# Petition for Writ of Certiorari — Gilbert v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0765%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 516 U.S. 1171 ## Text 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 woes L rineteabaaines. ec a ee eS ae ees =< 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 - 6a - 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. - 7a- 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 - 8a - 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 - 10a - 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 - 12a - 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 I [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0765%3A1. Public record. Not legal advice.