# Opposition Brief — Gilbert v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1171

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0765%3A2. Public record. Not legal advice.