Opposition Brief — Kidwell v. Transportation Communications International Union

Supreme Court, U.

“J APR 6 832

No. 91-1344 | OFFISE QF THE CLERK

IN THE

Suprene Court of the Wuited States

OCTOBER TERM, 1991

KATHRYN A. KIDWELL; MICHAEL S. COFFMAN;

HELEN EADES; RAMONA J. ELLIS,

" Petitioners,

TRANSPORTATION-COMMUNICATIONS INTERNATIONAL

UNION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

MITCHELL KRAUS

3 Research Place

Rockville, MD 20850

JAMES COPPESS

501 3rd Street, N.W.

Washington, D.C. 20001

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

Counsel for Respondents

WILSON - Eras PRINTING Co.,. INC. - 789-0096 - WASHINGTON, D.C. 20001

® oA 00

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE .........................20....2.....0202 1

I et sleadabacadenacianvenimumlaniata 4

I. THE REQUIREMENT THAT FULL MEM-

BERS PAY FULL UNION DUES ...................... 4

A. The Railway Labor Act ................................... 5

B. The First Amendment ..................... Aire DET 13

II. CLASS CERTIFICATION ................................... 16

CONCLUSION .................0....... ARR LO ETI RNA EL 19

ee Te

ii

TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Board of Education, 60 Mich.

Ap. 92, 280 N.W.2d 822 (19785) ............................. 16

Abood v. Detroit Board of Education, 431 U.S. 209

8, | OR. Ce Aire lite AE NO Ta a RE 15

Abrams v. Communications Workers, 702 F. Supp.

920 (D.D.C. 1988), aff'd mem., 884 F.2d 628

(D.C. Cir.), cert. denied, 493 U.S. 992 (1989)... 12

Austin v. Michigan Chamber of Commerce, 494

U.S. 692, 110 S. Ct. 1891 (1990) ........00002 16

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

CIID crcsinsisuicosninstaicniicnbiieaaeihibeiaen aati amiaiaaaiinaaetiaa passim

Corporation of the Presiding Bishops v. Amos,

GER UE. Ge CE sence 14

Democratic Party v. Wisconsin, 450 U.S. 107

CRIBR D nnceisnnsrnsiceinsniesinsonnennnsidsereenien al ae neeann ela 5, 15

Ellis v. Railway Clerks, 466 U.S. 485 (1984) ......... 4,8

Fitz v. Communications Workers, 132 L.R.R.M.

2186 (D.D.C. 1989), aff'd mem., 917 F.2d 62

(D.C. Cir. 1990), cert. denied, 111 S. Ct. 1582

4): | RRRRReneeneenterinmmener LE RE Tome NS 12

Flagg Brothers, Inc. v. Brooks, 486 U.S. 149

CCSD aieccexressciinciiitnden nati da Ra 14

General Telephone Co. of the Southwest v. Falcon,

SBE GB. LG Cae svc 18

Gilpin v. AFSCME, 874 F.2d 1310 (7th Cir.),

cert. denied, 498 U.S. 917 (1989) ............0000000000... 18, 19

Hogan v. Brotherhood of Railway Clerks, 817 F.2d

ts FR ne 2

Jackson v. Metropolitan Edison Co., 419 U.S. 345

6: 5 | ev nM NEE UES onic TS OE Ss RT AR 14

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)... 13

Machinists v. Street, 367 U.S. 740 (1961) ............... 4,7,8

Marker v. Shultz, 485 F.2d 1008 (1978) -................ 5, 11

Minnesota Bd. of Community Colleges v. Knight,

405 Ua. Gi COGS ck as 15

NLRB v. Financial Institution Employees, 475 |

CBB. THR CRIS cvcceccstncdttninneeean 10, 11

National Collegiate Athletic Associate v. Tar-

kanian, 488 U.S. 179 (1988) ................-....ecccceeee- 14

iii

TABLE OF AUTHORITIES—Continued

Page

Pattern Makers v. NLRB, 473 U.S. 95 (1985) .....4, 10, 11

Price v. International Union, U.A.W., 927 F.2d 88

(2d Cir.), cert. denied, 112 S. Ct. 295 (1991) .... 12

Railway Clerks v. Allen, 373 U.S. 113 (1968) ......... 4

Railway Employes’ Department v. Hanson, 351

ET I SID oa co nnncidncessnneusinesinnnectotentntensnsanintnawesons 13, 14

Rendon v. AT&T Technologies, 883 F.2d 388 (5th

lad cssacepambeiitetadembanennn 3

Scofield v. NLRB, 394 U.S. 423 (1969) ..................... 11

Steele v. Louisville & Nashville R. Co., 323 U.S.

Ia ieellicnigmacinnanehenlignennend 5, 10

Steelworkers v. Sadlowski, 457 U.S. 102 (1982).... 5,14

Torres v. Oakland Scavenger Co., 487 U.S. 312

I erica riesn is ocencehciahirkanthssoenseiciglionsaicnsinhininnnnasenaanente 3

Warczak v. Detroit Board of Education, Wayne

“ID vicscnvierinecnarsnanesncnssvssnetenanenvenss 15

STATUTES

Labor-Management Reporting and Disclosure Act,

Be a, Be OID BO CP wiescsrceseccnscensecssnessonevece 5

National Labor Relations Act, as amended,

ID I ooo ssntnsaneyevasassicbnnnsananca ee 14

I i scene ssinsantaaabonansanhansebea 14

Railway Labor Act, 45 U.S.C. § 152, Eleventh.........., 14

IN THE

Suprenwe Cot of the United States

OCTOBER TERM, 1991

No. 91-1344

KATHRYN A. KIDWELL;: MICHAEL S. COFFMAN;

HELEN EADES; RAMONA J. ELLIS,

Petitioners,

Wa

TRANSPORTATION-COMMUNICATIONS INTERNATIONAL

UNION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

e BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This case began when

[flour railroad employees sued the Transportation

Communications International Union (“the union’).

The union is the collective bargaining representative

for the employees under the Railway Labor Act

(“RLA”), 45 U.S.C. § 152. One of the plaintiffs,

Kathryn A. Kidwell, is a member of the union. The

other three plaintiffs, Michael S. Coffman, Helen

Eades, and Ramona J. Ellis, are not. [Pet. App.

2a-3a (footnotes omitted) .]

2

The complaint raised various claims regarding

[u]nion security provisions in the collective bargain-

ing agreement requir[ing] that all employees pay

an agency fee, comprising the dues, initiation fees,

and assessments of union members. As part of the

agency shop relationship, the employees are required,

as a condition of employment, to pay the agency

fee to the union that is voted the collective bargain-

ing representative; however, they are not required to

become union members. [Pet. App. 3a.]

Given the structure of the union security agreement

and the union’s understanding of the governing law,

TCU (a) informed the covered employees of their option

between full union membership and non-member fee payer

status, and (b) further informed those employees that

members are required to pay full union dues while

non-member fee payers are afforded an opportunity to

object to financing certain union activities and, on so

doing, pay only a reduced fee. Fourth Circuit App.

249, 259, 264, 266.' See also Hogan v. Brotherhood of

Railway Clerks, 817 F.2d 248, 250 (4th Cir. 1987) (TCU,

then known as the Brotherhood of Railway Clerks, “has

given [represented employees] notice of their rights...

to withdraw from the Union’’).

