NLRB Advice Memoranda, Laborers' Local 980 (Tutor-Perini Corp.)., National Labor Relations Board, (Jul 29, 2019)

The Region submitted this case for advice on whether the Employer violated Section 8(b)(1)(A) by maintaining a provision in its dues checkoff authorization card that waives the right of signatory employees to resign their Union membership while the authorization is in effect. We conclude that the Union violated Section 8(b)(1)(A) by maintaining the provision because it unlawfully requires unit employees to agree to an undue restriction on their right to resign membership, and imposes the restriction when they may only want to waive their distinct right to cease dues checkoff.

FACTS

Tutor-Perini Corp. (“the Employer”) has a collective-bargaining agreement with Laborers' Local 980 (“the Union”) covering the Employer's laborers, carpenters, and crane operators working on a highway improvement project in Norfolk, Virginia. On October 23, 2017, the Charging Party began working for the Employer. On the Charging Party's first day of work, Assignment Cards that were given to by the Union. Pursuant to the first card, the Charging Party authorized the deduction and remittance of dues to the Union's regional council. The second card authorized the deduction and remittance of dues to the Union and stated, in pertinent part:

This authorization shall be irrevocable for a period of one (1) year, or until termination of the collective bargaining agreement in existence between my Employer and the Union, whichever occurs sooner; and I agree and direct that this authorization shall be automatically renewed and shall be irrevocable for successive periods of one (1) year each, or for the period of any subsequent agreement between my Employer and the Union, whichever shall be shorter, unless written notice is given by me to my Employer and the Local Union not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one (1) year, or of each applicable collective bargaining agreement between my Employer and the Union, whichever occur s sooner. For the effective period of this checkoff authorization and assignment, I hereby waive any right I may have to resign my union membership. Furthermore, this checkoff authorization shall continue in accordance with the above renewal and revocation provisions irrespective of my membership in the Union. [1]

Virginia has a right-to-work statute that prohibits the inclusion of a union-security clause in collective-bargaining agreements. [2]

On October 4, 2018, the Charging Party sent the Union a letter to resign membership in the Union and to revoke dues authorization form. [3] The Union promptly accepted the Charging Party's timely resignation and notified the Employer to stop deducting and remitting dues. Beginning October 7, 2018, the Employer no longer deducted dues from the Charging Party's paycheck.

ACTION

We conclude that the Union violated Section 8(b)(1)(A) by maintaining the provision because it unlawfully requires unit employees to agree to an undue restriction on their right to resign membership, and imposes the restriction when they may only want to waive their distinct right to cease dues checkoff. [4]

Section 8(b)(1)(A) 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 include the right to refrain from joining or assisting labor organizations. [5] In interpreting that statutory provision, the Board has held that unions cannot unilaterally place any meaningful restrictions on the right of their members to resign from union membership because, among other reasons, “when a union seeks to delay or impede a member's resignation, it directly impairs the employees' Section 7 right to resign or otherwise refrain from union or other concerted activities.” [6] In Pattern Makers' League v. NLRB, the Supreme Court upheld the Board's interpretation of Section 8(b)(1)(A) and agreed that the policy of “voluntary unionism” underlying the Act prohibits internal union rules restricting a member's right to resign. [7] Subsequently, the Board consistently has found that unions violate Section 8(b)(1)(A) by maintaining constitutional provisions, bylaws, and other internal rules impeding employees' right to resign because they unlawfully coerce employee support for a union. [8]

Although the Board has consistently held that a union may not lawfully impose unilateral restrictions on employees' Section 7 right to resign their union membership, it has not directly resolved whether employees may voluntarily waive their right to resign from a union by individual agreement. [9] Assuming that employees may do so, the Act's policy of “voluntary unionism” recognized in Pattern Makers' directs that unions cannot place too great a restriction on the ability of employees to revoke such waivers. [10] The Union's policy here, which waives an employee's right to resign in perpetuity subject to short window periods, represents an undue restriction that is inconsistent with voluntary unionism. Indeed, the Board has held that unions have violated Section 8(b)(1)(A) by maintaining constitutional provisions that permit membership resignations only during a window period. [11] It also has held that unions violate Section 8(b)(1)(A) by maintaining voluntary agreements of short duration that do not permit employees to escape them and exercise their right to resign from union membership. [12]

The Union here attempts to make its waiver policy appear reasonable by linking it to the procedure for revoking dues checkoff authorizations. But the Board has made clear that “paying dues and remaining a union member can be two distinct actions.” [13] Section 302(c)(4) of the Act expressly permits employees to enter dues checkoff authorizations by which they irrevocably assign the payment of union dues from an employee's wages for a period not to exceed one year. [14] In interpreting Section 302(c)(4), the Board has held that it is lawful for a union to impose window period requirements (at the end of that one year period), and to reject checkoff revocation requests initiated outside those window periods. [15] However, the framework that Section 302(c)(4) establishes for waiving the right to refrain from assisting a union through checkoff, and revoking such a waiver, is specifically for dues checkoff authorizations and is not applicable to other Section 7 rights. In short, although unions may utilize dues checkoff authorizations that automatically renew each year absent employees revoking them during a window period, it does not follow that unions can use the same device to lock employees into the waiver of other Section 7 rights.

Moreover, a union's intertwining of dues checkoff and waiver of membership resignation results in the latter not being voluntary. The Board has held that the policy of “voluntary unionism” underlying the Act should generally inform the right of employees to refrain from union activities. [16] For example, in Electrical Workers Local 2088 (Lockheed Space Operations), the Board confronted whether an employee's union resignation also revoked his dues checkoff authorization where there was no applicable union-security clause. The Board found the union's continued retention of dues violated Section 8(b)(1)(A) because the dues checkoff authorization the employee had signed did not clearly indicate that dues would continue to be deducted from his paycheck post-resignation. Thus, he had not clearly and unmistakably waived the right to refrain from supporting the union when he was neither a member nor otherwise required to pay dues. [17] And, if an employee not subject to a union-security requirement did not explicitly agree to have dues deducted post-resignation, “then the employee's continued financial support of the union is not clearly ‘voluntary’” after resignation. [18]

Applying these principles here, even assuming employees could voluntarily waive the right to resign membership for some period of time, the Union violated Section 8(b)(1)(A) by imposing such a waiver on employees who may only have wanted to avail themselves of the Union's dues checkoff process. Because the waiver is inextricably part of the Union's dues checkoff authorization, employees are not voluntarily agreeing to that waiver, which violates the policy of “voluntary unionism” underlying the Act. Thus, employees with no union-security requirement, as is the case here, may nevertheless desire to financially assist the union representing them but not subject themselves to all the obligations attendant with full union membership. By including language in its dues checkoff authorization that restricts the right of signatory employees to resign, the Union does not allow those employees who may only want to financially assist the Union for its representational services to opt out of the restriction on resignation from membership. 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. By doing so, the Union is unlawfully coercing employees into a larger commitment to the Union than they may have desired, which violates Section 8(b)(1)(A).

Accordingly, the Region should issue complaint, absent settlement, alleging that the Union violated Section 8(b)(1)(A) based on the analysis above. [19]

/s/

J.L.S.

ADV.05-CB-229670.Response.LaborersLocal980