decision and the record in light
of the exceptions and brief and has decided to affirm the judge’s
rulings, findings,’ and conclusions’ and to adopt the recommended
Order.
ORDER
[he recommended Order of the administrative law judge is
adopted and the complaint is dismissed.
' We agree with the judge that no issue concerning Communications Workers
of America v. Beck, 487 U.S. 735 (1988), was raised or litigated in this case.
> In adopting the judge’s conclusions, we specifically affirm his interpretation
of Boilermakers (Kaiser ‘-»:nent Corp.), 312 NLRB 218 (1993).
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Dated, Washington, D.C. May 12, 1995
Margaret A. Browning, Member
Charles I. Cohen, Member
John C. Truesdale, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Michael Maiman, Esq., for the General Counsel.
Joseph Egan Jr., Esq. (Egan, Levy & Swicia, P.A.), of Orlando,
Fiorida, for the
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