International Union of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada, Local Unions Nos. 141, 229, 681, and 706 v. N.L.R.B.

• Decision Date: 16 April 1982
• Docket Number: No. 80-2393,80-2393
• Citation: 675 F.2d 1257
• Parties: 110 L.R.R.M. (BNA) 2027, 219 U.S.App.D.C. 32, 93 Lab.Cas. P 13,402 The INTERNATIONAL UNION OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNIONS NOS. 141, 229, 681, AND 706, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1257

675 F.2d 1257

110 L.R.R.M. (BNA) 2027, 219 U.S.App.D.C. 32,

93 Lab.Cas. P 13,402

The INTERNATIONAL UNION OF THE UNITED ASSOCIATION OF

JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING

INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNIONS NOS.

141, 229, 681, AND 706, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-2393.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 29, 1981.

Decided April 16, 1982.

Petition for Review of an Order of the National Labor Relations board.

Louis Robein, New Orleans, La., for petitioner. Jerry L. Gardner, Jr., New Orleans, La., was on the brief for petitioner.

David A. Fleischer, N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., was on the brief, for respondent.

Rex H. Reed and Richard J. Clair, Springfield, Va., were on the brief for amicus curiae National Right to Work Legal Defense Foundation, Inc., urging affirmance.

Before J. EDWARD LUMBARD, ^* Senior Circuit Judge for the Second Circuit, ROBB and MIKVA, Circuit Judges.

Opinion for the court filed by Senior Circuit Judge LUMBARD.

Dissenting opinion filed by Circuit Judge MIKVA.

LUMBARD, Senior Circuit Judge:

In bargaining for a renewal of labor management contracts in four right-to-work states, the Union ¹ insisted on clauses assessing non-union employees for the costs of union representation. International Paper Co. (the Company) responded that, in those states, such clauses were illegal under right-to-work laws. The National Labor Relations Board (NLRB) found that such clauses were not a mandatory subject for bargaining, and therefore insistence on the clauses was an unfair labor practice. 252 NLRB 181, (1980-81) CCH NLRB P 17,596 (1980). The Union petitioned for review and the NLRB cross-petitioned to enforce its order. We grant enforcement of the Board's order.

The facts were found at an administrative hearing, Schlesinger, A.L.J., and are not disputed on appeal. Pipefitters at company plants in Springhill, La., Panama City, Fla., Natchez, Miss., and Camden, Ark. belong to Union Locals in the four states. Costs of union administration are borne by the locals; costs of negotiating a contract traditionally have been split between the locals and the international union. In 1974, Local 681 in Mississippi added a yearly assessment of two percent of wages to the existing union dues of $8.25 per month. Pipefitters at the Natchez, Miss., plant quit the Union rather than pay the assessment. Local 681's membership in Natchez declined from 38 to 1, the last member being the shop steward who by virtue of his position was not required to pay dues. ² Of course, Local 681 remained obligated to represent the Natchez pipefitters even though none of them paid dues. ³ Abood v. Detroit Board When the Union opened contract negotiations with the Company in May 1977, it proposed clauses levying "representation fees" on non-member pipefitters. The Union's final draft of the clauses was:

of Education, 431 U.S. 209, 221-22, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977); Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 760-61, 81 S.Ct. 1784, 1795-96, 6 L.Ed.2d 1141 (1961).

The cost and expenses of representing all members of the bargaining unit, without regard to union affiliation or lack of same must be borne by all bargaining unit employees.

Those unit employees who voluntarily choose not to become union members shall be required to contribute a pro-rata share of the costs and expenses incurred by the union that are directly related to enforcing and servicing the collective bargaining agreement. The representation fee will apply only when a collective bargaining agreement is in effect. Furthermore, in no case will the fee exceed the dues and assessments required of union members.

Failure of any permanent employee to make payment of the representation fee each month and to maintain the payments during employment for dismissal after ten (10) days written notice to the employee and the company.

The amount of the representation fee will be based upon an independent audit to determine those services performed by the union directly related to the collective bargaining process....

