CITY OF CHARLOTTE v. FIREFIGHTERS

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Argument of William A. Watts

Chief Justice Warren E. Burger: We will hear arguments next in 75-250, City of Charlotte against Local 660.

You may proceed whenever you are ready Mr. Watts.

Mr. William A. Watts: Mr. Chief Justice may it please the Court.

I am W.A. Watts; I represent the City of Charlotte and individual petitioners in this case.

We are here on the certiorari to review a decision of the Fourth Circuit Court of Appeals.

That Court has ruled that a municipality must grant union dues check off under the Equal Protection Clause of the Fourteenth Amendment or in the alternative, establish certain standards.

Lower courts have found that Charlotte has not established clear and fair standards to differentiate between the denial of dues check off on the one hand and the granting of six withholdings from employees pay for such things as Credit Union savings, insurance premiums and contributions to one charity, to name a few.

Now we say that by this decision, the lower courts have effectively carved out and established a substantive right to dues check off.

We say that is a right that has never existed before because there is no right to dues check off as we see.

It has always been viewed as a privilege and even in the private sector of our economy, check off must generally be secured by bargaining.

Nevertheless, in spite of this the Court has equated the two and as required some kind of standards.

I think it might be important to the Court to that I very briefly recite to facts giving a rise to this case.

During October, 1973, Local 660, International Association of Firefighters, made up entirely of municipal firemen employees and five of their employee members who are officers of the Union brought suit in the District Court for the Western District of North Carolina.

The Allegation was that there was a deprivation of rights under the First and Ninth Amendments and under the Equal Protection and Due Process Clause of the Fourteenth Amendment.

Now at the time this action was brought, there were approximately 351 dues paying Union members in the Charlotte Fire Department.

This was out of a total of about 543 uniformed firemen.

The Union, of course, alleged in the complaint that the serious practice was arbitrary and capricious.

They claimed also that denial of check off made it enable, made the Union unable to obtain Group Life Insurance, to obtain Counsel and certain other things that the Union desired to do.

Now on the other hand, the City contended and tried to show, and we think did show, that the City had established not standards, but a policy, a policy of voluntary withholding from employee’s pay and the City contended that the dues, check off simply did not conform to the policy which the City had established.

Now, I might mention here that there were actually 14 items which the City permitted to be withheld, but out of that 14, seven of the items were required by statute.

I am thinking of such things as income tax withholdings and certain other things that either the federal or state statutes require the City to withhold.

That left seven items that the City voluntarily withheld when they were not required.

One of these was a city sponsored deferred compensation plan that the City had established as a Fringe Benefit and indeed we say all of the withholdings were in essence a fringe benefit.

Insurance premiums and this again was for a company that the City sponsored and as a matter of fact, the City paid part of the premiums.

The premiums were -- all it was accident, health and also life insurance.

Chief Justice Warren E. Burger: Well, that was negotiated or part of the contract of every independent of the negotiation?

Mr. William A. Watts: It was negotiated with a private insurance company and the City participated in the program of giving its employees this protection.

And that, of course, was withheld one of the things that the city withheld.

US Savings Bonds was another.

United Way Contributions, the one charity that was permitted and that was available to all employees.

Now in spite of this --

Justice Harry A. Blackmun: Would you say Mr. Watts that all of these items then were available to all employees?

Mr. William A. Watts: Mr. Justice Blackmun, we would say that all of these were available for all employees within a single work unit, i.e. the Fire Department.

Now as a matter of fact, the District Court found that to be a fact, found that this was the City’s policy, and we do not dispute that; we think that it is a correct finding.

Now --

Chief Justice Warren E. Burger: What if employee of Fire Department said I want you to send $20 out of each monthly paycheck, ten of every two weeks if they paid that way to my church.

Mr. William A. Watts: Mr. Chief Justice, we would say that that would not be possible under the policy that the City had established.

The reason we would say that that would not be possible or practical would be that, we all know that there are many, many churches and you would have to set up some kind of a withholding for each church, I assume.

So that would not conform to the policy because as we all know that our fireman belong to many, many churches, many religious organizations, many social organizations, many Fraternal organizations and the sole reason that the City had this policy was so that we could grant or the City could grant withholding as a fringe benefit if you will, as a convenience to its people but still keep it under rationale and, well, let us say within bounds.

Unknown Speaker: What are the elements of the policy to qualify?

Mr. William A. Watts: The only policy -- the only element really was that all employees, within a single unit, could participate, could participate in a specific withholding.

In other words, all --

Unknown Speaker: (Inaudible) because there are many churches.

Mr. William A. Watts: There are so many Your Honor; you would have so many withholdings.

Unknown Speaker: But why on the other hand, there is a single charity?

Mr. William A. Watts: A single charity available to all the employees, but churches are not, you would have to note down how many churches there might be involved.

