Petition for Writ of Certiorari — Mulder v. National Labor Relations Board

“vpreme Court, U.S.

Nn» FILED

(4) 011867 JUN 21 2003

No. 01-___

a

IN THE

Supreme Court of the United States

PHILLIP MULDER, GLENN HILTON, CHARLES BUCK,

LEON GIBBONS, REBECCA MCREYNOLDS

and BARBARA KIPP, ——w

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

GLENN M. TAUBMAN*

RICHARD J. CLAIR

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

COUNSEL FOR PETITIONERS

June 2002 *Counsel of Record

Zor ai >

A

QUESTIONS PRESENTED

In Ellis v. BRAC, 466 U.S. 435, 451-53 (1984), this Court

held that labor unions governed by the Railway Labor Act may

not require objecting nonmembers to pay compulsory dues for

union “organizing” campaigns. In CWA v. Beck, 487 U.S. 735,

745 (1988), this Court compared the “union security” provisions

of the Railway Labor Act and the National Labor Relations Act

and held that they are “‘in all material respects identical.”

I. May a labor union governed by the National Labor

Relations Act require objecting nonmembers, as a condition of

employment, to pay compulsory dues for union organizing

campaigns?

Il. Ifthe National Labor Relations Act is properly construed to

compel objecting nonmembers to fund union organizing

campaigns as a condition of employment, is the statute

unconstitutional as applied?

-ii-

PARTIES TO THE PROCEEDINGS BELOW

The Petitioners below were Phillip Mulder, Leon Gibbons,

Charles Buck, Glenn Hilton, Rebecca McReynolds and Barbara

Kipp. United Food and Commercial Workers Local 1036 was

a cross-petitioner.

The Respondent below was the National Labor Relations

Board.

Intervenors below were United Food and Commercial

Workers, Locals 7 and 951.

© reernemeae rere = ty dill gaa

-lll-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................. i

PARTIES TO THE PROCEEDINGS BELOW ................ il

ee ee Vi

I ig a ]

ND aS ak incl ud cS aves bohce ad cbveowns lee. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ........ 2

STATEMENT OF THECASE .......................... 3

ARGUMENT IN SUPPORT OF GRANTING THE WRIT ........ i)

I. The En Banc Decision of the Ninth Circuit

Is Directly Contrary to This Court’s Deci-

sions in Ellis and Beck, and This Court’s

Entire Body of Compulsory Dues Law .......... 9

he ON ih Deed al 2 Q

Ellis Could Not Be Clearer: All

Union Organizing Is “Outside

Congress’ Authorization” ............. 10 -

od Based Upon Thirty Years of Precedent.

Beck Holds That Congress’ Authoriza-

tion of Compulsory Dues Exactions

Is “Identical” under the RLA and the

-]V-

TABLE OF CONTENTS-CONTINUED

Page

D. The En Banc Ninth Circuit’s Deference

to the NLRB Also Conflicts with This

CE SE Nac odccoswen viscous 18

Il. There is a Direct Conflict Among the Circuit

Courts on the Precise Issue Presented. There

Is Also Uniformity of Federal and State Court

Precedent in Opposition to the Ninth Circuit’s

ee rer mer: Trey Pe 21

A. The Courts of Appeals’ Conflict ........ 21

B. The Uniform State and Federal

Pe Ln ceeded rretwadis 21

II]. It Is Important That the Court Grant the

Writ Because the En Banc Decision of the

Ninth Circuit Affects Millions of American

Workers and Upsets Well-Established

Precedent and Legal Certainty ................ 22

TV. Ifthe NLRA Requires Nonmembers to

Subsidize Union Organizing, the Statute

Is Unconstitutional as Applied ................ 23

SINE x acd: 0 kk hd hs a errr r res 26

APPENDICES (separate volume)

A. Decision of the En Banc United States

Court of Appeals for the Ninth Circuit

(March 25, 2002), reported at 284 F.3d 1099 .... la

“Ye.

TABLE OF CONTENTS-CONTINUED

Page

B. Order of the United States Court of Appeals

for the Ninth Circuit Vacating the Opinion

of the Original Panel and Ordering That

the Case Be Reheard En Banc (September 14,

2001), reported at 265 F.3d 1079 ............ 25a

;. Order of the Panel of the United States

Court of Appeals for the Ninth Circuit

Finding the Petitions for Rehearing

En Banc to Be Timely Filed (August 2, 2001) .. 27a

D. Sua Sponte Order of the Panel of the United

States Court of Appeals for the Ninth Circuit

Requiring Briefing on Whether the Case

Should Be Reheard En Banc (June 28, 2001) ... 29a

E. Decision of the Original Panel of the United

States Court of Appeals for the Ninth Circuit

(May 17, 2001), reported at 249 F.3d1115 .... 3la

F. Decision and Order of the National Labor

Relations Board (September 30, 1999),

reported at 329 N.L.R.B. 730 (1999) ......... 40a

G. Supplemental Decision of the Administrative

Law Judge (January 31, 1997), reported at

SEF Pilg, PRE CUMOTE, cod wa dnocdcucc, 95a

H. United States Constitution, First, Fifth and

Fourteenth Amendments .................. 137a

-Vi-

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Board of Education,

431 US. SOGGY scosesesedéicscctwivcesess 16,17

Abrams v. CWA, 59 F.3d 1373 (D.C. Cir. 1995) ........ 17

Albro v. Indianapolis Education Association,

585 N.E.2d 666 (Ind. App. 1992), aff'd sub nom.

Fort Wayne Education Association v. Aldrich,

594 NE.26 TEs GHG, SUG) ocncccccccsactséccaeans 22

Beck v. CWA, 776 F.2d 1187 (1985),

aff'd en banc, 800 F.2d 1280 (4" Cir. 1986),

afd, Bi UB. T33 CUGED 0c vccicduséadeceaseuas 9,21

Bennett v. Spear, 520 U.S. 154 (1997) ...........0045. 10

Breaux v. Agricultural Labor Relations Board,

265 Cal. Rptr. 904 (Cal. Ct. App. 1990) ............. 22

Breininger v. Sheet Metal Workers Local 6,

493 US. 67 CISGED.. ocnnncsanckectpaeeeeseueesen 20

Bromley v. Michigan Education Association,

02 F.36 606 C6" Cle. 190 occccctdusnuneesusaueel 21

BRAC v. Aen, 373 US. 113. IGG) ose ccdesestccess 17

Browne v. Wisconsin Employment Relations

Commission, 485 N.W.2d 376 (Wis. 1992) .......... 22

-Vii-

TABLE OF AUTHORITIES-CONTINUED

Page

California Saw & Knife Works,

Fae PLR SHOCRTOND wed vevenctcovsnnceseeeeen 6

Chemical Workers Local | v. Pittsburgh Plate Glass,

SIGUE: BGG Ge ree: hth avdenn cad dade hon de onde ces 13

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) .............. 19,20

Chicago Teachers Union v. Hudson,

Ge EE, 6.55.05-600.94b.0000000 5b 0000 080 17

CWA v. Beck, 487 U.S. 735, 745 (1988) ........... passim

Cumero v. Public Employment Relations Board,

262 Cal. Rptr. 46, 778 P.2d 174 (Cal. 1989) ......... 22

Department of Housing & Urban Development

v. Rucker, 535 U.S. _, 122 S. Ct. 1230 (2002) ...... 10

Ellis v. BRAC, 466 U.S. 435 (1984) .............-. passim

Ellis v. BRAC, 685 F.2d 1065 (9" Cir. 1982),

aff'd in part, rev'd in part, 466 U.S. 435 (1984) .... 10,11

Ferriso v. NLRB, 125 F.3d 865 (D.C. Cir. 1997) ..... 17,20

First National Maintenance Corp. v. NLRB,

ee EN nb a AN Usd nda de chins sstacecss 18

-Viil-

TABLE OF AUTHORITIES-CONTINUED

Page |

Illinois Federation of Teachers v. Illinois

Educational Labor Relations Board,

664 N.E.2d 107 (Ill. Ct. App. 1996) ................ 22

/

:

