Opposition Brief — Gilbert v. National Labor Relations Board

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FEB 9 1996

No. 95-744

In the Supreme Court of the Giuted States

OCTOBER TERM, 1995

JAMES GILBERT, PETITIONER

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

DREW S. Days, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board rea-

sonably concluded that the union did not violate

Section 8(b)(1)(A) of the National Labor Relations

Act, 29 U.S.C. 158(b)(1)(A), by stating its intention to

cause the cischarge of a union member pursuant to a

valid union-security agreement if he ceased paying

dues after he had been subjected to lawful union

disciplinary action.

(I)

TABLE OF CONTENTS

Page

SEE ESS RAE LES ORT a TERETE LT l

ES ARNT RS SE re Oa ee sulci iaeindaladeitonth ae as av. ]

A AES RE ara A Sel 2 ce ga a Pa 2

EEN NRE SARIS Aa Sle Sa aS a AEE 10

ETERS TESA RAR Coe 8 ay NaN PRRs 17

- TABLE OF AUTHORITIES

Cases:

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

FREES SRS EER oP Sa ea 15

International Ass’n of Machinists, District Lodge 94

(McDonnell Douglas Corp.), 283 N.L.R.B. 881

RoE Ee ETN Ne 10, 14

Local 1104, Communications Workers v. NLRB,

520 F.2d 411 (2d Cir. 1975), cert. denied, 423 U.S.

a adusouanes 16

Locai 4186, United Steelworkers (McGraw Edison

CD, PE, Se ckneas WOUE CRUEUP ccscceccecccceesvucciconveccccers 6, 14

NLRB vy. General Motors Corp., 373 U.S. 734

SUIITI ihisistictidh Aleta cihetintihassacedehetsccboosensmdacweesoeorsereoxs ll

NLRB v. Pipefitters Union Local No. 120, 719

I a aan cecnienanercens 16

Pattern Makers’ League v. NLRB, 473 U.S. 95

NTR lcatnilth ints catiorciahbensnhteiudeeninseedsvensecete 14, 15

Scofield v. NLRB, 394 U.S. 423 (1969) ........ 2, 14, 16, 17

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et segq.:

I A 2, 6, 8, 14, 16

§ 8(a)(3), 29 U.S.C. 158(a)(3).................... 2, 3, 9, 10, 11,

12, 18, 15, 16

§ 8(b)(1)(A), 29 U.S.C. 158(b)(1)(A) ....... 2, 5, 6, 7,

8, 11, 14, 16

(III)

In the Supreme Court of the Giuted States

OCTOBER TERM, 1995

No. 95-744

JAMES GILBERT, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

18a) is reported at 56 F.3d 1438. The decision and

order of the National Labor Relations Board and the

decision of the administrative law judge (Pet. App.

19a-55a) are reported at 312 N.L.R.B. 218.

JURISDICTION

The judgment of the court of appeals was entered on

June 16, 1995. A petition for rehearing was denied on

August 16, 1995. Pet. App. 56a-57a. The petition for a

writ of certiorari was filed on November 9, 1995. The

(1)

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

1254(1).

STATEMENT

1. a. Section 8(b)(1)(A) of the National Labor Re-

lations Act (NLRA or Act), 29 U.S.C. 158(b)(1)(A),

makes it unlawful for a union “to restrain or coerce

* ¥* * employees in the exercise of the rights

guaranteed in [Section 7 of the Act, 29 U.S.C. 157].”

Section 7, in turn, gives employees the right to

engage in a range of activities in support of collective

bargaining, and also gives them the right to refrain

from such activities “except to the extent that such

right may be affected by an agreement requiring

membership in a labor organization as a condition of

employment as authorized in [Section 8(a)(3), 29

U.S.C. 158(a)(3)].”. A proviso to Section 8(b)(1)(A) adds

that the Section “shall not impair the right of a la-

bor organization to prescribe its own rules with re-

spect to the acquisition or retention of membership

therein.” 29 U.S.C. 158(b)(1)(A). That proviso per-

mits a union to impose internal discipline on a mem-

ber for violating a union rule where the rule “reflects

a legitimate union interest, impairs no policy Con-

gress has imbedded in the labor laws, and is reason-

ably enforced against union members who are free

to leave the union and escape the rule.” Scofield v.

NLRB, 394 U.S. 423, 430 (1969).

