California Saw & Knife Works, 224 (1995)
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California Saw and Knife Works and Peter A.Podchernikoff International Association of Machinists and Aerospace Workers, AFL-CIO; and its District Lodges Nos. 50, 66, 115, 120, 508, 720, and 751; and its Local Lodges Nos. 78, 354, 821, 946, 1125, 1327, 1871, 1916, 2024, 2227 and 2230 (Various Employers) and Various Individuals. Cases 34-CA-5160, 34-CB-1313, 34-CB- 1314, 34-CB-1315, 34-CB-1316, 34-CB-1323, 34-CB-1324, 34-CB-1360, 34-CB-1361, 34- CB-1362, 34-CB-1363, 34-CB-1408, 34-CB- 1409, 34-CB-1421, 34-CB-1422, 34-CB- 1440(4-30), 34-CB-1440(32-48), 34-CB- 1440(50-61), 34-CB-1440(63-64), 34-CB- 1440(67-68), 34-CB-1440(86), 34-CB-1450, 34- CB-1451, 34-CB-1452, 34-CB-1453, 34-CB- 1454, 34-CB-1455, and 34-CB-1510 December 20, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING, COHEN, AND TRUESDALE On May 29, 1992, Administrative Law Judge Clifford H. Anderson issued the attached decision. The General Counsel, the Respondent Unions, and various Charging Parties filed exceptions and supporting briefs. The General Counsel, the Respondent Unions, the Respondent Employer, and various Charging Parties filed answering briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,1 findings,2 and conclusions as modified and to adopt the recommended Order as modified and set forth in full below. I. INTRODUCTION In Communications Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court held that Section 8(a)(3) of the National Labor Relations Act (the Act or NLRA) does not permit a collective-bargaining representative, over the objection of dues-paying nonmember employees, to expend funds collected under a union-security agreement on activities unrelated to collective bargaining, contract administration, or grievance adjustment.3 The Court in Beck construed Section 8(a)(3) as providing that employees enjoying the benefits of union representation should bear their fair share of the cost incurred by the collective-bargaining agent in representing them.4 The Court held, however, that the expenditure of dues and fees on activities outside the union's role as collective-bargaining representative violated the union's duty of fair representation to nonmember employees who objected to such expenditures.5 The Beck decision has evoked immense legal and political controversy.6 This case represents the Board's first consideration of the ramifications of the Beck decision under the NLRA.7 We review today the voluntary Beck program set up by the International Asso- 1 The Respondent International Association of Machinists and Aerospace Workers, AFL-CIO, has excepted to the judge's findings that: (1) the General Counsel did not abuse his discretion by refusing to defer to the arbitration procedure set forth in its dues-objection policy; (2) the complaint allegations are not barred by Sec. 10(b) because they are sufficiently related to the underlying unfair labor practice charges; and (3) the complaint did not improperly create a class of unnamed employees. We note no argument has been made in support of these exceptions and, accordingly, they are deemed to have been waived. Sec. 102.46(b)(2) of the Board's Rules and Regulations. In any event, we agree with the judge, for the reasons set forth by him, that these procedural arguments are meritless. 2 Some parties have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 Sec. 8(a)(3) provides that: It shall be an unfair labor practice for an employer- 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 . . . shall preclude an employer from making an agreement with a labor organization . . . 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, (i) if such labor organization is the representative of the employees as provided in section 9(a) [of the Act], in the appropriate collective-bargaining unit covered by such agreement when made . . . . 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[.] 4 487 U.S. at 752-754. 5 Id. 6 See, e.g. Comment, Waiver of Beck Rights and Resignation Rights: Infusing the Union-Member Relationship With Individualized Commitment, 43 Cath. U. L. Rev. 159, 168 (Fall 1993); Elena Matsis, Procedural Rights of Fair Share Objectors After Hudson and Beck, 6 Labor Lawyer 251 (1990); Executive Order No. 12,800, 57 Fed.Reg. 12,985 (1992) (Executive Order signed by President Bush requiring that federal contractors notify employees of their rights under Beck); Revocation of Certain Executive Orders Concerning Federal Contracting, 29 Weekly Comp. Pres. Doc. 119 (Feb. 1, 1993) (President Clinton rescinding the Executive Order signed by President Bush). 7 Although the General Counsel has alleged violations as to non-members under Beck, he has not alleged violations under NLRB v. General Motors, 373 U.S. 734 (1963). Accordingly, this decision directly addresses only the rights of nonmember employees under Beck. It does not directly address the rights of nonmember employees, under General Motors, to be and remain nonmembers. However, that latter matter is discussed infra at fn. 57. ciation of Machinists and Aerospace Workers (IAM, Respondent Union, or the Union). Cases originating in unfair labor practice charges against the application of the IAM's rules and procedures under that program to employees of a number of different employers were consolidated for trial. These consolidated cases present a range of questions respecting rights and duties under union-security clauses authorized by Section 8(a)(3) that have been triggered by the holding in Beck but were unanswered by the Supreme Court. These issues include: (1) whether notice is required to nonunion members of the right to object to payment of full fees, and to fee payment objectors regarding the use of such fees; (2) whether certain restrictions may be placed on the time and manner of registering a Beck objection; (3) whether objectors may be charged only for those activities undertaken directly on behalf of their bargaining unit; (4) what types of union activities that employees may be compelled to pay for under the union-security clauses that are authorized by Section 8(a)(3) of the Act; and (5) what procedures are permissible for determining amounts owed by objectors when issues of chargeable expenses are in dispute. Prior to addressing each of those specific issues, we make the threshold determination of the standard by which a union's obligations under Beck are to be assessed. In section II below we hold that union obligations under Beck are properly assessed under the well-established duty of fair representation owed to all members of a designated bargaining unit. In section III we determine whether various elements of the IAM's Beck policy alleged to be unlawful violate the Union's duty of fair representation. In section IV we address whether the IAM's Beck policy as applied by the various Respondent District and Local Lodges violated the duty of fair representation. In making these determinations, we are mindful of the Supreme Court's characterization of the two sets of rights and interests our decision here must serve: [T]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the union's ability to require every employee to contribute to the cost of collective-bargaining activities.8 II. ANALYTIC FRAMEWORK A. The Beck Decision At issue in Beck was the union's practice, enforceable by discharge pursuant to the union-security clause of the collective-bargaining agreement, of requiring nonmember employees to pay a fee to the union in amounts equal to the dues paid by union members. Several employees challenged the practice, claiming that the use of their agency fees on activities other than collective bargaining, grievance adjustment, or contract administration violated the objecting employees' first amendment rights, the union's duty of fair representation, and various common law fiduciary obligations. The Court ruled that its previous decision in Machinists v. Street9 was controlling. The Court held in Street that section 2, Eleventh of the Railway Labor Act (RLA)10 did not permit a union to expend agency fees of objecting nonmember employees for political causes.11 The Beck Court compared the language and legislative history of Section 8(a)(3) with that of RLA section 2, Eleventh, and concluded, consistent with its prior decision in Ellis v. Railway Clerks,12 that the provisions were statutory equivalents. The Court explained that each provision was promulgated to address the problem of ''free riders''-those who enjoyed the benefits of union representation without paying for them- while also guarding against the abuses of the ''closed shop.''13 The Court noted that...
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