Reply Brief — Gilbert v. National Labor Relations Board

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.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITIONER’S REPLY BRIEF

RAYMOND J. LAJEUNESSE, JR.*

National Right to Work

Legal Defense Foundation

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

ATTORNEY FOR PETITIONER

*Counsel of Record

March, 1996

,

— —-”

TABLE OF CONTENTS

Page

py RRs ays 4 iy) > Fr ii

Po ARE: a en en l

I. This Case Squarely Presents the Important Question

Reserved by This Court in NLRB v. General Motors ... |

II. The Decisions Below Did Overrule, and This Case Is

Not Distinguishable from, the McGraw Edison Line

SS ce haar Bale va ened ee +s 4 3

III. This Court’s Decision in Communications Workers v.

Beck Did Not Vitiate the McGraw Edison Rule ...... 5

IV. The Boilermakers’ Argument Demonstrates the Split

Among the Circuits About the McGraw Edison Rule .. 8

V. The Board’s Post Hoc Argument that Section 7 Does Not

Protect Employees’ Efforts to Take Positions Out of a

Bargaining Unit Is Unreasonable.................. 9

ee ee re ere ere ee ere 10

TABLE OF AUTHORITIES é

Page

CASES

Communications Workers Local 1104 v. NLRB,

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

U.S. 000) CAPA) 6 os ceca ee passim

Communications Workers Local 1104, 211 N.L.R.B.

114 (1974), enforced, 520 F.2d 411 (2d Cir. 1975),

cert. denied, 423 U.S. 1051 (1976) .................. 5 |

Communications Workers Local 9509 (Pacific Tel. |

& Tel. Co.), 193 N.L.R.B. 83 (1971) ................ 2

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

GIR .k.ctactis eee eee 5-6

Food & Commercial Workers Local 81, 284 N.L.R.B.

Ek. fg ery ee rae. ORG Ole 4,7

Machinists District 94 (McDonnell Douglas),

aes Mae. SOL oe eee 3-5,9

Machinists Lodge 66, 182 N.L.R.B. 849 (1970) ......... 4

Machinists Lodge 113, 207 N.L.R.B. 795 (1973) ........ 7

Meatcutters Local 593, 237 N.L.R.B. 1159 (1978) ....... 9

Newspaper Guild Local 26, 265 N.L.R.B. 382 (1982) .... 10

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) ... 9

NLRB v. General Motors Corp., 373 U.S. 734 (1963) ..... ]

-ili-

TABLE OF AUTHORITIES - CONTINUED

Page

NLRB v. Pipefitters Local 120, 719 F.2d 178

esa eae Sete diac yw'n kerk ake 8

Oil Workers v. Mobil Oil Corp., 426 U.S. 407 (1976) ..... 5

Pattern Makers v. NLRB, 473 U.S. 95 (1985) ......... 7,9

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .......... 5

Scofield v. NLRB, 394 U.S. 423 (1969) ................ 7

Steelworkers Local 4186 (McGraw Edison),

UE OUD 5. ccc ve bi scedevceswas passim

Telephone Traffic Union, 241 N.L.R.B. 826 (1979) ...... 5

Transportation Workers Local 525 (Johnson

Controls World Servs.), 317 N.L.R.B. 402 (1995) ...... 3

CONSTITUTIONAL AND STATUTORY PROVISIONS

National Labor Relations Act:

Pe I Da | rr passim

§ 8(a)(3), 29 U.S.C. § 158(a)(3) (1988) .......... passim

§ 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) (1988) ..... passim

OTHER AUTHORITIES

Subcomm. on Labor, Sen. Comm. on Labor &

Pub. Welfare, Legislative History of the Labor

Management Relations Act, 1947 (1974) ......... 2-3, 6

| —

i.

