Opposition Brief — Gilbert v. National Labor Relations Board

OR

\o

: Supreme Court, U.S.

No. 95-744 rILED

——— ~ gee ¢ 9%

IN THE

Supreme Court of the Ynited 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 Writ of Certiorari to the

United States Court of Appeals for

the District of Columbia Circuit

BRIEF OF

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO, CFL,

IN OPPOSITION TO WRIT

Michael J. Stapp

(Counsel of Record)

G. Gordon Atcheson

Dana K. Apple

John J. Blake

Blake & Uhlig, P.A.

753 State Ave., Ste. 475

Kansas City, KS 66101

(913) 321-8884

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . =... + © © «© « iii

STATEMENT OF THE CASE ...+ + + © « « 1

SUMMARY OF ARGUMENT ... +. + + © «© «© « 4

ARGUMENTS IN OPPOSITION TO GRANTING WRIT 6

Z< This Case Fails to Present The Question

Reserved in WLRB v. General Motors 6

A. The Legal Framework .... 6

B. The Question Reserved In General

Motors Concerning the Scope of

Union-Security Clauses Is Mot

Presented Here ......-.- Ill

It. The Disposition Here Does Not Overrule

Prior Board Decisions and Is Mandated

by This Court’s Ruling In Beck . 13

A. The McGraw Edison Line Analyzed4

B. The McGraw SEdison Line Is

Inapplicable, Particularly In

Light Of Beck ......+-. 17

III. This Decision Creates No Inter-Circuit

Split a. * — >. — . * >. * > — . . > 2 2

IV. The Board Correctly Found Gilbert

Exercised No Protected § 7 Rights, and

ii

The Issue Fails to Present An Important

Question . ° « * s o * 2 . * o * 2 7

GV. Gomeeeesen « « « 2 6 *@ 2 Sos 6. eee ee

- ae

iii

TABLE OF AUTHORITIES

Cases: Page(s)

Allis-Chalmers Mfg. Co.,

388 U.S. 175 {1967) ....-s 7, 28

Chevron U.S.A. v. Natural Res. Def.

Council, 467 U.S. 837 (1984) eo e 46

Communications Workers Local 9509 (Pacific

Tel. & Tel. Co.), 193 NLRB 83 (1971)16

Communications Workers v. Beck, 487 U.S. 735

(1988) 4, 5, 9, 13, 15, 17-21, 23, 24

Helton v. NLRB, 656 F.2d 883

(D.C. Cir. 1981) * . . e . . o 28

Hendricks Cty. Rural Elec., Etc. v. NLRB,

603 F.2d 25 (7th Cir. 1979) ... 29

Inland Boatman’s Union of the Pacific

(Dillingham Tug & Barge Co.),

276 NLRB 1261 (1985) eee ens

Intern. Ass’n of Bridge v. NLRB,

792 F.2d 241 (D.C. Cir. 1986) .. 14

Laborers Local 806,

en er Chee 6 » « « © 0 e 28

Local 1104, Comm’n Wkrs. of America, AFL-CIO

Vv. NLRB, 520 F.2d 411 (2d. Cir. 1975),

cert. denied, 423 U.S. 1051

(1976) s-.<« ee «© «@ « « By 36, F288

iv

Machinists District 94 (McDonnell Douglas),

283 NLRB 881 (1987) .. +++ « « 17

Meat Cutters (S & M Grocers),

237 NLRB 1159 (1978) “et? oT) ae

Molders Local 125 (Blackhawk Tanning Co.),

178 NLRB 208 (1969), enforced 442 F.2d

92 (7th Cir. 1971) 7 . . * - - * 8

NLRB v. City Disposal Systems, Inc.,

465 U.S. 822 (1984) . «© «© «© © « « 27

NLRB v. Erie Resistor Co.,

373 U.S. 221 (1963) . >. a. . + > . 27

NLRB v. General Motors Corp.,

NLRB v. Marine & Shipbuilding Workers,

391 U.S. 418 (1968) . . «© «© « « « 8

NLRB v. Metropolitan Life Ins. Co.,

380 U.S. 438 (1965) .~ . «© © «© «© « 14

NLRB v. Pipefitters Union Local No. 120,

719 F.2d 178 (6th Cir. 1983) 22, 26

NLRB v. Pittsburg Steamship Co.,

340 U.S. 498 (1951) . «© « «© « « « 6

Oil Workers v. Mobil Oil Corp.,

426 U.S. 407 (1976) .... 8, 9, 19

Oil, Chemical & Atomic Workers Intern.

v. NLRB, 806 F.2d 269 (D.C. Cir. 198)

Vv

Pattern Makers’ league v. NLRB,

473 U.S. 95 (1985) 7, 9, 10, 26, 27

Reef Industries, Inc. v. NLRB,

952 F.2d 830 (5th Cir. 1991) oy

Roadmaster Corp. v. NLRB,

874 F.2d 448 (7th Cir. 1989) e « 30

Roadway Express, Inc.,

108 NLRB 874 (1954), enforced sub non.

Teamsters Local 823 v. NLRB, 227 F.2d

439 (10th Cir. 1955) oe a € 2 ee

Scofield v. NLRB,

394 U.S. 423 (1969) ... 7, 25, 28

Sheet Metal Workers Local 22 (Miller

Sheet Metal), 296 NLRB 1146

(1989) . . * * * * * * * e . aa 28

Steelworkers Local 4186 (McGraw

Edison Co.),181 NLRB 992

(1970) . © 7 . 15-17, 20, ai, 23

467 U.S. 883 (1984) .. +. + « « « 410

Telephone Traffic Union (New York Tel. Co.),

241 NLRB 826 (1979) ....-.+-+-. 16

United States v. Williams,

504 U.S. 36 (1992) >. =e os 6, 21

Vaca v. Sipes, 386 U.S. 171 (1967) .. 22

vi

Wirtz v. Local 153, G.B.B.A.,

389 U.S. 463 (1968) ...

Wooddell v. Electrical Workers,

502 U.S. 93 (1991) “b te

Statutes:

28 U.S.C. § 1254 . 7 . . > . >

29 U.S.C. § 157 . . . 7 ° . > .

29 U.8eCe § 158 . . . . . . - *

29 We eSe § 401 . ° . . >. ° 7 >.

42 U.S.C. § 2000 . . « « © « «@

>. >. 25

i 6) ae

Page(s)

. . 1

. >. 6

- 7, 8

o . 22

- « 12

1

Mo. 95-744

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

JAMES GILBERT,

Petitioner

Vv.

NATIONAL LABOR RELATIONS BOARD

and

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

IRON SHIP BUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO,

Respondents

STATEMENT OF THE CASE’

At all material times, Petitioner James

Gilbert was an employee of Kaiser Cement

Corporation and a member of Respondent

International Brotherhood of Boilermakers,

Iron Ship Builders, Blacksmiths, Forgers and

Helpers. In September 1988, Gilbert

*Respondent agrees that Petitioner has

timely filed his writ with this Court.

This Court properly has jurisdiction to

consider the writ, as provided in 28 U.S.C.

§ 1254(1).

2

presented a company proposal to members of |

Boilermakers Local D-100 that would have |

converted 17 of 37 or 38 bargaining unit jobs

to salaried, nonunion positions. Pet. App.

32a-34a. At that time, Gilbert served as

president of Local D-100. Pet. App. 29a. |

Under this proposal, Gilbert’s job would have

become nonunion. Pet. App. 35a. Gilbert

allowed the proposal to be put to a vote, and

the members of the bargaining unit rejected

it 23 toll. Id.

Internal union charges were brought

against Gilbert for this conduct. Pet. App.

37a.* A disciplinary hearing was held on

November 19, 1988, and Gilbert was found to

have violated the Boilermaker’s constitution.

Pet. App. 39a.*° As a sanction for his

wrongful conduct, Gilbert was precluded from

holding union office for five years and from

attending union meetings, except those at

which a contract affecting him was to be

considered, during that period. Pet. App.

39a-40a.

In April 1989, Gilbert wrote to

Boilermaker President C.W. Jones asking

whether he had been “suspended” from the

*Three other members were also charged

and ultimately disciplined for related

activity. They did not file unfair labor

practices charges and pursue no claim

before this Court.

*Gilbert has not and does not now

challenge the propriety of the hearing or

the provisions of the constitution under

which he was disciplined.

3

union and was, therefore, relieved of the

obligation to pay dues. President Jones

informed Gilbert that he had not been

suspended and was expected to pay dues to

remain a member of the Boilermakers. Pet.

App. 40a-42a. Gilbert then wrote to

President Jones asking “what penalties might

be imposed if we discontinued paying dues .

- + «” President Jones informed Gilbert that

the union would seek to enforce the urion-

security clause in the labor agreement

between the Boilermakers and Kaiser Cement.

Pet. App. 43a-44a. Gilbert briefly stopped

paying dues, and the union so informed the

company. Gilbert then made up the arrearage

and started paying dues again. His

employment status was not affected. Pet.

App. 44a-45a.‘

In December 1989, the National Labor

Relations Board issued a complaint alleging

the Boilermakers violated § 8(b)(1)(A) of the

National Labor Relations Act by coercing

Gilbert in the exercise of rights protected

under § 7 of the Act. Pet. App. 27a.

Following a trial, an administrative law

judge found the union did not violate the

Act. Pet. App. 55a. The Board affirmed.

Pet. App. 27a. The Court of Appeals for the

District of Columbia Circuit denied Gilbert’s

petition for review of the Board’s ruling.

‘Gilbert does not challenge the

propriety of the union-security agreement

in the Boilermaker contract with Kaiser

Cement. He has not even presented the

language of that clause to this Court.

4

Pet. App. 18a. Petitioner’s writ followed.

SUMMARY OF ARGUMENT

Petitioner Gilbert attempts to induce

this Court to grant certiorari on a series of

questions addressing the financial

obligations of workers to pay union dues

pursuant to lawful agency or union shop

agreements. Certiorari is inappropriate

because Petitioner’s questions either are not

factually presented in this case or have been

foreclosed by controlling decisions of this

Court. Ultimately and almost

surreptitiously, Petitioner urges on this

Court a result that would sanction a class of

free riders -- workers who benefit from a

union’s collective bargaining efforts yet

avoid making any monetary contribution toward

the cost of securing advantageous terms and

conditions of employment -- in contravention

of Communications Workers v. Beck, 487 U.S.

735, 749-50 (1988). Not only would this

result crack the legal foundation upon which

Beck was built, it would also border on the

perverse inasmuch as only those workers

disciplined for violations of union rules

would qualify for free-rider status.

Petitioner incorrectly contends this

case raises a question reserved in NLRB v.

General Motors Corp., 373 U.S. 734, 745 n. 12

(1963), concerning the efficacy of labor

agreements the terms of which preclude

certain workers or groups of workers from

attaining union membership. Petitioner

here, however, was permitted to join the

5

union on the same terms and conditions as

anyone else. The labor agreement treated all

persons evenhandedly.