Justice Harry A. Blackmun: Why do the dues check off to the same union; why would that qualify?

Mr. William A. Watts: Well, now there again, dues check off for one union, it is not really -- well, let us put it this way, it is a dues type thing.

Dues were never permitted to any organization.

There might be many unions involved just as there might be many churches and we would say that would not conform to the policy.

It was not available to all the people within the work unit.

Chief Justice Warren E. Burger: Do you think the decision of the City, as the employer, can establish the categories with or without a good reason and say these are the categories we will deduct and we will check off none other than these?

Mr. William A. Watts: Yes, Your Honor, we would say that that is a matter of policy by which a City Council might --

Justice Potter Stewart: That is a precise issue in this case.

Mr. William A. Watts: This really is the issue.

Is it necessary to classify in this situation?

Now, we would contend that it might be necessary to classify if things were the same, but the next point I would like to make to this Court is simply this.

Justice William H. Rehnquist: Before you go on that, you referred a moment ago to the District Court’s opinion and I noticed that the District Court in its opinion at Page 813 of your petition, commented that desire to discourage municipal labor organizations would, of course, be an impermissible reason for refusing to withhold moneys.

Do you have any idea why he said that?

Mr. William A. Watts: Your Honor, I can only answer your question in this way.

If you will notice the only citation at the District Court or for that matter the Fourth Circuit talked about, was the Virginia case that involved segregation and the impermissible objective of bringing about or denying integration.

Now for that reason it would appear that the District Court believed that the City attempted to discourage the Union.

Justice William H. Rehnquist: Well, certainly the State of North Carolina attempts to discourage Municipal labor Union by its statute.

Is that an impermissible purpose for the State of North Carolina?

Mr. William A. Watts: Your Honor, we would say not.

We litigated that case some time ago in a Three-Judge Court and this was upheld, the statute was upheld.

It is 95-98, I do not know lately, yes sir 95-98.

It provides in essence that because of policy, a municipality may not enter in the collective bargaining contracts with the Union, and that Your Honor was upheld for what it is worth by a lower court.

We believe that it is a permissible type legislation.

Now getting back to Mr. Justice Rehnquist’s question here, there is not one scintilla of evidence in this record that the City has ever attempted to discourage unions other than the statute which controls the City.

Justice Harry A. Blackmun: What if there was.

Mr. William A. Watts: There is -- I think it would make really no difference when you get right down to it, unless the City would go so far as to make it impossible for the Union to operate.

Justice Harry A. Blackmun: What if they forbid it by law?

Mr. William A. Watts: Forbid people belonging to the union?

Justice Harry A. Blackmun: Municipal employees --

Mr. William A. Watts: I think we could not do that Your Honor.

I think that the municipal employees now have a right to belong to Unions.

Justice William H. Rehnquist: Under what case of this Court?

Mr. William A. Watts: That is Atkins against the City of Charlotte.

That was decided within the Fourth Circuit, it was a Three-Judge Court.

Justice William H. Rehnquist: So that is not a case from this Court?

Mr. William A. Watts: It is a not a case from this Court Your Honor; it is a case of the lower court and I only mentioned that to you inciting it as reason for my belief that municipal employees may belong to a union.

Justice William H. Rehnquist: So it is your constitutional beliefs from every Three-Judge District Court aims to hand down a decision on --

Justice Potter Stewart: I know you get them from the Constitution and your answer would be under the First and Fourteenth Amendment?

Mr. William A. Watts: Well, that is correct, yes Your Honor.

That is correct, that is correct Your Honor.

I think that it is fairly well established now that employees, municipal employees do have a right to belong to unions, but they have no right to dues check off.

That is the point I want to make.

Chief Justice Warren E. Burger: While the Atkins case remains on the books, the municipalities within the reach of the Fourth Circuit are bound by.

Mr. William A. Watts: Your Honor, we would feel bound by that decision, we do not dispute the decision.

Chief Justice Warren E. Burger: Unless we overrule.

Mr. William A. Watts: Unless Your Honor, this Court should overrule, and then of course, we would be bound by that.

But at the present time, we would not contest the fact that any of our municipal employees may belong to unions.

We think they have that right.

We think they have a right to join, to conduct union business, to do everything.

But we think there is no affirmative duty on the part of the city to deduct the dues for them.

Justice Byron R. White: Or to aid the union in any other way.

Mr. William A. Watts: Oh, I think that is right.

This is an affirmative type thing.

We have no right to -- we have no requirement to do that, but we certainty would not attempt in any way to keep the union from operating, to keep our employees from joining, or to keep them from meeting together or doing anything that a union normally does; that is my contention Your Honor.

Now going on just for a moment if that answers your question right now, our first contention here is that this case is really not an equal protection case, when you get right down to it.

Check off of union dues on its face is so different from the other items that the City withheld that they are not in the same classification, they are not in the same ballpark, they are very, very different.

