Pattern Makers’ League of North America, AFL-CIO v. National Labor Relations Board – Oral Argument – February 27, 1985

Media for Pattern Makers’ League of North America, AFL-CIO v. National Labor Relations Board

del

Warren E. Burger:

We will hear arguments first this morning in Pattern Makers’ League v. the National Labor Relations Board.

Mr. Gold, you may proceed whenever you’re ready.

Laurence Stephen Gold:

Chief Justice, and may it please the Court, the question in this case is whether the National Labor Relations Board is correct in its ruling that all Union rules placing restrictions on the time and circumstances under which a member may resign from the Union are invalidated by Section 8(b)(1)(A) of the National Labor Relations Act, as amended, is correct.

The facts which raise that question are these: The Pattern Makers’ Union adopted a provision in its constitution and bylaws which we set out at page 3 of our brief, the blue brief, which states:

“No resignation or withdrawal from an Assocication or from the League shall be accepted during a strike or lockout or at a time when a strike or lockout appears imminent. “

That provision was considered at the Union’s convention in 1976 and then was sent to a referendum of the Union’s members, and finally approved and became effective in 1976.

Thereafter, a strike did ensue, involving the Rockford and Beloit local Unions of the Pattern Makers’ Union.

some eleven members of those local Unions put in resignations during the strike and went back to work thereafter.

The Union, when the strike was finally settled, sought to impose Union discipline on these individuals.

Charges were served, a trial was held, and the result was that the case went to the National Labor Relations Board on the allegation that the Union’s action in seeking to discipline these individuals for violating the Union’s underlying rule that engaging in strike-breaking activity is unlawful as a matter of Union law, violated Section 8(b)(1)(A).

William H. Rehnquist:

What panel did the Union impose?

Laurence Stephen Gold:

The Union imposed on the individuals for engaging in the strike-breaking activity.

Sandra Day O’Connor:

The fines amounted to all of their salaries earned when they went back to–

Laurence Stephen Gold:

My memory, Justice O’Connor, is that the fines were in the amount earned while engaging in strike-breaking activity.

And, of course, the question of the state of those fines is a matter for state law to determine under this Court’s decisions in the Boeing & Machinist case.

The validity of the fines, whether the fine’s reasonable in amount, and so on are a matter of the state law of membership associations and the state law of contracts; and the extent to which the fines are enforceable, this Court has held, is to be determined in that forum.

So all we have is in inchoate action by the Union, subject to only one means of enforcement; namely, a state court lawsuit to collect the amounts in question with the law on what is collectible, a matter of state law.

Harry A. Blackmun:

–Do you know whether the fines, in fact, have been paid?

Laurence Stephen Gold:

My understanding is they have not.

William H. Rehnquist:

Well, could the Union expel these members for failure to pay the fines so that they wouldn’t have to resort to state court collection proceedings under state law?

Laurence Stephen Gold:

Yes.

There are, as we understand the law developed by this Court from Allis Chalmers through Machininsts & Boeing, two lawful methods for enforcing a rule against strike-breaking against full Union members.

Obviously, unless the person chooses to join the Union, to become a full Union member and be bound by the constitution, the Union can’t take any disciplinary action.

But if somebody, as in this case, and it’s conceded, if someone joins a Union, becomes a full member, agrees to abide by the constitution and bylaws, then the Union has two choices: one, to take action which leads to expulsion; two, to take action which leads to a fine which can be attempted to be enforced through court action.

Those are the only two options open to the Union.

William H. Rehnquist:

Now, has the Union permanently given up the opportunity to expel here by imposing a fine, or could it, if the fine proved uncollectible under its own constitution, say well, you failed to pay; we’re going to expel you for that.

Laurence Stephen Gold:

I presume… I’ve never seen a case of that kind.

I presume that a Union which first seeks a fine, to collect a fine, and is told by the courts that the fine is too high an amount or procedurally imposed in an imperfect way, would still have the option of expulsion.

The only argument I can see the other way is that there is some choice of remedies or waiver by the Union.

I don’t think that would be the rule.

del

Laurence Stephen Gold:

Usually, Unions seek to go one way or the other initially.

In many Unions, the complaint, internal complaint filed against the members, says what the penalty being sought will be.

And some Union constitutions provide that if the only penalty that can be imposed is that which the member has been given fair notice of, so that he can make his determination whether to defend or not.

Some people faced with expulsion wouldn’t choose to defend, and it would be unfair to come around later and try to collect a fine from them.

So different Union constitutions treat that issue in different ways.