1The court of appeals outlined TCU’s objection procedures as

follows:

[U]nder the union’s current procedure, in each calendar year,

for thirty days after receiving an April notice, nonmember

employees may object to the expenditure of their fees on activi-

ties unrelated to collective bargaining. An objector’s agency

fee then will be reduced by a set percentage. The union has an

independent legal expert decide which activities are chargable

and which are not, and a certified public accountant prepares

the accompanying accounting materials. The union’s newspaper

publishes the breakdown between chargeable and nonchargeable

expenses. An objector who disagrees with the amount of fee

reduction may challenge it before a neutral arbitrator. The

union holds all of the objector’s fee payment in an interest-

bearing escrow account pending the decision. The union pays

all costs of the arbitration. [ Pet. App. 3a.]

3

So far as relevant here, the district court,

[o]n cross motions for summary judgment .. . held

that the union had to permit objecting union mem-

bers to pay reduced dues. The [district court] judge

also held that the union’s procedure for handling

objections was permissible and refused to determine

the actual amount of fees payable by objectors. He

denied class certification of all past and future ob-

jectors; however, he certified the limited class of

union members who either were not told of an op-

portunity to object or objected and were denied a

reduction. [Pet. App. 4a (footnote omitted).]

On cross-appeals from the judgment of the district

court, the Fourth Circuit (Murnaghen, J., joined by

Ervin, C.J., and Phillips, J.), ruled that “[t]he judg-

ment is reversed as to whether a union member can ob-

ject to paying the portion of union dues attributable to

noncollective bargaining activities, and otherwise af-

firmed.” Pet. App. 44a.’

2In the courts below, Ms. Kidwell, a named plaintiff and peti-

tioner here, was the representative of a class of objecting TCU

members. Pet. App. 78a. While noting this fact in passing, Pet. 9,

the certiorari petition identifies the named plaintiffs as appearing

in their individual capacities. Pet. cover and pp. ii, 1 & 4. Compare

Torres v. Oakland Scavenger Co., 487 U.S. 312, 317-318 (1988) ;

Rendon v. AT&T Technologies, 883 F.2d 388, 398 n.8 (5th Cir. 1989)

4

ARGUMENT

I. THE REQUIREMENT THAT FULL UNION MEM-

BERS PAY FULL UNION DUES

It is well-settled: that individuals, who are (a) em-

ployed by a railroad, (b) part of an employee group

that has selected an exclusive bargaining representative

through the processes of the Railway Labor Act and

(c) covered by a union security agreement, have an abso-

lute right to choose between being union members or

being non-member fee payers; and that non-member fee

payers have the further right, by filing an objection, to

a pro-rata reduction in their fee for union expenditures

on “non-collective bargaining” activities. Machinists v.

Street, 367 U.S. 740 (1961) ; Railway Clerks v. Allen, 373

U.S. 113 (1963); Ellis v. Railway Clerks, 466 U.S. 435

(1984) ; Pattern Makers v. NLRB, 473 U.S. 95 (1985) .°

Both the district court and the court of appeals found

that the respondent union in this case fully and fairly

advised all the employees in the bargaining units the

union represents of their right to be non-member fee

payers if the employee so chooses, and has established

and administered a full and fair system for according

fee payers their “objection” rights.

Against that background, the petitioners’ claim here

reduces to the proposition that the RLA or the Constitu-

tion imposes an additional obligation on RLA unions: the

obligation to afford individuals, who refuse to meet the

union’s membership requirement of paying the full dues

8 Ellis holds that “objecting employees may be compelled to pay

their fair share of not only the direct costs of negotiating and

administering a collective bargaining agreement and of settling

grievances and disputes, but also the expenses of activities or under-

takings normally or reasonably employed to implement or effectuate

the duties of the union as the exclusive representative of the em-

ployees in the bargaining unit.” 465 U.S. at 448,

ee

=

0

set through the union’s democratic procedures, the right

to be full union members on their own financial terms.‘

All unions—including those that act as exclusive bar-

gaining representatives—are private associations. Steel-

workers v. Sadlowski, 457 U.S. 102 (1982); Steele

v. Louisville & Nashville R. Co., 323 U.S. 192 (1944).

And so far as we are aware, or petitioners show, neither

Congress nor this Court has ever required such an asso-

ciation to accord membership to individuals who refuse

to comply with the association’s uniform, non-discrimi-

natory rules. Any such requirement, we note, would

raise the most sensitive free association questions. Demo-

cratic Party v. Wisconsin, 450 U.S. 107, 124 (1981).

Not surprisingly, then, the court of appeals rejected the

petitioners’ claim. Its opinion—which is by far the most

comprehensive and the most fully reasoned treatment

in the lower courts of the question presented here—is

solidly grounded in this Court’s “union security’ prece-

dents from Machinists v. Street, supra, through Commu-

nications Workers v. Beck, 487 U.S. 735 (1988). Indeed,

the certiorari petition all but concedes as much by con-

centrating its fire on the supposed unfairness of the law

Congress wrote, as elaborated by this Court, rather than

on any defect in the court of appeals’ analysis of this

Court’s decisions. And, while the petition argues that

there is a conflict between the decision below and Marker

v. Shultz, 485 F.2d 1003 (1973), the argument in that

regard is frivolous. Marker does not even remotely con-

cern, much less consider, the matter at issue here.

A. The Railway Labor Act

1. The court of appeals’ basic holding—‘“|t]hat the

right to object is intended to benefit only nonmembers,”

Under the Labor-Management Reporting and Disclosure Act

local unions cannot raise dues without a direct vote of the member-

ship, 29 U.S.C. § 411(a)(3)(A), and national unions cannot raise

dues without a vote of the membership or of their duly elected and

authorized representat: ‘es, 29 U.S.C. § 411(a)(3)(B8).

6

Pet. App. 19a, (emphasis in original)—follows directly

from this Court’s decision in Communications Workers v.

Beck, supra. The Fourth Circuit read Beck as follows:

In Beck, 487 U.S. 735 (1988), the Court found the

political objection limitation of the RLA present in

the NLRA. The Court read Street to hold that “S$ 2,

Eleventh of the RLA does not permit a union, over

the objections of nonmembers, to expend compelled

agency fees on political causes,” 487 U.S. at 745

(emphasis added). It read Ellis to hold that “ ‘Con-

gress’ essential justification for authorizing the

union shop’ limits the expenditures that may properly

be charged to nonmembers under § 2, Eleventh to

those ‘necessarily or reasonably incurred for the pur-

pose of performing the duties of an exclusive [bar-

gaining] representative.’” Jd. at 752 (emphasis

added) (quoting Ellis, 466 U.S. at 447-48).

Moreover, the Court repeatedly suggested that

§ 8(a) (3) was concerned with “the rights of non-

members who are compelled to pay union dues... .”

Id. at 58 (emphasis in original). For example, the

petitioners had argued that Congress’ rejection of

a House bill that suggested regulation of union

finances was significant in interpreting § 8(a) (3).

The Court distinguished the bill by explaining that

it had “sought to establish a ‘bill of rights for

union members’ vis-a-vis their union leaders,” and

addressed “internal union affairs” rather than the

“rights of nonmembers.” Jd. at 758 (emphasis in

original). The Court added, “Congress understood

$ 8(a)(3) to afford nonmembers adequate protec-

tion by authorizing the collection of only those

fees necessary to finance collective-bargaining activ-

ities. .. .” Jd. at 759. And it concluded that “Con-

gress understood § 8(a) (3) simply to enable unions

to charge nonmembers only for those activities that

actually benefit them.” Jd. at 760. [Pet. App. 19a-

20a (footnotes omitted) .]

Recognizing that Beck is a National Labor Relations Act

(NLRA) case and that this is an RLA case, the court

of appeals added:

”?