ARGUMENT

I. This Case Squarely Presents the Important Question

Reserved by This Court in NLRB v. General Motors

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

(1963), this Court expressly left open whether an employee

denied full union membership for a reason other than nonpayment

of dues can be discharged if he then does not pay dues: “the

significance of desired, but unavailable, union membership, or the

benefits of membership, in terms of permissible § 8(a)(3) security

contracts, we leave for another case.” Respondents’ arguments

that this case does not present that question are unavailing.

Respondent International Brotherhood of Boilermakers

(“Boilermakers”) attempts to distinguish this case by misstating

the question reserved in General Motors as whether “an agency

shop agreement that by its terms barred certain employees from

full union membership would comport with § 8(a)(3)” of the

National Labor Relations Act (“Act” or “NLRA”), 29 U.S.C.

§ 158(a)(3) (1988). Boilermakers’ Opp’n at 11 (emphasis added).

However, the question left open by the Court was not limited to

the facial validity of agency shop agreements.’ Section 8(a)(3)’s

limits on the union requirements that may be imposed on employ-

ees as a condition of employment can be violated by either the

terms of agreements or the practices of unions and employers in

enforcing them. See, e.g., Communications Workers Local 1104,

520 F.2d 411, 417-20 (2d Cir. 1975), cert. denied, 423 U.S.

1051 (1976); Steelworkers Local 4186 (McGraw Edison), 181

N.L.R.B. 992, 992, 994-96 (1970).

Respondent National Labor Relations Board (“Board” or

“NLRB”) argues that this case does not present the question

reserved in General Motors, because, it says, Petitioner James

Gilbert (“Gilbert”) “was not refused membership or the benefits

of membership.” NLRB’s Opp’n at 11. In fact, the Boilermakers

refused Gilbert the most important benefits of membership when

' Significantly, the Boilermakers do not quote General Motors’ statement

of the reserved question. That would have given the game away.

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it disciplined him: the rights to attend union meetings, vote on the

election of officers and most other matters, and hold office. Pet.

App. B at 39a-40a. This denial of membership rights was so

serious that Gilbert effectively was refused membership. McGraw

Edison treated a similar substantial disciplinary impairment of

membership as a denial of membership. See 181 N.L.R.B. at 994

& n.6; see also Communications Workers Local 9509, 193

N.L.R.B. 83, 84 (1971) (case involving expulsion is “analogous”

to one involving significant impairment of membership rights).

The Board contends that “the determination whether

membership was ‘available’ to an employee on equal terms

should be made as of the time the employee applies for member-

ship in the union, and not. . . after the union has lawfully

disciplined him for violating its rules.” NLRB’s Opp’n at 12 n.3.

However, section 8(a)(3)’s second proviso contains no time limit

on its prohibition of discharge for failure to pay dues where

“membership was not available to the employee on the same

terms and conditions generally applicable to other members,” 29

U.S.C. § 158(a)(3), 2d proviso, pt. (A) (1988). Consequently,

McGraw Edison, 181 N.L.R.B. at 992 (emphasis added), held

that “a labor organization violates Section 8(b)(1)(A)[, 29 U.S.C.

§ 158(b)(1)(A) (1988), ] by invoking, or threatening to invoke, a

lawful union-security clause to enforce payment of dues by a

member whose membership has been significantly impaired

because he filed a decertification petition.”

The legislative history of the Taft-Hartley Act amending the

NLRA also shows that section 8(a)(3)’s second proviso applies

to both applicants for membership and members. Senator Taft

explained that the proviso was added in committee, because “the

committee felt” that a union enforcing a union-shop agreement

“must accept as members all who apply for membership, and

must accept them on the same terms as it applies to other

members, and must permit them to remain in the union if they

are willing to pay their dues.” Subcomm. on Labor, Sen. Comm.

on Labor & Pub. Welfare, Legislative History of the Labor

Management Relations Act, 1947, at 1096 (1974) (emphasis

added). Senator Taft also gave an example of when the proviso

would apply to members: “That provision . . . takes care of cases

-%

similar to one in New York in which 10 men were fired because

the union made a rule that it would not permit anyone to continue

in membership unless he was the son of a man already working in

that plant and a member of that union.” /d. at 1420.