Immigration & Naturalization Service v. Abudu, )

Se EL ees a kadesasncnpensidvsaunees 10

Kolinske v. Lubbers, 712 F.2d 471 (D.C. Cir. 1983) ..... 24

Lambert v. Wicklund, 520 U.S. 292 (1997) ............ 10

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) ... 7,12,18,19

Lehnert v. Ferris Faculty Association,

Pe A OE ED in eds beh cb te ekav ees 17,22,25,26

Lehnert v. Ferris Faculty Association,

643 F. Supp. 1306 (W.D. Mich. 1986), aff'd,

881 F.2d 1388 (6" Cir. 1989), aff'd in part,

rev'd in part, 500 U.S. 507 (1991) ......... reper 21

Linscott v. Millers Falls Co., 440 F.2d 14

(ist Cir. 1971)

Local 24, International Brotherhood of Teamsters

ee: CR ee GND bd wes braced engeksess 13

Machinists v. NLRB, 133 F.3d 1012 (7™ Cir. 1998),

cert. denied, 525 U.S. 813 (1998) ............... 18,20

Machinists v. Street, 367 U.S. 740 (1961)

lie

-1X-

TABLE OF AUTHORITIES-CONTINUED

Page

Major League Baseball Players Association

vy. Garvey, 532 US. SOATIODI) «0.02 2ecrrtoseseees 10

Miller v. Air Line Pilots Association,

108 F.3d 1415 (D.C. Cir. 1997), aff'd,

523 U.S. 866 (1998) .--- eer 17,24

NLRB v. Andrew Jergens Co., 175 F.2d 130

fe Were el eee ee 24

NLRB v. General Motors Corp., 373 U.S. 734 (1963) .--- 24

NLRB v. United Food & Commercial Workers,

Local 23, 484 U.S. 112 3: ae a aaa 23

Nielsen v. Machinists Local 2569,

94 F.3d 1107 (7 Cir. Rie eunsn res enn ets 17

Pall Corp. v. NLRB, 975 F.3d 116 (D.C. Cir. 2002) ..--- 13

Pattern Makers League v. NLRB, 473 U.S. 95 (1985) ... 12

Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000) ...----- 17

Price v. International Union, United Automobile,

Aerospace & Agricultural Implement Workers

of America, 927 F.2d 88 (2d Cir. ne 24

Queen Mary Restaurants Corp. V. NLRB,

560 F.2d 403 (9" Cir. og EE ee CO aia 24

-X-

TABLE OF AUTHORITIES-CONTINUED

Page

Railway Employes’ Department v. Hanson,

S08 SID 6k Knee one edien eve 16,17,24

Reese v. City of Columbus, 798 F. Supp. 463

SB | SITS ee Pe ET et eee ree 21

Seay v. McDonnell-Douglas Corp.,

427 F.2d 996 (9" Cir. 1970), further

proceedings, 533 F.2d 1126 (9" Cir. 1976) ....... 17,24

Shea v. Machinists, 154 F.3d 508 (5" Cir. 1998) ....... 18

Steele v. Louisville & Nashville Railroad Co.,

SEP Ss DPR hk ae bias Warsnensedescdusades 24

Teamsters Local 443 (Connecticut Limousine

Service), 324 N.L.R.B. 633 (1997) .............. 14,19

Thomas v. Collins, 323 U.S. 516 (1945) .............. 25

United States v. Armstrong, 517 U.S. 456 (1996) ....... 10

United States v. Arvizu, 534 U.S. 266 (2202) .......... 10

Vaca ¥. Spas, SOUS. UTE ISG) os se ie vee eaee. 20,24

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

SEF Sa PO io 6 SE OR ERE EON Si Ba FS 25

=f

At RN aN! he NOR AT Ct tly Ae Ne alt, ih elaaiae Ea alate ilk ei (el

«Zhe

TABLE OF AUTHORITIES-CONTINUED

Page

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

United States Constitution,

PE sage a ie aa Katee wth a eee aw 3,21,26

SE tr ee ad oe Ly pala a esa dae keels 3

NS Rr oe as i Via e we baw areca xk 4 3

28 U.S.C.A. § 1254(1) (West 2000) 2... 2. ccc cee enees 2

PR MEE, ik ocd dann saree A bee neon as 7

National Labor Relations Act,

Para Se OE OE. hvac ccc hewidasacaccantancus 2

ae eo iG oe ks tld ak ks ee 9 08 ee passim

pg ES et) re as rere 24

ee I ees Sao C heat ha kae ene ee 24

a Es 6 oho 0k Oke ae AC Kee eee ees 24

er Rs EE 4 2 CCAD Se ee ath Reed ee uakeeoe eas 13

Railway Labor Act,

Pas RPE ie ioe wane edb ska enous 2,3

ey a Oe Eb wae eielecdesiacewss passim

Rules of the United States Supreme Court,

SE as) ly ak cea iene cian boda kbs keen 2

—— sc ee rmrt—“————

-xll-

TABLE OF AUTHORITIES-CONTINUED

Page

OTHER AUTHORITIES

Topol, Union Shops, State Action and

the National Labor Relations Act,

SE BO Beds CERO CIIOOD) oo sc ndacdendvasnyouswe ea 24

Voos, Union Organizing: Costs and Benefits,

36 Indus. & Lab. Rels. Rev. 576 (July 1983) ......... 25

jin

IN THE

Supreme Court of the Ynited States

No. 01-

PHILLIP MULDER, LEON GIBBONS, CHARLES BUCK, GLENN

HILTON, REBECCA McREYNOLDS AND BARBARA KIPP,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioners Phillip Mulder, Leon Gibbons, Charles Buck,

Glenn Hilton, Rebecca McReynolds and Barbara Kipp

respectfully pray that a writ of certiorari issue to review the en

banc opinion and judgment of the United States Court of

Appeals for the Ninth C ircuit, entered on March 25, 2002.

