NLRB Advice Memoranda, National Association of Government Employees, Local R14-139 (EDP Enterprises, Inc.), National Labor Relations Board, (Apr 8, 2019)

The Region submitted this case for advice as to whether the Union violated Section 8(b)(1)(A) of the Act by maintaining a provision in its Constitution and Bylaws that requires members who believe their grievances have been mishandled to first exhaust internal Union remedies before pursuing legal claims against the Union in court or with an administrative agency. We initially conclude that the Union's rule is lawful under the Board's recent decision in IATSE Local 151 (Freeman Decorating Services). [1] However, the Region should issue complaint, absent settlement, and urge the Board to overturn that precedent because it is based on faulty legal premises. The Region should ask the Board to find that the Union's rule is per se unlawful because it fails to explicitly refer to the four-month limitation for exhausting internal remedies imposed by Section 101(a)(4) of the Labor Management Recording and Disclosures Act (“LMRDA”). Absent that limiting language, employees would reasonably interpret the rule as precluding them from filing a Board charge for the entire duration of the Union's internal appeal process, even if it extended beyond the six-month limitations period for filing a charge.

FACTS

National Association of Government Employees Local R14-139 (“the Union”) represents a bargaining unit of food service employees employed by EDP Enterprises (“the Employer”) at Fort Leonard Wood, a United States Army training installation in Missouri. In about ​     ​, the Employer hired the Charging Party, who subsequently became a Union member. On ​     ​ 2018, [2] the Employer terminated the Charging Party for alleged misconduct that occurred the previous day. The Charging Party then contacted the Union's recently elected ​     ​ about grieving the termination. On about August 14, the Charging Party learned that the Union's newly elected officers had failed to timely file a grievance regarding the termination, and that the Employer would not waive the untimeliness of a grievance as a defense. On September 6, the Charging Party filed the instant charge against the Union alleging it had violated Section 8(b)(1)(A) by failing to timely file a grievance over the termination. [3]

As part of its defense before the Region, the Union asserted that the Charging Party did not have standing to file the instant charge because the Charging Party did not first exhaust internal Union remedies. Article IV A of the Union's Constitution and Bylaws, [4] which is entitled “The Handling of Grievances,” states in Section 3 that:

Local Unit members who believe their grievances have been improperly handled by their Local Unit Grievance Committee or other authorized local bargaining agent shall, without exception, employ the remedies and procedures contained herein. Complainants shall not be entitled to enforce or present his or her claims against the National Union or its Local Unit subordinate in any court or other administrative body without first exhausting these internal procedures. [5]

Section 2 of the same article sets forth the appeal procedure that members must follow if they disagree with how the Union processed their grievances. It states that step one is for the aggrieved member, within 72 hours of being notified in writing by the Local Grievance Committee that it will not proceed with a grievance, to provide written notice to the Local Grievance Committee that the member is appealing that decision to the National President. Step two requires the aggrieved member, within five days of receiving the aforementioned written notice from the Local Grievance Committee, to provide written notice to the National Union's General Counsel that the member is appealing the Local's decision. [6] The National President then designates a National Officer to decide the appeal. The National Officer is required to schedule and conduct a hearing, if necessary, as soon as administratively possible. The National Officer may then decide the appeal or refer it to the National Executive Committee, which is comprised of the National President, all National Executive Vice Presidents, and all National Vice Presidents and is required to meet at least every other month. The Union's Constitution and Bylaws do not specify timelines for decisions by either the National Officer or National Executive Committee. [7]

ACTION

We initially conclude that the Union's rule is lawful under current Board precedent. However, the Region should issue complaint, absent settlement, and urge the Board to overturn that precedent and conclude that the rule is per se unlawful because it fails to explicitly refer to the four-month limitation for exhausting internal remedies imposed by LMRDA Section 101(a)(4). Absent that limiting language, employees would reasonably interpret the rule to preclude them from filing a Board charge for the entire duration of the Union's internal process, even if it extended beyond the six-month limitations period for filing a charge.

A. The Union Did Not Violate Section 8(b)(1)(A) Under Recent Board Precedent by Maintaining an Exhaustion-of-Internal-Remedies Rule.

