NLRB Advice Memoranda, NNOC/Missouri & Kansas (Research Medical Center), National Labor Relations Board, (Jan 15, 2019)

This case was submitted for advice as to whether the notice published in the Union's quarterly newsletter and mailed to all unit employees provided a non-member employee with adequate General Motors [1] and initial Beck [2] notices prior to the Union's first attempt to obligate ​     ​ to pay dues. We conclude that the Union breached its duty of fair representati ​     ​ y not providing this employee with General Motors/Beck notices when it first attempted to collect dues from ​     ​ and that the notice published in the mass-mailed Union newsletter cannot satisfy this concurrent-notice requirement. We also conclude that the newsletter notice did not satisfy the Union's duty of fair representation to provide unit employees with a recurring annual General Motors/Beck notice, because of the notice's relatively obscure placement in a lengthy publication, which shows that it was not reasonably calculated to apprise unit employees of their General Motors/Beck rights.

FACTS

NNOC-Missouri & Kansas/National Nurses United (the Union) has a collective-bargaining agreement with Research Medical Center (Employer) that contains a lawful union-security clause. The Charging Party is a nurse in a bargaining unit represented by the Union at the Employer's Kansas City, Missouri facility. The Charging Party has worked at the hospital as a travelling or agency nurse since ​     ​ and has been employed full-time by the Employer since ​     ​ has never been a member of the Union and is part of a group of employees spearheading a decertification effort at the Employer's facility.

On or about May 14, 2018, a Union agent approached the Charging Party and another employee during an informational event concerning the decertification effort. The Union agent presented both employees with “member” and “non-member” forms containing dues-checkoff information. The forms did not identify the employees' General Motors/Beck rights, and the Charging Party states that ​     ​ has never received notice of them.

The Union has a practice of annually sending General Motors- and Beck-rights notices to bargaining unit employees through publication of a notice in the National Nurse magazine. The Union asserts that it notified the Charging Party of ​     ​ Beck rights when it mailed ​     ​ the October/November/December 2017 issue of the magazine to the address the Employer had on file for ​     ​ which is the same address the Charging Party identified in the instant charge. The Union also provided the Region with a detailed explanation of the process that it follows to mail the magazine.

The magazine has 34 pages of photographs and text (including a table of contents and an index, which do not reference the General Motors/Beck notice), followed by a five-and-one-half-page financial accounting report, which is followed in turn by the Union's asserted General Motors/Beck notice. Both the financial report and the purported General Motors/Beck notice are surrounded by gray borders, unlike the rest of the magazine. The notice's heading is in bold, capital letters, but it includes seven lines of text, is in relatively small print, and does not reference employees' rights to join or refrain from joining the Union or object to paying for activities not germane to the Union's representational duties. The heading is followed by two-and-one-half pages of text in small print. A significant portion of this text concerns the benefits of Union membership. Only a small portion covers matters relevant to a General Motors or initial Beck notice, and that text is neither bolded nor highlighted.

ACTION

We conclude that the Union breached its duty of fair representation by failing to notify the Charging Party of ​     ​ General Motors/Beck rights when the Union initially sought to collect dues from ​     ​ and that the notice published in the mass-mailed National Nurse magazine was plainly insufficient to meet the initial notice requirement. Moreover, we conclude that the magazine-published notice here failed to satisfy the Union's obligation to provide employees with a recurring annual General Motors/Beck notice, because the notice's relatively obscure placement in the magazine demonstrates that it was not reasonably calculated to apprise unit employees of their rights.

The Supreme Court held in General Motors [3] and Beck, [4] respectively, that employees subject to a union-security clause have the right to be non-members, and that a union has a duty of fair representation that extends to not spending an objecting non-member's dues and fees on non-representational activities. [5] When a union initially seeks to collect dues and fees under a union-security clause, it must first inform employees of their right to be or remain a non-member. [6] It must also inform them of their Beck rights, namely, that non-members have the right (1) to object to paying for union activities not germane to the union's representational duties and to obtain a reduction in fees for such activities; (2) to be given sufficient information to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for filing objections. [7]

Here, the Union violated the Act by failing to provide the Charging Party with General Motors and Beck notices at the time the Union first attempted to obligate ​     ​ to pay dues. [8] There is no evidence that the Union provided such notice to the Charging Party during the Union's initial attempt to collect dues from ​     ​ in May 2018. [9] The notice published in the Union's National Nurse publication, which was distributed via a mass mailing months earlier, clearly did not satisfy the Union's initial notice obligation because it was not concurrent with the statement of a dues obligation.

In addition to providing an initial General Motors/Beck notice at the time a union first seeks to obligate an employee to pay dues, the union must provide recurring annual notices to unit employees. A union's annual publication, in a newsletter or a magazine, of Beck and General Motors notices satisfies this requirement if it is “reasonably calculated to apprise” member and non-member employees of their Beck and General Motors rights. [10] Applying that standard in California Saw & Knife Works, the Board found lawful the union's publication of an annual Beck notice within a twelve page newsletter where the notice was highlighted in color distinct from other text and was set apart by a horizontal format with a highlighted outline containing the word “Notice” in bold print at the top. The Board found that this notice was “apparent from even a cursory review ….” [11] The Board thus rejected the General Counsel's argument that the notice was insufficient because it was not specifically noted on the publication's cover, emphasizing that the notice was not “hidden in a lengthy publication such that, without a cover notation, a non-member employee making any reasonable perusal of the publication would likely not be alerted to the Beck policy.” [12]

Here, we conclude that the notice contained in the National Nurse magazine was not reasonably calculated to apprise unit employees of their General Motors/Beck rights and therefore did not satisfy California Saw's requirement for an annual, recurring notice to all unit employees. Unlike the publication notice the Board approved in California Saw, a “cursory review” or “reasonable perusal” of the magazine would not likely alert an employee to the notice. [13] The notice is buried behind 34 pages of text and photographs plus five-and-one-half pages of a detailed financial disclosure, without any indication on the magazine's cover or table of contents of where it is located. Moreover, the notice's heading is lengthy and does not clearly identify the text that follows as pertaining to employee rights to refrain from joining the Union or to object to dues amounts. Nor does the gray shading of the notice's border sufficiently distinguish it, as the five-and-one-half-page financial accounting report that precedes it is surrounded by the same gray border. Additionally, the information comprising the notice is spread out over two-and-one-half pages and appears in small print that is neither bolded nor highlighted. Only a portion of this text covers matters relevant to a General Motors or Beck notice. [14]

Accordingly, complaint should issue, absent settlement, alleging that the Union violated the Act by failing to provide the Charging Party with the requisite General Motors and Beck notices when it first attempted to collect dues from ​     ​ violated the Act because the October/November/December 2017 issue of the National Nurse magazine was not reasonably calculated to apprise all unit employees, on an annual recurring basis, of their General Motors/Beck rights.

/s/

J.L.S

ADV.14-CB-220525.Response.NNOC ​     ​