UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: July 15, 1976.
VICTORIA HORWATH AND ELIZABETH GAUDRY, PETITIONERS-APPELLANTS,
NATIONAL LABOR RELATIONS BOARD, RESPONDENT-APPELLEE, AND LOCAL LODGE 1129 AND DISTRICT LODGE 8, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, INTERVENING RESPONDENTS-APPELLEES
Appeal from Decision of the National Labor Relations Board.
Cummings, Tone, Circuit Judges, and Charles E. Wyzanski, Jr., Senior District Judge.*fn* Wyzanski, Senior District Judge, dissenting.
TONE, Circuit Judge.
The issue before us is the validity of a maintenance-of-membership provision in a collective bargaining agreement. The provision applies to employees who were union members immediately before the effective date of the agreement and employees who thereafter become union members. It does not apply to employees who were not union members immediately before the effective date or future employees. The National Labor Relations Board sustained the union's position that such a provision is lawful when the collective bargaining agreement becomes effective immediately on the expiration of a predecessor agreement containing a similar provision. The Board therefore held that the union had not committed an unfair labor practice under § 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b)(1)(A) and (2), by demanding that the employer discharge employees who, having resigned from the union effective upon the expiration of the old contract, ceased paying dues when the new contract became effective. We sustain the Board.
Since 1964 an uninterrupted series of collective bargaining agreements have been in force between the employer, Sunbeam Corporation's Appliance Division, and the union, Lodge No. 1129 and District No. 8 of the International Association of Machinists and Aerospace Workers. Each agreement has contained a maintenance of membership clause providing as follows:
"All employees who are members of the Union on [a given date], and those employees who may thereafter become members shall, during the life of this Agreement remain members of the Union, in good standing."
The 1964 agreement contained an escape clause establishing a period during which union members could resign from the union. The maintenance-of-membershp clause of that agreement applied only to employees who were members of the union on the day after the escape period ended. The escape clause was omitted from subsequent contracts, but the maintenance-of-membership clause in the 1970 contract, which immediately preceded the contract in issue here, applied only to employees who were union members one week after the effective date of the contract. The 1970 contract terminated and the 1973 contract now before us became effective at midnight on January 12, 1973. The maintenance-of-membership clause in the 1973 contract applied to "all employees who are members of the Union on January 12, 1973."
Petitioners are Sunbeam Appliance Division employees who resigned their union memberships before the expiration of the 1970 contract but continued to pay dues until the contract expired. In accordance with petitioners' view of the facts, we treat the resignations as effective upon the expiration of that contract at midnight on January 12, 1973.*fn1 Following notification by the union that it would invoke its rights under the maintenance-of-membership clause if petitioners did not pay their dues, they filed unfair labor practice charges before the Board, which were dismissed by the Board's Chicago Regional Director but reinstated by the General Counsel's Office of Appeals. The employer has refused, pending the outcome of this proceeding, the union's request that petitioners' employment be terminated.
After a hearing,*fn2 the Administrative Law Judge ordered that the dispute be submitted to arbitration pursuant to the collective bargaining agreement between the union and the company. On review, the Board ruled out arbitration because neither party to the arbitration would be supporting petitioners' position. Proceeding to the merits, the Board ordered the complaint dismissed, stating:
"The Board has long held that where, as here, there is no time lapse between successive collective-bargaining agreements and there are closely similar union-security clauses, of which maintenance of membership is one form, the union-security clauses have continuity and the new contract, at least as to union security, is to be treated as a continuation of the old contract. International Union, United Automobile, Aerospace, Agricultural Implement Workers of America (UAW), AFL-CIO (John I. Paulding, Inc.), 142 NLRB 296, 301 (1963). This principle was recently affirmed in The Newspaper Guild of Brockton, AFL-CIO, [201 N.L.R.B.] 793 (1973). Accordingly, we find that the 1973 contract herein, at least as to the maintenance-of-membership clause, is to be viewed as a continuation of the 1970 contract and that the obligation of the Charging Parties to abide by the clause and pay dues also continued."