Petitioner also incorrectly contends

the Court of Appeals decision in this case,

which effectively refuses to endorse free-

rider status for union members disciplined

for breaking their organization’s rules,

conflicts with Local 1104, Comm’n wkrs. of

America, AFL-CIO v. NLRB, 520 F.2d 411, 420

(2d. Cir. 1975), cert. denied, 423 U.S. 1051

(1976). This is an artificial conflict in

that this Court’s intervening decision in

Beck recognizes that free riders of any

stripe need not be permitted and,

accordingly, undercuts both the premise of

and the result in the Local 1104 opinion,

issued some 13 years earlier.

Finally, Petitioner incorrectly

contends his conduct was protected under § 7

of the Act, contrary to the findings below.

Petitioner cites no authority suggesting

promotion of a company proposal to convert

bargaining unit jobs to nonunion positions is

or should be protected. Whether particular

conduct deserves § 7 protection is a fact-

based determination entrusted to the Board’s

expertise, and any reasonably defensible

Gecision should not be disturbed. Even if

the discipline imposed on Petitioner were

improper, he would not be entitled to stop

paying dues and assume free-rider status as

some sort of self-help remedy, as Beck makes

clear.

6

In short, Petitioner can demonstrate

neither a question of overriding public

importance nor a genuine conflict among the

circuit courts resulting from the extant

judicial and administrative determinations in

this case. Such questions or conflicts

represent the hallmarks of cases deserving of

review on certiorari. NLRB v. Pittsburg

Steamship Co., 340 U.S. 498, 502 (1951)

("Certiorari is granted only ‘in cases

involving principles the settlement of which

is of importance to the public as

distinguished from the parties, and in cases

where there is a real and embarrassing

conflict of opinion and authority between the

circuit courts of appeal.’" (quoting Layne &

Bowler Corp. v. Western Well Works, 261 U.S.

387, 393 (1923))). See also United States v.

Williams, 504 U.S. 36, 44 (1992) (Court may

grant certiorari to consider “an important

issue expressly decided by a federal court .

- « «"). Simply put, there is nothing here

to warrant the expenditure of this Court’s

otherwise precious time, attention and

judicial resources.

ARGUMENTS IN OPPOSITION TO GRANTING WRIT

I. This Case Fails to Present The Question

Reserved in NLRB v. General Motors

A. The Legal Framework

Before turning to the precise questions

Petitioner poses, it may be helpful to sketch

briefly the contours of the _ relevant

statutory and case law. Section 7 of the

National Labor Relations Act, 29 U.S.C. § 157

permits employees to form labor

7

organizations, bargain collectively and to

otherwise engage in concerted activities or

to refrain from such activity, except to the

extent they may be required to become members

of a labor organization as a condition of

employment pursuant to an agreement between

a union and an employer. Pet. App. at 58a.

Nonetheless, a union properly may impose

internal discipline on its members for

otherwise protected conduct provided a member

may resign from the organization and, thus,

avoid the sanctions. Pattern Makers’ League

v. NLRB, 473 U.S. 95, 101 (1985); Scofield v.

NLRB, 394 U.S. 423, 428-30 (1969). In turn,

§ 8(b)(1), 29 U.S.C. § 158(b)(1), makes it an

unfair labor practice for a union to

"restrain or coerce . . . employees in the

exercise of" their § 7 rights. By its own

terms, however, this 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... ." Id. Therefore, a union may

discipline a member for conduct that falls

within the ambit of § 7. See, e.g., Allis-

Chalmers Mfg. Co., 388 U.S. 175, 196-97

(1967) (union properly disciplined members

who refused to honor a strike, even though

the refusal may have been protected under §

74,

A union, however, cannot demand that an

employer terminate an employee for engaging

in protected § 7 conduct. Scofield, 394 U.S.

at 428. Likewise, a union cannot impose

internal discipline at all if it would impair

"an overriding policy of the labor laws .

>» e® Id., at 429. The National Labor

Relations Board has recognized that a union

imposing internal discipline on a member who

attempts to avail himself of the Board’s

processes, as by filing a decertification

petition or an unfair labor practice charge,

runs afoul of this rule. Molders Local 125

(Blackhawk Tanning Co.), 178 NLRB 208 (1969),

enforced 442 F.2d 92 (7th Cir. 1971). See

also NLRB v. Marine & Shipbuilding Workers,

391 U.S. 418, 424 (1968).

Section 8(a)(3), 29 U.S.C. § 158(a)(3),

prohibits an employer from discriminating in

the terms and conditions of hiring or

employment in a manner that encourages or

discourages union membership. This section

contains two qualifications. First, a union

and an employer may enter into an agreement

requiring an employee to become a member of

the labor organization as a condition of

employment. Id. Second, an employer may not

discriminate against, e.g. by firing, a non-

member employee if the union has declined to

make membership available to that employee

"on the same terms and conditions generally

applicable to other members” or if membership

has been denied or terminated for reasons

other than nonpayment of dues “uniformly

required as a condition of . . . membership."

Id. Union-employer agreements requiring such

membership are typically known as “union” or

“agency” shop provisions. See Oil Workers v.

<a

9

Mobil Oil Corp., 426 U.S. 407, 409 n. 1

(1976).°

For purposes of § 8(a)(3), “membership”

is limited to the payment of dues and fees

or, as this Court has said, its "financial

core." General Motors, 373 U.S. at 742-43.