Warren E. Burger:

I take it you will address the question of judicial deference to the Laurence view of the matter.

Laurence Stephen Gold:

Oh, absolutely, Chief Justice.

The argument we make here is that the language and legislative history of the Taft-Hartley Act shows that Congress gave the most mature and complete consideration to the entire question of the extent to which the Labor Board should be empowered to regulate the Union/Member relationship, and that in particular, the House of Representatives proposed that it be an unfair labor practice for a Union to limit resignation in any way, shape, or form; where the Senate took a quite different view.

And that conference report demonstrates in this instance, as in many others, that the House receded to the Senate.

In other words, our position here is that Congress made a considered decision to deny the Labor Board the authority to dictate to Unions what their rules should be on who may join the Union, the conditions under which that person may join, position, the conditions under which he may be expelled, and the conditions under which he may otherwise leave the Union.

William J. Brennan, Jr.:

Mr. Gold, may I ask, is there anything in the record… how much knowledge, if any, of this League Law 13 any of the eleven employees involved had at the time they joined?

Laurence Stephen Gold:

The Board found or stated,

“There is no contention that the members who tended their resignations were unaware of the restrictions on resignation imposed by the constitution. “

William J. Brennan, Jr.:

But there is nothing in the record that they were affirmatively informed of this provision when they joined?

Laurence Stephen Gold:

All that the record shows, Justice Brennan, is that in adopting this provision, the Union publicized the matter to the full membership, and the membership voted on whether or not this restriction should be inserted into the Union constitution.

William J. Brennan, Jr.:

Were these eleven members of the Union at the time of the adoption of this provision?

Laurence Stephen Gold:

Yes.

That is my understanding.

They were members at that time.

And there was a hiatus from August 1976 until May 1977 between the time the provision was adopted and when the strike began.

So by the clear terms or the negative implication of this restriction, each one of these members was free each one of those days to say I don’t choose to be a member of this association any longer.

This is a narrow and pointed restriction on the ability to resign, one which is attendant to a particular moment of the utmost importance to the organization, the strike period with its attendant pressures, and the period during which the employer is free to employ such coercive devices, perfectly lawful under the labor laws, as hiring permanent replacements, stating an intention to do so, and so on, all of the lawful uses of economic force which tend to pull the group apart.

William J. Brennan, Jr.:

Do you read the Board’s holding as an employee Union member is simply not at liberty to waive the right under 8(b)(1)(A)?

Laurence Stephen Gold:

I read the Board’s holding to be firm and absolute.

William J. Brennan, Jr.:

Under no circumstances may an employee waive it?

Laurence Stephen Gold:

No such rule as the Board–

William J. Brennan, Jr.:

No, that wasn’t my question.

A holding that the Union member, if presented with this clause before he joins, said look what happens to you if you were to strike, and he says that’s perfectly all right with me, that’s all right, I will go along with that and I join.

If that were a waiver, the Board says it’s not to be–

Laurence Stephen Gold:

–Yes.

del

Laurence Stephen Gold:

The Board, in terms of its decision and also in its brief, more particularly addresses the question of waiver.

Obviously, Mr. Fried is better able to say what’s in the Board’s mind than I am.

But the Board’s decision is stated in absolute terms, and certainly against the background of this case where the provision is adopted on notice by a referendum vote, not even by elected representatives, it is hard to believe when you read the Board’s language, which is that any restriction placed by a Union on its members’ right… any restrictions placed by a Union on its members’ right to resign are unlawful, admits of any exception.

Byron R. White:

–Of course, your position is that he had no right to waive.

Laurence Stephen Gold:

That’s right.

Byron R. White:

That’s your primary–

Laurence Stephen Gold:

Yes.

Our primary position is that Congress made a basic judgment.

Byron R. White:

–Limited these rights to the extent necessary to let the Union run its own affairs.

Laurence Stephen Gold:

That’s correct.

Byron R. White:

And I take it that you rest on the legislative history.

Laurence Stephen Gold:

Yes.

We rest on the–

Byron R. White:

If there was nothing but the language, you probably would be in more trouble.

Laurence Stephen Gold:

–Yes.

The language… it seems to us to proceed in the way the Court has instructed from the language to the explanation.

The language is hardly helpful to the Government, but–

Byron R. White:

Well, unless you are inclined to say that if the Board gave it a permissible reading, you’d think it.

Laurence Stephen Gold:

–That is what I was about to say, Justice White.

I don’t think it is very helpful, but I could not say–

Byron R. White:

That the language wins your case.

Laurence Stephen Gold:

–Forces a decision in our favor.

