law, guaranteed by the Fifth Amendment to the Constitution. Against the UAW, plaintiff alleges a breach of the duty of fair representation in that the Union engaged in conduct which was arbitrary, discriminatory, unconstitutional, and in bad faith.
Plaintiff seeks a writ of mandamus directing the General Counsel to issue complaints charging unfair labor practices against Local 1669 and the UAW for their failure to pay him strike benefits unless he participates in picketing and for their collection of fees allocated to be spent on programs in which he may not participate. Pending the completion of proceedings on these complaints, plaintiff seeks a stay in the action against the UAW. Were the relief against the General Counsel not granted, plaintiff seeks against the UAW either a refund of 30% of his fees paid from 1975-1978 or an award of the full amount of strike benefits for the 1978 strike and any that might result in the future, provided he honors the picket line.
The first question demanding resolution is whether there is jurisdiction to entertain plaintiff's request for a writ of mandamus ordering the General Counsel to issue an unfair labor practice complaint. Under Section 3 of the NLRA, 29 U.S.C. § 153, the General Counsel is vested with "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under (Section 10 of the NLRA, 29 U.S.C. § 160 (procedures for unfair labor practice complaints))." This section has been uniformly interpreted to grant unreviewable discretion to the General Counsel. See Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 316, 99 S. Ct. 1123, 1131-32, 59 L. Ed. 2d 333 (1979) (the General Counsel can "in his unreviewable discretion refuse to issue ... a complaint."); Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 17 L. Ed. 2d 842 ("the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint."); Bandlow v. Rothman, 108 U.S. App. D.C. 32, 278 F.2d 866 (D.C.Cir.), cert. denied, 364 U.S. 909, 81 S. Ct. 273, 5 L. Ed. 2d 224 (1960) (per curiam) (district court lacks power to order General Counsel to issue a complaint).
Plaintiff asserts that this dispute falls into one of the recognized exceptions to the principle of non-reviewability. In Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958), the Supreme Court held that the district court had jurisdiction under 28 U.S.C. § 1337
"to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act." Id. at 188, 79 S. Ct. at 183. In Leedom, the Court found that the Board exceeded its statutory power by including in a single bargaining unit a group of professional employees with a group of non-professional employees without following proper procedures. In other certification actions, courts have narrowly and frugally construed the Leedom exception. See Physicians National House Staff Association v. Fanning, 206 U.S. App. D.C. 87, 642 F.2d 492 (D.C.Cir.1980) (en banc) ("(T)he district courts are powerless to adjudicate the merits of certification decisions absent a clear violation of the National Labor Relations Act by the Board." Id., at 500.
Additionally, district courts have exercised jurisdiction over actions by the Board which infringe constitutional rights. Fay v. Douds, 172 F.2d 720, 723 (2d Cir. 1949) (Hand, J.) (giving district court jurisdiction if the "assertion of constitutional right is not transparently frivolous.") In McCormick v. Hirsch, 460 F. Supp. 1337 (M.D.Pa.1978), the Court accepted jurisdiction over a complaint where the plaintiff, the superior for all Catholic elementary and secondary schools within a diocese, alleged that the N.L.R.B. had no jurisdiction over Roman Catholic schools that employ lay teachers who seek unionization. The court held that enjoining the Board from asserting jurisdiction over a Catholic parochial high school was necessary to protect the plaintiff's religious freedom.
Although judicial review of the General Counsel's decision not to issue a complaint might protect the rights of the individual more adequately, on occasion, and ensure responsible decision making,
it is apparent that jurisdiction does not lie in the district court to determine whether the General Counsel erred in this matter. Both the statutory exception as embodied in Leedom and the constitutional exception announced in Fay concerned certification actions undertaken by the entire Board, not a discretionary decision made by the General Counsel pursuant to § 3 of the NLRA. Indeed, research discloses no decision overruling the discretion of the General Counsel and ordering him to issue an unfair labor practice complaint.
It would then not only defy the heavy burden of precedent to accept jurisdiction over the General Counsel's decision not to issue a complaint, but more impressively, would establish a new precedent inappropriate in this unique instance.