Thus, a § 8(a)(3) or "financial core" union

member owes no duties or obligations to the

labor organization beyond the payment of

dues .* In contrast, a “full member”

typically agrees to abide by the union’s

internal rules and regulations and -- unlike

the financial core member -- may be

disciplined for violating those obligations.

General Motors, 373 U.S. at 743. As this

Court stated in Pattern Makers’ League, 473

U.S. at 106:

fU}nion security agreements

permitted by § 8(a)(3) require

employees to pay dues, but an

employee cannot be discharged for

failing to abide by union rules or

policies with which he disagrees.

*The agency and union shop agreements

stand in contrast to the now-prohibited

"closed" shop clauses requiring that an

employer hire only current union members.

Oil Workers, 426 U.S. at 409 n. l.

‘The financial-core member need only

pay that portion of the dues and fees used

for collective bargaining and

representation purposes. Beck, 487 U.S. at

762-63.

10

Full union membership thus no

longer can be a requirement of

employment. If a new employee

refuses formally to join a union

and subject himself to its

discipline, he cannot be fired.

Moreover, no employee can be

discharged if he initially joins

a union, and subsequently resigns.

In turn, § 8(b)(2) prohibits a union from

inducing an 6mployer to violate § 8(a)(3).

Finally, the Board has been accorded

considerable latitude in interpreting and

applying the _ Act, and the agency’s

application of the statutory provisions

should be treated with deference. Pattern

Makers’ League, 473 U.S. at 114 ("Where the

Board’s construction of the Act is

reasonable, it should not be rejected ‘merely

because the courts might prefer another view

of the statute.’" (quoting Ford Motor Co. v.

NLRB, 441 U.S. 488, 497 (1979))); Sure-Tan,

Inc. v. NLRB, 467 U.S. 883, 891 (1984) (The

Board’s construction of the _ statutory

language is "entitled to considerable

deference, and the courts should "uphold any

interpretation that is reasonably

defensible."). See also Chevron U.S.A. v.

Natural Res. Def. Council, 467 U.S. 837, 844-

45 (1984).

Analyzed against this backdrop,

Petitioner’s position warrants no substantive

consideration in this Court beyond a

11

determination that further review is

unjustified and certiorari should be denied.

B. The Question Reserved In General

Motors Concerning the Scope of Union-

Security Clauses Is Not Presented Here

At the outset, Petitioner suggests this

case presents a question expressly reserved

in General Motors, 373 U.S. at 744-45 n. 12,

regarding the scope of permissible union shop

agreements. Pet. at 8. This misapprehends

both the question left unanswered in General

Motors and the factual posture of this case,

since the two never intersect.

The issue before the Court in General

Motors was whether an employer commits an

unfair labor practice by refusing to

negotiate with a union over a proposed agency

shop agreement. Id. at 734-35. The Court

agreed with the Board that the employer’s

refusal violated the Act. Id. at 745. The

particular agency shop proposal would have

allowed each employee to choose whether or

not to become a full member of the union,

though everyone would have to pay dues. The

Court found this to be consistent with the

congressional purpose of "“reduc{ing] the

evils of compulsory unionism while allowing

financial support for the bargaining agent.”

Id. at 744. Inn. 12, the Court posed -- but

did not answer -- a related question:

Whether an agency shop agreement that by its

terms barred certain employees from full

union membership would comport with §

8(a)(3). That is, could an agency shop

agreement, for example, preclude women or

12

Blacks from full union membership, while

exacting dues from them?’

There is no issue here about the scope

of the union security clause and whether its

terms precluded certain employees from

attaining full membership. Indeed,

Petitioner has not even made the clause part

of the record before this Court. Moreover,

the union afforded Petitioner full

membership. Petitioner concedes as much when

he argues that his membership was different

than that of others only after and as a

result of the union discipline imposed on

him. Pet. at 13. The Court of Appeals

quickly and correctly disposed of this

sophistry: "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.” Pet. App. at

10a.

In any event, however, the facts of

this case simply fail to pose the question

reserved in General Motors. This plainly is

an insubstantial basis for granting

certiorari.

"At the time General Motors was

decided, such discriminatory provisions

would have presented very real concerns (as

opposed to standing merely as forensic

straw men), since the Civil Rights Act of

1964 had not yet been enacted. See 42

U.S.C. § 2000e-2(a), (c).

13

Petitioner apparently attempts to

transmute the General Motors question into

the “important issue" of whether "a

requirement that employees financially

support a union impairs a fundamental

congressional policy” of voluntary unionism.

Pet. at 8-9. This Court, of course, has

already definitively addressed the issue in

General Motors, 373 U.S. at 743-44; Beck, 487

U.S. at 750; and elsewhere, finding a

requirement that employees pay for the core

financial costs of union representation to be

fully consistent with voluntary unionism.

II. The Disposition Here Does Not Overrule

Prior Board Decisions and Is Mandated by

This Court’s Ruling In Beck

Petitioner next suggests this Court

should grant certiorari because the Board in

this case effectively overruled the so-called

McGraw Edison line of earlier administrative

decisions without explaining its reasons.

Pet. at 9-12. Petitioner’s argument rests

on the fallacious premise that those cases

are legally and factually apposite here.

They are not.’

