Ficek v. International Broth. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 647, No. 8966

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtPAULSON; ERICKSTAD; VOGEL
Citation219 N.W.2d 860
Parties87 L.R.R.M. (BNA) 2739, 75 Lab.Cas. P 53,530 Ronald J. FICEK et al., Plaintiffs and Appellees, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL #647, Defendant and Appellant, and Fargo Foundry Steel and Manufacturing Company, a corporation, Defendant and Appellee. Civ.
Docket NumberNo. 8966
Decision Date26 June 1974

Page 860

219 N.W.2d 860
87 L.R.R.M. (BNA) 2739, 75 Lab.Cas. P
53,530
Ronald J. FICEK et al., Plaintiffs and Appellees,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL
#647, Defendant and Appellant,
and
Fargo Foundry Steel and Manufacturing Company, a
corporation, Defendant and Appellee.
Civ. No. 8966.
Supreme Court of North Dakota.
June 26, 1974.

Page 861

Syllabus by the Court

1. In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof. Effect will be given the real intention even though contrary to the letter of the law.

2. The public policy of this State established by the Constitution and the statutes is to protect the employee in his right to work free of any interference, restraint, or coercion by either the employer of a labor organization.

3. The North Dakota courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce the State's prohibition against an 'agency shop' clause and a dues 'checkoff' provision for nonunion employees in an executed collective bargaining agreement.

4. Under the provisions of § 14(b) of the Labor Management Relations Act, 1947, (29 U.S.C.A. § 164(b)), Congress yielded to the States permission to enact 'right-to-work' laws, and granted authority to the State courts to process violations of such laws.

5. The North Dakota Right to Work Law, § 34--01--14, N.D.C.C., which prohibits compulsory membership in a labor organization as a condition of employment or continued employment, is construed to include a prohibition against an 'agency shop' and the dues 'checkoff' of a nonunion member by an employer to a labor organization as a condition of employment or continued employment.

Lanier, Knox & Olson, Fargo, and Sigal & Savelkoul, Minneapolis, Minn., for defendant and appellant.

Conmy, Feste, DeMars & Bossart, Fargo, and Rex H. Reed, National Right to Work Legal Foundation, Washington, D.C., for plaintiffs and appellees.

Wattam, Vogel, Vogel & Peterson, Fargo, for Fargo Foundry Steel and Mfg. Co.

PAULSON, Judge.

This is an appeal by the defendant, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local #647 (hereinafter 'the Union'), from a judgment of the Cass County District Court, which judgment declared the agency shop and dues 'checkoff' provisions contained in a labor contract between the Union and the defendant, Fargo Foundry Steel and Manufacturing Company (hereinafter 'the Company'), to be illegal, void, and unenforceable because such provisions are in violation of the North Dakota Right to Work Law, namely, § 34--01--14 of the North Dakota Century Code.

On November 13, 1972, the parties stipulated certain facts. Those which are relevant to this appeal are:

--The Company is a corporation engaged in the operation of a foundry and steel fabrication and manufacturing business which is an industry affecting interstate commerce.

--The Company employs approximately 100 employees who are within an exclusive collective bargaining unit of production and maintenance employees represented by the Union.

--As the exclusive bargaining agent for said employees, the Union negotiated a labor contract with the Company to be effective from January 3, 1972, to December 31, 1974. Article I of that labor contract, in pertinent part, reads:

'ARTICLE I--RECOGNITION

'It is mutually agreed that the Company shall recognize the Union as the sole

Page 862

bargaining agent for all of its production and maintenance employees who have completed 120 days employment with the Company in the performance of all work coming within the terms of this agreement. (This shall not be construed to cover watchmen, salesmen, office or elerical employees, City desk clerks, foremen and supervisors.)

'Membership in the Union is not compulsory. However, all employees represented by the Union who do not elect to join the Union shall as a condition of continued employment, pay to the Union, an amount of money equal to that paid by other employees in the bargaining unit who are members of the Union, which shall be limited to an amount equal to the Union's regular and usual dues. If any provision of this section shall become invalid under the laws of the State of North Dakota, such provision shall be modified to comply with the requirements of state law, or shall be renegotiated for adequate replacement.' (Emphasis added.)

Article 3 of such labor contract reads:

'ARTICLE 3--CHECK OFF DUES

'Subject to the provisions of the Labor-Management Relations Act of 1947, the company shall, for the duration of this agreement, deduct from the last pay of each month, the union dues of employees for the preceding month, and shall promptly remit same to the proper officer of the Union. The Employer shall make deduction for the non-union employees who are members of the bargaining unit.' (Emphasis added.)

In addition to the stipulated facts, the testimony adduced at the hearing established that, at the time of the commencement of this action, the plaintiffs, Ronald J. Ficek, Theodore M. Brodell, and Cyril L. Dombeck (hereinafter 'the nonunion employees') were the only nonunion members of the 100-member bargaining unit. Pursuant to Articles I and 3 of the labor contract, the nonunion employees were notified by the Company that unless they signed an authorization for the dues 'checkoff' they would be fired. In order to retain their jobs, the nonunion employees, under protest, authorized said 'checkoff'. The Company then deducted such dues-equivalent from the wages of the nonunion employees and delivered the money so collected to the Union.

Subsequently, the nonunion employees commenced a declaratory judgment action in the Cass County District Court against the Company and the Union for a declaration of the rights of all the parties under the North Dakota Right to Work Law, and for injunctive relief to prevent the Company and the Union from enforcing the agency-shop and dues-checkoff provisions contained in the labor contract.

The trial court held in favor of the nonunion employees with reference to the illegality of the first two sentences of paragraph 2 of Article I and the last sentence of Article 3 of the labor contract. However, after the entry of such judgment, its execution was stayed in order to allow this appeal, on condition that the Union reimburse the nonunion employees in the event the trial court's holding is sustained.

