Beck v. Communications Workers of America (C.W.A.)

Decision Date12 September 1986
Docket Number83-1956,AFL-CIO,Nos. 83-1955,s. 83-1955
Citation800 F.2d 1280
Parties123 L.R.R.M. (BNA) 2289, 55 USLW 2186, 104 Lab.Cas. P 11,950 Harry E. BECK, Jr.; Doris R. Ambrose; Jacqueline S. Brandon; Mary Anna Cox; Sally B. DiMauro; Rue T.F. Downey; Kathleen A. Heil; John J. Hurley; Harriett Lipschultz; Clay B. Lutz; Barbara McGaughey; Roland R. Merkle; Ethel T. Merryman; Doris J. Morrow; Marion F. Northrop; Frances M. Philips; Vivian Reedy; Barbara A. Russell; Lois A. Stallings; Harry B. Swartz, Sr., Appellees, v. COMMUNICATIONS WORKERS OF AMERICA (C.W.A.), an unincorporated Labor Organization; C.W.A. Committee on Political Education (C.W.A. COPE); C.W.A. District II; Local 2100 of C.W.A.; Local 2101 of C.W.A.; Local 2108 of C.W.A.; Local 2110 of C.W.A., Appellants, and Local 2350 of C.W.A.; American Federation of Labor-Congress of Industrial Organizations (), a Federation of National and International Labor Organizations; Committee on Political Education; Maryland State ; American Telephone & Telegraph, a Corporation; C & P Telephone Company of Maryland, a Corporation, Defendants. Harry E. BECK, Jr.; Doris R. Ambrose; Jacqueline S. Brandon; Mary Anna Cox; Sally B. DiMauro; Rue T.F. Downey; Kathleen A. Heil; John J. Hurley; Harriett Lipschultz; Clay B. Lutz; Barbara McGaughey; Roland R. Merkle; Ethel T. Merryman; Doris J. Morrow; Marion F. Northrop; Frances M. Philips; Vivian Reedy; Barbara A. Russell; Lois A. Stallings; Harry B. Swartz, Sr., Appellants, v. COMMUNICATIONS WORKERS OF AMERICA (C.W.A.), an unincorporated Labor Organization; C.W.A. Committee on Political Education (C.W.A. COPE); C.W.A. District II; Local 2100 of C.W.A.; Local 2101 of C.W.A.; Local 2108 of C.W.A.; Local 2110 of C.W.A., Appellees, and Local 2350 of C.W.A.; American Federation of Labor-Congress of Industrial Organizations (), a Federation of National and International Labor Organizations; Committee on Political Education; Maryland State ; American Telephone & Telegraph, a Corporation; C & P Telephone Company of Maryland, a Corporation, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

Laurence Gold (James Coppess, George Kaufman, Washington, D.C., on brief), for appellants/cross-appellees.

Edwin Vieira (Joseph J. Hahn, Nat. Right to Work Legal Defense Foundation, Inc., on brief), for appellees/cross-appellants.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN and WILKINSON, Circuit Judges, sitting en banc.

PER CURIAM:

In this cause, the existence of federal jurisdiction constituted the dividing issue both between the majority and dissenting panel opinions, as reported in 776 F.2d 1187 (4th Cir.1985), as well as in the en banc hearing. Without reviewing the extended discussion of this issue in the two panel opinions, which delineated adequately the difference in the Court on the dispositive issue of jurisdiction, it seems sufficient for purposes of this en banc decision to summarize the ultimate jurisdictional decision as stated in the two panel opinions, beginning first with the majority opinion.

The majority panel opinion found first that the exaction of union dues from non-consenting non-union employees under an agency contract beyond the requirements for purposes of collective bargaining, grievance adjustment or contract administration was "a clear breach of section 8(a)(3) [of the NLRA] and of the union's duty of fair representation." It then concluded that federal jurisdiction "over plaintiffs' statutory suit against defendant union under section 8(a)(3) and for breach of the duty of fair representation was properly invoked under 28 U.S.C. Sec. 1337." 776 F.2d at 1204-05. 1 The majority opinion opined that, having found federal jurisdiction for violation of both the statute and the duty of fair representation, it seemed "unnecessary ... to consider the constitutional basis for jurisdiction" id., but despite this, it proceeded to state that on constitutional grounds jurisdiction in the cause was sustainable even though it had earlier recognized that decisions on constitutional grounds should be avoided if the matter could be resolved on statutory grounds. See 776 F.2d at 1198 and International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961).