The question remains, however, whether the plaintiff has stated a cause of action against the UAW. The UAW maintains that the court lacks jurisdiction over the cause of action asserted and that the plaintiff has not stated a legal claim upon which relief can be granted under the Constitution or under the union's duty to represent the plaintiff fairly. The plaintiff, rejecting these arguments, claims that the Court has jurisdiction, and that in conditioning his receipt of strike benefits on picketing activity, the union has infringed his First Amendment freedoms of speech and association. Plaintiff also contends that the union's allocation of 30% of his fees into the strike insurance fund is an unlawful apportionment of non-members' payments since, as such non-member, he is being denied strike benefits unless he participates in the affirmative activity of picketing.
Plaintiff asserts that jurisdiction exists under two separate statutory grants, 28 U.S.C. § 1337, the provision giving the district court jurisdiction to hear matters "arising under any Act of Congress regulating commerce ...," and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, which permits suits for violation of contracts between an employer and a labor organization or between any such labor organizations.
In suits alleging the breach of the duty of fair representation, district courts have exercised jurisdiction under section 301 where the suit alleges a union misuse of fees collected from non-members pursuant to agency shop agreements. Bagnall v. Air Line Pilots Association, 626 F.2d 336 (4th Cir. 1980), cert. denied 449 U.S. 1125, 101 S. Ct. 943, 67 L. Ed. 2d 112 (1981); Seay v. McDonnell Douglas Corp., 427 F.2d 996, 1000 (9th Cir. 1970), on remand, 371 F. Supp. 754 (C.D.Cal.1973), aff'd in part, rev'd and remanded in part, 533 F.2d 1126 (9th Cir. 1976). In this case, the plaintiff alleges that the union breached the duty of fair representation in not paying him strike benefits from a fund comprised of money collected from union members and non-members, including the plaintiff, under an agency shop provision in the collective bargaining agreement.
The UAW claims that the plaintiff's cause of action arises not out of the collective bargaining agreement, but rather out of the Union Constitution's provision noted at 2, supra, that entitles non-members covered by an agency shop clause to benefits equal to those received by members but not to the rights of membership participation in the union's affairs. Section 301, the UAW contends, does not confer jurisdiction on suits arising under constitutions because such disputes are merely internal union conflicts and thus present no situation where a contract exists between an employer and a labor organization or between any such labor organizations. Union constitutions, the UAW maintains, are not contracts under § 301. See Smith v. United Mine Workers of America, 493 F.2d 1241 (10th Cir. 1974); Hotel & Restaurant Employees Local 400 v. Svacek, 431 F.2d 705 (9th Cir. 1970). Contra, Local 1219 v. United Brotherhood of Carpenters and Joiners, 493 F.2d 93 (1st Cir. 1974); Parks v. Brotherhood of Electrical Workers, 314 F.2d 886 (4th Cir.) cert. denied 372 U.S. 976, 83 S. Ct. 1111, 10 L. Ed. 2d 142 (1963) (finding that union constitutions are contracts within § 301). The UAW argues further that plaintiff has not satisfied this Circuit's requirement that the plaintiff plead a sufficient factual basis underlying the possible breach of the union constitution. Local 1199, Hospital and Health Care Employees v. National Union of Hospital and Health Care Employees, 175 U.S. App. D.C. 70, 533 F.2d 1205 (D.C.Cir.1976).
In Baker v. Newspaper & Graphic Communications Local 6, 202 U.S. App. D.C. 156, 628 F.2d 156 (D.C.Cir.1980), this Circuit held that § 301 did not confer jurisdiction on the federal courts to consider purely intra-union conflicts. Five union members sued their employer, their local union, and their international union alleging a breach of the duty of fair representation and the duty to permit plaintiffs to participate in union affairs. Because the controversy was between a union and some of its members and because it did not have the "requisite general effect on labor-management relations," id. at 164, the Court refused to exercise jurisdiction over the dispute.