And we think that the question of classification is not raised at all.

Justice John Paul Stevens: Well, even if they were the same kind of item as the other items, would it be an equal protection case?(Voice Overlap)

Mr. William A. Watts: We think not Your Honor, but we think that clearly in this case, for the reasons that I am going to try to mention to you, we think that it is not an equal protection case because there are no classifications; that is our contention.

Let us think for just a moment at the differences between union dues check off on the one hand and for instance Credit Union savings on the other.

To begin with, check off is for the benefit of a union.

It is a matter of union security.

There is a long, long history of unionism in the United States and the fact that union dues check off is very important to the union as a matter of security.

It enables their dues to be readily collected.

Now that is the first difference that I can think of and that is a very big difference.

Another thing, another difference that I would point out to the Court is that historically and practically check off is a matter of the employer-employee relations.

That is another difference, totally different from anything else that the City has checked off under its policy.

Generally speaking also, as a difference, union dues check off is a part of the collective bargaining process; that is another difference.

It is also different in North Carolina cities because the city is prohibited by a State statute from entering in the collective bargaining contracts and we say --

Justice John Paul Stevens: Well, it seems to me that you are arguing that the classification is reasonable rather than arguing that is not an equal protection case.

Mr. William A. Watts: Your Honor, I am just arguing that it is not even a classification question because it is so dissimilar.

In other words, dues check off is so dissimilar from anything else that you just do not have to classify.

It is like apples and oranges; you might classify apples if you were as good, bad, or indifferent in some way, red, yellow, but you would not classify apples and oranges.

They are different things.

That in and of itself is a classification, and we say that union dues check off is in a class by itself.

Justice Harry A. Blackmun: Well, with that if you answer my earlier question was you said in any event there is a policy.

Mr. William A. Watts: There is a policy, Your Honor.

Justice Harry A. Blackmun: And a key element of the policy is that the City is not going to pay at the request of employees to any except that which is a single organization beyond in any event that which by statute you are compelled to check off income taxes.

Mr. William A. Watts: That is correct Your Honor; that is a policy.

Justice Harry A. Blackmun: And that you uniformly apply that policy?

Mr. William A. Watts: We said it, Your Honor.

Justice Harry A. Blackmun: You uniformly apply it because you say you would not check off for individual churches?

Mr. William A. Watts: That is right.

Justice Harry A. Blackmun: Or individual clubs, social clubs because that is outside the policy of requiring a single recipient.

Mr. William A. Watts: That is correct Your Honor.

Justice Harry A. Blackmun: Now and that you apply that uniformly?

Mr. William A. Watts: That is what we said Your Honor.

Justice Harry A. Blackmun: And you would not do it here because there maybe more than one union?

Mr. William A. Watts: There maybe more than one union and maybe simply members of the firemen who are not --

Chief Justice Warren E. Burger: Well, even if there is only one union, what does that has to do with the City’s right as to say that it will check off this and they will not check off for that?

Mr. William A. Watts: We say that this is entirely discretionary.

It is a matter of policy.

We think that at some place for a municipal governing body must have a right to govern.

Justice Harry A. Blackmun: If your equal protection argument is answered by the answer you have given me, you do not have to reach the second question.

Mr. William A. Watts: You do not really, no you do not, Your Honor.

But we say it is there and we think that the Court might be aware of it, that it is not just a question of classification although certainly you do not have to reach it.

Now we might even go on a little step further than that.

We say that in any event, that the City has established a rational basis, quite simply, the City has a purpose, a very valid purpose in trying to limit the number of items withheld, and that simply is that the thing can become totally of out of hand.

You got so many and that is an administrative burden.

Yes, Your Honor.

Unknown Speaker: I do not think they will pay it off.

Mr. William A. Watts: Well, that is right.

It can be just --

Unknown Speaker: What deemed categories are already --

Mr. William A. Watts: We have 14 but seven of those only seven of them are voluntary.

Unknown Speaker: That you must left to the paycheck.

Mr. William A. Watts: If everybody participated, this might well be true Your Honor.

In any event, we think that it is a certainly a permissible and a valid objective that the City has to limit, to permit certain withholdings and to limit others, to limit numbers.

We think that we have done it in about as good a way as we could do it that the city has.

Now, my honorable opponent here has said, well, what you might do -- in this brief, I believe, he says you might have some sort of a vote in a department and then from majority of the people say that they want something withheld, you might grant that.

But we would respectfully urge this Court that the City Council and the city governing body is the one that has to determine those things and the fact that there might be some other way of doing the same thing of limiting the number of withholdings; that does not make any difference because it is a policy matter for the City.

We say that the Council must be permitted to govern.

I might mention one or two things too.

I would, of course, hesitate to cite District Court cases to this Court, however, this very case here, a Local 660 has been considered by two District Courts that I can think of.