Section 8(a)(3) of the NLRA, 29 U.S.C. 158(a)(3),

makes it an unfair labor practice for an employer “by

discrimination in regard to hire or tenure of employ-

ment * * * to encourage or discourage membership

in any labor organization,” but that Section contains

two provisos authorizing union-security agreements

between employers and unions, and limiting the

circumstances in which such agreements may be

imposed. The first proviso authorizes a union and an

employer to require as a condition of continued

employment that all employees in the bargaining

unit establish and maintain membership in the union.

The second proviso prohibits the discharge of an em-

ployee pursuant to a union-security agreement where

(A) “such membership was not available to the em-

ployee on the same terms and conditions generally

applicable to other members,” or (B) “membership

was denied or terminated for reasons other than the

failure of the employee to tender the periodic dues and

the initiation fees uniformly required as a condition

of acquiring or retaining membership.” /bid.

b. Before 1984, Local 100 of the Cement, Lime,

Gypsum and Allied Workers International Union

(Cement Workers) represented a unit of employees at

the Kaiser Cement Corporation’s facility in Perma-

nente, California. In April 1984,the Cement Workers

merged with the International Brotherhood of Boiler-

makers (Union), and Local 100 of the Cement

Workers became Local D-100 of the Boilermakers

(Local). Petitioner, a long-time Kaiser employee, had

been president of Local 100 since 1977, and remained

president of the Local after the merger. Although

petitioner and others in Local 100 had not favored the

merger, they took no action to oppose the Union until

1986. Pet. App. 20a, 29a.

On September 16, 1986, dissatisfied with the

Union’s termination of four union representatives

who had been long-term officials of the Cement

Workers, petitioner wrote a letter to the president of

the international union asking that the termination of

one of those representatives be reconsidered. The

president refused the request. In July 1988, peti-

aaa ..Q0

tioner prepared and circulated a petition requesting a

Board election so that the bargaining unit employees

could choose a new international union to represent

them. All but one of the employees in the unit signed

the disaffiliation petition, but it was never filed with

the NLRB. Pet. App. 5a, 20a-21a, 29a-31a.

On September 22, 1988, at a meeting of Local

D-100’s membership, petitioner presented a “Letter

of Understanding” written by the company, which

proposed to convert the jobs of 17 unit employees,

including petitioner, to salaried supervisory posi-

tions, thereby removing them from the collective

bargaining unit and representation by the local.

While petitioner took no formal position on the pro-

posal, he described the proposal’s benefits as the

company had represented them. Local D-100 Finan-

cial Secretary Donald Hall attended the meeting, and

also took no position on the proposal. Unit employee

Arthur Rose, however, spoke in favor of it. The

_ bargaining unit employees rejected the proposal by

a vote of 23 to 11. About two weeks later, Joseph

Gaxiola, a trustee of Local D-100, circulated a petition

asking for the unit employees’ view on a proposal to

make all bargaining unit positions salaried, thereby

eliminating the unit. Gaxiola supported the proposal,

but again a majority of the unit employees opposed it.

Pet. App. 5a-6a, 21a-22a, 32a-37a. .

In October 1988, a bargaining unit employee filed

internal Union charges against petitioner, Hall,

Rose, and Gaxiola, alleging that they had engaged in

activities in support of removing persons from the

bargaining unit, in violation of the Union’s consti-

tution. After a hearing before a representative of the

International, the Union found the four employees

guilty of all charges and barred them from holding

5

any Union office or attending any Union meetings,

except those called to vote on the ratification of

contracts directly affecting them. Those penalties

were applied to petitioner for five years, Hall for

three years, and Gaxiola and Rose for two years. Pet.

App. 6a, 22a, 37a-40a.

In April 1989, in a joint letter to the Union presi-

dent, the four disciplined employees asserted that

they had been effectively suspended from the Union

and therefore no longer were obligated to pay union

dues. In a letter dated May 22, 1989, the president

responded that the four employees had not been

suspended and must continue to pay dues in order to

remain members of the Union in good standing. In a

subsequent letter dated July 20, 1989, the disciplined

employees asked what penalties might be imposed on

them if they stopped paying dues. The president

replied that the Union’s contract with the company

contained a union-security clause and that, if the four

employees ceased payingsdues, the Union would so

notify the company, and the employees would no

longer be permitted to work at the plant. Neverthe-

less, petitioner stopped paying his dues for two

months. He resumed payment, however, when the

company notified him that the Union had requested

his discharge under the union-security agreement.

