Kolinske v. INTERNATIONAL UNION ETC., Civ. A. No. 79-1101.

• Decision Date: 25 January 1982
• Docket Number: Civ. A. No. 79-1101.
• Citation: 530 F. Supp. 728
• Parties: Raymond T. KOLINSKE, Plaintiff, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Defendant.
• Court: U.S. District Court — District of Columbia

530 F. Supp. 728

Raymond T. KOLINSKE, Plaintiff, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Defendant.

Civ. A. No. 79-1101.

United States District Court, D. Columbia.

January 25, 1982.

COPYRIGHT MATERIAL OMITTED

David T. Bryant, Rex H. Reed, Nat. Right to Work Legal Defense Foundation, Inc., Springfield, Va., for plaintiff.

Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, Mary M. Levy, Rauh, Silard & Lichtman, Washington, D. C., John A. Fillion, Gen. Counsel, Leonard R. Page, Associate Gen. Counsel, Michael B. Nicholson, Asst. Gen. Counsel, UAW, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This is an action by Raymond T. Kolinske against the International Union, United Automobile, Aerospace and Agricultural Workers of America, UAW (hereinafter, "UAW," or "the union") for strike benefits that he argues were wrongfully denied him by the union, or, alternatively, for a refund of fees paid by him to the union corresponding to the portion of those fees that were allocated to the union's strike fund and for an appropriate reduction in his future fees. Plaintiff is not, nor was he at the time of the events leading up to this action, a member of the union. As an employee in the bargaining unit represented by the union, however, he was required to pay fees to the union equivalent to union dues as a condition of employment, pursuant to a collective bargaining agreement creating an "agency shop." This case presents the important question of constitutional and labor law whether a union may require a non-member in the bargaining unit, who honored the union's picket line, to participate in the union's strike-related activities before he may receive strike benefits to which he otherwise would be eligible. By a Memorandum Opinion and Order in this case filed June 22, 1981,¹ the Court dismissed the complaint as to defendant William A. Lubbers, General Counsel of the National Labor Relations Board but denied the UAW's motion to dismiss. While noting that entry of summary judgment "may well have been appropriate" at that stage, since, according to plaintiff, the facts were largely undisputed, the Court also ruled in that Order that the Federal Rules of Civil Procedure required that the remaining parties be given the opportunity to file supplemental points and authorities and additional affidavits and ordered their filing following appropriate dispositive motions. Because the Court set forth in the Order of June 22, 1981 the legal principles that would guide resolution of this matter, frequent reference to that Order is made herein. The parties have now filed cross motions for summary judgment and supplemental memoranda and oppositions thereto. Upon these papers and the entire record in this case, the Court, for the reasons presented below in this opinion, finds that summary judgment in favor of the plaintiff is warranted and shall be granted, and that defendant's motion for summary judgment shall be denied.

The following facts are not in dispute. From at least 1958 through July, 1979, plaintiff was an employee of the McLaughlin Company at its Petoskey, Michigan plant. The McLaughlin Company has for many years recognized Local 1669 of the UAW as the exclusive bargaining agent for many of its employees. Although plaintiff worked in the bargaining unit represented by Local 1669, he has never been a member of either Local 1669 or the UAW.

In 1975, Local 1669 and the McLaughlin Company entered into a collective bargaining agreement which contained an agency shop provision. This provision required that all employees in the bargaining unit represented by Local 1669 pay to the UAW fees equivalent to membership dues. Plaintiff paid the required fees to Local 1669 while the bargaining agreement was in force.

While this agreement was in effect (and now), Article 16 of the UAW constitution required that 30% of members' dues be placed in the UAW strike insurance fund. Similarly, the union apportioned 30% of the plaintiff's fees to this fund, from which strike benefits were paid to employees.

The collective bargaining agreement of 1975 expired in April, 1978, and Local 1669 went on strike at the McLaughlin plant. Plaintiff honored the picket line and did not work at the plant during the strike. The UAW paid strike benefits to members of Local 1669 who performed picket line or other strike-related duties. When plaintiff applied for strike benefits, however, he was denied them on the ground that he had not performed such duties.