Ii. The Decisions Below Did Overrule, and This Case Is Not

Distinguishable from, the McGraw Edison Line of Cases

Respondents argue that this case is different from, and did

not overrule, the “line of six Board decisions beginning with

McGraw Edison, and culminating with Machinists District 94

(McDonnell Douglas), 283 N.L.R.B. 881 (1987),” Pet. App. A

at 13a (citation omitted). Boilermakers’ Opp’n at 13-14; NLRB’s

Opp’n at 13-14. However, Respondents totally ignore 7ranspor-

tation Workers Local 525 (Johnson Controls World Servs.), 317

N.L.R.B. 402 (1995), Pet. App. F at 64a. In Transportation

Workers Local 525, the Board itself explicitly held that its

decision here “overruled sub silentio” the McGraw Edison line of

cases. Id. at 402 n.2, 404-07, Pet. App. F at 64a n.2, 73a-82a.

Moreover, this case is not distinguishable from McGraw

Edison and its progeny:

* The rule of those cases is that “a union may not invoke

a union-security clause of a collective-bargaining agreement

against an employee whose full union membership has been

significantly impaired due to the exercise of Section 7 rights.”

Transportation Workers Local 525, 317 N.L.R.B. at 405, Pet.

App. F at 77a. That rule applies where, as here, membership is

substantially impaired, but not denied, and the discipline itself is

lawful. That was the case in McGraw Edison and its most recent

progeny, Machinists District 94.

The Boilermakers falsely state that in McGraw Edison a

member’s “suspension constituted an unfair labor practice.”

Boilermakers’ Opp’n at 16. The Board does not identify the

discipline in McGraw Edison, but misleadingly implies that it was

unlawful; the Board also falsely states that the impairment of

membership rights in Machinists District 94 was held unlawful.

NLRB’s Opp’n at 13-14. In fact, in McGraw Edison, the

employee was not suspended from membership at the relevant

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time. Moreover, the Board there assumed that the reduction in his

membership rights itself was lawful,’ but held that the union’s

“insistence upon [his] continued payment of dues during

periods when his rights as a member were significantly reduced

constituted a continuing form of [unlawful] coercion.” 181

N.L.R.B. at 992 (emphasis added). Similarly, in Machinists

District 94,283 N.L.R.B. at 892-93 & n.44, the Board presumed

that an impairment of membership rights was lawful,’ but held

that the union violated section 8(b)(1)(A) by insisting on the

payment of dues while that discipline was in effect.

* The Boilermakers argue that “the McGraw Edison line of

cases is irrelevant here, since the activities for which Petitioner

was sanctioned enjoyed no § 7 protection.” Boilermakers’ Opp’n

at 17. Gilbert and the three other employees named in his unfair

labor practice charge were disciplined for proposing, at a union

meeting and in a petition, that their local agree to remove certain

positions from their bargaining unit. Pet. App. A at Sa-6a; Pet.

App. B at 50a. As we show in the Petition at 19-21 and infra

pages 9-10, this was dissident “free speech” activity protected by

section 7 of the NLRA, 29 U.S.C. § 157 (1988).

* The Board emphasizes that in McGraw Edison the employee

was disciplined “for petitioning the Board.” NLRB’s Opp’n at 14.

However, the McGraw Edison rule also applies where, as here,

? It was. See Machinists Lodge 66, 182 N.L.R.B. 849, 850 (1970).

> The only discipline held unlawful in Machinists District 94 was fines.

See 283 N.L.R.B. at 881 & n.4. This distinction between lawful impairment of

membership rights and unlawful fines for postresignation conduct is consistent

with later precedent. See, e.g, Food & Commercial Workers Local 81, 284

N.L.R.B. 1084, 1085-86 (1987).