OPINIONS BELOW

The en banc March 25, 2002 opinion of the United States

Court of Appeals for the Ninth Circuit, Appendix A [ “App.”

at la, is reported at 284 F.3d 1099. The September 14, 2001

Order of the United States Court of Appeals for the Ninth

Circuit vacating the opinion of the original panel and ordering

that the case be reheard en banc, App. B at 25a, is reported at

4.

265 F.3d 1079. The August 2, 2001 Order of the panel finding

that the petitions for rehearing en banc were timely filed, App.

C at 27a, is unreported. The June 28, 2001 sua sponte Order of

the panel requiring briefing on whether the case should be

reheard en banc, App. D at 29a, is unreported. The May 17,

2001 decision of the original three-judge panel, App. E at 31a,

is reported at 249 F.3d 1115. The September 30, 1999 Decision

and Order of the National Labor Relations Board, App. F. at

40a, is reported at 329 N.L.R.B. 730. The January 31, 1997

Supplemental Decision of the Administrative Law Judge, App.

G at 95a, is reported at 329 N.L.R.B. 747.

JURISDICTION

A three-judge panel of the Ninth Circuit issued its opinion

on May 17, 2001. On June 28, 2001, the panel issued a sua

sponte order requiring the parties to file briefs on whether the

case should be reheard en banc. The NLRB and the intervening

unions filed responses and formally petitioned that the case be

reheard en banc. On August 2, 2001, the panel ruled that all

petitions for rehearing en banc were timely filed. On September

14, 2001, the full court vacated the panel opinion and ordered

the case reheard en banc. On March 25, 2002, the en banc court

of appeals issued the opinion from which the writ of certiorari

is being sought, and the time for filing this petition runs from

that date. This petition is therefore timely filed under Supreme

Court Rule 13.1. This Court’s jurisdiction is invoked pursuant

to 28 U.S.C.A. § 1254(1) (West 2000).

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves provisions of the National Labor

Relations Act, 29 U.S.C. § 151 et seg. and the Railway Labor

-%

Act, 45 U.S.C. § 151 et seq. It also involves the First, Fifth and

Fourteenth Amendments to the United States Constitution. The

pertinent texts are set forth in Appendices H at 137a and I at

138a.

STATEMENT OF THE CASE

Petitioners Philip Mulder, Charles Buck and Leon Gibbons

(“Petitioners” or “Nonmembers”) worked for Meijer, Inc.

(“Meijer”), aregional food and general merchandise retail chain

based in Grand Rapids, Michigan. Their collective bargaining

agent was United Food and Commercial Workers Local 951

(“Local 951”), a union that represents employees in widely

disparate bargaining units and industries, including retail

grocery stores, mercantile stores, food processing factories, a

nursing home, pet food processing factories and various

distribution centers. The collective bargaining agreement

between Local 951 and Meijer contained a clause requiring all

employees to join the union or pay dues as a condition of

continued employment.

At various times in 1988 and 1989, these three

Nonmembers resigned from membership in Local 951 and

objected, under CWA v. Beck, 487 U.S. 735 (1988), to the use

of their compulsory dues for political and nonrepresentational

activities. Local 951 provided them with financial disclosure

about the union’s expenditures. This disclosure showed that

both Local 951 and its parent affiliate, United Food and

Commercial Workers International (“UFCW”), spent significant

portions of the dues and fees collected on “organizing”

employees of employers besides Meijer. Local 951 included

these organizing expenditures within the “chargeable” portion

of the dues that the Nonmembers were required to pay under the

compulsory unionism clause.

-4-

Petitioners Rebecca Kipp and Barbara McReynolds

(“Petitioners” or “Nonmembers”) worked for City Markets, Inc.

(“City Markets”), a Colorado grocery retailer, at separate

bargaining unit stores in the rural mountain towns of Glenwood

Springs and Fruita, Colorado. Their collective bargaining agent

was UFCW Local 7 (“Local 7”), a union that also represented

employees of many other employers in the retail grocery and

meat packing industries throughout Colorado and Wyoming.

The collective bargaining agreement between Local 7 and City

Markets also contained a clause requiring all employees to join

the union or pay dues as a condition of continued employment.

In July 1989, Kipp and McReynolds resigned from

membership in Local 7 and objected under Beck to the use of

their compulsory dues for political and nonrepresentational

activities. Local 7 provided them with financial disclosure

which showed that the union spent significant portions of the

compulsory dues on “organizing” employees of employers

besides City Markets, and charged them for all of its organizing

expenses.

Between 1988 and 1991, all of these Nonmembers, as well

as other nonunion employees in different locations, filed dozens

of separate unfair labor practice charges with the National Labor

Relations Board (“NLRB”) against various UFCW local unions,

alleging numerous failures to comply with Beck. The major

issue raised in these unfair labor practice charges was whether

the UFCW local unions could require objecting nonmembers to

subsidize union efforts to “organize,” and recruit as members,

employees of other employers.

On October 25, 1991, after investigating these unfair labor

practice charges, the NLRB General Counsel issued a

nationwide consolidated complaint against Locals 7, 951, and

several other UFCW local unions. In part, the complaint alleged

that Locals 7 and 951 violated the National Labor Relations Act

-

(“NLRA”) by charging objecting nonmembers for expenses

incurred in organizing employees of other employers. In their

answers and at trial, the unions admitted these facts.

On January 14, 1992, a nationwide trial commenced before

an NLRB Administrative Law Judge (“ALJ”). The overriding

issue at trial was the chargeability or nonchargeability of union

organizing expenditures. The General Counsel and the

Nonmembers took the position that all such expenditures are

nonchargeable as a matter of law under Ellis v. BRAC, 466 U.S.

435 (1984), and CWA v. Beck, 487 U.S. 735 (1988). They

objected to the admission of the unions’ factual and expert

testimony on organizing, believing this issue to be settled as a

matter of law under Ellis and Beck. Despite these objections,

the ALJ permitted the unions to introduce the testimony of two

economists and several union officials, who testified to the

notion that higher levels of unionization bring more success at

the bargaining table.

In rebuttal, the General Counsel called Professor Morgan

Reynolds, a labor economist from Texas A & M University, as

an expert witness. Professor Reynolds testified that the

relationship between the level of unionization and wages is

“weak and tenuous,” and that many other complex variables,

including the general unemployment level, are much greater

wage determinants.

On January 31, 1997, the ALJ issued a Supplemental

Decision. App. G at 95a.' The ALJ did not make findings of

' On March 7, 1995, the ALJ issued an initial decision dismissing

the General Counsel’s complaint in its entirety. This ruling was predicated

on the fact that, seven years after this Court’s decision in Beck, the NLRB

still had not addressed nonmembers’ right to refrain from supporting union

political and other nonrepresentational activities. Shortly thereafter, the

(continued...)

ye

fact or rule directly on the testimony of the various experts,

recognizing the evidence about organizing to be conflicting. He

stated:

During the hearing, different experts testified in

support of the opposing positions on this issue. It may

well be that in different industries and in different

geographic areas the extent of organization of the work

force may or may not, in reality, support or refute the

abstract proposition that wages, benefits and

employment conditions of employees working for one

employer are affected by those which prevail in the

industry or area.

App. G at 131a.