Petitioner thus was not dismissed from his employ-

ment. Pet. App. 6a, 22a-23a, 40a-45a.

2. a. On October 6, 1989, petitioner filed with the

NLRB an unfair labor practice charge against the

Union under Section 8(b)(1)(A) of the NLRA. On

December 14, 1989, the NLRB’s General Counsel

issued a complaint against the Union. An admin-

istrative law judge (ALJ) recommended that the

General Counsel’s complaint be dismissed. Pet. App.

4

27a-55a. The ALJ rejected the General Counsel’s

contention that the Union’s discipline of petitioner

and the three other employees was unlawful under

Section 8(b)(1)(A). He concluded that the Union had

the right to protect itself against the activities of the

four disciplined employees, which could have resulted

in the erosion or elimination of the bargaining unit

that the Union represented. He found that the

Union’s constitution, barring such erosion of its

status as collective bargaining representative, had

been reasonably enforced against the four employees,

who at all times were free to leave the Union to

escape those rules (while continuing to pay dues as

required by the union-security clause), but had not

done so. Jd. at 48a-53a.

The ALJ next held that the Union did not violate

the NLRA by threatening to invoke the union-

security agreement. The Union’s statement of its

intention to invoke the agreement was lawful, he

concluded, because the employees had not been

disciplined for the exercise of any rights protected by

Section 7 of the Act, 29 U.S.C. 157. Pet. App. 53a.

Section 7 gives employees the right to engage in and

to refrain from activities in support of collective

bargaining, except to the extent that any such right

may be affected by a union-security agreement. Be-

cause no Section 7 rights were involved, the ALJ

distinguished this case from cases relied on by the

General Counsel, in which the Board had held that

a union violated Section 8(b)(1)(A) of the Act by

threatening to invoke a union-security clause against

employees who had been disciplined in various ways

for the exercise of certain Section 7 rights. Pet.

App. 58a (citing Local 4186, United Steelworkers

(McGraw Edison Co.), 181 N.L.R.B. 992 (1970)).

Finally, the ALJ rejected the General Counsel’s

alternative argument that, even if the activities for

which the employees were disciplined were not pro-

tected, their membership rights were so substantially

reduced that enforcement of the union-secr~ity

clause against them became unlawful. That argu-

ment, the ALJ reasoned, would present the Union

with the “Hobson’s choice” of either forgoing its

right to discipline members under the proviso to

Section 8(b)(1)(A),’ thereby rendering that proviso a

nullity, or relinquishing its right to enforce the

provisions of a valid union-security agreement and

facing self-destruction through loss of the dues of

disciplined members. Pet. App. 54a. The ALJ added

that the General Counsel’s position, if implemented,

would induce any members who are unwilling to pay

dues in the first place for financial or philosophi-

cal reasons to subject themselves to union discipline

“so they would be ‘punished,’ by not having to pay

union dues, although they would continue their

employment.” Ibid.

b. The NLRB adopted the ALJ’s recommendation.

Pet. App. 19a-27a. The Board held that the Union

had lawfully disciplined petitioner and the other

employees. The Board noted that there are limita-

tions on a union’s right to discipline members, such

as the requirement that employee-members must

always remain free to resign their membership and

thereby escape union rules and discipline. But the

1 The proviso to Section 8(b)(1)(A) provides that the pro-

hibitions of that Section “shall not impair the right of a labor

organization to prescribe its own rules with respect to the

acquisition or retention of membership therein.” 29 U.S.C.

158(b)(1)(A).

8

Board stated that employees who “have opted for

continued membership * * * cannot be heard to

complain if the union enforces the rules of member-

ship.” Jd. at 25a. The Board further noted that a

union may not adopt a rule that “impairs a policy that

Congress has embedded in the labor laws,” such as a

rule that would fine a member for exercising the

“fundamental” Section 7 right of seeking access to

the Board (by filing a petition or charge). Jbid. In

this case, however, the Board found that petitioner

and the other disciplined members were at all times

free to resign their membership, but chose not to do

so. Thus, the Union was authorized to discipline

them, and “(t]he fact that the Union chose to disci-

pline them by impairing their membership, rather

than by expelling them or fining them, does not

transform lawful discipline into unlawful discipline.”

Id. at 25a-26a. The disciplined members’ actions

implicated no fundamental Section 7 policy. Jbid.