‘even if Petitioner were correct,

however, the appropriate result requires

nothing more than a remand to the Board to

provide an explanation for its decision

here in light of the earlier rulings. An

administrative agency’s failure to explain

a departure from or to explicitly

distinguish seemingly controlling authority

does not grant the reviewing court license

to step in and determine the issues on the

merits. Rather, the court should afford

the agency the opportunity to tender its

14

A. The McGraw Edison Line Analyzed

The McGraw Edison cases generally

concern persons denied union membership or

whose full membership rights were suspended

or terminated because they had engaged in

protected § 7 activity. Here, the ALJ, the

Board and the Court of Appeals found that

Petitioner’s conduct in directly dealing with

the company to promote a plan that would have

converted a significant number of bargaining

unit jobs to salaried, nonunion positions

fell outside the range of protected § 7

conduct.” Thus, the McGraw Edison cases

simply are inapplicable, as the Court of

Appeals noted. Pet. App. at l4a.

rationale. This is well-settled law. NLRB

v. Metropolitan Life Ins. Co., 380 U.S.

438, 442-44 (1965); Oil, Chemical & Atomic

Workers Intern. v. NLRB, 806 F.2d 269, 273-

74 & n. 34 (D.C. Cir. 1986); Intern. Ass’n

of Bridge v. NLRB, 792 F.2d 241, 248 (D.C.

Cir. 1986).

*The ALJ found, inter alia, that

Petitioner and his cohorts “were not

disciplined for the exercise of any rights

protected by Section 7 of the Act." Pet.

App. at 53a. On review, the Board stated

that "(Wje agree with the judge that the

discipline was lawful.” Pet App. at 26a.

While the Board’s decision is not as

explicit on this point as it might have

been, the tenor of the entire opinion

supports this conclusion. The Court of

Appeals so recognized. Pet. App. at l4a.

15

In each of those cases, the disciplined

union member sought to stop paying any and

all dues to the organization, at which point

each of the unions attempted to invoke a

union or agency shop agreement with the

employer to cause the member’s termination.

These cases all pre-date this Court’s

decision in Beck, recognizing that Congress

intended to preclude free riders and that all

represented employees, whether full members

or not, must make core financial

contributions to the union. See, discussion,

infra at 18-20. The detailed analysis in

Beck makes clear that even a wrongfully

disciplined union member cannot turn that

discipline into an excuse for refusing to

make core financial contributions to the

union. In other words, improper union

discipline does not vitiate the employee’s

duty to make core financial contributions to

the organization, just as a non-member must.

Here, of course, Petitioner was lawfully

disciplined and wantsd to quit paying all

dues. The McGraw Edison cases, especially

considered in light of Beck, provide no such

refuge. The Court of Appeals so observed.

Pet. App. at l2a.

In Steelworkers Local 4186 (McGraw

Edison Co.), 181 NLRB 992, 992 (1970), a

union member was suspended from membership

"for more than one year” because he filed a

decertification petition with the Board. The

member then refused to pay his dues, and the

union sought his discharge from employment

pursuant to a union-security clause in the

labor agreement. The Board held that the

16

underlying suspension constituted an unfair

labor practice and the union’s effort to

invoke the union-security provisions amounted

to continued, unlawful coercion.”

“The remaining five cases in the

McGraw Edison line fall into a generally

similar pattern: Communications Workers

Local 9509 (Pacific Tel. & Tel. Co.), 193

NLRB 83 (1971) (The Board finds the union

committed an unfair labor practice by

trying to enforce a union-security clause

against a member who stopped paying dues

after he had been expelled from the labor

organization for circulating a

decertification petition.); Communications

Workers Local 1104 (New York Tel. Co.), 211

NLRB 114 (1974), enforced, 520 F.2d 411

(2d. Cir. 1975), cert. denied, 423 U.S.

1051 (1976) (The Board upholds an ALJ

determination that the union committed

unfair labor practices by attempting to

enforce union-security clauses against

persons who declined to pay dues after they

had been denied membership because they

either crossed a picket line during a

strike or participated in the

organizational activities of a rival

union.); Telephone Traffic Union (New York

Tel. Co.), 241 NLRB 826 (1979) (The Board

finds the union committed an unfair labor

practice by threatening to enforce a union-

security clause against a member who wanted

to stop paying all dues after she had been

suspended from the union for one year for

participating in the organizational efforts

of a rival union.); Inland Boatman’s Union

of the Pacific (Dillingham Tug & Barge

Co.), 276 NLRB 1261 (1985) (The Board

upholds a finding that the union engaged in

an unfair labor practice by seeking

enforcement of a union-security clause

against members who quit paying dues after

they had been suspended from the

organization for periods up to 19 years for

. i aa ar ne - ll

17

B. The McGraw Edison Line Is

ceca Perticularly Im Light of

Bec

As noted previously, the McGraw Edison

line of cases is irrelevant here, since the

activities for which Petitioner was

sanctioned enjoyed no § 7 protection.

Accordingly, there could be no § 8(b)(1)

violation, which, by definition, requires

that a union “restrain or coerce" employees

exercising “rights guaranteed in section 7.

Moreover, the McGraw Edison cases are

based on the notion that a union member may

refuse to pay any and all dues as some sort

of self-help remedy against union discipline

he or she perceives as unfair or unlawful.

Petitioner likewise suggests that a union

member who has been disciplined may refuse to

pay all dues, thus becoming a free rider.

Plainly, this proposition cannot stand in the

face of the detailed analysis in Beck

demonstrating a clear congressional intent in

enacting § 8(a)(3) both to eliminate

supporting a rival union.); Machinists

District 94 (McDonnell Douglas), 283 NLRB

881 (1987) (The Board upholds a finding

that the union committed an unfair labor

practice by attempting to enforce a union

security clause against members who |

lawfully resigned from the organization,

ceased paying dues, and following their

resignations crossed a picket line to

continue working -- conduct for which the

union then fined and otherwise sanctioned

them.).

a . —————————

18

compulsory union membership as a condition of

employment and to preclude free riders.