Nevertheless, the ALJ held that objecting nonmembers

could be required to pay for union organizing activities directed

at employees of other employers. He reasoned that “organizing

activities are a necessary incident of collective bargaining and

contract administration.” Jd. at 132a. The ALJ did not find this

Court’s decision in Ellis to be binding, holding that “the

Railway Labor Act and public sector precedent does not govern

evaluation under the Act of union expenditures and of allocation

concerning them.” Jd. at 129a.

The Nonmembers filed timely exceptions with the NLRB.

On September 30, 1999, a divided NLRB affirmed the ALJ and

held that objecting nonmembers can be required to financially

support union organizing, “at least with respect to organizing

1(...continued )

NLRB decided California Saw & Knife Works, 320 N.L.R.B. 224 (1995),

its first case interpreting Beck. On April 2, 1996, in an unpublished

decision, the NLRB remanded this case to the ALJ for a supplemental

decision in light of California Saw.

x %

within the same competitive market as the bargaining unit

employer.” App. F at 53a. The NLRB majority refused to apply

Ellis, believing that case to be specific to the Railway Labor Act

(“RLA”), and distinguishable because, they asserted, the

NLRA’s principal purpose is to “foster organizing across

employer lines.” Jd. at 64a. Member Brame dissented, finding

that the majority’s attempt to distinguish this Court’s RLA and

NLRA precedents is foreclosed by Beck's holding that § 8(a)(3)

of the NLRA, 29 U.S.C. § 158(a)(3), has the same meaning as

§ 2, Eleventh, of the RLA, 45 U.S.C. § 152, Eleventh. App. F at

79a, 84a-90a.

Timely Petitions for Review were filed in both the United

States Court of Appeals for the District of Columbia Circuit and

the United States Court of Appeals for the Ninth Circuit. On

October 22, 1999, pursuant to 28 U.S.C. § 2112(a)(3), the

Judicial Panel on Multidistrict Litigation randomly selected the

Ninth Circuit as the forum to consolidate these petitions for

review.

On May 17, 2001, a three-judge panel of the Ninth Circuit

unanimously reversed the NLRB.? 249 F.3d 1115, App. E at

31a. The panel held that the NLRB was bound by the holding

of Ellis, 466 U.S. at 452, that union “organizational efforts were

not what Congress aimed to enhance by authorizing the union

shop,” and by the holding of Beck, 487 U.S. at 745, that the

provisions of the RLA and the NLRA authorizing “union-

security” agreements are “in all material respects identical.”

Relying on Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-37

(1992), the panel reasoned that the NLRB was owed no

deference in this case, because “the Board does not have a free

? Senior Judge Noonan wrote the opinion for the unanimous panel,

which included Judges McKeown and Wardlaw. Judge Wardlaw issued a

separate concurring opinion. App. E at 38a.

-8-

hand to interpret a statute when the Supreme Court has already

interpreted the statute,” and “does not have the power to reverse

the Supreme Court.” 249 F.3d at 1119-2000, App. E at 35a-

37a.

On June 28, 2001, the same three-judge panel sua sponte

issued an order requiring briefing on whether the case should be

reheard en banc. App. D at 29a. The NLRB and the unions filed

petitions for rehearing en banc, which were deemed by the panel

to be timely filed. App. C at 27a. On September 14, 2001, the

Ninth Circuit vacated the panel opinion and ordered the case

reheard en banc. App. B at 25a.

In an opinion authored by Judge Stephen Reinhardt, the en

banc Ninth Circuit panel unanimously upheld the NLRB

majority’s ruling that objecting nonmembers can be required to

subsidize union organizing activities “within the same

competitive market.” 284 F.3d 1099 (2002), App. A at la.’

According to Judge Reinhardt’s opinion, Eilis’ ruling that

organizing is outside of Congress’ authorization is limited solely

to the RLA, and binds neither the NLRB nor the courts when

applying the NLRA. App. A at 19a-22a.

As to Beck, Judge Reinhardt also found that decision

narrow and limited. “We should first remove any question as to

whether the Beck Court dealt with the question of what

activities are germane to collective bargaining. It did not.”

App. A at 17a. Judge Reinhardt found nothing in Beck

controlling on the organizing issue, because Beck did not itself

hold that organizing is nonchargeable, instead leaving “to the

[Fourth Circuit] Court of Appeals the ultimate resolution of the

* Judge Wardlaw, who had issued a separate concurrence

supporting the original panel opinion, reversed herself and this time agreed

with the en banc opinion. Compare 249 F.3d at 1120-21, App. E at 38a,

with 284 F.3d at 1102, App. A at 2a.

-9.

question of which specific expenditures were germane and

therefore chargeable to nonmembers.” App. A at 17a. What

Judge Reinhardt did not mention, however, is that the en banc

Fourth Circuit, which did resolve this question, held

unanimously that organizing activities are nonchargeable under

the NLRA, precisely because of Ellis’ binding precedent. Beck

v. CWA, 776 F.2d 1187, 1211-12 (1985), aff'd en banc, 800

F.2d 1280, 1282 (4th Cir.1986), aff'd, 487 U.S. 735 (1988).

ARGUMENT IN SUPPORT OF GRANTING THE WRIT

I. The En Banc Decision of the Ninth Circuit Is Directly

Contrary to This Court’s Decisions in Ellis and Beck,

and This Court’s Entire Body of Compulsory Dues

Law.

A. Introduction. In E//is, this Court held that labor unions

governed by the RLA may not require objecting nonmembers to

pay compulsory dues for union “organizing” campaigns. 466

U.S. at 451-53. In Beck, this Court compared the “union-

security” provisions of the RLA and the NLRA and held that

they “are in all material respects identical.” 487 U.S. at 745.

Despite these holdings, the en banc Ninth Circuit vacated

a unanimous decision of its own three-judge panel, App. E at

31a-39a, and found organizing to be a chargeable expense that

NLRA-covered nonmembers must bear. Astonishingly, the en

banc Ninth Circuit proclaimed that faithfulness to this (our

required it to reject the authority of Ellis and Beet. “The

Supreme Court has repeatedly admonished the lower courts

against overreading its precedents, and we find that

admonishment particularly applicable here.” 284 F.3d at 1113,

App. A at 22a.

-10-

The Nonmembers respectfully submit that the Ninth Circuit

should concern itself not with “overreading” this Court’s

precedents, but rather with reading them. A fair reading of Ellis

and Beck leads inescapably to the conclusion that Judge

Reinhardt and the Ninth Circuit simply rejected this Court’s

precedents. See, e.g., Department of Housing & Urban Dev. v.

Rucker, 535 U.S. __, __, 122 S. Ct. 1230, 1236 (2002)

(reversing the Ninth Circuit, holding that “Congress has directly

spoken on the precise question at issue”); United States v.

Arvizu, 534 U.S. 266, __, 122 S. Ct. 744, 747 (2002) (the

approach taken by the Ninth Circuit “departs sharply” from this

Court’s teachings); Major League Baseball Players Ass'n v.