‘

Although Beck was decided under the NLRA, the

Court relied heavily on the RLA and cases constru-

ing it. /d. at 745-746, 750-56, 761-62. Indeed, the

Court stated that § 8(a)(3) of the NLRA and § 2,

Eleventh of the RLA had “parallel purpose[s],

structure, and language” and should be interpreted

“in the same manner.” Jd. at 752. We thus find

highly persuasive Beck’s extension only to non-

members of the right to object. [Pet. App. 2a.]

As the Fourth Circuit opinion explains, this reading

of Beck is consistent, as well, with this Court’s earlier

“union security” decisions under the RLA and in par-

ticular with Machinists v. Street, supra, the fountain-

head of this body of law:

The [Street] Court found the right to object for

involuntary members of union shops by construing

the RLA to authorize unions to compel fees only for

the duties placed upon them by the RLA, namely,

collective bargaining activities. In the absence of

$ 2, Eleventh, the unions could not have obtained any

money from employees who chose not to be members

of the union, Street, 367 U.S. at 762, 770, therefore

the unions could only use this “coerced” money for

the limited purpose for which § 2, Eleventh was

enacted—to solve the “free rider” problem by shar-

ing “the costs of negotiating and administering col-

lective agreements, and the costs of the adjustment

and settlement of disputes.” Jd. at 764. The ra-

tionale, elucidated in Street, struck a balance. If

coerced employees had to pay for the union’s political

activities, it would mean “that Congress sanctioned

an expansion of historical practices in the political

area by the rail unions.” Jd. at 770. The Court

refused to allow unions greater power to collect

money but also declined to curtail “the traditional

political activities of the railroad unions.” Jd. The

Street Court held that its holding meant “only that

those unions must not support those activities,

against the expressed wishes of a dissenting employee,

with his exacted money.” Id.

8

The reasoning behind Street goes far to dissolve

Kidwell’s argument. Where the employee has a choice

of union membership and the employee chooses to

join, the union membership money is not coerced.

The employee is a union member voluntarily. More-

over, to find that the union may not collect money

for political activities from its members would curtail

the political activities traditionally funded by volun-

tary union membership prior to the enactment of the

RLA. Jd. at 750-51, 770. [Pet. App. 17a-18a.]

And, as the court of appeals demonstrates, this

Court’s most recent RLA union security decision, Ellis v.

Railway Clerks, supra, is to the same effect. “[I]n

Ellis . . . the Court perceived a difference between ‘volun-

tary members’ and ‘those whose membership is forced

upon them.’ [466 U.S.] at 445.” Pet. App. 16a. Accord-

ingly, “the [Ellis] Court reportedly referred to ‘non-

members’ as the objecting employees.” Pet. App. 16a.

See also id. (quoting such references in the Ellis

opinion) .*

In sum, under this Court’s decisions in Street, Ellis,

and Beck, Ҥ 2, Eleventh of the RLA does not permit a

union, over the objections of nonmembers, to expend com-

pelled agency fees on political causes.” Pet. App. 16a-17a

(emphasis added), quoting Beck, 487 U.S. at 745. At the

same time, however, these decisions do permit the union

to expend the dues received from full union members in

the same manner union dues moneys were spent before

§ 2, Eleventh was enacted. Pet. App. 17a-18a.

2. The certiorari petition makes no attempt to refute

the Fourth Circuit’s analysis of this Court’s controlling

5 The certiorari petition notes, Pet. 14-15 n. 19, that some of the

Ellis plaintiffs may have been union members. But those plaintiffs

alleged that they had been forced to become union members by a

union security clause that allowed employees who were already

hired at the time the clause was negotiated to pay agency fees but

required all later hires to join the union. Ellis v. Railway Clerks,

Sup. Ct. No. 82-1150, Joint Appendix 80-81, 95 (complaint in Fails

v. Railway Clerks, S8.D. Cal. No. 73-118-S). As shown above, p. 2,

supra, no such contention could be made in this case.

9

precedents. Instead, the petition argues that it would be

unfair to condition full union membership on the pay-

ment of full union dues. This supposed unfairness lies

in granting the union members willing to pay the union’s

dues a greater say than nonmembers in determining the

union’s collective bargaining policies. Doing so, we are

told, “makes union membership involuntary as a matter

of law!” Pet. 21.

The difficulty with this argument, as the court of ap-

peals explains, is that it rests on a fundamental misunder-

standing of the statutory system of collective bargaining

through a union representative as elaborated in this

Court’s decisions:

Kidwell’s claim depends on an employee’s right to

participate in all aspect of all decisions related to

conditions of employment. As discussed above | Pet.

App. 21a-26a], however, the rights accorded an in-

dividual employee under the RLA are not so infinite.

The employee, regardless of union membership, has

the right to vote on the collective bargaining repre-

sentative. The employee, regardless of union mem-

bership, has the right to be represented fairly and

heard by the collective bargaining representative.

But, if the majority of all employees should choose a

union as representative, the employee does not have

the right to participate in each and every aspect of

the union’s internal actions in carrying out its duties

as representative.

Therefore, at least so far as the RLA is concerned,

the union can offer every employee two choices:

(1) union membership, and with it, if the union is

elected collective bargaining representative, a right

to vote on the internal delegation of collective bar-

gaining power, the ratification of the negotiated

agreement, and any political or other cause in which

the union by majority vote decides to participate

but with the responsibility for paying complete dues

or (2) a nonmembership with the right to vote on

whether the union should be the collective bargaining

representative and responsible, if the union is so

10

elected, for paying only the portion of the dues re-

lated to collective bargaining activities. The union’s

refusal to allow objections by members does not vio-

late the RLA. [Pet. App. 26a.]

The foregoing, like the balance of the opinion below,

is firmly rooted in precedent. Steele v. Louisville &

Nashville R. Co., supra, establishes that a union chosen

as exclusive representative under the Railway Labor

Act “is required to consider requests of nonunion mem-

bers of the craft and expressions of their views with

respect to collective bargaining with the employer. .. .”

323 U.S. at 204. The union is required not only to

listen, “but to represent non-union or minority union

members of the craft without hostile discrimination,

fairly, impartially, and in good faith.” Jd. However, at

the same time that it defined the union’s duty to fairly

represent all employees—both union and non-union—the

Court affirmed that “the statute does not deny to such a

bargaining labor organization the right to determine eli-

gibility to its membership. ...” Id. (emphasis added).

Since Steele, moreover, this Court has repeatedly re-

affirmed that the duty to fairly represent all employees

does not deprive the union representative of its authority

to order its own internal affairs. See NLRB v. Financial

Institution Employees, 475 U.S. 192, 205 (1986) (unions,

acting in their representative capacity, can “call a strike,

ratify a collective bargaining agreement, or select union

officers and bargaining representatives” and “non-union

employees have no say in the[se] affairs of the union’’) ;

Pattern Makers v. NLRB, supra, 473 U.S. at 107-108

n. 18 (the strong incentive to join the union in order

to have a voice in its decisionmaking processes is entirely

consistent with “voluntary unionism’’).* See also Scofield

* To explain why “f{a]n employee who voluntarily has joined a

union will be reluctant to give up his membership,” the Pattern

Makers Court quoted Dean Wellington:

“In making his resignation decision, the dissident must remem-

ber that the union whose policies he finds distasteful will con-

tinue to hold substantial economic power over him as exclusive

11

v. NLRB, 394 U.S. 423, 424 n.1 & 481 (1969) (noting

existence of union security clause and finding “no show-

ing in the record .. . that the membership of the peti-

tioners in the union was involuntary”) .7

3. In an act of desperation, the certiorari petition

claims a conflict between the Fourth Circuit decision in

this case and the District of Columbia Circuit’s decision

in Marker v. Shultz, 485 F.2d 10083 (D.C. Cir., 1973).