Finally, the Board held that the Union’s enforce-

ment of the union-security agreement against the

disciplined employees did not violate the NLRA. The

Board stated that, “[b]ecause the [Union’s] discipline

of these members did not violate the Act, the members

continued, as unit employees, to be required under the

union-security agreement to satisfy the sole obli-

gation a union may enforce under a union-security

provision: the tendering of uniform initiation fees (if

any) and dues.” Pet. App. 26a (internal quotation

marks omitted). The Board thus concluded that the

Union “did not violate Section 8(b)(1)(A) of the Act by

threatening to invoke the union-security clause

against petitioner and the three other employee-

members if they ceased paying dues after the [Union]

disciplined them.” Jbid. The Board emphasized that

the Union continued to have a duty of fair representa-

tion toward all employees, including those it had

subjected to discipline. bid.

3. The court of appeals affirmed the Board’s

decision. Pet. App. la-18a. The court rejected peti-

tioner’s contention that the Union’s threat to invoke

the union-security agreement unless he paid his

union dues was impermissible under the second

proviso to Section 8(a)(3) of the Act, 29 U.S.C.

158(a)(3).? The court held that the mere fact that peti-

tioner was deprived of certain membership privileges

for violating valid Union rules that applied uniformly

to every other member does not show that member-

ship was not “available” to him on the same terms and

conditions as other employees, within the meaning of

the first condition to the proviso: “Membership was

offered to [petitioner] on the same terms as it was

to other employees. This membership, however, in-

cluded both rights and obligations. When [petitioner]

freely chose to violate his obligations, he was

disciplined just as any other member would have

been.” Pet. App. 10a. Nor, in the court’s view, did

the Union’s impairment of petitioner’s membership

rights place him within the second condition to the

2 The second proviso to Section 8(a)(3) states:

That no employer shall justify any discrimination against

an employee for nonmembership in a labor organization

(A) if he has reasonable grounds for believing that such

membership was not available to the employee on the same

terms and conditions generally applicable to other mem-

bers, or (B) if he has reasonable grounds for believing that

membership was denied or terminated for reasons other

than the failure of the employee to tender the periodic

dues and the initiation fees uniformly required as a

condition of acquiring or retaining membership.

10

proviso. For, “even accepting [petitioner’s] charac-

terization that his membership rights were ‘sub-

stantially impaired’ for reasons other than non-

payment of dues, the fact remains that his Union

membership was never ‘denied’ or ‘terminated.’” Id.

at lla.

The court also rejected petitioner’s contention

that, even if the result reached by the Board were per-

missible under Section 8(a)(3), the Board’s decision in

this case was arbitrary and capricious, because the

Board departed from its own precedent without

adequate explanation. The court found that all but

one of the prior cases relied on by petitioner are

“sufficiently distinguishable” from the case at hand,

and that, with respect to the one case that is arguably

on point, International Ass’n of Machinists, District

Lodge 94 (McDonnell Douglas Corp.), 283 N.L.R.B.

881 (1987), “the Board’s decision here provided ade-

quate reasoning for and notice of the Board’s depar-

ture from that case.” Pet. App. 14a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with decisions of this Court or any

other court of appeals. This Court’s review is not

warranted.

In a holding affirmed by the court of appeals and not

challenged by petitioner, the Board found lawful the

Union discipline of petitioner that underlies his

challenge to the requirement that he continue to pay

dues. Pet. App. 25a. The issue here is whether the

Board reasonably concluded that petitioner remained

obligated, following that lawful discipline, to pay dues

under the union-security agreement between the

Union and company, so that the Union’s threat to

11

seek petitioner’s discharge for failure to comply with

that obligation did not violate Section 8(b)(1)(A) of the

NLRA, 29 U.S.C. 158(b)(1)(A).

1. a. Petitioner contends (Pet. 7-15) that the court

of appeals decided an important issue that this Court

left open in NLRB v. General Motors Corp., 373 U.S.

734 (1963), in a way that he asserts is incompatible

with the NLRA’s terms and the Board’s consistent

prior interpretation of the Act. There is no merit to

that contention.

In General Motors, the Court stated that, under the

second proviso to Section 8(a)(3), “{i]Jt is permissible

to condition employment upon [union] membership,

but membership, insofar as it has significance to

employment rights, may in turn be conditioned only

upon payment of fees and dues.” 373 U.S. at 742. It

therefore upheld, as valid under the Act, an “agency

shop arrangement” which “places the option of mem-

bership in the employee while still requiring the

same monetary support as does the union shop.” Jd.

at 744. The Court left “for another case” the “signifi-

cance of desired, but unavailable union membership,

or the benefits of membership, in terms of permissible

[Section] 8(a)(3) security contracts.” Id. at 745 n.12.