Construction of the Agreement
The Paulding doctrine, on which the Board based its interpretation of the contract, has been applied in a series of Board cases, all holding that successive union security clauses are to be construed as merged into a single, continuing requirement of union membership. See, in addition to the cases cited by the Board in the above-quoted passage, Hershey Chocolate Corp., 140 NLRB 249, 253-255 (1962); International Association of Heat Frost Insulators, Local 5, 191 NLRB 220, 221 (1971), enforced, 464 F.2d 1394 (9th Cir. 1972) (mem.). Thus, in Paulding, the Board held that even though there was a short gap between the expiration of the old agreement and the commencement of the new (both containing maintenance of membership provisions applicable to employees who were union members on their effective date), the new agreement was to be viewed as a continuation of the old, and employees who resigned their union membership effective the last day of the old agreement were subject to the maintenance-of-membership provision.*fn3
We need not pass upon the soundness of the Paulding doctrine, for the language of the maintenance-of-membership provision before us is open to only one reading. The provision applies to all employees who were union members on January 12, 1973, which was the last day of the previous contract. Petitioners were union members on that date, since their resignations became effective at midnight on that date, when the previous contract expired. Accordingly, the provision plainly required that each petitioner maintain his union membership as a condition of continuing in his employment.*fn4
Legality of the Maintenance-of-Membership Clause
Petitioners' argument that the maintenance-of-membership clause is invalid is based primarily upon certain language in NLRB v. Textile Workers Union, 409 U.S. 213, 216, 93 S. Ct. 385, 34 L. Ed. 2d 422 (1972),*fn5 in which the Court applied § 7 of the Act (29 U.S.C. § 157). That section guarantees to employees both the right to join labor organizations and the right not to join.
In the Textile Workers case the issue was whether it was an unfair labor practice for the union to attempt to fine employees who had resigned from the union during a strike and returned to work while the strike was still going on. Neither the constitution nor the by-laws of the union purported to restrict the right of a member to resign. The Court decided only that under these circumstances § 7 protected the employees' right to resign and that once they had resigned the union had no right to attempt to control them. The case presented no issue concerning a union-security clause or § 8(a)(3).
Section 7 expressly provides that the right to refrain from concerted activity "may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in [§ 8 (a)(3)]." Thus it is § 8(a)(3) and not § 7 which determines the validity of a maintenance-of-membership provision.
Section 8(a)(3) provides as follows:
"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 (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) 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, (i) if such labor organization is the representative of the employees as provided in [§ 9(a)], in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in [§ 9(e)] within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against any employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he 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 uniformly required as a condition of acquiring or retaining membership. . . ."
The first proviso of § 8(a)(3) specifically authorizes "union shop" agreements, under which all employees are required to join, and remain, members of the union as a condition of employment.*fn6 The word "membership, " in the first proviso is qualified, however, by subdivision (B) of the second proviso, as the Supreme Court has recognized:
". . . It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. 'Membership' as a condition of employment is whittled down to its financial core." NLRB v. General Motors Corp., 373 U.S. 734, 742, 10 L. Ed. 2d 670, 83 S. Ct. 1453 (1963).
Thus § 8(a)(3) merely allows the union to require financial support and not membership in any other sense.*fn7 Accordingly, the Court held in General Motors that the statute permitted an "agency shop" agreement, which only requires employees to pay fees and dues to the union as a condition of employment. Such an agreement, said the Court, "imposes no burden not imposed by a permissible union shop contract and compels the performance of only those duties of membership which are enforceable by discharge under a union shop arrangement." Id. at 743.
Although the holding of the case rested on a reading of the two provisos of § 8(a)(3), the second of which reflects Congress' intent to limit compulsory support of unions to financial support, one passage in the opinion is instructive in connection with the issue before us, which is whether the statute also authorizes another kind of union-security clause less restrictive than a union shop provision. The Court said:
"We find nothing in the legislative history of the Act indicating that Congress intended the amended proviso to § 8(a)(3) to validate only the union shop and simultaneously to abolish, in addition to the closed shop, all other union-security arrangements permissible under state law. There is much to be said for the Board's view that if Congress desired in the Wagner Act to permit a closed or union shop and in the Taft-Hartley Act the union shop, then it also intended to preserve the status of less vigorous, less compulsory contracts which demanded less adherence to the union." 373 U.S. at 741.