The Union and the Company reached agreement on all other contract provisions, but on September 28, 1977, the Company rejected the representation fee clauses on the grounds that they violated the right-to-work laws of Arkansas, Florida, Mississippi, and Louisiana. ⁴ On October 17, the Union wrote to the Company to insist on the clauses, and to announce that picketing would commence at Natchez on October 31. The Company then filed its unfair labor practice charge.

At the NLRB hearing, Judge Schlesinger ruled that representation fees were permissible under § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), which says:

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 Act, 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....

But Judge Schlesinger then concluded that the representation fees were banned by the right-to-work laws of the four states under § 14(b) of the NLRA, 29 U.S.C. § 164(b), which provides:

Nothing in this subchapter shall be construed as authorizing the execution or The Union argued that fee-for-service clauses are the equivalent of "membership in a labor organization" under § 8(a)(3) but not under § 14(b). Such clauses, the Union claimed, are necessary to prevent "free riders" such as the Natchez employees. Judge Schlesinger concluded, however, that by passing § 14(b) Congress had deliberately allowed the States to make their own judgment on the issue of "free riders." He held that the representation fee clauses were prohibited by State law under § 14(b), and the Union committed an unfair labor practice under § 8(a)(3) by bargaining to impasse for the clauses. The Board adopted Judge Schlesinger's opinion that § 14(b) permitted states to ban representation fees and ordered the Union to cease violating § 8(a)(3) by its insistence on the fees; whereupon the Union petitioned for review and the Board cross-petitioned for enforcement.

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.

The legislative history of the Taft Hartley Act of 1947 which enacted § 14(b), clearly supports the Board's ruling. Congress knew precisely what state laws it was validating when it passed § 14(b). See Air Transport Ass'n of America v. Professional Air Traffic Controllers Organization, 667 F.2d 316, 321 (2d Cir. 1981). The House report listed each state which had passed a right-to-work law or constitutional provision. H.R.Rep.No.245, 80th Cong., 1st Sess. 34, reprinted in I Legislative History of the Labor Management Relations Act of 1947 324 (1948). Among the enactments noted was the Arkansas statute at issue in this case. Another was the Georgia statute, Law No. 140 §§ 3-4, 1947 Ga.Laws 616, 618 (March 27, 1947) (codified as Ga.Code §§ 54-903-04 (1978)):

§ 54-903-No individual shall be required as a condition of employment or continuation of employment to pay any fee, assessment or any other sum of money whatsoever to a labor organization.

§ 54-904-Any provision in a contract between an employer and a labor organization which requires as a condition of employment, or continuation of employment, that any individual ... pay any fee, assessment or other sum of money whatsoever to a labor organization, is hereby declared to be contrary to the public policy of this state.

The Mississippi statute at issue here is almost identical to the Georgia statute above, which Congress practically incorporated by reference into the legislative history of § 14(b).

Congress also knew about the free rider problem posed by such laws when it sanctioned such laws by passing § 14(b), as the report of the Senate Committee shows:

A controversial issue to which the committee has devoted the most mature deliberation has been the problem posed by compulsory union membership.... (A) buses of compulsory membership have become so numerous there has been great public feeling against such arrangements. This has been reflected by the fact that in 12 States such agreements have been made illegal either by legislative act or constitutional amendment, and in 14 other States proposals for abolishing such contracts are now pending. Although these regulatory measures have not received authoritative interpretation by the Supreme Court (citation omitted) it is obvious that they pose important questions of accommodating Federal and State legislation touching labor relations in industries affecting commerce (citations omitted). In testifying before this committee, however, leaders of organized labor have stressed the fact that in the absence of such provisions many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost.

Report of the Senate Committee on Labor and Public Welfare presented by Senator Taft, 80th Cong., 1st Sess. 6, April 17, 1947, reprinted in I Legislative History, supra, at Many states have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in such states illegal. As stated in the report accompanying the Senate committee bill, it was not the intent to deprive the States of such power.

412. Senator Taft...