Pet. 22.

The plaintiffs-petitioners did not so much as cite

Marker in their briefs to the courts below, and with good

reason. Marker did not involve the right to object under

either the NLRA or the RLA, much less decide whether

full union members have a statutory objection right.

Marker was, instead, “an action by workers in the

aerospace industry, who [welre required to pay union

dues under compulsory union shop contracts, to enjoin

Treasury officials from continuing to grant or recognize

tax exemption status under § 501(c) (5) of the Internal

Revenue Code in the case of any labor organization that

expends tax free membership dues for partisan political

campaigns. .. .” 485 F.2d at 1004. The D.C. Circuit

bargaining agent. By resigning, the worker surrenders his

right to vote for union officials, to express himself at union

meetings, and even to participate in determining the amount

or use of dues he may be forced to pay under a union security

clause.” Wellington, Union Fines and Workers’ Rights, 85 Yale

L.J. 1022, 1046 (1976). [473 U.S. at 107-108 n. 18. ]

7 The certiorari petition suggests, as a “less onerous” alternative

to requiring unions to accept members who refuse to pay full dues,

that unions be required to allow non-members to vote on collective

bargaining decisions. Pet. 21. This modest proposal is, among other

things, squarely contrary to Financial Institution Employees—

which, as just noted, states that unions may not be required to

provide for such non-member participation—and to Pattern Makers’

central rationale, viz., that the Act accords employees a right to

resign from union membership at will that is balanced by the mem-

bers’ exclusive right to determine the union’s policies and programs.

12

rejected the claim of the Marker plaintiffs, finding that

“it was the determination by Congress to keep the tax

exemption of dues and contributions in a neutral stance,

rather than to embroil the tax laws and the agencies

administering them into involvement with and surveil-

lance of the political activities of the unions.” /d. at 1007.

In short, the question of whether full union members

have a statutory or constitutional right to refuse to pay

full union dues did not arise at all in Marker. Indeed,

the D.C. Circuit decisions that do speak to this question

recognize that the statutory objection right runs solely to

“nonmember employees.” Abrams v. Communications

Workers, 702 F. Supp. 920 (D.D.C. 1988) (emphasis

added), aff'd mem., 884 F.2d 628 (D.C. Cir.), cert. de-

nied, 493 U.S. 992 (1989). Accord Fitz v. Communica-

tions Workers, 182 LRRM 2186, 2188 (D.D.C. 1989),

aff'd mem., 917 F.2d 62 (D.C. Cir. 1990), cert. denied,

111 S.Ct. 1582 (1991) (“dissenting non-union employ-

ees”). This is the view of other circuits as well. See

Price v. International Union, U.A.W., 927 F.2d 88, 90

(2d Cir.), cert. denied, 112 S.Ct. 295 (1991) (objection

right runs to “non-Union member employees’’ ).

* * * *

In sum, the Fourth Circuit’s decision upholding TCU’s

rule that those who wish to be full union members must pay

full union dues is dictated by this Court’s precedents. The

court of appeals’ decision is, moreover, consistent with

this Court’s teachings as to the union role in the collective

bargaining system and as to the differing rights of union

members and non-members in determining how the union

will fill that role. That being so, as is only to be expected,

the Fourth Circuit’s decision is in accord not only with

this Court’s decisions but, as well, with the other lower

court decisions that have treated with the question pre-

sented here.

13

B. The First Amendment

The Fourth Circuit rejected the claim that there is

a constitutional right to join a union, while refusing

to abide by the union rule requiring payment of full

union dues, on two distinct grounds: lack of state action,

Pet. App. 30a, and a failure to state a sound First

Amendment claim, even if there were state action, id.

3la. In both regards the court of appeals’ decision is

correct beyond peradventure of doubt.

1. With respect to the first of the Fourth Circuit’s

constitutional rulings, the certiorari petition falsely

charges that “[t]he panel’s decision find[s] no state

action in an agency shop under the RLA,” and by so

doing “directly conflicts with this Court’s finding of state

action under the RLA.” Pet. 17 (footnote omitted).

To the contrary, the court of appeals expressly relied

upon Railway Employes’ Dept. v. Hanson, 351 U.S. 225

(1953), in recognizing that “[t]he coercive effect of the

RLA over nonmember employees and its preemption of

state law often give rise to state action. Hanson, 351

U.S. at 232.” Pet. App. 29a. And the Fourth Circuit

expressly followed Hanson’s holding that “[t]he enactment

of the federal statute authorizing union shop agreements

is the governmental action on which the Constitution

operates. .. .” 851 U.S. at 282.

The court of appeals also recognized, however, that to

say the “enactment of the federal statute. ..is...

governmental action” is not to say that everything done

by a private association covered by the statute is also

governmental action. Pet. App. 29a. While “fu]ndoubt-

edly the [government] [i]s responsible for [its] statute,”

it is equally plain that “[alction by a private party

pursuant to [a] statute, without something more, [i]s

not sufficient to justify a characterization of that party as

a ‘state actor.’” Lugar v. Edmondson Oil Co., 457 U.S.

922, 938, 939 (1982) (emphasis added).

14

Thus, the necessary—but unstated—premise of the cer-

tiorari petition’s state action argument is that, because

the RLA’s union shop authorization is itself subject to

constitutional limitations, everything done by a union cov-

ered by that authorization is also subject to constitu-

tional limitations. As the court of appeals’ opinion notes,

Pet. App. 30a, this state action theory flies in the face

of the unbroken line of decisions—from Jackson v. Metro-

politan Edison Co., 419 U.S. 845 (1974), through National

Collegiate Athletic Assoc. v. Tarkanian, 488 U.S. 179

(1988)—finding no state action in the independent ac-

tions of various private entities operating pursuant to an

overall statutory authorization.

And, as the Fourth Circuit recognizes, this state ac-

tion principle was applied to internal union decisions in

Steelworkers v. Sadlowski, supra, 457 U.S. at 121 n.16,

where this Court held that a “union’s decision to adopt

an [election] rule does not involve state action.” Pet.

App. 28a.

2. As already noted, following its discussion of the

state action issue, the Fourth Circuit appeals added,

“even assuming state action existed, we do not believe

that the choice offered to Kidwell violates any First

Amendment rights.” Pet. App. 30a. The panel justified

8 Unlike the RLA’s union shop authorization, the NLRA’s union

security provisions do not preempt contrary state law, and simply

declare that such agreements are not forbidden as a matter of fed-

eral law. 29 U.S.C. §§ 158(a) (3) & 164(b). The general rule is

that such a “statutory refusal to act” is beyond constitutional review

by the judiciary. Flagg Bros., Inc. v. Brooks, 486 U.S. 149, 166

(1978). See, e.g., Corporation of the Presiding Bishops v. Amos,

483 U.S. 327, 337-338 & n. 15 (1987) (although religious employ-

ers are exempted from Title VII’s prohibition of religious discrimi-

nation, their actions are not “fairly attributable to the Govern-

ment). RLA § 2, Eleventh has been deemed to be more than a

“statutory refusal to act,” Flagg Bros., 436 U.S. at 166, because

“Congress, by the union shop provision of the Railway Labor Act,

sought to strike down inconsistent laws in 17 States,” Hanson, 351

U.S. at 231-232.

