A union’s dues check off authorization card that unduly restricted an employee’s right to resign union membership violates Section 8(b)(1)(A) of the National Labor Relations Act (NLRA), the National Labor Relations Board’s (NLRB) Division of Advice has decided. Laborers’ Local 980 (Tutor-Perini Corp.), No. 05-CB-229670 (issued July 29, 2019, released Apr. 10, 2020).

The Division of Advice has instructed NLRB Region 5 to issue a complaint against the union. A part of the NLRB’s Office of the General Counsel, the Division of Advice provides guidance to the NLRB’s regional offices on difficult and novel issues arising in the processing of unfair labor practice charges.

Section 8(b)(1)(A) of the NLRA provides that a union commits an unfair labor practice if it “restrain[s] or coerce[s] employees in the exercise” of their Section 7 rights, which includes refraining from joining or assisting unions. In Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985), the U.S. Supreme Court upheld the NLRB’s interpretation of 8(b)(1)(A) as prohibiting union internal rules restricting a member’s right to resign.

Laborer’s Local 980 arose in Virginia, a right-to-work state prohibiting union security agreements between employers and unions that compel employees to join a union. The union’s authorization card said that an employee could revoke the dues check off authorization only during a short window period (beginning 20 days before each anniversary of the collective bargaining agreement and ending 10 days before each anniversary of the collective bargaining agreement). Moreover, the authorization card said, “For the effective period of this checkoff authorization … I hereby waive any right I may have to resign my union membership.” Thus, the card effectively waived the employee’s right to resign in perpetuity, subject only to the short window periods.

An employee filed an unfair labor practice charge against the union alleging violation of Section 8(b)(1)(A) by maintaining the provision.

As the Division of Advice noted, resigning union membership and revoking a dues check off authorization are different. Employees may want to resign union membership and free themselves of the obligations it imposes (such as compliance with the union’s constitution and bylaws or be fined), while still wanting to continue financial support of the union.

Section 302(c)(4) of the NLRA permits check off authorizations that are irrevocable for one year. That section, as interpreted by the NLRB, allows a union to impose window period requirements at the end of that one-year period and to reject revocation outside of those window periods. This statutory latitude permitting waiver does not apply to other Section 7 rights, such as resigning union membership. The Division of Advice said:

In short, the Union cannot bootstrap the resignation waiver into its dues checkoff authorization, and thereby make resignation subject to the checkoff’s revocation window period, without violating the voluntariness principle regarding union membership.

Therefore, it concluded, “[T]he Union violated Section 8(b)(1)(A) by maintaining the [authorization] provision because it unlawfully requires unit employees to agree to an undue restriction on their right to resign union membership, and imposes the restriction when they may only want to waive their distinct right to cease dues check off.”

Takeaway

This decision is significant to unionized and non-union employers. For unionized employers, the union may use the cards to restrain employees who wish to work during a strike from resigning membership to avoid union fines. For non-union employers, the union may attempt to obtain similar cards during a union campaign, thus coercing employees into believing they must support the union.

Please contact a Jackson Lewis attorney with questions about this or other NLRB questions.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993