While Congress wished to eliminate "the

abuses associated with" Cclosed-shop

agreements, it was “equally concerned,

however, that without such agreements, many

employees would reap the benefits that unions

negotiated on their behalf without in any way

contributing financial support to those

efforts." Id. at 748. Thus, "§ 8(a)(3) was

designed to remedy the inequities posed by

‘free riders’ who would otherwise profit from

the Taft-Hartley Act’s abolition of the

closed shop.” Id. at 753-55. In short, the

section’s “legislative justification” lay in

"ensuring that nonmembers who obtain the

benefits of union representation can be made

to pay for them... ." Id. at 759."

This Court noted and, indeed,

highlighted the congressional determination

that "no employee” benefiting from collective

bargaining efforts of a union should be

absolved of the obligation to pay his or her

fair share of the costs of those efforts.

Id. at 750. The Court stated: "*’Congress’

decision to allow union-security agreements

at all reflects its concern that... the

\

“pfhese "benefits" are the presumably

enhanced terms and conditions of employment

that flow from collective bargaining,

rather than the accouterments of full union

membership such as attending organization

meetings or running for organization

office.

incitainiblaaaaeai al taint aii

19

parties to a collective bargaining agreement

be allowed to provide that there be no

employees who are getting the benefits of

union representation without paying for

them.’" Id., quoting with emphasis added,

Oil Workers v. Mobil Oil Corp., 426 U.S. 407,

416 (1976). In this regard, the legislative

history is unambiguous. As Senator Taft told

his colleagues, "(Wjhat we do, in effect, {in

passing § 8(a)(3)] is to say that no one can

get a free ride in such a shop. That meets

one of the arguments for the union shop. The

employee has to pay the union dues." 93

Cong. Rec. 3953 (cited in Beck, 487 U.S. at

748 n. 5).

These "financial core” dues, of course,

are limited to an amount reflecting the costs

of collective bargaining, grievance

processing and other representational duties

and cannot include any assessment for

political activities or other functions.

Beck, 487 U.S. at 745.

Through its careful analysis of the

legislative history of § 8(a)(3), Beck

demonstrates that an employee benefiting from

a union’s bargaining efforts must pay dues

equivalent to his or her share of those

costs. This is true whether the employee is

a full member or a “financial core" member.

It is also true whether the employee has

suffered union discipline curtailing his or

her full membership rights. Whatever the

status of those full membership rights, the

employee, as a constituent of the bargaining

unit for which the union acts, shares in the

20

benefits conferred through those actions.

And, as Beck makes clear, the employee must

financially contribute to defraying the costs

of that representation effort. Id. at 753 n.

8 ("{T}he costs of representation must be

borne equally by all those who benefit[.}*)*’

In effect, Beck renders the McGraw

Edison line of cases little more than a legal

dead-letter. It is no coincidence that

Machinists District 94, the last decision in

that line, was issued about a year before

this Court’s opinion in Beck and almost nine

years ago.”

“@rhis is further reflected in the

requirement of § 8(a)(3) that dues be

"uniform." Therefore, a union could not

levy disproportionately high dues on non-

members or dissident members and then seek

termination of their employment pursuant to

a eaten corer’ Ss Sareea if they refused

to pay the discriminatory excess. Beck, 487

U.S. at 753 n. 8. It necessarily follows

that a disgruntled union member cannot

unilaterally quit paying his financial core

dues -- thus according himself ncn-uniform

and, in actuality, nonexistent dues --

while hoping to avoid discharge under an

agency shop agreement.

“the Beck decision effectively wrought

the legal equivalent of extinction for

McGraw Edison and its descendants. The

only issue that survived Beck appears to be

whether a disciplined member who declines

to resign from the union must continue to

pay full dues or merely core financial

dues. Certainly, Beck read in conjunction

with McGraw Edison would seem to counsel

that a member who has been suspended or

expelled need only pay the latter. This

21

In sum, Beck teaches that a union

member who believes his membership rights

have been wrongfully suspended, extinguished

or otherwise substantially impaired must

continue to pay “core financial" dues. A

member who refuses to do so -- like all of

those in the McGraw Edison cases -- may face

termination of his or her employment pursuant

to an agency shop agreement. The termination

would be proper, since it necessarily would

arise from the member's deliberate and

legally impermissible decision to cease

paying all dues, rather than from the

underlying grounds for which he or she was

disciplined in the first place. That is, but

for the member’s refusal to pay any dues

whatsoever, the union would have no basis to

seek enforcement of an agency-shop agreement

with the employer. The reasons the member

has chosen to pay no dues are essentially

irrelevant in light of the congressional

intent, as carefully parsed in Beck, to

eliminate free-ridership for anyone

represented by a labor organization. In sum,

union members may not unilaterally quit

paying dues as a self-help remedy for real or

case presents neither that question nor the

related question of what dues a member must

pay after his intra-union rights have been

impaired, rather than terminated, as a

disciplinary measure. Petitioner refused

to any dues at all, pet. app. at 22a, and

none of the parties raised this issue

below, pet. app. at 26a n. 9. This Court

typically refuses to entertain questions

"not pressed or passed upon below."

Williams, 504 U.S. at 41.

22

imagined transgressions of their labor

organizations.