15

this conclusion in a detailed constitutional analysis, Pet.

App. 30a-37a. Once again, the certiorari petition does

not even attempt to refute the court of appeals reason-

ing, and we, therefore, summarize this alternative hold-

ing in the margin.®

3. The certiorari petition does, however, seek support

for its constitutional arguments from this Court’s deci-

sion in Abood v. Detroit Board of Education, 431 U.S.

209 (1977), which concerned the First Amendment rights

of public employees. In this regard, it is asserted that

Abood “involve{d] union members employed in agency

shops.” Pet. 14. However, as the Fourth Circuit accu-

rately stated, Pet. App. 16a, the Abood Court was not

called upon to decide whether full union members have

the right to remain members while refusing to pay full

union dues.’ Thus, as the Fourth Circuit explained:

® The court of appeals explained that it is not unfair to require

an employee to choose between associating with the union as a

member and refusing to associate as an objecting nonmember:

The disincentives for Kidwell if she is not a union member .. .

are not extreme. She can vote on the collective bargaining

representative. She will always be fairly represented by that

representative. And she can form a rival group for the non-

collective bargaining activities. That membership does have

some privileges is not enough to raise a First Amendment right

to object. [Pet. App. 34a.]

The Fourth Circuit then went on to note that in Minnesota Bd. of

Community Colleges v. Knight, 465 U.S. 271, 290 (1984), this Court

held that the exclusive right of members to participate in union

decision-making does not infringe upon the right of nonmembers to

refuse to join the union. Pet. App. 36a.

Moreover, as the court of appeals also noted, allowing employees

to join the union without meeting the organization’s dues require-

ments would interfere with “the right of an association to choose

its members,” which this Court has recognized in cases such as

Democratic Party v. Wisconsin, supra. Pet. App. 36a.

10 The complaint in Warczak v. Detroit Board of Education, Wayne

Cty. Cir. No. 145080, named the union’s members as the class of

16

[T]he Abood Court concerned itself with reversing

the ruling of the Michigan Court of Appeals that

“state law ‘sanctions the use of nonunion member’s

fees for purposes other than collective bargaining,’ ”

431 U.S. at 232 (quoting Abood, 230 N.W. 2d 322,

326 (1975)). ... [T]he issue addressed was only

whether the Michigan law that required nonmembers

to pay agency fees used for non-collective bargain-

ing purposes was permissible. [Pet. App. 16a.]™

II. CLASS CERTIFICATION

The second question presented by the certiorari peti-

tion is whether the district court abused its discretion in

refusing to certify a class of objecting employees. In this

regard, as in all others, the decision below is entirely

sound and is solidly based on the law as declared by this

Court.

defendants, Abood v. Detroit Board of Education, 60 Mich. App. 92,

230 N.W.2d 322, 323 (1975), and alleged that the union “carries on

various social activities for the benefit of its members which are not

available to nonmembers.” Abood v. Detroit Board of Education, 431

U.S. at 213 (emphasis added). The complaint filed in Abood v.

Detroit Board of Education, Wayne City. Cir. No. 155255, alleged

that the “Plaintiffs have not become members of the Detroit Feder-

ation of Teachers... .” Abood v. Detroit Board of Education, Sup.

Ct. No. 75-1153, Appendix 46 (emphasis added).

11 The petition also quotes selectively from Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 665-666 (1990), to support its

argument that as a general matter union members have an objection

right. Pet. 17. While the quoted passage from Austin does refer to

“‘members” having the right to object, in the very next sentence the

Court makes clear that its reference is to situations in which “a

union and an employer . . . require that all bargaining unit em-

ployees become union members. .. .” 494 U.S. at 665 (emphasis

added). Where, as here, there is no such requirement, as the Fourth

Circuit concluded, “read in context ... Austin does not support a

member’s right to object.” Pet. App. 33a-34a (emphasis added)

(footnotes omitted). See also id. nn.13 & 14.

17

A. The district court denied certification of a class of

all objecting employees on the following grounds:

The defendants raise numerous problems with class

certification with which the Court agrees for the

most part. A class of persons which projects into

the future to include persons who may or may not

object is too indefinite for certification. In addition,

the named plaintiffs’ factual circumstances are not

representative, or even typical, of the circumstances

of those whom they purport to represent. “{A] class

representative must be part of the class and ‘possess

the same interest and suffer the same injury’ as the

class members.” General Telephone Co. of the South-

west v. Falcon, 457 U.S. 147, 156 (1982) (citation

omitted, emphasis added). In this case, however,

some of the employees who objected, including all

of the plaintiffs, received a reduction in each year

that they objected. Other objectors, on the other

hand, received no reduction. | Pet. App. 78a. }

The Fourth Circuit “conclude{d] that the district

judge’s ruling was not an abuse of discretion” for the

following reasons:

[T]he plaintiffs have not met the “typicality” and

“commonality” requirements of Rule 23. In this

case, as in others, the commonality and typicality

requirements merge. See Stott [v. Haworth], 916

F.2d [134,] at 143 [ (4th Cir. 1990)]. “Both serve

as guideposts for determining whether. . . the named

plaintiff’s claim and the class claims are so inter-

related that the interests of the class members will

be fairly and adequately protected... .” Jd. (quot-

ing General Telephone Co. of Southwest v. Falcon,

457 U.S. 147, 157 n. 13 (1982) ).

The plaintiffs have not suffered any injury, never

mind an injury similar to that of those whom they

seek to represent. The plaintiffs claim that they

have suffered “the injury of having monies taken

from them, over their objections, in the absence of

the procedural safeguards required by Hudson” and

18

that the same injury accrues to all objectors. How-

ever, the district judge found that “the plaintiffs

suffered no actual injury as a result of the invalid

practices, which have since been eliminated.” The

judge denied the plaintiffs even the nominal damages

of $1.00 for a denial of due process. The plaintiffs

have not appealed that ruling. [Pet. App. 42a.]

The certiorari petition does not challenge the finding

of the district court, affirmed by the court of appeals,

that the plaintiffs-petitioners “have not suffered any in-

jury, never mind an injury similar to that of those whom

they seek to represent.” Pet. App. 42a. Nor does the

petition challenge the rulings below that under General

Telephone Co. of Southwest v. Falcon, 457 U.S. 147

(1982), this finding requires denial of class certification.

Thus, there is simply no basis at all for finding that

the district court abused its discretion in denying cer-

tification of a class of objecting employees.

B. Ignoring the grounds on which the district court

and the Fourth Circuit denied class certification, the

certiorari petition charges that “[c]oming unexpectedly

and entirely out of left field, the panel decided to base

its affirmance of the district court’s denial of certifica-

tion of a subclass on its reaction to the putative class

representatives’ association with and content of the politi-

cal litigation program of the National Right to Work

Legal Defense and Education Foundation, Inc.” Pet. 22.

The Fourth Circuit, we are told, was “blinded by its

unconstitutional considerations,” id. at 24, viz., the

court below’s supposed “jaundiced, nonrecord opinion” of

the Right to Work Foundation, id. at 23.

This harsh invective is directed at the Fourth Cir-

cuit’s remark that “[t]he Seventh Circuit has cogently

explained the dangers of class certification in a _ re-

markably similar context,” followed by a quotation from

Judge Posner’s opinion in Gilpin v. AFSCME, 874 F.2d

1310, 1313 (7th Cir.), cert. denied, 4938 U.S. 917 (1989).

Pet. App. 48a.

