By Robert Margolis, J.D.
Denying a union’s petition for review of an NLRB order, the D.C. Circuit upheld as “reasonable” the Board’s determination that the union violated its members’ statutory rights through its policy that requires members who wish to resign from the union and opt out of paying dues to appear in person at the union hall with a picture ID and a written request indicating the member’s intent (Local 58, International Brotherhood of Electrical Workers v. NLRB, May 8, 2018, Rogers, J.).
Union resignation procedure. The union represents approximately 4,000 employees under multi-employer and stand-alone collective bargaining agreements. In October 2014, it announced it was implementing a new policy governing resignation of membership and opting out of dues deductions. The policy required, for the first time, that a union member wishing to resign membership or opt out of dues must appear in person at the union hall and present a picture ID and a written request indicating the member’s intent. If any member feels that appearing in person creates an undue hardship, the member may make other arrangements that verify the member’s identification by contacting the union hall.
The only union member to resign from the union following its implementation of the resignation policy filed an unfair labor practice charge. He worked about two hours from the union hall, and he had sent a letter to his employer stating his intent to resign from the union. The employer forwarded the letter to the union, which called the employee to verify his identity. It then accepted his resignation.
Board complaint. The General Counsel issued a complaint alleging that the union’s policy unlawfully restrained union members’ rights to resign from the union and to revoke dues-deduction authorization. At an evidentiary hearing, the union’s business manager, who instituted the policy, testified that he did so out of concerns that a fraudulent resignation or revocation could interrupt an employee’s union membership and thereby deprive the employee of pension or death benefits without the employee being aware of this result. Thus, he instituted procedures to verify the authenticity of resignations and revocations of dues deductions. An ALJ sided with the union, concluding that the policy did not restrict members’ rights to resign or revoke dues-deductions authorizations. The Board reversed (with one member dissenting), finding that the union violated the Act, and directing the union to rescind the policy and post a remedial notice. The union petitioned for review, contending that the NLRB erred.
Restrictions or procedural requirements? Whether a particular union rule restrains or coerces members is a matter particularly within the NLRB’s expertise, the appeals court noted. The NLRB has held that rules restricting resignations “impair the fundamental policies found in the express language and consistent interpretation of Section 7″ of the NLRA. Thus, any rule that “delay[s] or otherwise impede[s]” a member’s right to resign or revoke is categorically unlawful.
Right to resign. The union argued its policy was not an unlawful restriction or penalty imposed on members’ right to resign; rather, it is a permissible imposition of procedural requirements or ministerial acts necessary to verify a member’s resignation or revocation. It likened the policy to ones the NLRB previously upheld, including rules providing temporal restrictions, such as limiting resignation to a 30-day notice period or prohibiting resignation during a strike. It also cited NLRB decisions upholding union rules setting administrative or ministerial requirements, like requiring members to send a written statement of intent to a designated union officer.
However, the NLRB articulated several reasons why the rule here violated the Act. It found that “the combined ‘in person’ and ‘picture identification’ requirements” restricted resignation by being a “burden” on members who live or work some distance from the union hall, “surely cost[ing] them time and money.” The requirement that a member must resign in person could be burdensome on a member who wishes to avoid such an encounter. Requiring a member to produce a photo ID burdens a member who does not have one and would have to acquire one just to resign from the union. The NLRB also found that the alternative for members claiming that appearing in person was an undue hardship was insufficient to save the policy, as it was too ambiguous. It creates uncertainty as to what alternative procedures would be allowed, the level of discretion retained by the union to approve resignations proffered by alternative means, and, indeed, as to whether such resignations or revocations would be allowed at all. Finding the NLRB’s analysis of each of these considerations “reasonable,” the appeals court denied the union’s challenge.
The union also argued that the NLRB failed to properly weigh the union’s interest in preventing fraudulent resignations and revocations, which could significantly impair a member’s pension rights without that member’s knowledge. But the NLRB was not required to consider the union’s interests, the appeals court held, because the NLRB had concluded the policy was facially invalid.
Alternative arrangements. Finally, the court highlighted the NLRB’s reaffirmation of its precedent permitting some procedural requirements that are not found to unlawfully burden union members. It noted that the NLRB “expressly preserved a union’s ability to impose ministerial requirements on the resignation process.” The union may come up with other means to verify member identification to vindicate its interests in preventing fraud, including “promulgating a substantially similar policy that included a description of acceptable alternative arrangements in the event of undue hardship,” the appeals court held.
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