Appellant labor union appeals from judgment order below, United States District Court for the Southern District of New York, Brieant, J. The district court held that appellees' rights under the first amendment to the U.S. Constitution were infringed by appellant labor union, a union having "union shop" agreements with media upon which appellees appeared. Upon appeal by the union, it is held not to be an infringement of appellees' first amendment rights to require them to pay dues to the union, and that as to other claims of infringement which are arguable unfair labor practices the National Labor Relations Board has primary jurisdiction. Reversed and remanded.
Waterman, Friendly and Timbers, Circuit Judges. Friendly, Circuit Judge, concurring.
This is an appeal by the labor organization, American Federation of Television and Radio Artists (AFTRA) from an order entered in the United States District Court for the Southern District of New York, declaring, in part on constitutional grounds, that any provision of any collective bargaining agreement "requiring, or purporting to require, that [appellees William F. Buckley, Jr. and M. Stanton Evans] continue to be members of [appellant union, American Federation of Television and Radio Artists] pay dues to [appellant union's] and/or comply with [appellant union's] orders and regulations, as a condition of" appearing on radio or television in their roles as paid commentators on public affairs is "void and of no effect." Insofar as the appellees' responsibility to tender periodic dues to the union is nullified by the judgment below, we reverse on the merits. Moreover, inasmuch as we hold that the district court was without jurisdiction to adjudicate the other issues raised by the appellees' complaints, which pertained to compulsory union membership and to compulsory compliance with union orders and regulations, we also reverse the remaining portions of the district court's judgment.
With great care the district court accurately set forth the specific facts and circumstances from which this litigation arose. See 354 F. Supp. at 826-836. No useful purpose would be served by a detailed repetition of the presentation so articulately and comprehensively set forth in the opinion below. Moreover, the relative narrowness of the decision we reach today renders immaterial for our purposes much of the factual background developed by the district court. We shall therefore confine our discussion of the facts to those which are within the ambit of the limited role we think a federal court can play in this dispute at the present time.
Both appellees are well-known articulate exponents of a "conservative" political philosophy. They are engaged in a plethora of activities, amongst which are regular appearances on radio and television. Mr. Buckley is the host of his own television program, "Firing Line," in which he usually engages in spirited argument guest spokesmen of "liberal" persuasion. Mr. Evans appears as a participant on the CBS radio series "Spectrum," a program in which on a regular basis a number of spokesmen for differing political and social philosophies express their opinions on topics of their own choosing.
The employing parties with whom Buckley and Evans negotiated their contracts of employment have collective bargaining agreements with AFTRA. These latter agreements, by incorporation of the union's "Code of Fair Practice," obligate the employers to employ only members of AFTRA or persons who became members of AFTRA within thirty days after the commencement of the employment relationship. This "union shop" provision is authorized, but not required, by Section 8(a) (3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a) (3), which reads:
(a) 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 Act, 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 section 8(a) of this Act 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. * * * Provided further, That no employer shall justify any discrimination against an 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;
In addition, the union's constitution purports to impose upon its members responsibilities to the union in excess of those contemplated by § 8(a) (3). For example, Article XVIII, Sec. 1 of the AFTRA Constitution describes the punishments to which a union member is subject for failure to fulfill those responsibilities:
Any member who shall be guilty of an act, omission, or conduct which in the opinion of the Board is prejudicial to the welfare of the Association, or of any of its Locals, or of any of its members, as such, or any member who shall fail to observe any of the requirements of the Constitution, or of any By-Laws, rules, regulations or orders lawfully issued by the Association, any Local or any duly authorized committee or agent of said Association or Local, or any member who shall in any way be indebted to the Association or any Local thereof, may, in the discretion of the Board, be either fined, censured, suspended or expelled from membership. . . .
In their complaints in the district court the appellees challenged alleged requirements allegedly imposed upon them, that they be members of the union, that they pay dues to the union, and that they comply with all union orders and regulations. They claimed that these requirements which they allege were sought to be imposed upon them by the union constituted unreasonable restraints on the right of free speech and deprived them of their property without due process of law. The imposition of these requirements was asserted to have been "accomplished by the defendant AFTRA acting under the authority of the National Labor Relations Act."
As we have already stated, the expansive relief granted by the district court absolved appellees from union membership, from paying dues, and from complying with union regulations. For reasons that appear infra we hold that as to the issues of compulsory membership and compliance with union regulations, the National Labor Relations Board ("NLRB") had primary jurisdiction under the preemption principle of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). Thus we hold that the federal district court exceeded its power in deciding these two issues, and we do not reach the merits with respect to them. Regarding the dues requirement, however, we do reach the merits and hold, contrary to the result reached by the district court, that this requirement does not abridge appellees' first amendment right of free speech.
It is elementary constitutional doctrine that the first amendment only restrains action undertaken by the Government. Railway Employes' Dep't v. Hanson, 351 U.S. 225, 100 L. Ed. 1112, 76 S. Ct. 714 (1956); Linscott v. Millers Falls Co., 440 F.2d 14 (1 Cir.), cert. denied, 404 U.S. 872, 30 L. Ed. 2d 116, 92 S. Ct. 77 (1971). There is, however, a crucial corollary to this rudimentary tenet. When private action becomes imbued with a governmental character, or when the Government significantly insinuates itself into the operative activities of private parties, then action by private parties may be regarded as "state action" and, if so, will be subject to all the constitutional limitations on governmental action. Evans v. Newton, 382 U.S. 296, 299, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966); Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961). Here it is alleged that the requirement found in the AFTRA Code of Fair Practice that dues be paid is "accomplished by the defendant AFTRA acting under the authority of the National Labor Relations Act." It is true that § 8(a) (3) expressly authorizes union shop agreements which may require that employees pay union dues. The section also specifically permits the discharge of an employee who fails to comply with such a dues requirement. Appellees contend that this congressional authorization makes a union shop provision contained in a collective bargaining agreement negotiated between private parties "state action." In support of this contention, appellees rely primarily on Railway Employes' Dep't v. Hanson, supra, and Linscott v. Millers Falls Co., supra. In Railway Employes' Dep't, the Supreme Court held that the Railway Labor Act provision comparable to § 8(a) (3) of the National Labor Relations Act transmutes otherwise private union shop agreements into "governmental action." The Railway Labor Act, however, explicitly provides that union shops are permissible despite any state law that would otherwise prohibit them, whereas Section 14 of the NLRA, on the other hand, declares that a state "right to work" law forbidding union shops will not be superseded by § 8(a) (3). However, the First Circuit in Linscott v. Millers Falls Co., supra, quoting Railway Employes' Dep't ...