19

In the quoted passage, Judge Posner notes the danger

of certifying a class where there is a conflict of interest

among class members with respect to remedies. But

neither the Gilpin court nor the court of appeals here

“presumed [the] political content of the Foundation’s

expressive litigation program to be malicious, as a mat-

ter of law,” or “allowed that determination of malicious-

ness to color and prejudice its review of the propriety of

the district court’s denial of class certification.” Pet. 24.

To be sure, neither court “praised and acknowledged

the legitimacy and noble objective of the Foundation’s

work,” Pet. 26, as the Foundation would have hoped. Be

that as it may, we do not believe that a litigator’s dis-

appointment at failing to receive a judicial commenda-

tion provides a proper occasion for heaping abuse on the

Fourth and Seventh Circuits, much less for granting a

writ of certiorari to review the legally unexceptionable

opinions in Gilpin and in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MITCHELL KRAUS

3 Research Place

Rockville, MD 20850

JAMES COPPESS

501 3rd Street, N.W.

Washington, D.C. 20001

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

Counsel for Respondents

BRIEF

Supreme Woe:

ek | ee

CY 1992

No. 91-1344 AUR al

. UlinA

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1991

KATHRYN A. KIDWELL; MICHAEL S. COFFMAN;

HELEN EADES; RAMONA J. ELLIS,

Petitioners,

Vv.

TRANSPORTATION COMMUNICATIONS INTERNATIONAL

UNION, et ai.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITIONERS’ REPLY BRIEF

MILTON L. CHAPPELL

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

COUNSEL OF RECORD FOR

PETITIONERS

April 1992

TABLE OF AUTHORITIES

ARGUMENT

I.

I.

CONCLUSION

TABLE OF CONTENTS

LABOR ORGANIZATIONS PERFORMING

THEIR STATUTORY DUTIES AND ACT-

ING PURSUANT TO FEDERAL POWER

ARE NOT TRULY PRIVATE ASSOCIA-

TIONS, BUT INSTEAD, ARE SUBJECT TO

THE RESTRAINTS OF THE RAILWAY

LABOR ACT, THE FIRST AMENDMENT

AND THE STATUTORY AND CONSTITU-

TIONAL REQUIREMENTS ESTAB-

LISHED BY THIS COURT IN STREET,

ABOOD, ELLIS, AND BECK. ..........---

THE FOURTH CIRCUITS CONSIDER-

ATION OF THE PUTATIVE CLASS REP-

RESENTATIVES’ ASSOCIATION WITH

AND THE PRESUMED POLITICAL LITI-

GATION PROGRAM OF A BONA FIDE,

PUBLIC INTEREST LEGAL ASSISTANCE

ORGANIZATION IN DENYING CLASS

CERTIFICATION CONFLICTS WITH THE

NINTH CIRCUIT'S RECOGNITION THAT

NONCERTIFICATION WOULD IMPAIR

THE CONSTITUTIONAL RIGHTS OF

ASSOCIATION AND MEANINGFUL AC-

CESS TO THE COURTS. ......0.00005..

es eenee & DEES SERED O AE SES A SO. S RO Oe SS

-

TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ....... 7-8

Communications Workers v. Beck,

GBT US. TIS CARD oo cca es askeee eens ee

Dean v. TWA, 924 F.2d 805 (9th Cir. 1991) ............. 7

Democratic Party v. Wisconsin, 450 U.S. 107 (1982) ....... 8

Ellis v. Railway Clerks, 466 U.S. 435 (1984) ......... passim

Fentron Industries v. National Shopmen

Pension Fund,

oe ek, be eee re Eres 9-10

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

Minnesota Bd. of Comm. Colleges v. Knight,

G65 UG. 270 CE 60 St ca a cee staathanwessannks 7

NLRB v. Financial Institution Employees,

GTS DS. CA CIR as Wa eka somes ec ccsuseneinaes 5-6

NLRB v. Marine & Shipbuilding Workers,

SON TR SE ee is eee eae eee kan 4k 485 6

Patten Makers v. NLRB, 473 U.S. 95 (1985) ........... 5-6

Bn ve Polmaan, 496 UB. SD Ie oa cn toe eins 08s 10

Railway Employees’ Dep’t v. Hanson,

SSL Sia Ge Oe OE be ke ek eRe ene eee 7

Scofield v. NLRB, 394 U.S. 423 (1969) ................ 5-6

TABLE OF AUTHORITIES (Continued)

Page

Steelworkers v. Sadlowski, 457 U.S. 102 EE Sac dsa eke 7

United Transportation Union v. State Bar,

i | is | ac 10

CONSTITUTIONAL, STATUTES & RULES

oS ee eeeeenae Passim

Labor Management-Reporting &

Disclosure Act (“LMRDA”),

ie EN gh eceeecew lacie. 6-7

Railway Labor Act, 45 U.S.C. § 152.................. 2-3

Supreme Court Rule 12.4 .......................... 1

a ee

ARGUMENT

I. LABOR ORGANIZATIONS PERFORMING THEIR

STATUTORY DUTIES AND ACTING PURSUANT TO

FEDERAL POWER ARE NOT TRULY PRIVATE ASSOCI-

ATIONS, BUT INSTEAD, ARE SUBJECT TO THE RE-

STRAINTS OF THE RAILWAY LABOR ACT, THE FIRST

AMENDMENT AND THE STATUTORY AND CONSTITU-

TIONAL REQUIREMENTS ESTABLISHED BY THIS

COURT IN STREET, ABOOD, ELLIS, AND BECK.

Respondents’ Brief in Opposition (“Opp.”) ignores the

questions presented to this Court as well as the issues ruled upon

by the courts below. Contrary to the claim of respondent

Transportation Communications International Union (“TCU” or

“union”), petitioners Kidwell and the subclass of union members

she represents’ do not seek “to be full union members on their

own financial terms,” Opp. at 5 (emphasis in original), nor

determine for themselves eligibility to union membership, id. at

10. Instead, they challenge TCU’s policy of using the federally

granted power of an exclusive bargaining representative to

compel union members, over their objections, to support fully the

political, ideological and nonbargaining causes of the union by

enhancing the rights and privileges of union members to

participate in the collective bargaining process, while such

heightened participation is denied nonmember agency fee payers.

‘In a footnote, Opp. at 3 n.2, TCU states that in the courts below Kidwell

was identified as the representative of a class of objecting TCU members, but did

not designate her representative status on the cover of her certiorari petition,

although she did note her representative status in the petition itself, Pet. at 9.

We fail to understand the significance of the union’s footnote, especially since the

Notice of Appeal listed “Certified Class Members” in both the caption and body,

District Court Record (“R.”) #72, and this Court’s Rules consider “[a}ll parties

to the proceeding whose judgment is sought to be reviewed [to] be deemed

Parties in this Court,” unless certain action, not taken here, has been taken, see

Sup. Ct. Rule 12.4.

x =

It was TCU using its government-derived powers, not the

objecting employees, which confronted Kidwell and the other

dissenting members with the discriminatory dilemma of choosing

between “the option of protecting free speech or of protecting

[their] vote on the continuation or conditions of work, but not

both.” Petition Appendix (“App.”) at 53a.’

The district court held, consistent with fifty years of this

Court’s precedents, that since TCU, in its role as the exclusive

bargaining representative by virtue of the Railway Labor Act, 45

U.S.C. § 152, Fourth, limits meaningful participation in the

collective bargaining process to union members, it cannot

condition participation in shaping the terms and conditions of

one’s employment on foregoing one’s statutory and First Amend-

ment rights not to support the union’s political, ideological and

other nonrepresentational causes, or vice versa. App. at 2a,

6a-7a, 44a; 46a-S6a; 74a-77a. The question presented to this

Court is whether the Fourth Circuit erred in reversing that

holding.