* The Boilermakers’ Opposition at 17 confuses the separate issues of what

§ 7 nght protects the conduct for which Gilbert was disciplined and what right

is restrained by the union’s insistence upon payment of dues while the discipline

is in effect. The former is the right to self-organization, see Pet. at 19-21; the

latter is the right to refrain from membership except to the extent that § 8(a)(3)

permits enforcement of a compulsory unionism agreement, see id. at 7.

yr.

employees are disciplined for exercising a section 7 right that

does not involve the Board’s processes: “a labor organization

violates Section 8(b)(1)(A) . . . by invoking a lawful union-

security clause to enforce payment of dues where employees have

been denied union membership for exercising a right (crossing a

picket line during a strike) guaranteed by Section 7 of the Act.”

Communications Workers Local 1104, 211 N.L.R.B. 114, 117

(1974), enforced, 520 F.2d 411 (2d Cir. 1975), cert. denied, 423

U.S. 1051 (1976). This is true even if membership rights are

substantially impaired, but not wholly denied. That was the case

in Machinists District 94, 283 N.L.R.B. at 892. See also Tele-

phone Traffic Union, 241 N.L.R.B. 826, 826 n.3 (1979) (quoting

Communications Workers Local 1104, 211 N.L.R.B. at 116) (the

McGraw Edison rule applies to “alll situations ‘where membership

is denied or impaired because of employees’ exercise of rights

guaranteed them under Section 7 of the Act’”) (emphasis added).

Ill. This Court’s Decision in Communications Workers v.

Beck Did Not Vitiate the McGraw Edison Rule

The Boilermakers contend that Communications Workers v.

Beck, 487 U.S. 735 (1988), “renders the McGraw Edison line of

cases little more than a legal dead-letter.” Boilermakers’ Opp’n

at 20. The Board implies as much. See NLRB’s Opp’n at 15-16.

That is a wholly unwarranted misinterpretation of Beck.

The issue in Beck was whether the compulsory financial

obligation sanctioned by section 8(a)(3) “includes the obligation

to support union activities beyond those germane to collective

bargaining, contract administration, and grievance adjustment.”

487 U.S. at 745. It was not whether employees who are denied

membership or significant rights of membership have any financial

obligation at all. “It is, of course, contrary to all traditions of our

jurisprudence to consider the law on [a] point conclusively

resolved by broad language in cases where the issue was not

presented or even envisioned.” R.A.V. v. City of St. Paul, 505

U.S. 377, 387 n.5 (1992).

Therefore, Beck, 487 U.S. at 750, did not render the second

proviso to section 8(a)(3) a nullity when it quoted the comment

in Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 416 (1976),

>.

that “Congress’ decision to allow union-security agreements at all

reflects its concern that . . . the 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.” To the contrary, Beck, 487 U.S. at 744-45, cited the

second proviso to section 8(a)(3) as one of the “limits § 8(a)(3)

places on the negotiation and enforcement of union-security

agreements.” Thus, Beck recognized that there are circumstances

under which employees who receive the benefits of union

representation cannot be required to pay for them.°

As Beck, 487 U.S. at 755 (quoting Legislative History,

supra p. 2, at 470) (emphasis added), said, Congress intended the

Taft-Hartley Act “to provide only the most grudging authoriza-

tion of [union-security] agreements, permitting ‘union-shop

agreement[s] only under limited and administratively burdensome

conditions.’” The legislative history of the second proviso to

section 8(a)(3) supports the McGraw Edison rule. According to

Senator Taft, that proviso was added in committee because “the

committee felt that if it permitted a union shop agreement,”

then the union . . . must accept as members all who

apply for membership, and must accept them on the

same terms as it applies to other members, and must

permit them to remain in the union if they are willing

to pay their dues. Ir other words, the position of the

committee was this: Either we must have an open shop

or we must have an open union.

Legislative History, supra p. 2, at 1096 (emphasis added).

Senator Taft emphasized several other times that under his

bill there must be either an “open shop” or an “open union.” Jd.

at 1010, 1097, 1420. If full membership is not available to all on

the same terms, or is denied for reasons other than nonpayment

of dues, then the union is not “open” as to the employees whose

membership is impaired or denied. Thus, Senator Taft’s state-

. Another such circumstance is during the first 30 days of employment.

