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January 25, 1982

Raymond T. KOLINSKE, Plaintiff,

The opinion of the court was delivered by: GREEN


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, *fn1" 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 ...

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