NLRB Advice Memoranda, Teamsters Local Union No. 988, National Labor Relations Board, (Apr 19, 2024)

The Region submitted this case for advice on whether the Union-Employer violated Stericycle, Inc., 372 NLRB No. 113 (2023), by not providing assurances according to Retail Store Employees Union, Local 428 (Rose C. Wong), 163 NLRB 431 (1967) in a provision of its written policy that encourages all employees to join the Union. We conclude that an employee could not reasonably interpret the provision to require Union membership as a condition of employment. Thus, the provision does not implicate Rose C. Wong, affect the exercise of Section 7 activity, or otherwise violate Section 8(a)(1). The Region should dismiss the charge, absent withdrawal.

The Charging Party (“CP”) worked as ​     ​ for the Union-Employer until ​     ​ 2022. Their job duties included ​     ​ some interaction with Union members ​     ​ The Union-Employer maintains a personnel policy with a provision that states that the Union-Employer “expect[s] each employee will support the policies and endeavors of the Local Union. Therefore, [the Union-Employer] encourage[s] each employee to be a member of …” the Union. Further on the policy states “You are encouraged to pay your Union dues and [political action fund] through payroll deductions. However, payroll deductions for such purposes are not required.” The CP alleged that this policy unlawfully required employees of the Union-Employer to become dues paying members of the Union.

We conclude that the Union-Employer does not violate Section 8(a)(1) by maintaining the provision at issue. As discussed in Rose C. Wong, Board law permits union-employers to condition employment on union membership if understanding the union's goals is necessary to perform the employee's job duties. [1] . 163 NLRB at 433 (requiring a union-employer to make certain assurances along with the requirement of membership for employees in job-related positions). But the union-employer cannot require membership from employees in positions whose tasks do not necessitate understanding of the union's goals—non job-related positions. Id.

To analyze how an employee would interpret the provision at issue, the Board utilizes Stericycle, Inc., 372 NLRB No. 113 (2023). In Stericycle, the Board built upon the standard used in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and held that when analyzing work rules, the General Counsel must prove that an employer's rule has a reasonable tendency to chill employees from exercising their Section 7 rights. 372 NLRB No. 113, slip op. at 2, 9-10. If an employee, who is understood to be economically dependent on the employer and who contemplates Section 7 activity, could reasonably interpret the rule to be coercive, the General Counsel has carried their burden and the rule is presumptively unlawful even if there is also a reasonable non-coercive interpretation. Id.

Here, no employee could reasonably read the provision at-issue to require union membership as a condition of employment, especially given the circumstances. While an employee could interpret an expectation to convey a requirement in some contexts, the Union-Employer has specified that its expectation manifests as mere encouragement of membership. An employee could “support the policies and endeavors of the Local Union” without being its member. So, an employee could meet the Union-Employer's expectation without joining the Union. In other words, the way that this specific provision encourages union membership does not equate to a requirement of union membership. And unlike a typical employer rule analyzed under Stericycle, the rule here does not chill Section 7 rights but actually encourages exercise of Section 7 rights through solidarity efforts. Ultimately, an employee could not reasonably interpret the rule to affect the exercise of their Section 7 rights.

Accordingly, the Region should dismiss the charge, absent withdrawal. This email closes this case in Advice. Please let us know if you have any questions or concerns.

Thank you,

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Division of Advice

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