See 29 U.S.C. § 8(a)(3), 1st proviso (1988).

Te

ments imply the McGraw Edison rule: for those employees,

section 8(a)(3)’s second proviso requires an “open shop.”

The Boilermakers complain that this presents it with “a

Hobson’s choice” of either not disciplining disloyal members or

permitting so-called “free riders.” Boilermakers’ Opp’n at 25.

That choice seldom arises. Usually, as here, the union can

lawfully impose a court-collectible fine. If that is the only penalty,

it can still lawfully collect compulsory dues, because it has neither

denied nor substantially impaired membership.

A union cannot lawfully fine, but can lawfully expel, suspend,

or impair membership rights only if an employee is disciplined for

activity: (1) related to a decertification or deauthorization petition

or election, Machinists Lodge 113, 207 N.L.R.B. 795, 797-98

(1973); or, (2) occurring after the employee resigns, Food &

Commercial Workers Local 81, 284 N.L.R.B. 1084, 1085-86

(1987). Only in those limited circumstances must the union

choose between discipline and dues. However, this choice is

consistent with the Act’s underlying “policy of voluntary union-

ism,” Pattern Makers v. NLRB, 473 U.S. 95, 114 (1985). As

Communications Workers Local 1104, 520 F.2d at 420 (empha-

sis added), held in approving the McGraw Edison rule:

while our decision necessarily entails some inroads on a

union’s ability to protect itself from free riders, the

invasion is not serious. A contrary decision would

create far greater problems of compulsory unionism,

the elimination of which is as much a part of national

labor policy as is the pda aaa goal of protecting

unions from free riders

® The McGraw Edison rule does not “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,” Boilermakers’ Opp’n

at 25. That proviso must be read together with the general rule to which it is an

exception, and with §§ 7 and 8(a)(3). Sections 8(b)(1) and 8(a)(3), with other

sections of the Act, “form a web, of which § 8(b)(1){A) is only a strand.”

Scofield v. NLRB, 394 U.S. 423, 428-29 (1969).

IV. The Boilermakers’ Argument Demonstrates the Split

Among the Circuits About the McGraw Edison Rule

Respondents assert that the Court of Appeals’ decision in

this case does not conflict with the decisions of the Second and

Sixth Circuits in Communications Workers Local 1104 and

NLRB v. Pipefitters Local 120, 719 F.2d 178 (6th Cir. 1983).

Boilermakers’ Opp’n at 22-27; NLRB’s Opp’n at 16. However,

the Boilermakers unwittingly show the conflict.

The Boilermakers argue that no conflict exists between the

Court of Appeals’ decision here and Communications Workers

Local 1104, because, they say, the intervening decision in Beck

mandated the decision here and established that Communications

Workers Local 1104 was wrongly decided. Boilermakers’ Opp’n

at 23-24. In other words, the decisions in this case and Communi-

cations Workers Local 1104 do conflict!

Both Respondents contend that Communications Workers

Local 1104 and Pipefitters Local 120 are distinguishable, because

the employees’ membership here was not wholly denied or ended,

merely significantly impaired. NLRB’s Opp’n at 16; Boiler-

makers’ Opp’n at 26. The cases cannot be distinguished on this

basis. When “membership is denied or terminated” for reasons

other than nonpayment of dues, 29 U.S.C. § 158(a)(3), 2d

proviso, pt. (B) (1988), and dues are still collected, the invidious

practice is not denial of the title “member.” It is deprivation of the

rights to “attend union meetings, vote .. . , or participate in other

internal union affairs.” See Pipefitters Local 120, 719 F.2d at 184

(citing Communications Workers Local 1104). In short, the

pernicious practice in the denial of membership is the substantial

impairment of membership rights that occurred here.