Garvey, 532 U.S. 504, 510 (2001) (per curium) (“To be sure, the

Court of Appeals here recited [the proper] principles, but its

application of them is nothing short of baffling”); Lamberi v.

Wicklund, 520 U.S. 292, 293 (1997) (“the Ninth Circuit’s

holding is in direct conflict with our precedents”); Bennett v.

Spear, 520 U.S. 154, 176 (1997) (“It is difficult to understand

how the Ninth Circuit could have failed to see this from our

cases”); United States v. Armstrong, 517 U.S. 456, 469 (1996)

(Ninth Circuit “cited no authority” in reaching its conclusion);

Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 109

(1988) (“the reasoning of the Court of Appeals . . . is not

supported by our cases, and has been consistently rejected by

other Circuits and by other panels in the Ninth Circuit”).

Intervention by this Court is needed to correct a serious abuse

of the nation’s primary labor law.

B. Ellis Could Not Be Clearer: All Union Organizing Is

“Outside Congress’ Authorization.” In Ellis v. BRAC, 685

F.2d 1065 (9th Cir. 1982) (2-1 decision), rev ‘din pertinent part,

466 U.S. 435 (1984), the Ninth Circuit found union organizing

expenses chargeable to nonmembers covered by the RLA:

rie

[M]jaximum organization of an industry benefits

employees and units already organized. A union is

considerably strengthened if it eliminates competition

from non-union employers. . . . Successful organizing

efforts thus can strengthen the union’s position at the

collective bargaining table immeasurably.

685 F.2d at 1074.‘

This Court flatly rejected that proposition, unanimously

overruling the Ninth Circuit: “Despite this attenuated

connection with collective bargaining, . .. such expenditures are

outside Congress’ authorization.” Ellis, 466 U.S. at 451.

Notwithstanding this Court’s unambiguous rejection of the

Ninth Circuit’s rationale under the RLA, the en banc Ninth

Circuit has now resuscitated the identical proposition under the

NLRA.

In Ellis, this Court identified three specific considerations

for its holding that nonmembers need not support union

organizing. The en banc Ninth Circuit either ignored these

considerations or found them limited exclusively to the RLA

based upon what it called Ellis’ “close review” of that statute

and its legislative history. App. A at 19a. However, the notion

that E/lis is irrelevant under the NLRA is demonstrably false

after Beck found RLA § 2, Eleventh and NLRA § 8(a)(3) to be

“statutory equivalent[s],” with “identical” congressional

purposes. Beck, 487 U.S. at 746-47. Indeed, the three factors

cited in Ellis apply with equal vigor under the NLRA.

First, Ellis unequivocally rejected the argument that

nonmembers could be required to contribute to the overall

strength of the union because strong unions achieve greater

* The Ninth Circuit majority opinion in Ellis was written by Circuit

Judge Pregerson, one of the members of the en banc court below.

«32.

success at the bargaining table and across bargaining unit lines:

The “notion that § 2, Eleventh would be a tool for the expansion

of overall union power appears nowhere in the legislative

history.” Ellis, 466 U.S. at 451. Attempting to distinguish this

holding, the en banc Ninth Circuit found that the NLRA is

different from the RLA because “organizing is central to the

purpose of thé NLRA,” and the failure to organize other

employers “weakens the union’s ability to bargain with the

employer.” App. A at 12a.

But the Ninth Circuit’s notion of “strengthening union

power” above all else is absent from any fair reading of the text

or legislative history of § 8(a)(3) of the NLRA, just as Ellis

found it absent from § 2, Eleventh of the RLA. While the

NLRA (like the RLA) sets up a process by which unions may

recruit willing employees as members, it does not give unions

unfettered power to do so—with other people’s money or

property. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 532

(1992) (limiting a UFCW union’s organizing activity on private

property, and holding that by “its plain terms . . . the NLRA

confers rights only on employees, not on unions or their

nonemployee organizers’’); see also Pattern Makers League v.

NLRB, 473 U.S. 95, 101-05 (1985) (policy of the NLRA is

employee free choice and “voluntary unionism,” not compulsory

membership).

In short, the NLRA is indistinguishable from the RLA on

the precise issue presented here, contrary to the strained

rationale of the en banc Ninth Circuit.

Second, Ellis held:

where a union shop provision is in place and enforced,

all employees in the relevant unit are already

organized. By definition, therefore, organizing

expenses are spent on employees outside the

«| 3.

collective-bargaining unit already represented. Using

dues exacted from an objecting employee to recruit

members among workers outside the bargaining unit

can afford only the most attenuated benefits to

collective bargaining on behalf of the dues payer.

466 U.S. at 452 (footnote omitted & emphasis added). The en

banc Ninth Circuit never directly addressed this critical point,

or the fact that the NLRA, like the RLA, revolves around

employees in “relevant bargaining units.” See generally NLRA

§ 9(b), 29 U.S.C. § 159(b) (specifying that “the unit appropriate

for the purposes of collective bargaining shall be the employer

unit, craft unit, plant unit, or subdivision thereof,” not any unit

tenuously related to the original unit); see also Pall Corp. v.

NLRB, 275 F.3d 116, 120 (D.C. Cir. 2002), citing Local 24,

Int’! Bhd. of Teamsters v. Oliver, 358 U.S. 283, 294 (1959) (an

issue arising outside the bargaining unit may be a mandatory

subject of bargaining only if it “vitally affects” the terms and

conditions of employment within the bargaining unit); Chemical

Workers Local 1 v. Pittsburgh Plate Glass, 404 U.S. 157 (1971)

(retirees’ health benefits not a mandatory subject of bargaining

because those individuals are outside the relevant unit).

Indeed, Ellis also applied the “relevant bargaining unit”

analysis to determine whether other union expenses, besides

organizing, were chargeable to nonmembers. For example, out-

of-unit litigation expenses were held nonchargeable precisely

because they do not relate to the nonmembers’ specific unit.

The expenses of litigation not having such a

connection with the bargaining unit are not to be

charged to objecting employees. Contrary to the view

of the Court of Appeals, therefore, unless the Western

-14-

Airlines bargaining unit is directly concerned,

objecting employees need not share the costs of the

union’s [litigation].

466 USS. at 453.

Although the en banc Ninth Circuit failed to address Ellis’

“relevant bargaining unit” analysis or apply its teachings, there

is no reason to believe that this analysis arbitrarily changes from

the RLA to the NLRA. See Teamsters Local 443 (Connecticut

Limousine Serv.), 324 N.L.R.B. 633, 639 (1997) (Chairman

Gould, dissenting) (Board majority is “manufactur[ing] a

distinction in applicable law where none exists”’).

Ellis holds that “it would be perverse to read [§ 2, Eleventh]

as allowing the union to charge to objecting nonmembers part

of the costs of attempting to convince them to become

members.” 466 U.S. at 452 n.13. The same is true under the

NLRA with regard to the unions’ efforts to convince employees

in other potential bargaining units to become union members.

Since objecting nonmembers cannot lawfully be charged for

member recruitment within their own bargaining unit—where

the relationship to bargaining is obviously greatest—it

necessarily follows that objecting nonmembers cannot be

charged for member recruitment in other units, even “within the

same competitive market.” App. A at 14a, n.13.