This case does not present the issue referred to in

General Motors, however, because, like the agency

shop arrangement in that case, “there is no closed-

union aspect to the present proposal by the union.”

373 U.S. at 745 n.12. The Court was referring to a

situation in which an employee is excluded from the

union, but is nonetheless required to contribute

monetary support to the union. Petitioner was not

refused membership or the benefits of membership;

the union-security agreement in this case left him

the option to become a full union member or merely a

12

dues payer, and he elected full union membership. As

a full union member, he subjected himself to reason-

able union discipline for violating valid union rules.

To conclude that such discipline relieved petitioner of

his dues-paying obligation under the union-security

clause would place him in a better position than that

of an employee who had opted only to give monetary

support to the union.

Even if this case did present the issue left open in

General Motors, review by this Court would not be

warranted because, as the court of appeals held, the

Board’s resolution of the issue is reasonable and

compatible with the Ar:*s terms and policies. The

court correctly held ‘ha the second proviso of

Section 8(a)(3) was not violated, because the union

subjected petitioner to the same discipline it would

have imposed on any other member for the same

violation of union rules. Pet. App. 10a-lla. In those

circumstances, the court concluded, “the only rea-

sonable conclusion is the one reached by the Board—

membership in the Union was ‘available’ to [peti-

tioner] on the same terms and conditions as it was

to other employees.” Jd. at 11a.*

3 Petitioner contends (Pet. 13) that the court of appeals’

holding “misses the point: once membership is substantially

impaired it is no longer ‘available to the employee on the same

terms and conditions generally applicable to other members.’ ”

However, the determination whether membership was “avail-

able” to an employee on equal terms should be made as of the

time the employee applies for membership in the union, and

not, as petitioner contends, after the union has lawfully

disciplined him for violating its rules. Otherwise, any em-

ployee who was admitted to the union and later subjected to

lawful discipline short of expulsion for breaking its rules could

stop paying dues, and thus become a “free rider,” simply by

asserting that membership was no longer available to him

13

The court of appeals further correctly held that

petitioner’s membership rights were not “denied or

terminated” for a reason other than nonpayment of

dues within the meaning of Section 8(a)(3)’s second

proviso. As the court of appeals observed, “even

accepting [petitioner’s] characterization that his

membership rights were ‘substantially impaired’ for

reasons other than nonpayment of dues, the fact

remains that his Union membership was never

‘denied’ or ‘terminated.’” Pet. App. lla. The court

added: “[Petitioner] was specifically told by the Union

following his discipline that his membership had not

been suspended, and [petitioner] chose not to resign

his membership. [Petitioner] thus remained at all

relevant times a full member of the Union,” and the

“discipline imposed on him was merely an incident of

that continued membership in the Union.” Ibid.

b. Petitioner contends (Pet. 9-12) that the Board’s

decision here overruled, without explanation, a long-

standing prior construction of the Act. Petitioner

relies on “a line of six Board decisions beginning with

McGraw Edison [Local 4186, United Steelworkers,

181 N.L.R.B. 992 (1970)], and culminating with

Machinists District 94 (McDonnell Douglas), 283

N.L.R.B. 881 (1987).” Pet. App. 13a (parallel citation

omitted). The court of appeals correctly distin-

guished all of those cases.

In McGraw Edison, the union disciplined an em-

ployee for filing a decertification petition with the

Board, and then threatened to invoke a union-security

clause to enforce his payment of dues. The Board held

on equal terms. It is elementary that the Act’s provisions

should be read as mutually compatible rather than as self-

contradictory.

14

that the union’s threat violated Section 8(b)(1)(A),

because imposition of discipline for petitioning the

Board is “a serious restraint upon access to Board

processes.” 181 N.L.R.B. at 992; see Scofield v.

NLRB, 394 U.S. 423, 480 (1969). As the Board ex-

plained here, access to the Board is a “fundamental”

Section 7 right upon which all other rights under the

Act depend. Pet. App. 25a n.7. By contrast, the

conduct for which petitioner was disciplined did not

involve the exercise of a fundamental Section 7 right,

nor did the discipline impair any other statutory

policy. In short, the discipline here was lawful.