"In January 1989, TCU sent Kidwell and the other union members who had

objected to the use of their dues on activities deemed not germane to collective

bargaining the following letter:

TCU has revised its procedures for objecting to expenditures not

germane to collective bargaining so as to permit only non-member

agency fee payers to file objections. Agency fee payers are employees

who meet their financial obligations by paying all dues, fees and

assessments, but elect not to become actual members of the Union.

They are eligible for all economic benefit programs, including strike

benefits, death benefits and disaster relief. However, they are not

eligible to .. . participate in . . . contract ratification. . . .

Our records indicate that you are a member. If you wish to forfeit

the rights of membership and become an agency fee payer, you may

resign. ...

App. at 85a (emphasis added).

*.

The Fourth Circuit and TCU incorrectly believe, see App. at

19a-21a and Opp. at 5-7, that this Court in Communications

Workers v. Beck, 487 U.S. 735 (1988) decided the question of a

union member’s right to object against Kidwell. They base this

belief on this Court’s repeated references in Beck to “non-

members.” Naturally, most’ references are to “nonmembers”

rights, since Beck, unlike the instant case, was brought by and

concerned only nonmembers. However, it is overreaching to

suggest that this Court’s rephrasing of the broader “employee’s

objection” language in Machinists v. Street, 367 U.S. 740, 768-69

(1961)* and Ellis v. Railway Clerks, 466 U.S. 435, 447 (1984),°

cases which involved both union and nonunion members, to

“objections of nonmembers” in Beck, 487 U.S. at 745,° consti-

tutes a reversal of the broader application of those earlier

holdings to union members.

TCU does recognizes at one point, if only briefly, the crux

of the question presented. “This supposed unfairness lies in

granting the union members willing to pay the union’s [full] dues

*This Court did, however, discuss the similar rights of “dissident union

members as well” in Beck, 487 U.S. at 753 n.8 (emphasis added).

“(W]e hold . . . that § 2, Eleventh is to be construed to deny the unions,

over an employee’s objection, the power to use his exacted funds to support

political causes which he opposes.” Jd. (emphasis added).

“But the authority to impose dues and fees was restricted at least to the

‘extent of denying the union the right, over the employee’s objection, to use his

money to support political causes which he opposes,’ 367 U.S., at 768, . . . even

though Congress was well aware that unions had historically expended funds in

the support of political candidates and issues. Employees could be required to

become ‘members’ of the union, but those who objected could not be burdened

with any part of the union’s expenditures in support of political or ideological

causes.” Jd (emphasis added).

“Over a quarter century ago we held that § 2, Eleventh of the RLA does

not permit a union, over the objections of nonmembers, to expend compelled

agency fees on political causes.” Jd. (citations omitted, emphasis added).

.

a greater say than nonmembers [whom TCU “allows” to pay only

the union’s costs of collective bargaining] in determining the

union’s collective bargaining policies.” Opp. at 9. However, both

groups are required by law to pay the union’s full cost of

performing the statutory duties of collective bargaining. The

problem is that, as graphically demonstrated by TCU’s 19839 letter

to Kidwell, App. at 85a, the union, using that statutory power,

then limits meaningful participation in determining its statutorily

granted collective bargaining policies to only those who fully

support the union’s political, ideological and noncollective

bargaining agenda.

Naturally, as found by the district court, App. at 47a,

52a—55a, this discriminatory limitation on participating in the

collective bargaining process effectively coerces and compels

employees to join the union. As such, these coerced members

cannot be required to pay for the union’s political activities, or

else Congress would have unconstitutionally sanctioned an

expansion of the rail unions’ historical practice of relying on

voluntary financial support for their political activities. See Street,

367 US. at 770.

Everyone agrees that coerced employees cannot be required

to pay for the union’s noncollective bargaining costs. See App.

at 17a—18a; Opp. at 7-8. Everyone also agrees that employees

are coerced where either the employer or union suggests those

employees must become or remain full or formal union members

as a condition of employment. Jd. The parties and the courts

below differ, however, when, as here, the compulsion to join the

union is not the employer’s condition of employment, but,

instead, the union’s discriminatory limitation on participating in

the determination of the employees’ continuation or conditions

of employment.

As shown supra p. 2, it was the union that discriminatorily

limited participation in the collective bargaining process, thus

coercing and compelling employees to join it. It is TCU that has

made a mockery of the choice between union membership and

nonmembership. And, the union has the power to make union

.

membership truly voluntary so that Street, Ellis, and Beck would

not limit its collection and use of members’ dues. However, until

its discriminatory limitation on participating in the collective

bargaining process is eliminated, TCU is required by the RLA to

allow all involuntary members of the union to object to the

union’s political, ideological and nonbargaining expenditures.

In short, Congress was adequately informed about the

broad scope of union activities aimed at benefiting

union members, and, in light of the absence of express

limitations in § 2, Eleventh it could be plausibly argued

that Congress purported to authorize the collection

from involuntary members of the same dues paid by

regular members. This view, however, was squarely

rejected in Street, over the dissents of three Justices, and

the cases that followed it.

Ellis, 466 U.S. at 446 (emphasis added).

TCU argues that any effect its discriminatory limitation on

Participating in the collective bargaining process may have on

employees is irrelevant because this Court in NLRB v. Financial

Institution Employees, 475 U.S. 192 (1986); Pattern Mukers v.

NLRB, 473 U.S. 95 (1985) and Scofield v. NLRB, 394 U.S. 423

(1969), held that the duty to fairly represent all employees does

not deprive the union of its authority to order its own internal

affairs. Opp. at 10-11. None of these cases involved the degree

of union compulsion caused here by the Hobson’s choice TCU

presented to Kidwell and the other objecting members.

Although the petitioners in Scofield made theoretical

arguments that the mere fact of exclusive representation, without

more, puts practical pressure upon the employee to join the

union in order to have a voice as to her own terms and condi-

tions of employment, this Court found “no showing in the record

. . . that the membership of the petitioners in the union was

involuntary.” Jd. at 430. Unlike Scofield, this case does contain

a record and specific finding by the district court that TCU’s

discriminatory use of its power of exclusivity and the collective

- 2

bargaining process compelled union membership. App. 53a—5S5a,

74a-77a.

Financial Institution Employees, 475 U.S. at 203 n.10

(emphasis added), is also distinguishable, because it involved

affiliation, not the collective bargaining process or conditions of

employment. There this Court specifically found that “affiliation

does not directly involve the employment relation. The status of

wages, working conditions, benefits, and grievance procedures is

unaffected by the affiliation vote * * * .”

Moreover, Financial Institution Employees, 475 U.S. at 201,

did not involve a request by nonmembers to vote in affiliation

elections or members being told they had to waive their right to

vote in affiliation elections in order to claim their right to object

and pay reduced dues. Instead, the precise issue concerned the

power of the NLRB to circumvent the decertification procedures

specifically provided for by statute. It also involved another issue

not presented here — an employer's refusal to bargain because

of the affiliation of the bargaining representative. Jd. at 200, 203,

204, 205, 207.

| Patten Makers is more supportive of Kidwell’s position than

the union’s. Pattern Makers, 473 U.S. at 104—114, invalidated a

union’s restriction on the right of union members to resign during

a strike, because the internal union rule violated the national

labor policy of voluntary unionism. More significantly, Pattern

Makers, id. at 112-14, also rejected TCU’s argument, Opp. at

13-15, that unions should be treated like other voluntary associa-

tions. Although a union rule may be valid under the common law

of associations or contract, if it runs afoul of national labor law,

public policy or the constitution, it must be invalidated. Jd., at

113-14; see Ellis, 466 U.S. at 443-44; Scofield, 394 U.S. at 430;

NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418, 421, 424

(1968); see also Labor Management-—Reporting & Disclosure Act

(“LMRDA”), 29 U.S.C. §§ 411-415 (members’ Bill of Rights).