Section 8(b)(1)(A) prohibits a union from “restrain[ing] or coerc[ing] employees in the exercise of the rights guaranteed in section 7,” [8] but includes a proviso stating that “this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” [9] In Scofield v. NLRB, the Supreme Court explained that under Section 8(b)(1)(A) unions are free to maintain and enforce internal regulations so long as those regulations do not affect a member's employment status or “invade[ ] or frustrate[ ] an overriding policy of the labor laws ….” [10] The Court noted that it previously had recognized the ability of employees to freely file unfair labor practice charges or otherwise access Board processes as one overriding policy of the Act that union's may not regulate. [11]

At the same time, Section 101(a)(4) of the LMRDA provides that union members “may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within … [a labor] organization, before instituting legal or administrative proceedings against such organizations or any officer thereof ….” [12] In NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, the Supreme Court considered the relationship between Section 8(b)(1)(A) of the Act and Section 101(a)(4) of the LMRDA. [13] In that case, the issue was whether the union had violated Section 8(b)(1)(A) by expelling a member for filing a Board charge before the member had exhausted internal remedies as required by the union's constitution. [14] The Court affirmed the Board's holding that the union had violated Section 8(b)(1)(A). [15] It reasoned that while a union is free to self-regulate its legitimate internal affairs, “other considerations of public policy come into play” when an internal rule penalizes an employee for filing a Board charge. [16] In the Court's view, a “policy of keeping people ‘completely free from coercion’” when making complaints to the Board is paramount to the Board's ability to effectuate public policy considering it cannot initiate its own proceedings. [17] Thus, “[a]ny coercion used to discourage, retard, or defeat that access [to the Board] is beyond the legitimate interests of a labor organization.” [18]

In IATSE Local 151 (Freeman Decorating Services), the Board recently considered the issue of whether a union violated Section 8(b)(1)(A) simply by maintaining a provision that required the exhaustion of internal remedies before filing a Board charge, and specifically focused on whether such a provision is facially unlawful because it does not explicitly refer to the four-month limit in LMRDA Section 101(a)(4). [19] The Board majority concluded that the absence of the four-month limitation did not cause the provision to be facially unlawful. It found that internal exhaustion provisions serve the legitimate interest of allowing unions to resolve their members' problems internally, while still permitting resort to outside tribunals when a matter cannot be resolved internally, and are consistent with Section 101(a)(4) even if they do not explicitly refer to the four-month limit. [20]

The majority then rejected the dissent's argument that, absent an explicit reference to the four-month limit, employees would reasonably believe their obligation to exhaust internal remedies is open-ended and, therefore, may interfere with their right to file Board charges. The majority distinguished cases the dissent relied on, which involved employer-mandated arbitration policies that interfered with employees filing Board charges, noting they permanently prohibited recourse to the Board. In contrast, the union's rule expressly allowed members to access other forums after exhausting internal remedies, and the four-month limit imposed by Section 101(a)(4) “ensures that the internal exhaustion may not exceed 4 months, leaving ample time to file a charge with the Board.” [21] The majority continued that the dissent, by considering how employees would reasonably interpret the rule, applied the wrong standard for determining if an internal union rule is facially unlawful. Rather, an internal union rule is lawful so long as it complies with the test articulated in Scofield (i.e., does not affect a member's employment or frustrate an overriding labor law policy). [22] The majority also stressed that the Board previously had found only the enforcement of exhaustion-of-internal-remedies provisions to be unlawful, which the case did not involve. Finally, the majority noted that nothing in the text of the LMRDA requires labor organizations to explicitly set forth Section 101(a)(4)'s four-month limitation in their constitution and bylaws. [23] Nor does the LMRDA make it an actionable offense for a union to maintain a contrary provision. [24]

Based on the majority's reasoning in IATSE Local 151, the Union here did not violate Section 8(b)(1)(A) by maintaining the exhaustion-of-internal-remedies provision in Article IV A, Section 3.

B. The Region Should Urge the Board to Overturn IATSE Local 151 and Require the Union to Explicitly Refer to Section 101(a)(4)'s Four-Month Limit in the Exhaustion-of-Internal-Remedies Provision.