In McDonnell Douglas, several employees resigned

from the union, stopped paying dues, and returned to

work during a strike. The union disciplined them by

forbidding them from holding union office for five

years, and threatened to invoke a union-security

agreement based on their nonpayment of dues. 283

N.L.R.B. at 884-885, 892-893. Because a union has no

right to discipline members after they have resigned

from the union (see Pattern Makers’ League v.

NLRB, 473 U.S. 95 (1985)), the Board held that the

union’s discipline of the employees was unlawful.

Here, by contrast, petitioner elected to remain a

member of the Union, and thus was properly subject

to Union discipline for violating a valid Union rule.‘

4 The court of appeals also found the other four of the post-

McGraw Edison cases relied on by petitioner to be “clearly

distinguishable” from this case. “In each of those four cases,”

the court observed, “the union sought to enforce a union-

security clause on employees who had either been denied

membership, expelled from membership, or fully suspended

from membership for engaging in various section 7 activities.”

Pet. App. 15a (citations omitted). The unions’ actions in those

cases thus “fell within the literal language of section 8(a)(3)’s

15

2. a. Contrary to petitioner’s contention (Pet. 15,

17-18), the court of appeals’ decision is not

inconsistent with Pattern Makers’, supra, and

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

(1988). Pattern Makers’ held that the policy of

voluntary unionism embodied in the Act permits

employees freely to resign from the union and

precludes a union from disciplining an employee for

an infraction of union rules committed after he has

resigned. 473 U.S. at 115-116. Petitioner, however,

elected to remain a member of the Union and thus was

properly subjected to discipline for violating valid

Union rules.

In Beck, the Court held that the union-security

provisos to Section 8(a)(3) do not obligate objecting

dues-paying nonmember employees “to support union

activities beyond those germane to collective bargain-

ing, contract administration, and grievance adjust-

ment.” 487 U.S. at 738, 745. Beck is inapposite here

because petitioner has elected to become and remain a

member of the Union, and has not objected that his

dues payments would be used to support non-germane

union activities. See Pet. App. 26a n.9. Indeed, Beck

recognized that Congress’s_ purpose in allowing

union-security agreements was “to provide that there

be no employees who are getting the benefits of union

representation without paying for them.” 487 U.S. at

750. To adopt petitioner’s interpretation of the second

proviso would, as the court of appeals explained,

second proviso * * * because the unions had invoked or

threatened to invoke union-security agreements against em-

ployees whose membership had been ‘denied’ or ‘terminated’

for reasons other than failure to pay dues.” Jd. at 16a n.4.

16

negate Congress’s purpose. Pet. App. 12a; see also id.

at 54a.

b. Decisions of other circuits (see Pet. 15-17) do

not conflict with the decision of the court of appeals.

In both Local 1104, Communications Workers v.

NLRB, 520 F.2d 411 (2d Cir. 1975), cert. denied, 423

U.S. 1051 (1976), and NLRB vy. Pipefitters Union

Local No. 120, 719 F.2d 178 (6th Cir. 1983), the courts

enforced Board decisions holding that unions had

violated Section 8&(b)\(1(A) by enforcing union-

security agreements against employees who were

denied membership as discipline for having supported

a rival union (Communications Workers), or for

arbitrary reasons (Pipefitters). The unions’ actions

in those cases thus fell within the plain terms of

Section 8(a)(3)’s second proviso—the employees’

membership had been “denied” or “terminated” for

reasons other than failure to pay dues. See note 4,

supra. By contrast, although petitioner’s member-

ship rights were restricted for a _ period, his

membership in the Union was neither denied nor

terminated.

3. Finally, there is no merit to petitioner’s con-

tention (Pet. 18-21) that the decision of the court of

appeals conflicts with decisions of this and other

courts holding that Section 7 of the NLRA protects

dissident intra-union activities. None of the cases

relied on by petitioner involved the kind of situation

at issue here, in which a union member was dis-

ciplined for violating a legitimate union rule that is

consistent with the policies that “Congress has

imbedded in the labor laws.” Scofield, 394 U.S. at 430.

In such a situation, even if the member’s conduct

might be protected by Section 7, the proviso to

Section 8(b)(1)(A) permits the union to discipline the

a

17

member for violating its rule, as long as the member

was free, as was petitioner, to leave the union and

escape the rule. See Scofield, 394 U.S. at 430; Pet.

App. 24a-25a.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREw S. DAys, III

Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

National Labor Relations Board

FEBRUARY 1996