In Strazny (ph) against Grusauskas, the District Court for the Southern District of Georgia considered this case and commented on it in the decision.

Specifically, the court there, the District Court declined to follow Local 660 for many of the reasons that I have just enumerated to you.

It was -- this case was considered also by the District Court in the Northern District of Alabama.

And in that case again, the District Court refused to follow the reasoning of Local 660 saying among other things, that this would grant a right to municipal employees that was not available to even private employees because private employees has to bargain for things.

So for these reasons, we say that this is an intrusion on the right of a city to govern itself. Of course, you can -- it is easy to argue well, the District Court has left you in out.

All you have to do is make out some kind of standard, but Your Honor what better standard is there than the standard which the City has, a standard which treats everyone alike under the Constitution?

We believe that the City Council should be permitted to govern in this case.

Thank you if there is no other question.

Chief Justice Warren E. Burger: Very well Mr. Watts.

Mr. Wallas.

Argument of Jonathan Wallas

Mr. Jonathan Wallas: Mr. Chief Justice and may it please the Court.

Plaintiffs feel that it is important at the outset to emphasize the narrow scope of the District Court order which is now the subject of review in this Court.

The limiting injunction issued by the District Court reads as follows: So long as the defendants --

Chief Justice Warren E. Burger: Which page in Appendix?

Mr. Jonathan Wallas: Your Honor That is in page, that is at page --

Chief Justice Warren E. Burger: Mr. Wallas is it a finding or just -- it is not --

Mr. Jonathan Wallas: Page A-14 of the petition, Your Honor, the very last page I believe, in paragraph four that reads as follows: “So long as the defendants continue without clearly stated in fair standards to withhold moneys from the paychecks of city employees for other purposes, organizations and entities, not specifically required by law.

The defendants, the agents, the successors, employees and any person acting in concert with the defendants or at their direction are enjoined from refusing the withholding moneys from the paychecks of individual plaintiffs to be paid to Local 660.”

Chief Justice Warren E. Burger: Was this satisfied that the defendants announced that they would not under any circumstances allow check off for union dues, not it be clear and explicit but must it to be --

Mr. Jonathan Wallas: Your Honor the reason to that would not satisfy us because it would be a violation of the Equal Protection Clause.

Contrary --

Chief Justice Warren E. Burger: What is your basic authority for that?

Mr. Jonathan Wallas: Your Honor, if I may start out by answering that question in this way, contrary to what Mr. Watts has asserted in Court today that is that the standard that the policy that the City uses is a policy to allow all employees in a unit any trial deduction where all employees and in a unit can participate.

Unknown Speaker: And to a single recipient.

Mr. Jonathan Wallas: Yes sir.

Now that is the policy that Mr. Watts is asserting here today and he is saying that the policy that the City has adopted and has followed.

Now if you will look at Page 2 of the petition you will see that the first question which was addressed to this Court reads: “Have petitioners by following a policy of allowing only payroll withholdings which benefit all of its employees established a rational basis etcetera.”

Now the reason that is important is that the District Court in this case, found on Page A-10 that the practice had meant to allow those deductions which were available to all city employees, that would be employees of all of the departments in the city, or those programs that were available to employees within a single department and that would be the fire department for example, to allow deductions that were available in those circumstances.

And since the deduction that we request, i.e. deduction for union dues is available to all employees within the fire department, then the Court said, well, you can not deny this deduction; that is the deduction that happens to run to a labor organization while you are allowing other deductions that only run to or only to benefit people in a particular department.

Justice Harry A. Blackmun: (Inaudible) the constituency to fire department’s 500 --

Chief Justice Warren E. Burger: 350 something.

Justice Harry A. Blackmun: About 350 union members.

Mr. Jonathan Wallas: Well, Your Honor, the point is that, that is the number of members of the fire department that have decided to join the Union as of a particular --

Justice Harry A. Blackmun: Well, will I suppose some of the others wanted to join a different union?

Mr. Jonathan Wallas: Well, that would be a possibility.

Justice Harry A. Blackmun: Well, if that happens then the check off would violate the policy against allowing it except where available to all employees, with a single recipient, would it?

Mr. Jonathan Wallas: It would be available, this union, Local 660 is available to all of the employees.

Justice William H. Rehnquist: And so is the Methodist Church presumably.

Mr. Jonathan Wallas: That is correct Your Honor.

Justice William H. Rehnquist: You would not suggest that if people come in and ask that some withheld all their paycheck for the Methodist Church or for the fraternal order of Elks for that matter, the City would be obliged to deduct it because it deducts other things like it has done.

Mr. Jonathan Wallas: Your Honor, I think that under -- that would not be required by this order, and that is why I read the order right now.

I think what the City has to do is simply establish some reasonable standards to apply it to everyone.

