The Sixth Circuit has repeatedly held that knowledge of an employee’s protected activities and an action motivated by that knowledge are essential elements of a Section 8(b)(1)(A) claim.
The NLRB’s ruling that inadvertent error can constitute an unfair labor practice under Section 8(b)(1)(A) of the NLRA exceeded the reach of the Act and had no reasonable basis in law, the Sixth Circuit found, declining to enforce that aspect of a Board order finding that a union restrained or coerced an employee in the exercise of his Section 7 rights by failing to promptly process his resignation and revocation of dues authorization. On the other hand, the union’s conduct in delaying the employee’s refund for three months, together with a reproachful response after receiving an unfair labor practice charge, supported the Board’s determination that the union acted in bad faith, in violation of its duty of fair representation, by intentionally ignoring the employee’s resignation and revocation requests (United Auto Workers Local 600 v. NLRB, April 13, 2020, Suhrheinrich, F.).
Resigning union membership. After paying dues to the United Auto Workers for 24 years, in February 2018, the Ford Motor Company employee decided to resign his membership.He left several voicemail messages notifying the union’s financial secretary that he wished to resign his membership and requested a copy of his dues checkoff authorization card. The financial secretary returned his phone call and on March 5 emailed the authorization card to the employee.
To resign union membership, a bargaining unit employee is required to send a signed letter to the financial secretary, who then will notify the employer’s human resources manager to stop deducting union dues from the employee’s paycheck. On March 9, the employee sent a letter by certified mail stating that he was resigning from the union “effectively immediately” and revoking his dues checkoff authorization. Resignation of union membership does not extinguish the dues checkoff authorization, however; the collective bargaining agreement requires the employee to revoke a checkoff authorization within a specified window. In this instance, the union did not enforce those restrictions. The union received the letter on March 12, and the financial secretary drafted a letter instructing Ford to stop deducting dues from the employee’s paycheck. However, the union failed to immediately forward the letter to the employer.
On March 19, Ford notified the employee that it would continue deducting dues because it had not received a timely revocation of his checkoff authorization. Ford continued to deduct dues from his paycheck for two months and remit them to the union. This prompted the employee to file an unfair labor practice charge alleging that the union violated the NLRA by failing to process his resignation and revocation and by continuing to accept dues deducted from his wages.
Board charge prompts action. On June 1, after receiving the charge from the Board, the union sent a letter to the employer telling the company to immediately cease deducting union dues from the employee. The union received the last of the employee’s dues on June 4 and 8. It did not return any of the funds. However, on August 16, the union sent the employee a letter regarding the dues deductions. It forwarded him a check for $217.25. The amount actually owed was $247.35.
After an evidentiary hearing, an NLRB administrative law judge held that the union violated Section 8(b)(1)(A) by restraining or coercing the employee in the exercise of his Section 7 right by failing to promptly process his resignation and revocation of dues authorization. The ALJ further found that the union breached its duty of fair representation, in violation of Section 8(b)(1)(A). Additionally, the ALJ found that the union violated Section 8(b)(2) by causing the employer to deduct dues from the employee after he revoked authorization. The Board agreed with the ALJ with respect to the Section 8(b)(1)(A) findings but reversed the Section 8(b)(2) ruling because the union’s inaction was not an “affirmative act” as required by that section. The union filed a petition for review of that decision, and the Board filed a cross-application for enforcement.
Intent requirement. Relying on its 2018 decision in Walt Disney Parks & Resorts U.S., Inc., the Board concluded that “intent is not a required element of an 8(b)(1)(A) violation.” However, the Sixth Circuit agreed with the union that Walt Disney did not eliminate an intent requirement. In Walt Disney, the Board affirmed an ALJ’s conclusion that the employer violated 8(b)(1)(A) by failing to process the dues checkoff authorization revocations of eight union employees and failing to honor union membership resignation requests. However, the ALJ and Board had inferred intentional misconduct from the union’s “repeated and deliberate” disregard of resignation and revocation requests. Thus, Walt Disney does not support the proposition that inadvertence or negligent conduct violates Section 8(b)(1)(A).
Consequently, the Board’s ruling that inadvertent conduct can amount to restraint or coercion under Section 8(b)(1)(A) was inconsistent with the Sixth Circuit’s interpretation of the Act. The appeals court has repeatedly held that knowledge of an employee’s protected activities and an action motivated by that knowledge are essential elements of a Section 8(b)(1)(A) claim or the analogous Section 8(a)(1) claim against an employer. Therefore, the appeals court concluded that the Board’s ruling that an inadvertent error can constitute an unfair labor practice under Section 8(b)(1)(A) exceeded the reach of the Act, and had no reasonable basis in law.
Duty of fair representation. To prove that a union breached its duty of fair representation, a member must prove that the union’s conduct was “arbitrary, discriminatory, or in bad faith.” A union’s actions are arbitrary if they are “so far outside a wide range of reasonableness as to be irrational.” Bad faith requires proof that “the union acted with improper intent, purpose, or motive encompassing fraud, dishonesty, or other intentionally misleading conduct.”
Here, the union asserted that the “only evidence” to support the Board’s ruling that it violated the duty of fair representation was its delay in notifying Ford that it should stop withholding dues from the employee’s paychecks; its acceptance of dues after his dues revocation; its failure to contact the employee when it sent the letter instructing Ford to halt dues deductions; and its delay in refunding the amounts withheld from his paychecks, among others. This evidence failed to show anything other than inadvertence, according to the union, and did not establish an improper motive.
However, the Board did not credit the union’s explanation that the failure to notify Ford that the employee had withdrawn from the union was inadvertent. Based on that determination, the Board inferred that the union intentionally ignored the employee’s resignation and revocation requests.
Moreover, the Board had found that the union breached its duty of fair representation by “responding reproachfully” after it received the unfair labor practice charge from the Board. It did so by waiting an additional three months to issue a partial refund, and “excoriating” the employee in the process. Statements made by the financial secretary could be read as sending the message that members who exercise their right to contact the Board will be punished with delay. That conduct created an impression of ill will toward the employee for exercising his Section 7 rights, and therefore supported the Board’s finding that the union’s conduct toward the employee was in bad faith.
Accordingly, the appeals court affirmed that portion of the Board’s order holding that the union violated its duty of fair representation.
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