The Boilermakers also argue that this case is distinguishable

from Communications Workers Local 1104, because section 7

did not protect the employees’ conduct here. Boilermakers’

Opp’n at 24 n.14. As we show in the Petition at 19-21 and infra

pages 9-10, that is wrong.

w%

V. The Board’s Post Hoc Argument that Section 7 Does Not

Protect Employees’ Efforts to Take Positions Out of a

Bargaining Unit Is Unreasonable

The Boilermakers claim that the Board “recognized that

Petitioner’s conduct . . . was not protected under § 7.” They

argue that this decision “must be accorded deference and upheld

if reasonable.” Boilermakers’ Opp’n at 27. However, in fact, the

Board itself did not decide whether section 7 protects the conduct

for which the union imposed discipline here. See Pet. App. B at

24a-26a. The Administrative Law Judge did rule that section 7

did not protect the employees’ conduct, but without explanation.

He simply assumed, ipse dixit and illogically, that, because the

discipline did not violate the Act, the conduct was unprotected.

See id. at 50a-53a. A holding that the Board’s decision neither

stated nor gave reasons for is due no deference.

Moreover, it is unreasonable to argue, as the Board now

apparently does, and the Boilermakers explicitly do, that dissident

intra-union activity is unprotected if it “violat[es] a legitimate

union rule” that may lawfully be enforced with discipline.

NLRB’s Opp’n at 16; see Boilermakers’ Opp’n at 27-28. A union

may lawfully discipline its members for violating a rule against

“strikebreaking,” because “strikebreaking” undermines its effec-

tiveness as a bargaining agent. NLRB v. Allis-Chalmers Mfg. Co.,

388 U.S. 175, 181-82 (1967). However, “strikebreaking”

nonetheless is conduct protected by section 7. Pattern Makers,

473 U.S. at 101. Consequently, both the Second Circuit and the

Board, at least before this case, held that a union violates section

8(b)(1)A) if it insists on compliance with a compulsory unionism

agreement by an employee whose membership it has denied or

substantially impaired for “strikebreaking.” Communications

Workers Local 1104, 520 F.2d at 414, 418-19; Machinists

District 94, 283 N.L.R.B. at 892-93.

Similarly, a union may lawfully discipline its members for

violating a rule against not supporting it in organizing drives,

because both defensive and offensive organizing “assist the union

in solidifying” its status as collective-bargaining representative.

See Meatcutters Local 593, 237 N.L.R.B. 1159, 1160-61 (1978).

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Yet, section 7 still protects organizing for a rival union, and a

union violates section 8(b)(1)(A), if it demands compliance with

a “union security” agreement by an employee whom it has

lawfully denied membership for such organizing. Communica-

tions Workers Local 1104, 520 F.2d at 414-15, 418-19.

There is simply no rational basis for distinguishing the

dissident intra-union activity here from “strikebreaking,” organ-

izing for a rival, or the other dissident activities held to be

protected by section 7 in the cases cited in the Petition at 19-21.

Indeed, in another case not cited there, Newspaper Guild Local

26, 265 N.L.R.B. 382 (1982), the dissident activity held to be

protected by section 7 was the same as that in this case: support

of taking certain positions out of a bargaining unit.’ Compare id.

at 382-83 with Pet. App. A at Sa-6a. This also is not a “fact-

bound” question, “limited to this case alone,” as the Boilermak-

ers’ Opposition at 30 asserts. The issue presented is whether, as

a general principle, employees’ efforts to remove positions from

their unit are protected by section 7.

CONCLUSION

The petition should be granted as to all questions.

Respectfully submitted,

RAYMOND J. LAJEUNESSE, JR.*

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

ATTORNEY FOR PETITIONER

*Counsel of Record

7 The Boilermakers disingenuously suggest that Gilbert “could have

resigned his membership and avoided any internal discipline whatsoever.”

Boilermakers’ Opp’n at 28. If Gilbert had resigned, he could not have tried to

get the members of his local to agree to take positions out of their unit, because

nonmembers cannot make, debate, and vote on proposals at union meetings.