Justice William H. Rehnquist: Let me ask you a question about that order because I noticed as you read, as you read from it that you seem to put some stress and perhaps Judge McMillan did too was so long as the defendants continue without clearly stated in fair standard, but what is it in the Equal Protection Clause that requires “clearly stated and fair standard”?

Mr. Jonathan Wallas: I think what the Judge is saying there that the City has to establish a rational basis for their actions, a rational basis furthering the legitimate state goal.

I do not think he means anything other than that.

Justice William H. Rehnquist: You mean then that the City in deciding perhaps on a somewhat shooting from the hip basis what to check, what to permit check off and what not, must adopt a policy that justify its various decisions that would -- you presumably support a court upholding it?

Mr. Jonathan Wallas: I think that on this record they are required because on this record they did not do what -- their practice was not what their policy was.

At beginning of the litigation we filed some interrogatories and in the interrogatory number four we ask the City to state the criteria which they used to decide which withholding to allow and which withholding not to allow, and when they answered that interrogatory on Page 14 of the Appendix, they did not set forth any criteria.

They just said, “This is what we do.” Later on in the litigation, in an affidavit filed by the City Manager and an affidavit filed by the Personnel Director, they said, “Our policy is to allow those deductions which every employee within the city can avail themselves of.”

Judge McMillan then looked at those things that they actually allow, i.e. those deductions of the 14, and we argued to the Court and it was obvious from the record, from the answers to the interrogators that there were certain deductions that could only -- that will allow that only employees in the certain department could benefit from them.

And our argument to the Court was, well if that is really the practice of the City, what they do, then we think we should be able to avail ourselves of that benefit.

Justice Thurgood Marshall: Mr. Wallas suppose the 355 once said they want to give their money to the first Methodist Church of Charlotte and the other said no.

Mr. Jonathan Wallas: Your Honor I think the reason that I read that the order that I did is that --

Justice Thurgood Marshall: Obviously, that would be within the guidelines and they would not allow it, would they not?

Mr. Jonathan Wallas: They would not allow that.

I think Mr. Watts mentioned too that they would not allow that deduction.

Justice Thurgood Marshall: The difference between that in this case is what?

Mr. Jonathan Wallas: The difference in that case -- I am not sure there is a difference from that case, but the point is --

Justice Thurgood Marshall: That one was alright.

Mr. Jonathan Wallas: Pardon me Your Honor.

Justice Thurgood Marshall: You said if they all want to give it to the Methodist Church but it was not the whole bunch, it was just a percentage of them, it would be alright for them to deny.

Mr. Jonathan Wallas: I think that they are free to develop some standards where they could deny that type of perception.

They are also probably free to develop some standards where our deduction would be allowed -- disallowed.

Justice William H. Rehnquist: Why do they have to develop any standards at all?

It seems to me that if they come in and recite the history of what they have done and Judge McMillan says in fact, you are not telling the truth.

It is not what you say you have done.

This is what you have really done.

He has got a right to measure what they really have done against the demands of the Equal Protection Clause.

But I do not see anything in the Equal Protection Clause that requires the announcement or promulgation of standards in order to make it easier or harder to attack the thing in court.

Mr. Jonathan Wallas: Well, Your Honor, like I say, I think that is really saying you have got to establish a rational basis for your actions.

The Court is saying -- what the evidence in this case shows is that you are saying, as Your Honor points out, you are saying one thing and doing another doing another.

And that is just not permissible, because what you are doing or maybe doing is letting the benefits of withholding which is simply the use of the City’s computer in this case to flow to certain organizations and entities while prohibiting that flow to this union.

Justice William H. Rehnquist: But then you say it seems to me that what you have done in practice violates the Equal Protection Clause because it is totally irrational and there is no rational basis for justifying the distinction.

You do not say that until you promulgate clear standards what you have done violates the Equal Protection Clause.

Mr. Jonathan Wallas: Well, what the Court is saying is until you change your practice, then you must do this.

Justice Byron R. White: Yeah, but what if the -- what if the Court says, look, you have given a reason for distinguishing between the check offs for unions and others, but that reason is a very bad reason, it is unacceptable, but we can think of a very good one, the Court said.

For example, you just do not want to encourage union.

Whether you think so or not, that is as far as where the Court is concerned, that is a perfectly justifiable reason, and maybe you do not think you are following it but nevertheless we can not strike it down, because we can imagine that there are the basis for this classification.

Mr. Jonathan Wallas: Your Honor, I would concede that the City of Charlotte can discourage the unions per se.

What they can not do is violate the Equal Protection Clause in doing that.

Justice Byron R. White: They say that the reason we do not check off for unions is that we do not want to help unions, and then checking off dues helps unions.

Mr. Jonathan Wallas: Well, that Your Honor, I think is singling out of an unfavorite group for -- and denying to them benefits that you give --

Justice Byron R. White: But you cannot say that it is not a rational basis.

You can say it is an unconstitutional basis.

Mr. Jonathan Wallas: Right.