I do think the language cuts in our favor in two different respects: one, the section 7 right is a right to refrain from concerted activities, and it seems to us the choice of the word “refrain” is a surprising one to denote a right to join an organization which has a rule limiting resignation, and say I will join, but I am joining free and clear of that rule, and I won’t respect it and I have a right that Congress gave me to join and then to leave at will any time I say.

So I don’t think the language pushes in the Government’s direction.

Byron R. White:

You’re very close to a waiver argument there.

Laurence Stephen Gold:

I think that the argument… and we’ve gone back and forth in our minds whether or not the argument is a waiver or an argument simply that this is a narrow right, a right not to join in the first place.

Secondly, Section 8(b)(1)(A) was not in the Senate committee bill.

It was added on the floor by Senators Taft and Ball, and in adding it they excepted an amendment by Senator Holland, adding the proviso to the amendment, the proviso that says that nothing in the body of the amendment which prohibits restraint and coercion is intended to interfere with the right of Unions to prescribe their own rules with respect to the acquisition or retention of membership.

Warren E. Burger:

Isn’t this the kind of question that traditionally, courts have traditionally given the Labor Board a great deal of elbow room?

Laurence Stephen Gold:

I think that this is, Chief Justice, the kind of question where the Board has the least possible elbow room.

del

Laurence Stephen Gold:

I would concede that if all that I had to present to you was the bare language of the statute, unexplained by its evolution and by what its sponsor said, that this might be an area in which the Board’s expertise weighs heavily.

But that is simply not the situation here.

Congress was considerate enough, good enough to debate these matters at great length.

And what we see is (a), as I was saying in the Senate, expressed statement by the sponsors of Section 8(b)(1)(A) that they had no intent to intervene in internal Union affairs and to regulate the Union/Member relationship.

And then when we move to the House, we find a very different situation.

In the House, there was a Section 7(a) in the House bill, very much like Section 7 now, including these words

“granting individual employees the right to refrain from concerted activities. “

and a Section 7(b) which regulated, which gave Union members rights, vis a vis the labor organization.

And in the House bill, there was a Section 8(B) which is very much like Section 8(b)(1)(A) now, dealing with this general question of restraint and coercion, basically physical coercion and interference with job rights.

Byron R. White:

Mr. Gold, was there any discussion before or after or during the conference report with respect to this specific problem?

Laurence Stephen Gold:

Yes.

Byron R. White:

Whether a Union could fine a member for strike-breaking?

Laurence Stephen Gold:

No, Justice White.

I cannot say that the discussion was in that specificity, but the discussion was as follows.

We reproduced the portions of the statement of the House managers who would certainly take the kindest view as to what–

Byron R. White:

Which is the language of their statements do you most strongly relate?

Laurence Stephen Gold:

–Page 31 to 32.

And I’d like to read it at the bottom of the page, simply to give the background to this statement.

The House passed a bill that had a Section 7(b) which gave rights to individuals as Union members and a Section 8(c)(4) which specifically stated that Union members would have a right to resign at will, and that it was an unfair labor practice to limit that right.

The bill went to conference.

Section 7(b) and 8(c) were dropped.

The House conferees said Section 8(c) of the House bill contained detailed provisions dealing with the relations of labor organizations with their members.

One of the more important provisions of this section, that limiting the initiation fees which a labor organization may impose, where a permitted Union shop or maintenance of membership agreement is in effect, is included in the conference agreement.

See Section 8(b)(5) and, has already been discussed, the other parts of this subsection are omitted from the conference agreement as unfair labor practices.

The House managers had the political job of going back to the House and saying we salvaged as much as was possible.

The House managers did not admit to failure in that regard lightly.

There is just no doubt, we submit, that this language says we tried to regulate internal Union affairs; we succeeded in… we tried to regulate internal Union affairs in Section 7(b) of our bill and 8(c) of our bill; we saved Section 8(b)(5) on initiation fees; we lost on everything else.

Senator Taft told the Senate that with regard to the scope of 8(b)(1) which he and Senator Ball had said was not intended to get into internal Union affairs, the conference bill was the same as the Senate bill.

Now, the Board which admits that all of these materials are embodiments of Congress’ will and have to be explained, says that while no one… no one… so stated at the time, the real agenda of the conference was by adding the words the 7, which had not been in the Senate bill, it was the intent to create a right to resign at will, quite aside from the fact that that doesn’t face up to what happened to Section 7(b) and 8(c)(4).

Byron R. White:

But that’s an argument that the failure to include the unfair labor practice, which was what… 8(c)?