This is not to say, however, that a

member who believes he has been wrongfully

disciplined by the union to which he belongs

is without recourse or remedy in challenging

that discipline. For example, depending on

the particular facts, the member may file

unfair labor practice charges with the Board

if he or she believes the union has

interfered with any protected § 7 rights. He

or she may seek relief pursuant to the Labor

Management Report and Disclosure Act, 29

U.S.C. § 401 et seq., which, inter alia,

protects against impairment of intra-union

free speech rights and procedurally improper

disciplinary actions. The member could bring

suit alleging the union has breached its duty

of fair representation, see Vaca v. Sipes,

386 U.S. 171, 177-180 (1967), or has violated

the terms of its governing constitution, see

Wooddell v. Electrical Workers, 502 U.S. 93,

98-103 (1991).

IIr. This Decision Creates No Inter-Circuit

Split

Petitioner next contends certiorari

should be granted because the Court of

Appeals decision here conflicts with two

earlier circuit rulings, Communications

Workers Local 1104, 520 F.2d at 420; NLRB v.

Pipefitters Union Local No. 120, 719 F.2d

178, 183-84 (6th Cir. 1983). As noted

earlier, this is a wholly contrived conflict

and, as such, affords no basis for review

here.

23

In Communications Workers Local 1104,

one case in the McGraw Edison line, the

Second Circuit enforced a Board order

essentially allowing a bargaining unit

employee excluded from the union for

supporting a rival organization to cease

paying all dues without facing loss of

employment pursuant to a valid union-security

agreement. The court recognized its ruling

would create a group of free riders

consisting of “those who. . . are lawfully

excluded from the union for activity that,

though protected by § 7, is disloyal to the

union." Communications Workers Local 1104,

520 F.2d at 420. The court presumed this

result was a necessary by-product of the

elimination of “compulsory unionism” or

closed-shop agreements effectuated through

the passage of § 8(a)(3). Id. In arriving

at its conclusions, the court did not review

the legislative history and, indeed,

expressly noted an apparent “absen[ce of]

explicit legislative instruction” on how to

reconcile the correlative problems of

eliminating closed shops and preventing free

riders. Id.

Some 13 years later, this Court

provided that guidance in Beck with its

studied review and analysis of the

congressional intent behind the adoption of

§ 8(a)(3). That analysis, of course, reveals

a Congress firmly set against both forced

union membership and free ridership by non-

members. As Beck explains, those concerns

are resolved by requiring all employees

within a bargaining unit to pay core

24

financial dues to the labor organization but

demanding full membership of none of them.

Had the Second Circuit the benefit of

Beck when it considered Communications

Workers Local 1104, the result necessarily

would have been different. Thus, there is no

genuine conflict between the Court of Appeals

decision here and that of the Second Circuit,

given an intervening and controlling opinion

of this Court mandating an outcome consistent

with that reached below in this case.*

In fact, the result in Communications

Workers Local 1104 demonstrates one of the

principal harms that would occur if

Petitioner’s position here were accepted.

Any union member subjected to intra-union

discipline could cite that action as a reason

for withholding payment of all dues, thereby,

becoming a free rider. This would encourage

members who want to avoid paying dues to

engage in misconduct inviting union

sanctions. Once disciplined for that

misconduct, those members would be placed in

a “better” position with respect to their

dues obligations than either full members or

“even if Communications Workers Local

1104 were a viable statement of the law

post-Beck, its conclusion is

distinguishable factually from that reached

in this case. The Second Circuit would

have bestowed free-rider status on those

union members who had engaged in protected

§ 7 activity. Communications Workers Local

1104, 520 F.2d at 420. Here, Petitioner’s

conduct was not within the protections of §

T°

25

financial core members. Such a result

typifies a scenario violating the legal axiom

that a person should not benefit from his own

wrongs. Likewise, it would seem to beg

dissatisfied union members to claim any and

all manner of union activity as improper

discipline or other misfeasance so as to

avoid their dues obligations.

Confronted with such a doctrine, a

union likely would refrain from enforcing its

bona fide internal rules in many instances.

As the Court of Appeals suggested here, this

would truly create a Hobson’s choice in which

the union must either forego discipline of

members whose conduct was plainly destructive

of the organization’s collective bargaining

position or impose discipline and, thereby,

create a class of free riders. Pet. App. at

7a-8a. This outcome is inconsistent with the

purposes behind § 8(a)(3). Moreover, it

would effectively read out of the Act that

portion of § 8(b)(1)(A) providing that a

union shall not be impaired in prescribing

and enforcing its internal membership rules.

And it would insinuate the government far

more deeply into matters of internal union

operation than Congress ever intended. See

Scofield, 394 U.S. at 428 (Congress did not

intend to intrude upon “the internal affairs

of unions" in passing the Taft-Hartley Act);

Wirtz v. Local 153, G.B.B.A., 389 U.S. 463,

471 (1968) (LMRDA consistent with “general

congressional policy to allow unions great

latitude in resolving their own internal

controversies ... .").

26

Petitioner’s reliance on the sixth

Circuit decision in Pipefitters Union Local

No. 120 to create a circuit split is equally

unavailing. In that case, the union promised

membership to two employees upon completion

of their probationary work periods. They

completed their probation and were otherwise

fully qualified for and apparently desirous

of accepting union membership. The union,

however, reneged on its promise of membership

and, yet, attempted to make the pair pay full

union dues to avoid termination of employment

under a union-shop agreement. Thus, the

union failed to make membership available to

the individuals on the same terms and

conditions applicable to others and attempted

to coerce and deter them in their efforts to

join the union. The factual scenario

presented there bears little similarity to

that here, since Petitioner had been afforded

full union membership. Thus, the results are

not in conflict either.

