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October 31, 1980

Thomas D. KLEMENS, Colin F. Dearing, Thomas G. Giefer, Roy A. C. Hill, Robert G. Maiers, Plaintiffs,

The opinion of the court was delivered by: ROTHSTEIN


THIS CAUSE comes before the Court on plaintiffs' Motion to Strike and Motion for Protective Order. After reviewing the Motions, memoranda, and other pleadings herein, and being fully advised, the Court rules as follows:

 Since 1972, an agency shop agreement has been in effect between Northwest Airlines, Inc. (Northwest) and the Air Line Pilots Association, International (ALPA). Under this agreement, ALPA is the exclusive collective bargaining agent for Northwest pilots.

 This is an action by five Northwest pilots who were expelled from ALPA. They claim that the circumstances of their expulsion should relieve them of any subsequent duty to pay agency shop "service charges".

 The Court has previously ruled that plaintiffs have stated a proper cause of action under section 2, Eleventh, of the Railway Labor Act, 45 U.S.C. § 152, Eleventh. See Order of February 12, 1980, reprinted at 484 F. Supp. 186.

 Plaintiffs are represented in this action by counsel from the National Right to Work Legal Defense and Education Foundation, Inc. (NRWF), a non-profit foundation which provides legal aid to workers challenging "compulsory unionism".

 On or shortly after March 4, 1980, ALPA served plaintiffs with its First Set of Interrogatories and Request for Production of Documents. These inquiries seek information to support the union's Fourth Affirmative Defense. See Answer, filed August 25, 1980, at p. 3. By that defense, ALPA alleges that NRWF is an "interested employer association" under 29 U.S.C. § 411(a)(4) which may not lawfully represent the plaintiffs in their suit against the union. The disputed statute is otherwise known as § 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). It protects the right of union members to institute legal actions against their unions. ALPA bases its Fourth Affirmative Defense upon the second proviso to § 101(a)(4):

... no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

 NRWF takes the position that § 101(a)(4) is inapplicable on its face. It has accordingly moved to strike the union's Fourth Affirmative Defense. Even if the statute is held to apply, NRWF resists enforcement of the union's discovery requests, fearing that such inquiries into its contributor lists could undermine its financial support and effectiveness as a legal aid organization. Finally, NRWF suggests that the second proviso to § 101(a)(4), if applied, would unconstitutionally infringe plaintiffs' rights to legal representation.

 ALPA argues for a broad construction of the second proviso. Although § 101(a) (4) purportedly guarantees rights only to union "members", defendant contends that the statute and its proviso should apply equally to non-union workers in an "agency shop". To support this argument, ALPA draws an analogy to the relatively broad construction of "membership" under the National Labor Relations Act (NLRA). For example, in NLRB v. General Motors Corporation, 373 U.S. 734, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963), the Supreme Court held that the Wagner Act, which permits labor organizations "to require as a condition of employment membership therein" (29 U.S.C. § 158(a)(3)), also permits the less restrictive requirements of an "agency shop". Relying on General Motors, the Ninth Circuit has held that an employee who pays agency shop service charges is a union "member" for purposes of protection from discharge under sections 8(a)(3) and 8(b)(2) of the NLRA. NLRB v. Hershey Foods Corporation, 513 F.2d 1083, 1087 (9th Cir. 1975).

 For purposes of this case, however, the controlling definition of "member" is that contained in § 3(o) of the LMRDA itself:

"Member" or "member in good standing", when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization.

 29 U.S.C. § 402(o). Courts have consistently relied on this definition to determine which persons may assert rights and privileges under § 101(a)(4). See, e.g., Gavin v. Structural Iron Workers, 553 F.2d 28, 30 (7th Cir. 1977); Moynahan v. Pari-Mutuel Employees Guild of California, Local 280, 317 F.2d 209, 210-211 (9th Cir. 1963), cert. denied, 375 U.S. 911, 84 S. Ct. 207, 11 L. Ed. 2d 150 (1964). Plaintiffs reason that because § 3(o) is read narrowly to define those who may obtain relief under section 101(a)(4), it should be read in the same way to decide who is bound by the second proviso.

 Plaintiffs have also identified serious constitutional issues which arise if the Court adopts a broad construction of "member" and applies the second proviso to § 101(a)(4). Applying that proviso would effectively deprive plaintiffs of their legal counsel, even though their Complaint has already been found to state a valid cause of action under the Railway Labor Act. Another constitutional problem is posed by ALPA's requests for discovery about NRWF contributors. Disclosure of this information could impair the Foundation's ability to continue raising funds for its legal aid activities. ...

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