TCU also argues that the discriminatory dilemma it imposes

on employees is simply the result of an internal decision of an

9.

independent private entity operating pursuant to a mere overall

statutory authorization and thus involves no state action nor

raises any First Amendment claim. Opp. at 13-15. However,

TCU’s actions complained of herein are neither “independent”

nor internal, but directly concern the performance of the union’s

statutory duties, duties which deprive the employees of their

common-law contract rights.

Moreover, the effect of the union’s actions is to limit the

employees’ freedoms of association and speech, as to matters of

public concern.. As Justice Douglas noted in his concurrence in

Street, 367 S.Ct. at 777 (emphasis added): “Since neither

Congress nor the state legislatures can abridge those [First

Amendment] rights, they cannot grant the power to private

groups to abridge them. As I read the First Amendment, it

forbids any abridgment by government whether directly or

indirectly.” Accord Abood v. Detroit Bd. of Educ., 431 U.S. 209,

226-27 n. 23 (1977).’

The reliance of the Fourth Circuit, App. at 28a, 36a, and

TCU, Opp. at 5, 14-15, on Steelworkers v. Sadlowski, 457 U.S.

102 (1982), and Minnesota Bd. of Comm. Colleges v. Knight, 465

U.S. 271 (1984), is also misplaced because they did not involve

the issue presented here. Sadlowski involved wholly internal

union rules governed by the LMRDA, 29 U.S.C. § 411, while

Knight held that nonunion employees had no constitutional right

to force the government to listen to their views. Moreover,

unlike the instant case, Knight, at 273, 291 n.13, dealt with issues

“outside the scope of mandatory bargaining,” and “involve[d] no

"In Ellis, 466 U.S.at 439, as well as Beck, 487 U.S. at 761-63, this Court

assumed the continuing validity of Railway Employees’ Dep’t v. Hanson, 351 U.S.

225, 232 (1956), which found that the existence of governmental action under the

RLA requires analysis of the free expression question. Moreover, nowhere does

Hanson suggest that the constitutional scrutiny of the agency shop agreement was

watered down because the governmental action operated indirectly. See also

Ellis, 466 U.S. at 443, 444, 455-56; accord Dean v. TWA, 924 F.2d 805, 809 (9th

Cir. 1991).

is

claim that anyone is being compelled to support [the union’s

political, ideological and other nonrepresentational] activities.”

More importantly, Knight explicitly recognized that “employees

may not be compelled to support a union’s ideological activities

unrelated to collective bargaining. The basis for the holding [in

Abood] that associational rights were infringed was the compulso-

ry collection of dues from dissenting employees.” Jd. at 291 n.13

(emphasis added).

Likewise, Democratic Party v. Wisconsin, 450 U.S. 107, 124

(1982), does not support the union’s discriminatory limitation on

participating in the collective bargaining process as erroneously

contended by the Fourth Circuit, App. 36a, and TCU, Opp. at 5,

15 n.9. First, government has not given one political party the

power of exclusivity, nor are nonmembers of a political party

denied the right to vote in the general election. Unlike the

situation herein, the primary election is not the “only vehicle

through which” the voter can determine his or her representative.

Second, as this Court recognized in Democratic Party, 450 at 123

n.25 (emphasis added), a political party and its members may

decide membership requirements “so long as those requirements

are otherwise constitutionally permissible.”

Il. THE FOURTH CIRCUIT’S CONSIDERATION OF THE

PUTATIVE CLASS REPRESENTATIVES’ ASSOCIATION

WITH AND THE PRESUMED POLITICAL LITIGATION

PROGRAM OF A BONA FIDE, PUBLIC INTEREST

LEGAL ASSISTANCE ORGANIZATION IN DENYING

CLASS CERTIFICATION CONFLICTS WITH THE NINTH

CIRCUIT’S RECOGNITION THAT NONCERTIFICATION

WOULD IMPAIR THE CONSTITUTIONAL RIGHTS OF

ASSOCIATION AND MEANINGFUL ACCESS TO THE

COURTS.

The union supports, Opp. at 16-18, the Fourth Circuit’s

consideration of First Amendment-protected matters and

speculative assumptions concerning possible motivational

differences in deciding class certification issues by suggesting that

there may be other grounds to support the denial of certification

. 2

of one of the subclasses. However, the question presented

concerns the permissibility of courts denying class certification on

grounds that interfere with constitutionally protected rights, see

Pet. at i, not just whether the courts below correctly denied

certification of this subclass. Thus, the question presented is

more significant, far-reaching and crucial to the workings of a

free society than simply whether the denial of the subclass was

correct. Of course, TCU would like to, but cannot, reduce the

question to such a simplistic level.

Next, TCU belittles the seriousness of the question present-

ed by asserting that Kidwell’s’ “harsh invective . . . directed at

the Fourth Circuit . . .” was caused by her “litigator’s disap-

pointment at failing to receive a judicial commendation.” Opp.

at 18-19. While Kidwell or her undersigned counsel never

expected nor sought a judicial “pat on the head,” they certainly

did not expect or seek the judicial “slap in the face” that they

received for engaging in First Amendment-protected activity.

Unlike the Fourth and Seventh Circuits, the Ninth Circuit,

when presented with the option of considering First Amendment-

protected matters and the putative class representatives’ associa-

tions in deciding class certification issues, properly declined.

Fentron Industries v. National Shopmen Pension Fund, 674 F.2d

1300, 1305 (9th Cir. 1982). The Fund and its trustees opposed

certification of a class of employee participants under the Fund,

because they claimed that the employees’ law suit was solicited by

the employer.

*The union attempts to de-emphasize the Fourth and Seventh Circuits’

treatment of the Foundation as the appellant or appellant’s counsel, and their

consideration of the Foundation’s expressive litigation program, in reviewing the

propriety of denial of class certification. However, TCU undercuts itself by not

referring to “Kidwell’s position” and by belittling what “the Foundation would

have hoped,” Opp. at 19, as if the Foundation were either the petitioner,

petitioner’s counsel or both. TCU’s Freudian “slip” further demonstrates the

importance of resolving the question presented, which is here for the second time

and will continue to arise unless this Court puts it to rest.

-10-

Based on this Court’s decisions cited here by Kidwell, see

Pet. at 23-24, the Ninth Circuit declined to decertify the employ-

ee class because “decertification here would impair the associati-

onal rights of employers and employees, see In re Primus, 436

US. [412,] 426 [(1978)], and meaningful access to the courts. See

United Transportation Union v. State Bar, 401 U.S. 576 (1971).”

Fentron Industries, 674 F.2d at 1305S.

CONCLUSION

The petition should be granted as to both questions.

Respectfully submitted,

MILTON L. CHAPPELL

c/o National Right to Work Legal

Defense Foundation, Inc.

| 8001 Braddock Road, Suite 600

Springfield, Virginia 22160

703-321-8510

COUNSEL OF RECORD FOR

| PETITIONERS

April 1992

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