In making this argument, Petitioner

also grossly misuses Pattern Makers, 473 U.S.

95, in an effort to bolster his claim that he

should be entitled to free-rider status as

part and parcel of Congress’ aim of fostering

“voluntary unionism." Pet. at 17-18. In

Pattern Makers, this Court held that

voluntary unionism would be thwarted if

members could not freely resign from labor

organizations and, in doing so, avoid

internal discipline. Id. at 107 ("[{T)jhe

Board was justified in concluding that by

restricting the right of employees to resign,

{the union’s rule] impairs the policy of

27

voluntary unionism."). Here, of course,

Petitioner could have resigned and avoided

the union sanctions. But he chose not to and

instead sought to stop paying dues --

something he certainly could not have done as

a resignee, since he would have been

obligated to make a core financial

contribution. The Pattern Makers decision in

no way endorses a self-help refusal to pay

all dues as a component of “voluntary

unionism” or on any other grounds.

Iv. The Board Correctly Found Gilbert

Exercised Mo Protected § 7 Rights, and

The Issue Fails to Present An Important

Question

The Board recognized that Petitioner’s

conduct as Local D-100 president in pursuing

a company proposal aimed at eviscerating the

union’s bargaining unit at the plant was not

protected under § 7. This is precisely the

sort of statutory interpretation entrusted to

the agency’s expertise in “applying the

general provisions of the Act to the

complexities of industrial life." NLRB v.

Erie Resistor Co., 373 U.S. 221, 236 (1963).

In NLRB v. City Disposal Systems, Inc., 465

U.S. 822, 829-30 (1984), this Court expressly

noted that the Board’s interpretation of what

conduct falls within § 7 must be accorded

deference and upheld if reasonable.

There is little question that cutting

the size of the bargaining unit in half would

have had an extraordinarily adverse impact on

the union’s ability to operate as an

effective representative of its remaining

28

members. Pet. App. at 52a. Such collective

representation of workers for improved wages,

hours and other working conditions rests at

the very heart of this country’s “national

labor policy." Allis-Chalmers Mfg., 388 U.S.

at 180. This Court has held that a union

must be allowed “to protect against erosion

fof) its status under that policy through

reasonable discipline of members who violate

rules and regulations governing membership."

Id. at 181. Accordingly, a union can

lawfully discipline strikebreakers. Id. See

also Sheet Metal Workers Local 22 (Miller

Sheet Metal), 296 NLRB 1146 (1989) (Local

acts lawfully in disciplining member for dual

unionism); Meat Cutters (S & M Grocers), 237

NLRB 1159 (1978) (union threat to discipline

members who fail to support organizing drive

does not violate § 8(b)(1)). Petitioner’s

conduct here, which would have led to the

decimation of the bargaining unit, is at

least as destructive as crossing a picket

line. Thus, even if his actions fell within

the scope of § 7, Petitioner properly could

have been subjected to internal union

discipline, since that discipline would not

impair “overriding” labor policies but,

rather, would further their objectives. See

Scofield, 394 U.S. at 429. Moreover,

Petitioner could have resigned his membership

and avoided any internal discipline

whatsoever. He did not. \

None of the authority Petitioner cites

so much as hints his conduct falls within §

7 or should be protected. See Helton v.

NLRB, 656 F.2d 883 (D.C. Cir. 1981) (union

29

member illegally coerced for posting

literature from intra-union watchdog group on

union bulletin board); Hendricks Cty. Rural

Elec., Etc. v. NLRB, 603 F.2d 25, 27 (7th

Cir. 1979) (employer acts illegally if it

disciplines employee for circulating petition

seeking reinstatement of fired co-worker);

Laborers Local 806, 295 NLRB 941, 944 (1989)

(Local improperly coerced members who, inter

alia, filed Board charges alleging

discriminatory job referral system); Roadway

Express, Inc., 108 NLRB 874 (1954), enforced

sub nom. Teamsters Local 823 v. NLRB, 227

F.2d 439 (10th Cir. 1955) (Local unlawfully

threatened members after they made written

complaint to International).

Ultimately, whether Petitioner’s

conduct was protected has no bearing on the

outcome below. Even if it were protected,

the reason the union sought to invoke the

union-security clause was Petitioner’s

refusal to pay any dues whatsoever. As

discussed, Petitioner’s improper self-help

precipitated resort to the union-security

Clause. Petitioner had no legal right to

stop paying all dues regardless of the

propriety of the discipline. Accordingly, a

decision in Petitioner’s favor on the merits

of this question would not change the

ultimate determination below. This Court

should be reticent to grant certiorari on a

question so narrow and remote that it will

not even affect the legal rights of the

parties to the case.

30

Finally, determining whether specific

conduct is protected often turns on the

particular factual circumstances. See, e.g.,

Reef Industries, Inc. v. NLRB, 952 F.2d 830,

837 (5th Cir. 1991); Roadmaster Corp. v.

NLRB, 874 F.2d 448, 452 (7th Cir. 1989). The

issue tends to be inextricably fact-bound,

and any determination of this Court would be

similarly limited to this case alone. Absent

some gross confusion or split among the

circuit courts in dealing with the type of

factual situation presented here (and there

appears to be none), this Court should

decline review on certiorari.

Vv. Conclusion

For the reasons stated here, the

petition for writ of certiorari should be

denied in its entirety.

Respectfully submitted,

Michael J. Stapp

Counsel of Record

G. Gordon Atcheson

Dana K. Apple

John J. Blake