This action differs materially from Baker for the simple reason that plaintiff is not a member of the United Auto Workers who, as such union member challenges some particular conduct by his representative in collective bargaining. Rather, the complaint presents a dispute between a union and a non-union member seeking to enforce his rights as against the union under an agency-shop clause. Not only do these facts present more than an "intra-union conflict," but the dispute is likely to have a widespread effect on labor-management relations at the McLaughlin Company. Accordingly, jurisdiction under § 301 is proper. See also Seay v. McDonnell Douglas Corp., 427 F.2d 996 (9th Cir. 1970), on remand, 371 F. Supp. 754 (D.C.Cal.1973), aff'd in part, rev'd and remanded in part, 533 F.2d 1126 (9th Cir. 1976) ("While appellants' complaint does not allege a violation of the collective bargaining agreement on its face inasmuch as the agreement does not specifically discuss the permissible purposes for which agency dues may be expended, Section 301 must be given a broad reading." Id. at 1000).
The UAW, in addition to seeking dismissal for lack of jurisdiction, has also alleged that the plaintiff's complaint does not afford a basis for relief. Against the plaintiff's assertion of constitutional violations and fair representation claims, the UAW contends that there is no state action and that the Union's policy of paying strike benefits only to those individuals who participate in strike-related activities is a legitimate expenditure of non-members' fees. The UAW also argues that it has not breached any duty owed the plaintiff because its actions do not rise to the level of arbitrary or discriminatory conduct and because plaintiff's employment relationship was unaffected.
The issue of state action presents a close inquiry, necessitating an excursion into the past. Under the Railway Labor Act, 45 U.S.C. § 152 Eleventh, Congress explicitly provided for union or agency shops notwithstanding state laws. In Railway Employes Department v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956), the Court held that union security agreements entered into pursuant to this section of the Railway Labor Act were imbued with sufficient governmental conduct to subject the agreement to constitutional guarantees of free speech and association. The Court viewed the congressional enactment as an explicit effort to permit union security clauses, vigorously trumpeting that "the federal statute is the source of the power and authority by which any private rights are lost or sacrificed." Id. at 232, 76 S. Ct. at 718.
The NLRA, however, overrides no state law with respect to agency shop agreements. While the Act permits employers to enter into agreements with unions to establish union or agency shops, Section 8(a)(3), the Labor Management Relations Act, Section 14(b), does not preclude the states' enaction of "right to work" laws which would prohibit union or agency shops. See Oil, Chemical, and Atomic Workers International Union v. Mobil Oil Co., 426 U.S. 407, 409, 96 S. Ct. 2140, 2142, 48 L. Ed. 2d 736 (1976).
Mixed results have emerged from those courts determining whether agency shop provisions such as the one in the instant case constitute state action. In Reid v. McDonnell Douglas Corp., 443 F.2d 408 (10th Cir. 1971), it was held that under the NLRA, agency shop provisions did not rise to the level of state action because the Supreme Court's holding in Hanson was restricted to the Railway Labor Act, which specifically overrode state laws prohibiting agency or union shops. The Tenth Circuit noted,
In NLRA matters, the federal government does not appear to us to have so far insinuated itself into the decision of a union and employer to agree to a union security clause so as to make that choice governmental action for purposes of the first and fifth amendments.
Id. at 410-411 (footnote omitted).
The First Circuit in Linscott v. Millers Falls Co., 440 F.2d 14 (1st Cir.), cert. denied 404 U.S. 872, 92 S. Ct. 77, 30 L. Ed. 2d 116 (1971), held that the agency shop provision under Section 14(b) of the Labor Management Relations Act, 29 U.S.C. § 164(b), and by implication Section 8(a)(3) of the NLRA, were entered into by unions and employers pursuant to federal authorization and thus were state action, despite the power of the state legislatures to override this authorization by enacting right to work laws. The Court stated,
If federal support attaches to the union shop if and when two parties agree to it, it is the same support, once it attaches, even though the consent of a third party, the state, is a precondition. The means by which the agreement is attained does not affect the significant language in Hanson ... "The federal statute is the source of the power and authority by which any private rights are lost or sacrificed,' and note 4 appended thereto, "4. Once courts enforce the agreement the sanction of government is, of course, put behind them.'