NLRB Advice Memoranda, IAM CREST International Aerospace Machinist District Lodge 751 (IAM CREST), National Labor Relations Board, (Dec 16, 2022)

The Region submitted this case for advice on whether IAM Crest (the Employer), a contractor for a health-and-safety trust, violated the Act by deducting and remitting the dues of unrepresented employees to the Union, and whether the Union violated the Act by accepting those monies. We conclude that these charges should be dismissed, absent withdrawal.

The Employer is a nonprofit organization sponsored by the International Association of Machinists. The Employer has a vendor contract with Boeing Joint Programs, a health-and-safety trust created by Boeing and IAM District Lodge 751 (the Union) to provide vocational rehabilitation services at Boeing facilities. The Union is not the collective-bargaining representative of the ​     ​ employed by the Employer, and the Employer and Union are not parties to a collective-bargaining agreement containing a union-security clause.

The Charging (CP) has been a ​     ​ since ​     ​. According to the CP, when ​     ​ was hired, the Boeing Joint Programs pro manager—a Union employee—told ​     ​ during ​     ​ orientation that ​     ​ had to fill out ​     ​ paperwork to join the Union.

The membership form states, in part:

I understand that while I may be required to tender monthly fees to the Union, and [sic] I am not required, as a condition of employment, to sign a membership application and that this application for membership is voluntary. I agree to obey the laws of the IAM and to support the principles of trade unionism, and I authorize the IAM and/or its designated affiliate to act as my representative for collective bargaining.

The bottom half of the form, which is separated from the top half by a perforation, included a dues-checkoff authorization. The CP completed a membership form but maintains ​     ​ did so because ​     ​ assumed the Union was ​     ​ exclusive collective-bargaining representative. ​     ​ also signed the dues-checkoff authorization. Once processed, the CP had dues deducted from ​     ​ pay at the rate the Union assesses represented bargaining-unit members, approximately $1,000 per year.

In late 2021, the CP asked the Union to file a grievance for ​     ​ The Union President responded that the Union did not represent the ​     ​ and that they were only associate [1] members. In ​     ​ of 2022, the CP sent numerous emails to Union officials expressing confusion over the representation issue and asking many questions about the Employer, the Union, and dues. In response, the Employer and Union informed ​     ​ was an unrepresented individual and that being a member of the Union was not a condition of ​     ​ employment. On June 1, 2022, the CP filed the instant charges, since amended, alleging that ​     ​ was unlawfully coerced into paying Union dues.

On ​     ​ 2022, a meeting took place between the ​     ​ and the Union at the Union hall. The Union explained to the group that paying dues was not a condition of employment, and that when they had started their employment, they had signed a card that indicated they would pay voluntary dues. The Union then said that because they were at the Union hall, employees could go to the front desk staff to get the document that would allow them to stop paying dues.

On that date, the CP and another ​     ​ said they no longer wished to pay dues and began the process to revoke their dues authorizations. In ​     ​ after some confusion and a brief delay, the Union refunded these individuals' dues effective to their ​     ​ oral request and neither has had any dues deducted since that time.

When an employer requires an employee to pay dues or fees to a union in the absence of a valid union-security agreement, the employer violates the Act. Teamsters Health & Welfare Fund I, 233 NLRB 814, 818 (1977) (trust fund-employer violated Section 8(a)(1), (2), and (3) of the Act by requiring membership in union as a condition of employment, absent a valid union-security agreement, and by deducting dues and other fees on the union's behalf). Likewise, the union violates the Act by accepting such dues payments.

In Laborers Local 16, 360 NLRB 721, 721 (2014), an employee of a union was informed that membership was a term and condition of employment, and she agreed to pay dues accordingly. Only after her discharge was she notified she was a “voluntary” member with no representational rights. The Board concluded that no violation occurred, as any unfair labor practice was time-barred under Section 10(b). Thus, only by relying on the unfair labor practice that occurred years earlier, when the employee was incorrectly told she had to pay dues, could a violation be found. Id. The mere continued payment of dues did not make this a continuing violation. Id.

Here, the Union membership application clearly states that employees are “not required, as a condition of employment, to sign a membership application and that this application for membership is voluntary.” Moreover, even if an agent of the Employer and/or the Union coerced the CP to sign this membership application notwithstanding its language, that event occurred years before the instant charge was filed, well outside the Section 10(b) period. And, under Laborers Local 16, there is no basis for finding a “continuing violation.” [2]

Even assuming the language in the membership application was insufficient to notify the CP that Union membership was voluntary and ​     ​ was not represented by the Union, the Union Informed ​     ​ in late 2021 that ​     ​ was only an associate member, the Union could not file a grievance for ​     ​, and the Union did not represent ​     ​ This was sufficient notice for the CP, exercising due diligence, to understand that ​     ​ employment could not lawfully be conditioned upon Union membership See generally John Morrell, 304 NLRB 896, 899 (1991. Not only did the CP fail to file ​     ​ charge within six months of receiving this information, ​     ​ waited until ​     ​ of 2022 before asking follow-up questions seeking clarification about the membership issue. This was not an exercise of due diligence sufficient to toll the Section 10(b) period. Nor did the Union or Employer's responses to the CP's ​     ​ communications contain any misrepresentations.

Accordingly, the charges against the Employer and Union should be dismissed, absent withdrawal, on Section 10(b) grounds. [3]

This email closes this case in Advice as of today.