Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Paramount Industries, Inc, (2017)

• Docket Number: 07-CB-149555
• Date: 02 October 2017
• Court: National Labor Relations Board (US)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Local 58, International Brotherhood of Electrical Workers (IBEW), AFL–CIO (Paramount Industries, Inc.) and Ryan Greene. Case 07–CB– 149555

February 10, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On October 26, 2015, Administrative Law Judge David I. Goldman issued the attached decision. The General Counsel and Charging Party filed exceptions and supporting briefs. The Respondent filed responsive briefs to the General Counsel’s and Charging Party’s exceptions, and the Charging Party filed a reply brief.

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, findings, and conclusions only to the extent consistent with this Decision and Order.

The issue presented here is whether a policy issued unilaterally by the Respondent, a local union, is facially unlawful because it restricts the rights of union members to resign from the union and to revoke prior authorizations for the deduction of union dues from their pay. In disagreement with the administrative law judge and our dissenting colleague, we conclude that the policy violates Section 8(b)(1)(A) of the National Labor Relations Act, which makes it an unfair labor practice for a labor organization “to restrain or coerce. . . employees in the exercise of the rights guaranteed in [S]ection 7” of the Act. 29 U.S.C. §158(b)(1)(A). Among the rights guaranteed in Section 7 is the “right to refrain from any or all” forms of union activity, subject to the requirements of a valid union-security clause in a collective-bargaining agreement. 29 U.S.C. §157.

I.

The Respondent is an IBEW local representing approximately 4000 employees under multi-employer or stand-alone contracts. The Respondent maintains a union hall in Detroit, Michigan, where it conducts its business and holds member meetings. The Charging Party, Ryan Greene, is employed in a bargaining unit represented by the Respondent at Paramount Industries, located in Croswell, Michigan. The Paramount facility is approximately a 2-hour drive from the Respondent’s union hall.

On October 1, 2014, the Respondent announced that it was implementing a policy governing resignation of

membership and opting out of dues deductions. The written policy, entitled “Policy Regarding Procedure for Opting out of Membership Rights, Benefits, and Obligations,” recites:

WHEREAS members have the ability to opt out of membership in the Union and applicable dues deduction agreements consistent with the requirements of applicable agreements or authorizations and relevant state and federal laws.

WHEREAS the loss of membership or financial contribution in IBEW Local 58 results in the loss of substantial rights of members and access to memberonly benefits. The loss of such rights and benefits have an adverse effect on our members.

WHEREAS IBEW Local 58 has had experiences in the past where members have lost their membership through fraudulently submitted paperwork that has created a hardship on the victim of the fraud.

IT IS HEREBY RESOLVED that any member that desires to opt out of membership or dues deduction must do so in person at the Union Hall of IBEW Local 58 and show picture identification with a corresponding written request specifically indicating the intent of the member.

IT IS FURTHER RESOLVED that any member that feels that appearing in person at the Union Hall of IBEW Local 58 poses an undue hardship may make other arrangements that verify the identification of the member by contacting the Union Hall.

IT IS FURTHER RESOLVED that any other requirements in any other agreement, authorization or notices of IBEW Local 58 or the International Union of IBEW remain in place.

The Respondent’s business manager, Michael Richard, testified that he wrote the policy, which was then communicated to the Respondent’s staff and elected officers, posted on the union hall’s message board, and sent to the stewards. Richard explained that he wrote the policy anticipating the expiration of the Respondent’s large multi-employer contracts because he wanted a “clear-cut, simple way for a member who so desired to resign membership[.]” According to Richard, he “wanted that policy out there well in advance of the expiration of the three main contracts so there’d be no confusion should the – should a member desire to resign once the union security drops out of the three main contracts.” Richard testified that in 2007 or 2008, he heard that a different local union had problems with members fraudulently removing other members from its hiring-hall list and Richard wanted to

prevent such problems in his local. However, contrary to the policy’s preamble, Richard further testified that he knew of no similar instances of fraud involving the Respondent.