Justice Byron R. White: But it is pretty irrational, is it not?

Mr. Jonathan Wallas: Absolutely, it may very well be rational and the test of course is, is this a rational -- is it that fosters a illegitimate state interest.

Justice Byron R. White: Now you are down to the legitimate end.

Do you think the City must help the union by checking off or it will violate the First Amendment?

Mr. Jonathan Wallas: Your Honor, we do not think you have to reach that question in this case.

Justice Byron R. White: Well, you do.

We are just there -- we just reached it a minute ago.

Mr. Jonathan Wallas: Well, Your Honor most of the equal protection cases involved or a lot of the equal protection cases in this case like the Mosley case, (Inaudible) case involved, First Amendment freedoms are involved, but you take for example Mosley.

Now that case could not be decided or would not have been decided in favor of the plaintiff in that case as I understand Justice Marshall’s opinion without the Equal Protection Clause.

That is, this Court has clearly said that picketing can be limited by time, place and manner, reasonable time, place and manner rules.

In that case, there was a rule, as I recall only union picketing was allowed.

And this Court said, well, you just can not -- you can not allow picketing for one group and not allow picketing for other groups in the Equal Protection argument.

And that is the argument we are making here.

Chief Justice Warren E. Burger: But if you are arguing with bond purchases and Insurance premiums you would have a much stronger case on Equal Protection as I see it.

If there was a so called House Union, a Company Union unaffiliated with any other union and 150 men in the Fire department belong to that group and 350 belong to this union of yours and they allowed the check off for the one union but not the other, then you might have an Equal Protection case.

But you are undertaking to compare a union check off with bond purchases and insurance premiums.

Mr. Jonathan Wallas: I think what we are comparing is the fact that certain benefits are flowing in different areas.

Now the benefits flow to seven different organizations or groups of employees who happen to opt for those deductions.

Under the policy of the City that Mr. Watts in his argument said is their policy, that is that all -- if an option is available to all city employees then the City will avail them.

Well, our option is the same, and we think that those employees within the fire department who want benefits to flow to their union; all of this is a simple computer operation.

I think the District Court’s opinion and the record makes it clear that this is not when I asked him to burden the City.

Justice Harry A. Blackmun: There is only you and union there now as opposed the Chief Justice suggested and some of the other firemen organize another union and then they want to have a check off to their union.

And, no, it is not the city then in the position where it has to violate its policy which is, I understand it is, the mid check off only where there is a single recipient.

In other words, you make a contract with an insurance company for group premiums and you pay up to a single insurance company.

All employees take advantage of it if they want to pay up a new single insurance company.

But where you get two unions, that is not the situation then.

Mr. Jonathan Wallas: Well, I do not understand --

Justice Harry A. Blackmun: (Inaudible)

Mr. Jonathan Wallas: Well, the City -- again, Your Honor, the reason I read the injunction that I did, the City is free to adopt the policy that they may make it --

Justice Harry A. Blackmun: No, but I thought you agreed earlier.

Perhaps I misunderstood you.

But what Mr. Watts has told us namely that the key to that check off policy is that there maybe as to all participating employees, a payment to a single entity either an insurance company, United Way as the case maybe.

Mr. Jonathan Wallas: My understanding was that he said, “As long as all the employees in the department could avail themselves of that --

Justice Harry A. Blackmun: No and when they do, they check off, what is checked off is paid to a single identifiable entity.

United Way Insurance Company and alike, that is what I understood in this.

Is that not the policy, and is that not what you pointed out to as the District Court found to be the policy?

Mr. Jonathan Wallas: The policy is whether the members of that particular department can avail themselves of that deduction and as we said in a brief there are a whole lot of different basis that the City could set up.

Justice Harry A. Blackmun: Does the record show whether as to any of the 14, well I guess it is only seven because seven are check offs required by law, I gather, income taxes and that sort of thing.

But as to any of the seven which are not check offs required by law, under the city policy, is any check off paid to more than one recipient?

Mr. Jonathan Wallas: Well, each check off, of course, is and of itself.

Unknown Speaker: The fire department for example, a check off is allowed for insurance premiums, to whom do the insurance premiums go, A single insurance premium?

Mr. Jonathan Wallas: I believe that is correct Your Honor -- no, I believe that is incorrect.

I believe that there are in the fire department, there is firemen’s benefit fund and there is also a medical insurance and life insurance fund.

So the firemen --

Justice Harry A. Blackmun: But all firemen are eligible to have check offs to either entity.

Mr. Jonathan Wallas: That is correct.

Justice Harry A. Blackmun: And so that if the --

Mr. Jonathan Wallas: And all firemen are eligible to the check off to the Union.

Justice Harry A. Blackmun: I know but the recipients in each case are just a single for each check off, is that right?