Third, Ellis held:

The free-rider rationale does not extend this far. The

image of the smug, self-satisfied nonmember, stirring

up resentment by enjoying benefits earned through

other employees’ time and money, is completely out of

place when it comes to the union’s overall organizing

efforts. .. . [T]he free rider Congress had in mind was

the employee the union was required to represent and

from whom it could not withhold benefits obtained for

-15-

its members. Non-bargaining unit organizing is not

directed at that employee.

466 U.S. at 452 (emphasis added). =——— -

The en banc Ninth Circuit did not directly address this third

Ellis factor either, but it applies equally to the NLRA. Local

951 owes no statutory obligation to Meijer employees in

Michigan to organize and represent employees at other

warehouses or food retailers, nor does Local 7 owe City

Markets’ employees in Glenwood Springs and Fruita, Colorado

a statutory duty to organize other retailers, wholesalers,

meatpackers or large general merchants like Macy’s or

Emporium. While Locals 7 and 951 may well have undertaken

grand plans for the unionization of the entire nation—as is their

right—they are under no ‘statutory obligation to do so, and must

pay for this activity from voluntary supporters. Nothing in Beck

or the NLRA is to the contrary.

C. Based Upon Thirty Years of Precedent, Beck Holds

That Congress’ Authorization of Compulsory Dues

Exactions Is “Identical” under the RLA and the NLRA. As

if Ellis, standing alone, was not enough to raise grave questions

about the propriety of the en banc Ninth Circuit’s ruling and its

lack of fealty to this Court’s precedents, Beck slams the door on

the lower court. Far from arising on a clean slate such that none

of this Court’s compulsory dues precedents control, see App. A

at 14a to 23a, Beck explicitly applied Ellis’ principles to the

NLRA. Moreover, it did so against a backdrop of over thirty

years of labor law and constitutional jurisprudence.

This Court did not act in a vacuum. in Beck when it

compared the legislative histories and congressional purpose

underlying the two compulsory dues statutes, NLRA § 8(a)(3),

and RLA §2, Eleventh, and found them to be “statutory

equivalent[s].” Beck, 487 U.S. at 762.

-16-

Our decision in [Machinists v.] Street, [367 U.S. 740

(1961)] is far more than merely instructive here: we

believe it is controlling, for § 8(a)(3) and § 2, Eleventh

are in all material respects identical. Indeed, we have

previously described the two provisions as ‘statutory

equivalents’, Ellis v. Railway Clerks, 466 U.S. 435,

452, n.13 (1984), and with good reason, because their

nearly identical language reflects the fact that in both

Congress authorized compulsory unionism only to the

extent necessary to ensure that those who enjoy union-

negotiated benefits contribute to their cost... . In

these circumstances, we think it clear that Congress

intended the same language to have the same meaning

in both statutes.

487 U.S. at 745-47 (citations & footnotes omitted, emphasis

added). Despite the blinders of the en banc Ninth Circuit, there

is nothing equivocal about Beck’s use of the words “identical”

and “controlling” to describe Ellis ’ limitations on the extent and

reach of the two compulsory dues statutes—limitations that

include this Court’s unanimous determination that it is “outside

Congress’ authorization” to charge objecting nonmembers for

union campaigns to organize and recruit new members. 466

U.S. at 451-53.

The finding that Congress intended to achieve “identical”

results in enacting the compulsory unionism provisions of the

two major federal labor statutes is not anomalous. This Court

has consistently sought to harmonize its agency fee

jurisprudence. For example, in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), a constitutional case

challenging Michigan’s compulsory dues statute, this Court held

that its prior RLA decisions in Railway Employes’ Department

v. Hanson, 351 U.S. 225 (1956), and Machinists v. Street, 367

U.S. 740 (1961), were “controlling.” 431 U.S. at 232.

ih

Abood described its holdings in Hanson and Street as

“reflect[ing] familiar doctrines in the federal labor laws.” 431

USS. at 220; see also Lehnert v. Ferris Faculty Ass'n, 500 U.S.

507, 554-55 (1991) (Scalia, J., concurring in pertinent part)

(there “is good reason to treat [E/lis and other statutory cases]

as merely reflecting the constitutional rule”).

This thirty-year harmonization of precedent and analysis

between RLA § 2, Eleventh and NLRA § 8(a)(3) has been

consistently recognized by the lower courts, with the en banc

Ninth Circuit’s notable exception. For example, in Seay v.

McDonnell Douglas Corp., 427 F.2d 996, 1002-04 (1970),

further proceedings, 533 F.2d 1126, 1128 n.3 & 1131-32 (9th

Cir. 1976), two Ninth Circuit panels held that this Court’s RLA

decisions in Machinists v. Street, 367 U.S. 740 (1961), and

BRAC v. Allen, 373 U.S. 113 (1963), were “equally applicable”

to the NLRA, and that “it is immaterial that the NLRA rather

than the Railway Labor Act is involved in the present

litigation.”

Other circuits have ruled likewise. The United States Court

of Appeals for the District of Columbia Circuit has repeatedly

held that unions collecting compulsory fees under the NLRA

must meet the standards of this Court’s RLA and constitutional

cases in order to satisfy the NLRA’s “duty of fair

representation.” Abrams v. CWA, 59 F.3d 1373, 1379 (D.C. Cir.

1995) (citing “basic considerations of fairness” under Chicago

Teachers Union v. Hudson, 475 U.S. 292, 306 (1986)); Ferriso

v. NLRB, 125 F.3d 865, 867-70 (D.C. Cir. 1997); Penrod v.

NLRB, 203 F.3d 41 (D.C. Cir. 2000); see also Miller v. Air Line

Pilots Ass'n, 108 F.3d 1415, 1418-20 (D.C. Cir. 1997), aff'd,

523 U.S. 866 (1998). The Seventh Circuit has recognized that

“(t]he germaneness guidance offered by the Court in Ellis has

also been applied in private sector NLRA cases.” Nielsen v.

Machinists Local 2569, 94 F.3d 1107, 1113 (7th Cir. 1996). See

-18-

also Shea v. Machinists, 154 F.3d 508, 511-16 (Sth Cir. 1998)

(recognizing the equivalency between § 8(a)(3) and § 2,

Eleventh, and this Court’s efforts to harmonize its compulsory

dues decisions); but see Machinists v. NLRB, 133 F.3d 1012,

1015 (7th Cir. 1998) (questioning whether this Court’s RLA and

constitutional precedents apply under the NLRA).

In refusing to accept this “statutory equivalence,” the en

banc Ninth Circuit took refuge in this Court’s statement that

“parallels between the NLRA and the Railway Labor Act,

should be drawn with the utmost care and with full awareness

of the differences between the statutory schemes,” First

National Maintenance Corp. v. NLRB, 452 U.S. 666, 686, n.23

(1981). App. A at 20a, n.19. But the en banc Ninth Circuit’s

reliance on that general proposition is of no avail here. Beck

explicitly considered that identical point, and distinguished it,

when it held that the RLA’s compulsory dues precedents are

“controlling” under the NLRA, because “§ 8(a)(3) and § 2,

Eleventh are in all material respects identical.” 487 U.S. at 745-

46, & n.3.