The dissenting panel opinion, on the other hand, concluded that Sec. 8(a)(3) of the NLRA "cannot fairly be read to impose" on unions under an agency shop agreement the obligation to use agency shop fees only "for purposes ... directly related to collective bargaining, grievance adjustment, or contract administration" as against objecting non-union employees. 776 F.2d at 1214. As the dissent puts its position, "[b]oth the language of Sec. 8(a)(3) and its legislative history show that Congress did not intend to limit the use of agency shop fees under the NLRA. Further, the history and purpose of this provision differs from the history and purpose of the agency shop provision in the Railway Labor Act; thus the Railway Labor Act's limits on fee use should not be engrafted onto the NLRA's Sec. 8(a)(3)." 776 F.2d at 1215. Nor, the opinion continues, can such exaction by the union of these dues to be used for purposes not related to "collective bargaining, grievance adjustment or contract administration" represent a cognizable constitutional claim because the union's "use of [such non-consenting employees'] fees does not constitute state action." 776 F.2d at 1214. The dissenting opinion did not discuss the maintainability of the action as one for a violation of the duty of fair representation by the union under Sec. 1337.

After the filing of the panel opinions, en banc hearing of the cause was voted. At the en banc hearing, the arguments of the parties focused on the existence of federal jurisdiction of the cause. The arguments of the parties on such issues followed substantially the line of the two panel opinions already summarized, with the plaintiffs relying on the jurisdictional grounds adumbrated in the panel majority opinion and with the union and its locals resting their argument on the grounds stated in the dissenting opinion.

After the en banc arguments, five members of the Court (Judges Russell, Widener, Ervin, Chapman, and Wilkinson), voted that federal jurisdiction "over plaintiffs' statutory suit against defendant union under section 8(a)(3) and for breach of the duty of fair representation was properly invoked under 28 U.S.C. Sec. 1337," but three of these five Judges (Judges Widener, Ervin, and Wilkinson) felt it unnecessary to consider whether jurisdiction also existed on constitutional grounds. Judges Russell and Chapman, the other members of the group, however, were of the opinion that jurisdiction of the cause could also be sustained on the constitutional claim. Judge Murnaghan, speaking for himself, in a separate concurring opinion, filed along with this order and opinion, found that federal jurisdiction existed in this case to decide the plaintiffs' claims as violations of the union's statutory duty of fair representation, under Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), 2 but he agreed with the dissenting panel opinion insofar as it would deny federal jurisdiction on either the statutory or the constitutional grounds. The result is that six Judges of the Court voted to sustain federal jurisdiction over the cause, though in some instances on somewhat varying grounds.

Four members of the Court have, however, voted after the en banc hearing, (Judges Winter, Hall, Phillips, and Sprouse) to sustain the conclusions of the dissenting panel opinion that there was not federal jurisdiction herein either on statutory or constitutional grounds. The dissenting opinion did not specifically address the violation of the duty of fair representation, as alleged in the plaintiffs' complaint and as found in both the majority panel opinion and in the concurring opinion of Judge Murnaghan to be a basis for jurisdiction herein, but it is to be assumed that this ground was similarly disapproved in the dissenting opinion.

It follows that the en banc court by a vote of six to four sustained federal jurisdiction in this cause. There was apparently 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.

Accordingly, the result of the en banc consideration is the affirmation by the en banc court of federal jurisdiction over the cause and of the majority panel's determination on the allocation issue.

MURNAGHAN, Circuit Judge, concurring:

The posture of the case, the order of my writing and the outcome are, if not unique, at least unusual. A two-to-one majority at the panel level held unconstitutional a labor union's practice of using agency fees, received from employees who were not union members, for purposes unrelated to collective bargaining, grievance adjustment, or contract administration. Alternatively, the majority concluded that the union's conduct had violated Sec. 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(3). The non-member employees were entitled to relief for that violation, in the majority's view, on two theories: first, that Sec. 8(a)(3) itself provided them with a cause of action justiciable in the federal courts, and, second, that the definition of an unfair labor practice contained in Sec. 8(a)(3) also described a breach of the duty of fair representation. 3 Judge Russell authored the majority opinion, with Judge Chapman concurring. Beck v. Communications Workers of America, 776 F.2d 1187 (4th Cir.1985).

Chief Judge Winter, in dissent, concluded that the absence of government action foreclosed the constitutional route to recovery, and that Sec. 8(a)(3), involving only controversies between employers and employees, created no restriction on a...

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