Mr. Jonathan Wallas: Yes, that is correct there are whole variety of options but each --

Justice Harry A. Blackmun: They do not make a charitable contribution except the United Way, is that right?

Mr. Jonathan Wallas: That is correct Your Honor.

Justice Harry A. Blackmun: They had two or three that would not allow the check off, as I understand Mr. Watts’ description, the policy is.

Mr. Jonathan Wallas: That is not what I understand the policy to be.

My understanding of the policy is that if it is available to everyone in the department then they allow it and that is what I understand the Judge found.

Justice Byron R. White: That the City barred them --

Mr. Jonathan Wallas: No sir, may not -- well the law the statute service they might not enter into a collective bargaining contract or agreement.

Justice Byron R. White: The Union may talk to the City about working condition.

Mr. Jonathan Wallas: There is nothing in the statute prohibit Your Honor.

Justice Byron R. White: (Inaudible)

Mr. Jonathan Wallas: I think at least at some point -- there is nothing in the record about it there; my understanding is that the City will talk to an employee as an employee but refuses really to talk to an officer of the union as an officer of the union, i.e. if I am the President of the Union I want to come in and represent my union, the City will say come on in and we will talk to you as an employee.

Justice Byron R. White: (Inaudible) in this case.

Mr. Jonathan Wallas: Well I think we presented a request and it was denied, in essence there was a colloquy, it that is considered to colloquy Mr. Justice White.

Chief Justice Warren E. Burger: Was that within the exception that the person presenting it was an employee of the fire department, a union officer who was also employed as distinguished from a bargaining agent who did not work for the City.

Mr. Jonathan Wallas: Well, the individual employees in this case have presented to us as an individual -- both as individuals and have actions both as individual and as officers of the union.

I am not sure I understood your question Mr. Chief Justice.

We would contend that this case as I said before fits the traditional equal protection mold.

That is that just as the City does not have to build a municipal auditorium, it does not have to create a public park, it does not have to necessarily allow the use of their computer to handout or to allow withholding.

But once it is does it can not discriminate against certain unfavored groups in favor of certain favored groups.

Justice William H. Rehnquist: What if the City or what if some of the firemen wanted to ask their Elks dues to be checked off and made the same argument your people do that anybody in this town can join the Elks, and the City says, no it is just sufficiently different from this other kind of things we are checking off; we will not do it.

Do you think the Elks could come in and make the same claim your people have?

Mr. Jonathan Wallas: Your Honor I think they might be able too, but I think that the importance --

Justice William H. Rehnquist: Does that bother you at all?

Mr. Jonathan Wallas: It does not bother me because the District Court order makes it absolutely clear and the Court of Appeals order makes it doubly clear, reinforces the District Court order that the City can establish some guidelines, some standards and apply them equally to everybody and as long as it does there are there is some rational basis, furthering some legitimate purpose, then --

Justice William H. Rehnquist: Those are two separate inquiries, the first is whether the city is promulgated written standard or not, and the second whether what it does in fact either is justified by it on a rational basis or whether a court can conceive of any rational basis for doing it.

Do you not think the Elks case could be said put the one side what regards with the City as written standards on the ground that City just does not have to do that sort of thing?

Mr. Jonathan Wallas: I think that under their present policy they may have to do it.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Jonathan Wallas: Yes Your Honor.

But they can always set up reasonable policy -- we have suggested on brief some possible bases they could use.

There are many other bases that we think could be used.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Jonathan Wallas: Thank you.

Chief Justice Warren E. Burger: Mr. Wallas you may continue.

Mr. Jonathan Wallas: Mr. Chief Justice and may it please the Court.

I would like to address myself now to the question that Mr. Justice Brennan was asking assuming Mr. Justice that the policy is the one that you have set forth and again I would contend that the policy is not that.

But assuming that the policy is to allow only one charity to deduction that, only one insurance company deduction we would contend that we fall within that policy.

Local 660 is the only Union that has come forward and said that it is willing to represent this firm.

We are open to all firm, and in that sense we contend that we are within the policy as we understand policy being that as long as an organization is open to all members of a particular department then we are in the policy.

Justice William H. Rehnquist: Mr. Wallas the Equal Protection Clause, of course, reads that no person shall be denied to equal protection of the laws.

Now this is not a law, it is not a regulation in fact your argument, as I take it, is almost that it was a non-policy; it was just a series of very random decisions that may or may not be rationally justified.

Does every any single governmental decision of that sort come within the equal protection band?

Mr. Jonathan Wallas: Your Honor I do not know if I can address myself to every single to took to your question and say to firm with you that every single decision that is made by governmental body falls within that.

What we are saying here and what I understand the City has asserted is that they have unfettered discretion to decide which withholdings to allow and which withholdings not to allow.

Because they have a policy within which we fall and yet they say, we are not going to allow your deduction.