In short, the en banc Ninth Circuit boldly, and erroneously,

refused to follow this Court’s longstanding harmonization of the

RLA’s and the NLRA’s compulsory dues provisions. This

Court’s intervention is needed now to restore consistency

among the lower courts.

D. The En Banc Ninth Circuit’s Deference to the NLRB

Also Conflicts with This Court’s Precedents. The original

three-judge panel granted no deference to the NLRB. Relying on

Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992), the panel

held that deference was uncalled for because Ellis and Beck had

already decided the issue, and “[t]he Board does not have the

power to reverse the Supreme Court.” App. E at 37a.

-19-

In contrast, the en banc Ninth Circuit relied upon Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), to grant absolute deference to the NLRB.

Notwithstanding Ellis’ holding that nonmembers cannot be

forced to pay for union organizing, and Beck’s finding of

statutory equivalence between the RLA and the NLRA, the en

banc court reasoned that “the NLRB remains free to determine

what union activities are germane to collective bargaining in

industries covered by the NLRA,” App. A at 17a. The en banc

court found it sigmificant that E/lis was decided by the judiciary

in the absence of an administrative agency, whereas “Congress

established entirely different procedures for the interpretation of

each Act” when it created the NLRB, thus “militat[ing]

strongly” against applying RLA law to the NLRA, even to

identical issues. Id.

By exalting the NLRB’s views above this Court’s definitive

statutory interpretations in Ellis and Beck, the en banc Ninth

Circuit ignored this critical portion of Chevron: “The judiciary

is the final authority on issues of statutory construction and must

reject administrative constructions which are contrary to clear

congressional intent.” 467 U.S. at 843 n.9. Because any

coherent reading of Ellis and Beck shows that this Court has

already determined the clear meaning of RLA § 2, Eleventh and

NLRA § 8(a)(3) on the issue presented, review of the NLRB’s

decision must be based upon stare decisis and fealty to this

Court, Lechmere, 502 U.S. at 536-37, not deference to a divided

administrative agency which “manufacture[s] a distinction in

applicable law where none exists,” Teamsters Local 443

(Connecticut Limousine Serv.), 324 N.L.R.B. 633, 639 (1997)

(Chairman Gould, dissenting).

None of this Court’s compulsory dues cases— including

Ellis or Beck—originated with the NLRB. It is too late in the

-20-

day for the en banc Ninth Circuit suddenly to determine that the

NLRB can arrogate to itself all “expertise” over this area of the

law, including portions already decided by this Court as a matter

of statutory interpretation and congressional intent. The en banc

Ninth Circuit’s erroneous deferral shows that review by this

Court is necessary to clarify the respective roles of the NLRB

and the judiciary in determining the rights of objecting

nonmembers forced to pay compulsory union dues. Compare

Vaca v. Sipes, 386 U.S. 171, 180-83 (1967) (NLRB’s “tardy

assumption of jurisdiction in [duty of fair representation] cases”

does not “oust the courts of their traditional jurisdiction”), and

Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67, 74-75

(1989) (expressing doubts as to whether “‘the Board brings

substantially greater expertise to bear on these problems than do

the courts’” (citing Vaca, 386 U.S. at 181)) with Machinists v.

NLRB, 133 F.3d 1012, 1015 (7th Cir. 1998), cert. denied, 525

U.S. 813 (1998) (“It is hard to think of a task more suitable for

an administrative agency that specializes in labor relations, and

less suitable for a court of general jurisdiction, than crafting...

the generalities of .. . Beck . . . into a workable system for

determining and collecting agency fees”), and Ferriso v. NLRB,

125 F.3d 865, 869 (D.C. Cir. 1997) (overruling the NLRB, but

nevertheless holding that it is entitled to Chevron deference

when applying Beck).

In short, the divergent views of the original three-judge

panel, the en banc Ninth Circuit, and other circuits about the

level of deference owed to the NLRB when applying Ellis and

Beck, show that intervention by this Court is necessary.

a.

II. There Is a Direct Conflict Among the Circuit Courts on

é the Precise Issue Presented. There Is Also Uniformity

of Federal and State Court Precedent in Opposition to

the Ninth Circuit’s Analysis.

A. The Courts of Appeals’ Conflict. The en banc

decision of the Ninth Circuit is in direct conflict with an en banc

decision of the Fourth Circuit in Beck v. CWA, 776 F.2d 1187,

1211-12 (1985), aff’d en banc, 800 F.2d 1280, 1282 (4th Cir.

1986), aff'd, 487 U.S. 735 (1988).

In Beck, a panel of the Fourth Circuit relied exclusively on

Ellis to hold organizing nonchargeable under the NLRA. 776

1 F.2d at 1211-12. When the case was reheard en banc, the

i Fourth Circuit divided 6-4 on the appropriate basis for federal

' court jurisdiction over the objecting nonmembers’ claims.

: However, the per curium en banc opinion stated, with regard to

the panel’s decision on organizing and other chargeability

H issues, that there was “no difference within the Court, assuming

that federal jurisdiction was upheld, that the majority panel

opinion’s disposition of the allocation issue was properly

resolved.” 800 F.2d at 1282. This Court is thus faced with two

unanimous, but conflicting, en banc opinions concerning Ellis’

application to the NLRA, and the chargeability of union

rf organizing under that statute. Intervention by this Court is

clearly warranted.

EF SPREE OO

: B. The Uniform State and Federal Precedents. The en

banc Ninth Circuit’s decision is unprecedented under any state

or federal labor statute. It is the first and only decision, of any

federal or state court, to require objecting nonmembers to pay

for union organizing as a condition of employment. See, e.g.,

Bromley v. Michigan Educ. Ass’n, 82 F.3d 686, 696 (6th Cir.

1996) (organizing nonchargeable under the First Amendment);

Reese v. City of Columbus, 798 F. Supp. 463, 470 (S.D. Ohio

1992) (same); Lehnert v. Ferris Faculty Ass’n, 643 F. Supp.

-22-

1306, 1324-25 (W.D. Mich. 1986) (same), aff'd, 881 F.2d 1388

(6th Cir. 1989), aff'd in part, rev'd in part on other grounds,

500 U.S. 507 (1991); Cumero v. Public Employment Rel ‘ns Bd.,

262 Cal. Rptr. 46, 61-63, 778 P.2d 174, 189-91 (Cal. 1989)

(organizing nonchargeable under state public-sector statute);

Breaux v. Agricultural Labor Rel’ns Bd., 265 Cal. Rptr. 904,

917 (Cal. Ct. App. 1990) (organizing nonchargeabie under state

agricultural labor statute); Albro v. Indianapolis Educ. Ass'n,

585 N.E.2d 666, 668-70 (Ind. App. 1992), aff'd sub nom. Fort

Wayne Educ. Ass'n v. Aldrich, 594 N.E.2d 781 (Ind. 1992)

(organizing nonchargeable under state public-sector statute);

Browne v. Wisconsin Employment Rel 'ns Comm'n, 485 N.W.2d

376, 388-89 (Wis. 1992) (same); J/lineis Fed'n of Teachers v.