The Region should use this case as a vehicle to urge the Board to reconsider its recent decision in IATSE Local 151 (Freeman Decorating Services) because it was based on faulty legal premises that resulted in a standard that fails to protect employee access to the Board. Thus, the Region should request that the Board find the Union's exhaustion-of-internal-remedies policy to be unlawful because it does not contain explicit language that indicates its compliance with the four-month limit in LMRDA Section 101(a)(4). [25]

Under Scofield, an internal union rule violates Section 8(b)(1)(A) if it frustrates an “overriding policy of the labor laws.” [26] Both the Supreme Court and the Board have long recognized that unfettered access to Board processes is an overriding policy of the Act, particularly because the Board cannot initiate its own proceedings to enforce public rights. [27] By failing to explicitly refer to Section 101(a)(4)'s four-month limit for exhausting internal remedies, Article IV A, Section 3 of the Union's Constitution and Bylaws frustrates that policy. No language in that provision informs Union members, such as the Charging Party, that they are free to file a Board charge or pursue other legal claims against the Union after four months even if internal Union procedures have not been completed. [28] As a result, members would reasonably interpret the provision to impose an open-ended restriction on their right to file Board charges. [29] And if internal Union procedures take longer than six months to complete, the statute-of-limitations in Section 10(b) of the Act will permanently bar members from filing a charge. [30]

With respect to the last point above, the majority in IATSE Local 151 relied on a faulty legal premise to reject the possibility of such internal union rules causing members to forfeit their right to file a charge. Specifically, the majority stated that “LMRDA Section 101(a)(4) ensures that the internal exhaustion may not exceed 4 months, leaving ample time to file a charge with the Board.” But “[n]othing in LMRDA Section 101(a)(4) imposes a requirement that all internal union procedures be completed within 4 months.” [31] The Supreme Court read Section 101(a)(4) to mean only that “public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union.” [32] Moreover, in the current case, while the Union's internal appeal process for the mishandling of grievances imposes deadlines that members must meet to preserve their appeals, it does not include any timelines by which those appeals will be decided. Thus, nothing in the Union's Constitution and Bylaws suggests that the Union's internal process will end at the four-month mark so that members will be able to timely file Board charges if they desire. [33] In short, the majority's reasoning in IATSE Local 151 fails to properly explain how internal exhaustion rules such as that at issue here will not block access to the Board.

The majority in IATSE Local 151 further erred by failing to consider how employees would reasonably interpret an internal exhaustion requirement. The majority relied on Scofield, which imposes a different standard for internal union rules than is applicable to employer-mandated work rules, [34] but Scofield does not preclude consideration of how employees would reasonably interpret an internal union rule when determining if that rule frustrates an overriding labor policy. Indeed, the Board specifically has considered how an employee would reasonably read a union policy in determining whether that policy violates Section 8(b)(1)(A). [35] Similarly, the Board has considered whether union members would reasonably understand their membership obligations under their union's constitution and bylaws when deciding if the union had provided them with proper notice of those obligations. [36] Based on these principles, it would be improper—if not illogical—for the Board to ignore employees' reasonable interpretation of union rules and policies when determining if they restrain or coerce Section 7 rights.

Here, Article IV A, Section 3 states that a grievant “shall not be entitled to enforce or present his or her claims against [the Union] in any court or other administrative body without first exhausting these internal procedures.” Union members simply would not reasonably interpret that language as permitting them to file Board charges against the Union if internal procedures continued after four months. [37] “Rank-and-file employees do not generally carry law books to work or apply legal analysis,” [38] and they certainly cannot be expected to understand that the Union's exhaustion-of-internal-remedies provision is subject by law to the four-month limitation in LMRDA Section 101(a)(4). Because the Union's constitutional provision restrains member access to Board processes, the Union violated Section 8(b)(1)(A) by maintaining it. [39] The Union can lawfully maintain an exhaustion-of-internal-remedies provision if it states that members are free to pursue external legal claims after four months even if internal Union procedures remain ongoing.

Accordingly, the Region should issue complaint, absent settlement, alleging that the Union violated Section 8(b)(1)(A).

/s/

J.L.S.

H:ADV.14-CB-227097.Response.NAGELocalR14 ​     ​