During the pendency of the action before the trial court, Mr. Ficek voluntarily resigned his position with the Company.

Article I of the labor contract calls for the implementation of an 'agency shop'. An 'agency shop' is a union-security device whereby, in order to continue employment, any nonunion member employee is required to pay to the Union sums equivalent to those paid by union members, either in an amount equal to both union dues and initiation fees, or, as in the labor contract involved in the instant case, in an amount equal to dues alone.

The question presented by this appeal is whether the 'agency shop' provision is prohibited by the North Dakota Right to Work Law.

Page 863

In order to interpret the North Dakota Right to Work Law, a discussion of the Federal legislation which also affects the use of union-security devices in necessary.

In 1935, Congress enacted the National Labor Relations Act (29 U.S.C.A. § 151 et seq.), which is commonly referred to as the Wagner Act. Section 7 of the Wagner Act guaranteed to employees the right to self-organize, and, pursuant to that section, employers and unions had the freedom to select a form of union security on which they could agree and which was not proscribed by such Act.

In 1947, Congress amended the Wagner Act by enacting the Labor Management Relations Act (29 U.S.C.A. § 141 et seq.), which is commonly referred to as the Taft-Hartley Act, which Act guaranteed the right of employees to refrain from participating in any or all union activities. However, in order to afford unions some protection, several union-security devices were authorized under § 8(a)(3) of the Taft-Hartley Act (29 U.S.C.A. § 158(a)(3)), which provides, in pertinent part:

'Unfair labor practices. It shall be an unfair labor practice for an employer--

'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . (B) if he (the employer) has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformily required as a condition of acquiring or retaining membership;'

Congress nevertheless yielded to the States the authority to ban union-security devices by providing, in § 14(b) of the Taft-Hartley Act (29 U.S.C.A. § 164(b)):

'(b) Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.'

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12 practice notes
  • American Federation of State v. Phoenix, No. 1 CA-CV 04-0766.
    • United States
    • Court of Appeals of Arizona
    • August 15, 2006
    ...due our respect and may be helpful in providing insight as to an issue. See id. 17. See Ficek v. Int'l Bhd. of Boilermakers, Local 647, 219 N.W.2d 860, 865-66 (N.D.1974) (noting that the first state court to hold an "agency shop" provision illegal under a "right to work" law similar to Nort......
  • Wessel v. City of Albuquerque, No. 01-2155.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 13, 2002
    ...dues and initiation fees"); Ficek v. Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 647, 219 N.W.2d 860, 873 (N.D.1974) (holding that deduction of sum equal to union dues "imposes the practical equivalent of compulsory [union] membership"). Indee......
  • Am. Fed'n of State v. City of Phoenix, 1 CA-CV 04-07 66
    • United States
    • Court of Appeals of Arizona
    • August 15, 2006
    ...due our respect and may be helpful in providing insight as to an issue. See id. 17. See Ficek v. Int'l Bhd. of Boilermakers, Local 647, 219 N.W.2d 860, 865-66 (N.D. 1974) (noting that the first state court to hold an "agency shop" provision illegal under a "right to work" law similar to Nor......
  • Nashua Teachers Union v. Nashua School Dist., No. 96-263
    • United States
    • Supreme Court of New Hampshire
    • March 23, 1998
    ...that RSA 273-A:5, I(c) is a right-to-work statute. See, e.g., 29 U.S.C. § 157 (1995); Ficek v. International Bro. of Boilermakers, etc., 219 N.W.2d 860, 872-73 (N.D.1974); Churchill v. S.A.D. No. 49 Tchrs. Ass'n, 380 A.2d 186, 192 (Me.1977); Smigel v. Southgate Community School District, 38......
  • Request a trial to view additional results
12 cases
  • American Federation of State v. Phoenix, No. 1 CA-CV 04-0766.
    • United States
    • Court of Appeals of Arizona
    • August 15, 2006
    ...due our respect and may be helpful in providing insight as to an issue. See id. 17. See Ficek v. Int'l Bhd. of Boilermakers, Local 647, 219 N.W.2d 860, 865-66 (N.D.1974) (noting that the first state court to hold an "agency shop" provision illegal under a "right to work" law similar to Nort......
  • Wessel v. City of Albuquerque, No. 01-2155.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 13, 2002
    ...dues and initiation fees"); Ficek v. Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 647, 219 N.W.2d 860, 873 (N.D.1974) (holding that deduction of sum equal to union dues "imposes the practical equivalent of compulsory [union] membership"). Indee......
  • Am. Fed'n of State v. City of Phoenix, 1 CA-CV 04-07 66
    • United States
    • Court of Appeals of Arizona
    • August 15, 2006
    ...due our respect and may be helpful in providing insight as to an issue. See id. 17. See Ficek v. Int'l Bhd. of Boilermakers, Local 647, 219 N.W.2d 860, 865-66 (N.D. 1974) (noting that the first state court to hold an "agency shop" provision illegal under a "right to work" law similar to Nor......
  • Nashua Teachers Union v. Nashua School Dist., No. 96-263
    • United States
    • Supreme Court of New Hampshire
    • March 23, 1998
    ...that RSA 273-A:5, I(c) is a right-to-work statute. See, e.g., 29 U.S.C. § 157 (1995); Ficek v. International Bro. of Boilermakers, etc., 219 N.W.2d 860, 872-73 (N.D.1974); Churchill v. S.A.D. No. 49 Tchrs. Ass'n, 380 A.2d 186, 192 (Me.1977); Smigel v. Southgate Community School District, 38......
  • Request a trial to view additional results

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