Under an agency-shop provision, which General Motors holds is sanctioned by § 8(a)(3), all employees must pay dues, both those who are paying dues on the day a former contract expires and those who are employed thereafter. Under such a contract, no employee ever has a choice whether to support the union financially. Under the contract challenged here, each employee at some time had or will have such a choice. That is the essential difference between the two kinds of provisions. Once the choice in favor of supporting the union is made, the employee's obligation is not different from the obligation imposed by an agency-shop provision.
The challenged provision makes a classification which is not invidious. On the one hand, required to support the union by paying fees and dues are those employees who, when they had their opportunity to choose, made that choice in favor of supporting the union. On the other hand, not required to support the union financially are the remaining employees, who, at the time of their opportunity to choose, made or will make the election against supporting the union.
Petitioners do not attack the Board's ruling on constitutional grounds. With respect, we do not believe the constitutional argument suggested in the dissent is well founded, even assuming that the Board's failure to prevent the union from enforcing its contractual rights converts the exercise of those contractual rights into federal action. As for the First Amendment argument, the constitutionality of the first proviso of § 8(a)(3), which allows maintenance-of-membership provisions applicable to all employees, is not questioned. Where the only obligation of membership is payment of dues, it is no greater an intrusion on First Amendment rights to restrict an employee's ability to resign from membership than it is to require him to join in the first place. Whether an employee's First Amendment right to freedom of association has been violated by forcing him to support a union cannot depend on whether other employees are similarly coerced. If it is suggested that the distinction between classes of employees is a violation of the equal protection guaranteed by the Due Process Clause of the Fifth Amendment, we think the distinction is not invidious and is justified for the reason stated in the preceding paragraph.
The maintenance-of-membership provision before us serves to a limited degree the interest of union security which Congress recognized in the first proviso of § 8(a) (3),*fn8 while accommodating to some extent the competing interest of employees which Congress has also recognized in that section*fn9 and in §§ 7 and 14 of the Act. If such less restrictive provisions as the one at bar were impermissible and the union's options were thus limited to the extremes of an all-employee provision on the one hand and no effective maintenance-of-membership provision at all on the other, unions might be driven to insist on all-employee provisions in their collective bargaining agreements, with the result that fewer employees throughout industry would be free to choose whether to pay union fees and dues.
We sustain the Board's holding that the Act does not prohibit a maintenance-of-membership provision which imposes no restrictions on new employees and is no more restrictive upon old employees than an all-employee provision expressly sanctioned by the first proviso of § 8(a)(1).*fn10 The petition for review is denied.
WYZANSKI, Senior District Judge, dissenting.
In the N.L.R. Act, Congress recognized two competing interests: the right of a union to make with an employer a collective bargain which would require employees to contribute dues which would fairly match the services they received, maintain the strength of the union, and promote stability of employment relations and thus industrial peace, and the right of the individual employees to freedom of speech. Hence, there is Congressional sanction for a maintenance of membership clause within the limits specified by Section 8 (a)(3) of the N.L.R. Act, 29 U.S.C. § 158(a)(3). NLRB v. General Motors Corp., 373 U.S. 734, 10 L. Ed. 2d 670, 83 S. Ct. 1453 (1963); Radio Officers Union v. Labor Board, 347 U.S. 17, 41, 98 L. Ed. 455, 74 S. Ct. 323 (1954); NLRB v. Hershey Foods Corp., 513 F.2d 1083, 1085-1086 (C.A. 9, 1975).
But the instant case is not in the familiar pattern. The collective bargain here at issue does not require maintenance of membership of all employees in the designated unit, nor is it confined to those employees who when the bargain was made wanted to be members of the union. It goes beyond those who then wanted membership, and seeks to embrace those who vainly had sought to withdraw from an earlier commitment; yet it does not simultaneously embrace those who had never been voluntary members. The inclusion merely of those who had indicated a desire to withdraw has obviously a peculiar characteristic: it is selectively coercive. Its purpose is not primarily to stabilize, but to hold in thrall. Such eclecticism has an object ulterior to the two rights which Congress recognized. And that object is an interference with the freedom of association impliedly protected by the First Amendment to the Constitution - an interference for which there is not an adequate ground plausibly to contend that the purpose of the First Amendment is counter-balanced.
The flaw in the majority opinion, in my judgment, is that it rests on what is a sound mathematical, but not always a sound legal, principle: that the whole necessarily includes the parts. Selectivity of a part may have, and indeed here has, an invidious connotation which would be absent had the whole been embraced.