USWA (CEQUENT TOWING PRODUCTS), (2011)
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.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL2013CIO, CLC (Trimas Corporation d/b/a Cequent Towing Products) and Douglas Richards
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL2013CIO, CLC (Chemtura Corporation) and Ronald R. Echegaray
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL2013CIO, CLC (Chemtura Corporation) and David M. Yost. Cases 252013CB20138891, 252013CB20139253 (Formerly 62013 CB201311544), and 252013CB20139254 (Formerly 62013CB2013 11545)
August 16, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER, PEARCE, AND HAYES
The issue presented is whether the Respondent Union (hereafter Respondent) violated its duty of fair representation by requiring employees it represents who are not union members and who seek objector status under Communications Workers of America v. Beck1 to assert their objection on an annual basis. In Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB No. 174 (2010),2 the Board announced the standard by which it will evaluate the propriety of a union2019s annual Beck renewal requirement. Applying that standard here, we find that the Respondent has failed to present a legitimate justification for its annual renewal requirement sufficient to justify the burden the requirement imposes on an individual seeking to extend an objection. We accordingly find, contrary to the judge, that the annual renewal requirement here is arbitrary under the duty of fair representation, and that in imposing it on the Charging Parties2014and refusing to honor their specific request that their Beck objections be permanent and continuing in nature2014the Respondent has violated Section 8(b)(1)(A) of the Act.3
1 487 U.S. 735 (1988).
2 Petition for review dismissed 2010 WL 4340436 (D.C. Cir. 2010).
3 On August 6, 2009, Administrative Law Judge John H. West issued the attached decision. The Charging Parties filed exceptions and a
The three Charging Parties in this case2014Douglas Richards, Ronald R. Echegaray, and David M. Yost--are members of a bargaining unit represented by the Respondent. The Respondent and the Charging Parties2019 employer have entered into collective-bargaining agreements that have included a union-security clause.4
The Respondent maintains a procedure for processing objections (under Beck) to supporting the Respondent2019s activities unrelated to collective bargaining, contract administration, and grievance adjustment.5 The Respondent2019s Beck policy requires that Beck objectors renew their objections annually, within 30 days of the anniversary of their hire date. Failure to do so results in the employee not being classified as an objector for the next year and being charged full dues for that year.
Upon receiving an objection, the Respondent sends an acknowledgement letter, which also states that the objection will expire 1 year hence on the anniversary of the employee2019s hire date, absent renewal by the objector within the subsequent 30-day window period. The Respondent thereafter annually sends each objector a copy of the Respondent2019s Beck procedure, which again sets forth the annual renewal requirement, along with other Beck-related financial information, including the amount to be charged objectors in the upcoming year and the basis for that calculation.
In 2008, each of the three Charging Parties separately notified the Respondent in writing, within the specified window period, that he sought Beck objector status, and each specifically requested that his objection be considered 201cpermanent and continuing in nature.201d The Respondent in reply notified each of them of its annual renewal requirement for Beck objections, and that their objections would expire in 1 year. The Respondent did not recognize the objections as continuing.
THE JUDGE2019S DECISION
The judge found that the Respondent did not breach its duty of fair representation by maintaining its annual re
supporting brief. The General Counsel and the Respondent Union filed an answering brief, and the Charging Parties filed a reply.
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 judge2019s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
4 Richards is employed by Cequent Towing Products. Echagaray and Yost are employed by Chemtura Corporation. None of them is a member.
5 Under Beck, a union may not, over the objection of nonmember employees it represents, expend funds collected from such objectors under a union-security agreement on activities unrelated to collective bargaining, contract administration, and grievance adjustment. 487 U.S. at 7522013754.
357 NLRB 48
newal requirement and applying it to the Charging Parties by refusing to honor their request for a continuing Beck objection. A union breaches its duty of fair representation if its actions affecting employees whom it represents are arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). The judge first found that the Respondent2019s annual renewal requirement was not arbitrary because the Union demonstrated legitimate justifications for the requirement. The judge further found that the requirement was not discriminatory vis-a-vis the Respondent2019s treatment of union members2014whom it does not require to annually renew membership2014because the differing treatment was based on differences in governing law rather than animus. Finally, the judge found that the annual renewal requirement was not undertaken in bad faith, absent evidence showing dishonest action by the Respondent.
The Charging Parties have excepted to each of these findings. For the reasons set forth below, we find that the Respondent2019s annual renewal requirement is arbitrary under the duty of fair representation, and thus unlawful.6
Arbitrary Conduct Under
The Duty of Fair Representation
The legality of union procedures designed to implement Beck is measured using the duty-of-fairrepresentation standard. See California Saw & Knife Works, 320 NLRB 224, 230 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998); Machinists Local Lodge 2777 (L-3 Communications), supra, 355 NLRB No. 174, slip op. at 220133. A union2019s actions are considered arbitrary under the duty of fair representation 201conly if, in light of the factual and legal landscape at the time of the union2019s actions, the union2019s behavior is so far outside a 2018wide range of reasonableness2019 as to be irrational.201d Air Line Pilots Assn. v. O2019Neill, 499 U.S. 65, 67 (1991), quoting Ford Motor Co.
v. Huffman, 345 U.S. 330, 338 (1953). The wide range of reasonableness affords a union discretion to account
6 We agree with the judge, for the reasons set forth by him and in our prior decision in Machinists Local Lodge 2777 (L-3 Communications), supra, 355 NLRB No. 174, slip op. at 3, that the requirement was not imposed in bad faith. See Electrical Workers v. NLRB, 41 F.3d 1532, 1537 (D.C. Cir. 1994)(bad faith prong of duty of fair representation requires proof of fraud, or deceitful or dishonest action). Bad faith is negated here by the Respondent2019s clear notice to Beck objectors of the annual renewal requirement. We further find, as discussed infra, that the requirement is not discriminatory under the duty of fair representation as construed in Machinists Local Lodge 2777 (L-3 Communications).
for conflicting interests of the employees it represents. See Humphrey v. Moore, 375 U.S. 335, 3492013350 (1964).
In Machinists Local Lodge 2777 (L-3 Communications), supra, the Board addressed whether a union2019s annual renewal requirement constitutes arbitrary conduct violative of the duty of fair representation. The Board held that in applying the arbitrary standard in this context, it 201cconsider[s] the balance between the competing interests: the legitimacy of the union2019s asserted justifications for its procedures and the extent to which they burden employees2019 assertion of a Beck objection.201d 355 NLRB No. 174, slip op. at 2. The Board explained that in analyzing the union2019s proffered rationales for the annual renewal requirement:
we consider the fact that the annual renewal requirement poses some burden, albeit a modest one, on potential objectors. Those individuals must send a statement of their objection to the Unions each year during the 1-month period specified in the Unions2019 procedure. While the simple mailing of an objection poses a minimal burden, remembering to do so is also a burden and, further, the failure to remember engenders a burden of more import . . . loss of the opportunity to object for 11 months (until the renewal period recurs). While the requirement does not pose a significant burden, equivalent, for example, to job loss, and has been viewed as de minimis by some courts, we must ask whether the Unions have articulated a legitimate justification for the imposition of the burden, considering the wide range of reasonableness accorded them under the duty of fair representation. [355 NLRB No. 174 slip p. at 320134.]
In Auto Workers Local 376 (Colt2019s Mfg. Co.), 356 NLRB No. 164 (2011), the Board applied the standard announced in L-3 Communications, but found that the unions2019 annual Beck renewal...
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