Justice William H. Rehnquist: What if the City claim that had an unfettered right to schedule meetings with various employee groups at any time of the day it wanted to, and that in variably scheduled meetings with non-union groups, say in the middle of the afternoon, and invariably scheduled the meeting with the Union group at 7:30 in the morning.

Is that the kind of governmental action that if you could show it was discriminatory and would invoke the Equal Protection Clause or is there some threshold below which the courts just do not inquire?

Mr. Jonathan Wallas: I do not know where the line is, it maybe a threshold below where the courts inquire but do not have to inquire.

But it seems that if the City, in that instance, was making its design and its policy be treat union members as union members in one way and everyone else in another way that would have the policy that would have to fall into the Equal Protection Clause.

Chief Justice Warren E. Burger: Let us suppose that was a general practice without being formalized in any standards for the City of Charlotte to allow the firemen in fire department to have social gatherings of their social organization of the firemen in a public place.

And then the Union demands the same kind of facility for union meeting.

The City answers no, we do not want to encourage or help your union.

They put it right on the top of the table.

We do not want to encourage your union or any union and you can have it.

Violation of the equal protection?

Mr. Jonathan Wallas: Your Honor, I think you said a social gathering of some fire department employees on one hand, I take it --

Chief Justice Warren E. Burger: Through which all fire department employees are --

Mr. Jonathan Wallas: -- and then a business meeting of the Union on the other hand.

If it was a social gathering of the Union -- what I am saying is maybe a distinction between the type of meetings that you are asserting.

Chief Justice Warren E. Burger: A social gathering of the Union.

Mr. Jonathan Wallas: Okay if you make it a social gathering of the Union then I would say that the denying that to the Union.

because it is the Union would be violation of the Equal Protection Clause, that the cases new (Inaudible) is a park.

If everybody else can use the park but you (Inaudible) witnesses that it is allowed to use the park unless the state -- in that case it can show a compelling stay interest while that should not be allowed.

Similarly in this case --

Unknown Speaker: (Inaudible) is not in Equal Protection case, was it?

Mr. Jonathan Wallas: I believe it was Your Honor; I believe it was a First Amended case, but I believe the Equal Protection Clause is one of cases that Justice Marshall write on in Mosley.

Justice Potter Stewart: In Chicago.

Mr. Jonathan Wallas: Yes sir.

Justice Potter Stewart: It maybe the fall.

Mr. Jonathan Wallas: I believe it was.

That is my point is that their First Amendment right that may exist but this Court in many cases they say these rights are not -- that there are limitations on these rights and when limitations are imposed the Equal Protection Clause comes in to make sure that they are not imposed in a discriminatory way.

Our contingent here is that the City’s position that they have the unfettered right to deny the withholding benefit to plaintiffs in this case is a violation of the Equal Protection Clause.

The Court below did not say and I think this is important in fact specifically says to the contrary.

It does not say that dues check off is a absolute right, there is any purse right to check off.

The check off only is require in this case on this record, because we fall within the policy that the City has been following consistently, and importantly as I am trying to emphasize the initial part of my argument the City is free if --

Justice John Paul Stevens: Will your argument fail if there were rational basis for an exemption form the policy?

Mr. Jonathan Wallas: I think it will Your Honor and --

Justice John Paul Stevens: Well, what about Mr. Justice White’s question then, is that a rational basis for the City to say, they do not want encourage Union?

Mr. Jonathan Wallas: I think not Your Honor.

Justice John Paul Stevens: And not a rational; that is irrational.

Mr. Jonathan Wallas: I think that I may have misunderstood one of the Chief Justice’s questions; I think he may have asked me, I am not sure, whether if the state could legislate and say we are going to allow all withholdings except those that go to a Union because we are opposed the Union.

I think that falls right with the equal protection analysis that we have tried to present in our brief.

Justice John Paul Stevens: Because it is irrational or because you need compelling state interest to make that exception?

Which is your position?

Mr. Jonathan Wallas: Because it would be illegitimately attacking this Union because it was an unfavored group, then we would be talking more about the First Amendment question that Justice White raised.

Justice John Paul Stevens: In other words it would be so illegitimate or it could not be done no matter what the reason, is what you are saying?

Mr. Jonathan Wallas: Well, we would be then in this Court invoking the First Amendment Right of Association which was involved in the Atkins case to attack the sister statute of 95 based 98, that is 95 based 97, which be made it a criminal offence for a firemen to be a member of Union, and that was attacked in the Atkins case and that of course fail on First Amendment grounds.

And I think that the statute or the policy will also have to fall on First Amendment grounds if the Union was picked out as one group and all other groups were allowed withholding.

Then no other questions I would conclude.

Thank you.

Chief Justice Warren E. Burger: Mr. Watts do you have anything further?

Rebuttal of William A. Watts

Mr. William A. Watts: Mr. Chief Justice and may it please the Court.

We will waive any rebuttal on any remaining time that we have unless the Court has some questions.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.