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International Brotherhood of Electrical Workers (IBEW), AFL-CIO v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 8, 2018

Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO, Petitioner
v.
National Labor Relations Board, Respondent Ryan Greene, Intervenor

          Argued February 2, 2018

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Robert D. Fetter argued the cause and filed the briefs for petitioner.

          Michael R. Hickson, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney.

          Amanda K. Freeman and Glenn M. Taubman were on the brief for intervenor Ryan Greene in support of the National Labor Relations Board. Aaron B. Solem entered an appearance.

          Before: Garland, Chief Judge, and Rogers and Kavanaugh, Circuit Judges.

          OPINION

          Rogers, Circuit Judge

         Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO ("Local 58") petitions for review of an order of the National Labor Relations Board finding that its policy on resignation and revocation of dues-deduction authorization is an unlawful restriction on its members' statutory rights. Local 58 explains that it sought to provide "guidance to . . . members" in order to "protect [them] and the institution from fraud and forgery" in view of "numerous member-only benefits" - "as well as member-only democratic rights" - at stake. Pet'r's Br. 4. It now contends that the Board erred by failing to adhere to its long-recognized distinction between union policies that restrict or penalize a member's rights to resign or revoke, and those that impose procedural requirements or ministerial acts necessary to verify a member's resignation or revocation. For the following reasons, we conclude that the Board's determination that Local 58's policy unlawfully restricted its members' rights was reasonable, in part because the Board reaffirmed that all procedural requirements are not barred, and we deny the petition for review.

          I.

         Section 7 of the National Labor Relations Act ("NLRA") provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . ., and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, " and "a lso . . . the right to refrain from any or all of such activities." 29 U.S.C. § 157. Section 8, in turn, provides that it is "an unfair labor practice for a labor organization or its agents . . . to restrain or coerce . . . employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. § 158(b)(1)(A). With respect to membership dues, Section 302 of the Labor Management Relations Act ("LMRA"), which generally prohibits payments from an employer to a union, see 29 U.S.C. § 186(a), includes an exception permitting an employer to deduct union membership dues from employees' wages and remit those funds to the union "[p]rovided, [t]hat the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner, " id. § 186(c)(4) (italics omitted). The Board has interpreted Section 7 of the NLRA to protect an employee's right to revoke any prior authorization for the deduction of union dues. See Int'l Bhd. of Elec. Workers, Local No. 2088 (Lockheed Space Operations Co., Inc.), 302 NLRB 322, 327 (1991).

         Local 58 operates a Union Hall in Detroit, Michigan. It represents approximately 4, 000 electricians in the construction industry across southeastern Michigan who work under multi-employer agreements and are designated by the IBEW constitution as "A" members. Local 58 also represents several hundred employees in manufacturing, maintenance, and government who work under agreements with individual employers and are designated under the IBEW constitution as "BA" members. "A" members pay a higher dues rate and are entitled to more benefits than "BA" members, including a dues-funded pension and death benefit.

         On October 1, 2014, Local 58's business manager and financial secretary, Michael Richard, instituted a "Policy Regarding Procedure for Opting Out of Membership Rights, Benefits, and Obligations." The policy imposed new requirements that a union member wishing to resign membership or opt out of dues deduction must appear in person at Local 58's Union Hall with a picture identification and a written request indicating the member's intent. The policy further stated that any member who "feels that appearing in person at the Union Hall of IBEW Local 58 poses an undue hardship may make other arrangements that verify the identification of the member by contacting the Union Hall." Local 58 posted the policy at its Union Hall and distributed it to its stewards, staff, and elected officers.

         On April 6, 2015, Ryan Greene, a member of Local 58, filed an unfair labor practice charge based on the new policy. Upon investigation, the Board's General Counsel issued a complaint alleging that Local 58 violated Section 8(b)(1)(A) of the NLRA by maintaining a policy that restrains union members' rights to resign their union membership and to revoke their dues-deduction authorizations. At an evidentiary hearing, Richard testified that he instituted the policy to verify the authenticity of resignations and revocations of dues deductions authorizations because of concern that a fraudulent resignation or revocation could interrupt an employee's union membership and thereby deprive the employee of pension or death benefits without the employee being aware of this result. Hg. Tr. 38 (July 30, 2015). When he was working in the field as an electrician, Richard explained, he had called a Local in Indianapolis to remove himself from their "book, " and thus from consideration for the next available job, and was informed he must appear in person and show identification to protect against another individual fraudulently clearing his name off the books to settle a grudge or for the benefit of someone else below him on the book. Id. at 35-36. In his testimony, Richard emphasized that any break in union membership could deprive an employee of pension or death benefits, and that he, Richard, did not want to be in the position of explaining to a family member seeking death benefits that a deceased member's resignation had never been verified. Id. at 38.

         An administrative law judge ("ALJ") concluded Local 58's policy did not violate the NLRA because it did not restrict members' rights to resign or revoke dues-deductions authorizations. Upon exceptions by the General Counsel and Greene, the Board concluded, with one Member dissenting, that Local 58 had violated the NLRA as alleged. The Board issued a cease and desist order that also ...


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