During the 1978 strike (and at the present), Article 6, Section 20 of the UAW constitution provided, in relevant part, that

Non-members covered by an agency shop clause in a UAW contract shall receive all the material benefits to which members are entitled but shall not be allowed other membership participation in the affairs of the Union.

A 1962 interpretation of this section issued by the UAW International Executive Board declared that

The "material benefits" of non-members under an agency shop agreement are such benefits as being eligible to receive Solidarity, strike assistance, and any other such direct service benefits received by members of the Union.

Such non-members shall not be allowed attendance at Union meetings, the right to hold or run for any Union office (elected or appointed) or any voting rights within the Union unless and until they have become members of the Union in accordance with the provisions of this Constitution.

The 1978 strike ended when Local 1669 and the McLaughlin Company reached accord on a new collective bargaining agreement, which included an agency shop provision similar to that clause executed in the 1975 agreement.

After plaintiff's demand for strike benefits was rejected by the union, he filed an unfair labor practice charge with the NLRB Regional Director pertaining to that denial of benefits. The Acting Regional Director refused to issue a complaint, and plaintiff's subsequent appeal of the refusal was denied. Plaintiff then brought another charge against the UAW and Local 1669, claiming that the continued collection of fees from the plaintiff by the UAW and Local 1669, a portion of which is expended on programs unavailable to him, violated federal labor laws. The Regional Director decided not to issue a complaint, and plaintiff's appeal of the decision not to prosecute was denied. Plaintiff later initiated this action, naming the General Counsel of the NLRB and the UAW as defendants, the action against the General Counsel being dismissed by this Court in its Order of June 22, 1981, as noted above.

In denying the UAW's motion to dismiss, this Court found that jurisdiction to consider plaintiff's claim existed under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and under the provision giving district courts jurisdiction to hear matters "arising under any Act of Congress regulating commerce...." Order of June 22, 1981, 516 F.Supp. at 1175-76; 1176 n.7. This Court also ruled that plaintiff had stated a cause of action for violation of his constitutional rights of freedom of speech and association, and refused to hold that plaintiff had not stated a non-constitutional claim for breach of the duty of fair representation. Id. at 1179-80.

Plaintiff argues that the union's requirement that a nonmember engage in strike activity in order to receive strike benefits from a fund to which he contributed violates the protections of the First Amendment in that it forces the employee to engage in speech supporting a cause he does not wish to join and deprives him of his right not to associate with a group. The act of marching on a picket line is often intertwined with speech. See, e.g., Cox v. Louisiana, 379 U.S. 559, 564, 574, 85 S.Ct. 476, 480, 485, 13 L.Ed.2d 487 reh'g denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 814 (1965). The essence of a picket line is the communication to the world of a group's dissatisfaction with the status quo. On the other hand, the UAW argues that employee participation in strike activities is critical to the union's ability to engage in meaningful collective bargaining. As this Court noted in its earlier order, the constitutional rights of the individual limit the extent to which a union can call upon non-members for their support of the union's collective bargaining endeavors. Order of June 22, 1981, at 1180.

A union operating pursuant to an agency shop provision may draw financial support from non-members to help defray the costs of collective bargaining activities from which the non-members benefit, such as the expenses the union incurs in negotiating or administering collective agreements or costs relating to the resolution of grievances and disputes. International Association of Machinists v. Street, 367 U.S. 740, 768, 81 S.Ct. 1784, 1799, 6 L.Ed.2d 1141. Indeed, the UAW did extract from plaintiff monies that went to build the strike insurance fund from which the plaintiff now seeks to benefit. But where what the union seeks to elicit from the non-member touches the non-member's First Amendment rights, the union's power to draw support is circumscribed by those rights of the non-member. Order of June 22, 1981, at 1179-80, citing Abood v. Detroit Board of Education, 431 U.S. 209, 222, 97 S.Ct. 1782, 1792-93, 52 L.Ed.2d 261, reh'g denied, 433 U.S. 915, 97 S.Ct. 2989, 53 L.Ed.2d 1102 (1977), Brotherhood of Railway and Steamship Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963), and International Association of Machinists v. Street, supra. Any conditions the union desires to impose upon the receipt of benefits must not interfere with these important constitutional concerns.

Certainly it is permissible to condition payment of strike benefits upon the employee's honoring the picket line. Fairness dictates this result because, obviously, an employee who reports for work during a strike...