NLRB Finally Issues Long Awaited Dues Decisions

The Nat. Labor Relations Board Sep. 1 decided two long-pending cases regarding nonmember obligations under union security clauses and reached mixed results for two unions defending their procedures.  The Nat. Right to Work Legal Defense Foundation, which represents the objecting employees in the two cases, filed petitions earlier this year asking the U.S. Court of Appeals for the Dist. of Columbia Circuit to compel NLRB to issue decisions in the cases. Agency administrative law judges issued rulings in the two cases in Sep. 1992, and appeals have been pending with the board for almost seven years. The D.C. Circuit ordered the board to explain why it had not acted, and NLRB promised the court it would rule by Sep. 1. NRTW obtained information in fall 1998 that 13 of the board’s 20 oldest cases involved nonmember-fees issues. According to NRTW, all but two of those 13 cases have now been decided.

Of the two Sept. 1 decisions, one case involves Robert Mohat, an employee of Polymark Corp. in Cincinnati, Ohio, and a former member of Local 795 of the Int’l Union of Electronic Workers who resigned his union membership, challenged the legality of the union-security clause, and objected to payment of agency fees for nonrepresentational purposes. In the second case, Sherry Lee Pirlott and David Pirlott, employees of Schreiber Foods in Green Bay, Wis., resigned membership in Local 75 of the Int’l Bhd. of Teamsters and objected to paying for any union costs not related to collective bargaining activities.

Mohat, while still an IUE member, requested a rebate of his previously paid dues not spent on representation costs and a statement of the exact percentage of total dues spent on those costs. IUE denied Mohat’s request for a refund and asserted that Comm. Workers of Am. v. Beck doesn’t apply to union members. The union told Mohat that nonmembers could only request fee reductions during April of each year, pursuant to an established procedure published every March in the union newsletter, which Mohat claimed he had never received.  He resigned from the union in Nov. 1990 and expressly objected to payment of any fees used for nonrepresentational purposes. IUE informed Mohat that he had to wait until the following April to raise a Beck objection and that he was still obligated to pay fees equal to the amount of union dues. He also tried to revoke the authorization he had signed for Polymark to deduct dues from his paychecks, but the company said it would continue to withhold the money and place it in an escrow account until the controversy was resolved.

The NLRB general counsel’s office issued a complaint alleging that the union-security clause was unlawful on its face because it required that employees “become and remain members in good standing of the Union” and failed to explain their rights.  In their Sep. 1 ruling, all five members agreed to dismiss this claim based on the U.S. Supreme Court’s decision in Marquez v. Screen Actors Guild, that a union does not violate its duty of fair representation by negotiating a union-security clause tracking the language of Section 8(a)(3) of the Nat. Labor Relations Act. The section authorizes unions and employers to negotiate agreements requiring union membership as a condition of employment. The court ruled in Marquez that by tracking Section 8(a)(3), the union-security clause incorporates the case law interpreting that language.

In the second case, the Pirlotts jointly resigned from the Teamsters in Sep. 1989 and stated that they would only pay fees for the union’s representational activities. The Teamsters stated that 1.1 percent of its expenditures for the previous year had been for nonrepresentational activities, reduced the Pirlotts’ financial obligation accordingly, and provided an itemized schedule of chargeable and nonchargeable expenses. The union explained that nonmembers could file a challenge within 14 days of receipt of the annual disclosure statement, the union’s executive board had 14 days to decide the challenge, and a neutral arbitrator could decide an appeal filed within 10 days from the executive board’s decision. All five board members again affirmed the ALJ’s finding that the union-security clause was not unlawful on its face, based on Marquez.

The ALJ found that the Teamsters did not violate the act by failing to notify newly hired employees of their right to be nonmembers and to object to paying fees for nonrepresentational activities. All five members disagreed, relying on Cal. Saw and Paperworkers Local 1033 which were issued after the ALJ’s ruling. Finding that the union’s secretary-treasurer admitted that the union never informed new hires of their rights prior to their joining the union, the board decided that the Teamsters acted illegally. [BNA 9/3/99]