Richard also testified that the only employee to resign from the Respondent following implementation of the new policy was the Charging Party in this case, Ryan Greene. Greene sent a letter to the Employer stating his intent to resign from the Respondent. The Employer forwarded the letter to the Respondent, which called Greene to verify his identity using the telephone number that it had on file. The Respondent then accepted Greene’s resignation.

Greene ultimately filed a timely unfair labor practice charge against the Respondent, and the General Counsel issued a complaint, alleging that the Respondent’s maintenance of the policy was unlawful.

II.

After a hearing, the administrative law judge dismissed the complaint, concluding that the policy was limited to the designation of facially noncoercive procedures for effectuating the resignation of membership and the revocation of prior authorizations for the deduction of dues. The judge left open the possibility that enforcement of the policy might be unlawful, but observed that the “mere maintenance of this policy does not, on its face, amount to restraint or coercion prohibited by Section 8(b)(1)(A)” because the policy “does not, on its face, threaten, prohibit, or penalize members from resigning, or bar resignations at certain times, or render such resignations ineffective to avoid union sanction.”

With respect to the Respondent’s policy as to revocation of dues-deduction authorizations, the judge asserted that “[d]ues authorizations agreements are an internal union matter that do not implicate Section 8(b)(1)(A) unless contrary to an overriding policy contained in national labor law.” He found that the Respondent’s policy was lawful because it did not “effectively preclude” revocation, and he rejected application of the principle that revocation procedures established by a union may not vary from an employee’s prior agreement to dues checkoff, concluding that the record here “does not speak” to that issue.

III.

In light of well-established Board precedent, we have no difficulty concluding that the Respondent’s policy, on its face, violates Section 8(b)(1)(A) in both respects alleged by the General Counsel.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

A.

For more than 30 years, and with the Supreme Court’s approval, the Board has adhered to the principle that “any restrictions placed by a union on its members’ right to resign … are unlawful” because, among other reasons, “when a union seeks to delay or otherwise impede a member’s resignation, it directly impairs the employee’s Section 7 right to resign or otherwise refrain from union or other concerted activities.”¹ Whatever legitimate interests a union may have for restricting the right to resign are immaterial: “regardless of their legitimacy, the union’s interests simply cannot negate or otherwise overcome fundamental Section 7 rights.”² The Board has also long held that a union’s mere maintenance of a rule restricting member resignations is unlawful.³ Such a rule may discourage members from exercising their right to resign even if the rule has not been enforced.⁴

The issue here, then, is whether the Respondent’s policy amounts to a restriction on members’ right to resign. We conclude that it does. We thus reject the view of the judge and our dissenting colleague that the policy is merely a set of modest procedural requirements that do not impose any real burden on members who wish to resign.⁵

The Respondent’s policy requires members (1) to “appear[] in person” at the union hall and (2) to “show picture identification” or (3) if the “member feels that appearing in person” would be an “undue hardship,” to

¹ Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330, 1333 (1984). See Pattern Makers’ League of North America v. NLRB, 473 U.S. 95, 103–105 (1985).

² Neufeld Porsche-Audi, supra, 270 NLRB at 1334.

³ See, e.g., Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311, 311 (1983) (mere maintenance of a provision in the union’s constitution restricting withdrawals from membership “restrains and coerces employees, who may be unaware of the provision’s unenforceability, from exercising their Section 7 rights”); Newspaper Guild Local 3 (New York News), 271 NLRB 1251 (1984) (union’s maintenance of a constitutional provision prohibiting resignations during a strike or lockout violated Section 8(b)(1)(A)); Auto Workers Local 148, (McDonnell-Douglas), 296 NLRB 970, 970 (1989) (“It is settled law that any restrictions placed by a union on its members’ right to resign are unlawful . . . .”).

⁴ See Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374, 375 (1985), enfd. 840 F.2d 501 (7th Cir. 1988).

⁵ Our dissenting colleague would apply Scofield v. NLRB, 394 U.S. 423 (1969), and ask whether the Respondent’s new rule...