International Union, United Auto., Aerospace and Agr. Implement Workers of America, and Its Locals 1093,558 and 25 v. National Right to Work Legal Defense and Educ. Foundation, Inc.

• Decision Date: 27 February 1979
• Docket Number: 77-1766 and 77-1767,Nos. 77-1739,s. 77-1739
• Parties: 99 L.R.R.M. (BNA) 3181, 192 U.S.App.D.C. 23, 84 Lab.Cas. P 10,904 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AND ITS LOCALS 1093, 558 AND 25, et al. v. NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC., et al., Gerald Marker et al., Appellants (three cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1139

590 F.2d 1139

99 L.R.R.M. (BNA) 3181, 192 U.S.App.D.C. 23,

84 Lab.Cas. P 10,904

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AND ITS LOCALS 1093, 558 AND 25, et al. v. NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC., et al., Gerald Marker et al Appellants (three cases).

Nos. 77-1739, 77-1766 and 77-1767.

United States Court of Appeals District of Columbia Circuit.

Argued June 12, 1978.

Decided Nov. 17, 1978.

Rehearing Denied Feb. 27, 1979.

Appeals from the United States District Court for the District of columbia.

Joseph L. Rauh, Jr., Washington, D. C., with whom John Silard, Elliott C. Lichtman and Mary M. Levy, Washington, D. C., were on the brief, for the International Union, appellants in No. 77-1766 and cross-appellees in Nos. 77-1739 and 77-1767.

Whitney North Seymour, New York City, with whom Conrad K. Harper, New York City, Thomas S. Jackson, John L. Kilcullen, Washington, D. C., Rex H. Reed, Fairfax, Va., Deborah E. Lynch, New York City, Kenneth Wells Parkinson, Patricia D. Gurne, Garry Ewing and David T. Bryant, Fairfax, Va., were on the brief, for National Right to Work Legal Defense and Education Foundation, Inc. and National Right to Work Committee, appellants in No. 77-1767 and cross-appellees in Nos. 77-1739 and 77-1766.

Godfrey P. Schmidt, New York City, and Glenn H. Carlson, Washington, D. C., were on the brief for Marker, et al., appellants in No. 77-1739 and cross-appellees in Nos. 77-1766 and 77-1767.

John A. Fillion and Stephen I. Schlossberg, Detroit, Mich., also entered appearances for United Automobile Workers, appellee in No. 77-1739.

Plato E. Papps, Washington, D. C., also entered an appearance for International Association of Machinists, appellee in No. 77-1739.

Jerome Cohen also entered an appearance for United Farm Workers National Union, appellee in No. 77-1739.

Timothy J. Lynch, Washington, D. C., also entered an appearance for Sheet Metal Workers International Association, appellee in No. 77-1739.

Robert J. Connerton, Washington, D. C., also entered an appearance for Laborers' International Union of North America, appellee in No. 77-1739.

Charles V. Koons, Washington, D. C., also entered an appearance for Communications Workers of America, appellee in No. 77-1739.

James J. Cronin, Denver, Colo., also entered an appearance for Oil, Chemical and Atomic Workers Union, appellee in No. 77-1739.

J. Albert Woll and Laurence Gold, Washington, D. C., also entered appearances for AFL-CIO, appellee in No. 77-1739.

Solomon I. Hirsh, Rosemont, Ill., also entered an appearance for Brotherhood of Railway, Airline and Steamship Clerks, appellee in No. 77-1739.

Louis Sherman, Washington, D. C., also entered an appearance for International Brotherhood of Electrical Workers, appellee in No. 77-1739.

Before TAMM and MacKINNON, Circuit Judges, and HOWARD T. MARKEY, ^* Chief Judge, U. S. Court of Customs and Patent Appeals.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

This is an appeal from a decision in which the United States District Court for the District of Columbia held that the second proviso to section 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411(a)(4) (1976), is unconstitutional as applied to the litigation program of the National Right to Work Legal Defense and Education Foundation, Inc., and that section 203(b)(1) of the LMRDA, 29 U.S.C. § 433(b)(1) (1976), does not afford a private right of action. We conclude that the second proviso to section 101(a)(4) of the LMRDA, as properly construed, does not apply to the legitimate activity of a bona fide, independent legal aid association, and we remand for further proceedings. We agree with the district court that no private right of action exists for judicial enforcement of section 203(b)(1) of the LMRDA.

I

The National Right to Work Legal Defense and Education Foundation, Inc. (Foundation), was established in 1968 by the Board of Directors of the National Right to Work Committee (Committee). ¹ The Committee itself is a tax-exempt, non-profit organization that opposes "compulsory unionism" through various activities, including educational projects and support of "right to work" legislation. ² The Foundation was created as a tax-exempt, non-profit corporation with the principal purpose of providing financial assistance to workers who bring lawsuits attacking features of "compulsory unionism."