Illinois Educ. Labor Rel’ns Bd., 664 N.E.2d 107, 107-09 (Ill. Ct.

App. 1996) (organizing nonchargeable under state public-sector

statute, despite union official’s testimony that “organizing

benefits unit members by increasing the local union’s strength

in negotiations”). Although these courts were applying statutes

other than the NLRA, their reasoning, based upon Ellis and

Lehnert, directly conflicts with Judge Reinhardt’s opinion for

the en banc Ninth Circuit.

In short, the rule adopted en banc by the Ninth Circuit has

been rejected by every federal and state court that has

considered the issue or its equivalent. Intervention by this Court

is clearly warranted.

III. It Is Important That the Court Grant the Writ Because

the En Banc Decision of the Ninth Circuit Affects

Millions of American Workers and Upsets Well-

Established Precedent and Legal Certainty.

The issue presented is important for several reasons, not the

least of which is the conflicting en banc decisions of the Fourth

and Ninth Circuits. As noted, the Ninth Circuit’s en banc

23.

decision upsets what has heretofore been complete uniformity

of court precedents. Thus, confusion among the lower courts is

now guaranteed.

Moreover, absent this Court’s intervention, the NLRB

General Counsel will undoubtedly cease issuing complaints

challenging the chargeability of union organizing, and the Ninth

Circuit’s decision will be virtually unreviewable. See NLRB v.

United Food & Commercial Workers Union, Local 23,484 U.S.

112 (1987). Unions and nonmembers will be hereafter

consigned to years of additional federal court litigation

challenging the chargeability of union organizing expenditures

under the duty of fair representation. See Beck, 487 U.S. at 742-

44. In the meantime, millions of private-sector workers subject

to compulsory dues clauses under the NLRA will be forced to

subsidize union organizing and membership recruitment

campaigns, while workers under the RLA will not. Not only

will the affected employees suffer from this legal uncertainty,

but the many unions which operate under both the NLRA and

the RLA will face conflicting obligations as well.

IV. Ifthe NLRA Requires Nonmembers to Subsidize Union

Organizing, the Statute Is Unconstitutional as Applied.

In Beck, the nonmember employees raised a constitutional

challenge to the expenditure of their compulsory dues for non-

bargaining purposes. This Court did not decide the issue: “We

need not decide whether the exercise of rights permitted, though

not compelled, by § 8(a)(3) involves state action.” 487 U.S. at

761-62. The Nonmembers here have raised the identical issue,

although the en banc Ninth Circuit brushed it aside. App. A at

9a-lla & n.11; 16a-17a & n.16. If this Court does not reverse

the Ninth Circuit’s statutory ruling, it should hold the NLRA

unconstitutional as applied.

-24-

“State action” is present under the “exclusive

representation” regime of the NLRA. While employers are not

directly compelled to agree to a compulsory dues clause, the

NLRA provides significant governmental pressure for them to

do so, because such clauses are mandatory subjects of

bargaining. Sections 8(a)(5), (d) and 9(a) of the NLRA, 29

U.S.C. §§ 158(a)(5), (d) and 159(a). Moreover, this

governmental pressure to agree to some form of compulsory

dues clause is applied by both the NLRB and the federal courts.

See NLRB v. General Motors Corp., 373 U.S. 734 (1963); see

also Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403,

409 (9th Cir. 1977); NLRB v. Andrew Jergens Co., 175 F.2d 130

(9th Cir. 1949).

The lower courts are divided on whether this direct

governmental involvement supports a finding of state action.

Compare Seay v. McDonnell-Douglas Corp., 427 F.2d 996,

1002-04 (9th Cir. 1970); Linscott v. Millers Falls Co., 440 F.2d

14, 16-18 (1st Cir. 1971) (“‘[t]he federal statute is the source of

the power and authority by which any private rights are lost or

sacrificed’” (citing Hanson, 351 U.S. at 232)); Miller v. Air Line

Pilots Ass'n, 108 F.3d 1415, 1420 (D.C. Cir. 1997) (“it is not

apparent why it is any less ‘state action’” under the NLRA than

under the RLA) with Kolinske v. Lubbers, 712 F.2d 471 (D.C.

Cir. 1983); and Price v. International Union, United Auto.,

Aerospace & Agric. Implement Workers of America, 927 F.2d

88, 91-92 (2d Cir. 1991); see also Topol, Union Shops, State

Action and the National Labor Relations Act, 101 Yale L.J.

1135 (1992); Steele v. Louisville & N.R. Co., 323 U.S. 192, 198

(1944); Vaca v. Sipes, 386 U.S. 171, 182 (1967) (“congressional

grant of power to a union to act as exclusive collective

bargaining representative, with its corresponding reduction in

the individual rights of the employees so represented, . . .

raise[s] grave constitutional problems”). Intervention by this

24.

Court is needed to resolve this confusion among the circuit

courts.

Moreover, the Nonmembers’ constitutional claims are

substantial. “Organizing” is, at its heart, advocacy of an

ideological commitment to unionism, and the marketing of the

particular union to other, nonrepresented employees. In an

organizing campaign, employees do not speak with one voice

and are not of one mind, just as “worker and union cannot be

said to speak with one voice” in political and legislative fora.

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 521 (1991). The

NLRB’s own statistics show that unions are defeated in more

than half of their attempts to attain representation of employees.

App. F at 89a, n.25.

As this Court has long recognized, “[t]he right . . . to

discuss, and inform people concerning, the advantages and

disadvantages of unions and joining them is protected not only

as part of free speech, but as part of free assembly.” Thomas v.

Collins, 323 U.S. 516, 532 (1945); see Virginia State Bd of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 762 (1976). Unquestionably, union efforts to recruit

new members are infused with politics and ideology. Professor

Paula Voos, a labor economist who testified at trial for the

UFCW unions, admitted that unions organize for a whole host

of reasons, often having nothing to do with raising the wage

levels of any employees. These reasons include: the desire of

union leaders for political aggrandizement and power, both on

the local, state and national levels, and within the union

movement itself; the monetary self-interest of union leaders to

keep and enhance their own jobs and wages; and the perceived

“social idealism” and “ideological gains” brought about by

union organizing. Voos, Union Organizing: Costs and Benefits,

36 Indus. & Lab. Rels. Rev. 576, 577-78 (July 1983). Forcing

-26-

nonmembers to subsidize this activity violates the First

Amendment. See, e.g., Lehnert, 500 U.S. at 520-22, 528-29.

CONCLUSION

The rule of law announced by the en banc Ninth Circuit

conflicts directly with this Court’s decisions, the decision of the

en banc Fourth Circuit, and every lower court to consider

similar issues. The Petition should be granted, and the decision

below summarily reversed; or the case should be set for plenary

briefing and argument on the important questions presented

herein.

Respectfully submitted,

Glenn M. Taubman*

Richard J. Clair

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

COUNSEL FOR PETITIONERS

*Coynsel of Record