"Compulsory unionism" is an aspect of union-security agreements. In the collective bargaining process, most labor organizations seek union security through agreements with employers that condition employment upon some type of "compulsory membership" in the union. See generally B. Taylor & F. Witney, Labor Relations Law 317-32 (2d ed. 1975). Although the Labor Management Relations Act, 1947, outlawed the closed shop, which required a worker to join a union before qualifying for a job, § 101, 61 Stat. 140, permissible forms of union security include the union shop, which requires an employee to become a union member within a specified time after being hired, and the agency shop, which requires an employee to pay a service fee to the union equivalent to union dues and initiation fees. See Abood v. Detroit Board of Education, 431 U.S. 209, 217 n.10, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). By permitting forms of "compulsory unionism" less onerous than the closed shop, and providing that union membership may require the payment of periodic dues and initiation fees, Congress recognized the unfairness of permitting "free riders" to share in the benefits of what the union accomplished through collective bargaining. NLRB v. General Motors Corp., 373 U.S. 734, 740-43, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963); See National Labor Relations Act, § 8(a)(3), 29 U.S.C. § 158(a)(3) (1976). ³ At its core, compulsory unionism refers to mandatory payment by employees of union dues and initiation fees. NLRB v. General Motors Corp., 373 U.S. at 742, 83 S.Ct. 1453.

Since its creation, the Foundation has supported numerous test cases brought against labor organizations by workers who attack union dues obligations. ⁴ The Foundation has financed lawsuits, provided counsel, and filed briefs as amicus curiae. See Brief for Plaintiffs-Appellants at 34-38; See also Joint Appendix (J.A.) I at 6-14 (Second Amended Complaint). One of the suits supported by the Foundation resulted in the recent Supreme Court decision Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, which held that a union cannot constitutionally use money paid by employees pursuant to an agency shop agreement between the union and a local governmental employer for political purposes that the employees do not wish to support and that are not germane to the union's duties as a collective bargaining representative. Id. at 232-37, 97 S.Ct. 1782. See generally Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U.Pa.L.Rev. 386, 414-20 (1977).

II

In May 1973, a group of national and local labor organizations (the unions) ⁵ sued the Foundation and the Committee in the United States District Court for the District of Columbia. In their first cause of action, the unions sought a declaratory judgment that the Foundation was violating section 101(a) (4) of the LMRDA, 29 U.S.C. § 411(a)(4) (1976), ⁶ by "financing, encouraging and participating in (other than as a party) suits brought by members of labor organizations and by employees against labor organizations with funds provided by interested employers or employer associations and on their behalf." J.A. I at 18. The unions sought a permanent injunction prohibiting the Foundation from continuing these practices, and prohibiting the Committee from assisting the Foundation in such litigation. The unions also asked for compensatory and exemplary damages.

In their second cause of action, the unions requested a declaratory judgment that the Foundation and Committee violated section 203(b)(1) of the LMRDA, 29 U.S.C. § 433(b)(1) (1976), ⁷ by failing to file statements with the Secretary of Labor reporting agreements with contributing employers concerning persuasion of employees. They sought an injunction requiring the Foundation and Committee to file such reports. The unions also sought exemplary damages. J.A. I at 19-20.

The Foundation's and the Committee's motion to dismiss the unions' complaint for failure to state a cause of action was denied. International Union, UAW v. National Right to Work Legal Defense and Education Foundation, 366 F.Supp. 46 (D.D.C.1974). ⁸ Subsequently, the Foundation and the Committee asserted a number of defenses and sought, in a counterclaim, a declaratory judgment that sections 101(a)(4) and 203(b)(1) of the LMRDA would be unconstitutional if applied to the Foundation's litigation program. J.A. I at 82-86.

During discovery proceedings in the district court, the unions requested that the Foundation and Committee disclose the names and addresses of all employers and businesses that contributed to the Foundation during 1972. Id. at 141. The unions also requested that the Foundation reveal contributions by companies whose officers or employees were members of the Foundation's publicly identified Advisory Council. Id. at 46, 144. The Foundation refused to disclose the identities of any contributors, asserting constitutional privileges against disclosure and contending that disclosure would result in reprisals against contributors. The Foundation did release the numbers of contributors who had donated particular amounts of money. Id. at 145-46.

In response to the unions' motion to compel discovery, the district court ordered the Foundation to identify: (1) the thirty-seven donors who contributed between $500 and $5000 in 1971; (2) thirty-seven of the 1,048 donors who contributed between $100 and...