[author: Mark Theodore]
What with the last several months of onslaught directed at employers, which includes the new election regulations, micro unions, the hoopla over social media, it is hard to forget that sometimes the NLRB is confronted with actions against unions. In any given year, such actions make up a fraction of the agency's cases, of course. But, when they do act, it can sometimes provide important insight.
In two recent cases, the NLRB found unions to have violated the Act. The reasons? Well, they're interesting and instructive, especially in these times, where the debate usually paints all employers with the same broad brush of callous disregard for employee rights.
So, today, we'll take a journey into the "other" side of the equation.
Threat To Terminate Organizer For Attempting To Publicize Labor Dispute
In Communications Workers of America, Local 13000, 358 NLRB No. 50 (June 1, 2012).pdf the NLRB was confronted with a case brought by a union organizer against the union. The individuals in the "union" in this case were all part of a district council comprised of 70 locals, and instead of worrying about keeping track it is easy enough to note that the person whose job was threatened worked for one local and was set to testify against another. In the case, the organizer ("Organizer 1"), who was represented by a staff union, was asked to testify in an NLRB proceeding on behalf of another organizer ("Organizer 2") who had filed unfair labor practice charges against his local union over his discharge. Organizer 1, fearing for her job, called the president of a local representing newspaper writers and expressed that she was fearful for her job and did not want the press to show up at the hearing "as it could do damage" to the labor movement. Yet, Organizer 1 still asked the Guild president whether he could have a particular reporter come over to hearing.
President of Newspaper Guild reported this "disturbing" conversation to other union officials. The local union Organizer 1 was to testify against then attempted to get Organizer 1 fired by sending a letter to sister local. The letter makes clear the union-employer's outrage: "It was quite disturbing on the day of the hearing to see your organizer appear on behalf of the charging party since it is crystal clear that our local had not violated the law. It is also disturbing when you put it in perspective what the ramifications this charge would have if by some small chance this charge was upheld. The organizing program of [the union] as a whole would have been damaged."
As to the issue regarding the request to have a certain reporter attend the hearing, the letter stated, "As you can can clearly understand this local has no interest in working with someone that would put the [union] and more specifically this local in harm's way. We would appreciate any and all steps necessary to remove this person from any dealings with members of this union....."
The union-employer also sent Organizer 1 a note which, among other things, made very clear its displeasure with her actions:
You have no respect for organizing, no respect for the position you hold within the union and no respect for the [International]. The fact that you still hold a staff position at the [union] is disturbing. Attached as an FYI is the letter that was sent to [Organizer 1's employer] to remind you of your stupidity. . .
Although Organizer 1 was not fired, she (interestingly, not her staff union) filed charges to allege the threat violated Section 8(a)(1) of the Act by interfering with her protected activity. The Administrative Law Judge agreed, noting that Section 7 rights include the right to "utilize the Board's processes" - in this case testifying- "without fear of restraint, coercion, discrimination or interference from their employer." After finding the activity protected, the ALJ had no problem concluding the Act was violated because "an employer violate[s] Section 8(a)(1) of the Act when it [tells] another employer it could not employ an employee..."
The union appealed, claiming Organizer 1 was "not engaged in concerted activity when she sought newspaper coverage of a separate Board proceeding against" the other local union. The NLRB gave that defense short shrift, noting simply: "We find no merit to this argument. [Organizer 1] was attempting to assist her union, and thus by definition she was engaged in concerted activity."
So, it seems clear that even unions are not as pristine as they act when they are employers, and they often raise the same defenses. Still, one wonders whether if this had been a private company taking action this would have also resulted in a violation of Section 8(a)(4) which prohibits interference with NLRB processes for the pretty obvious threat against an employee for appearing at an NLRB proceeding.
Union Causes Unlawful Termination Of Employee For Non-Payment Of Dues
When a union represents employees at a workplace, every so often there is a request to terminate an employee for non-payment of dues. Typically, the issue is governed by the parties' collective bargaining agreement which (in non-right-to-work-states, anyway), typically require the represented employee to become and remain a member of the union and pay dues as a condition of employment. Sounds pretty straightforward, right?
In Service Employees International Unioin, UHW, 358 NLRB. No. 18 (March 22, 2012).pdf, the employee worked at a hospital. The employee was a union steward for three years until removed from his position by the union. The employee revoked his dues check-off (which enabled the employer hospital to deduct dues from his paycheck) and paid money directly to the union. Employee, apparently upset over his removal as steward, proceeded to pay only a portion of the monthly dues owed; union cashed the checks. Union sent employee a letter informing him that he was delinquent in the amount of $163.12 and that to avoid "our notifying the employer to commence proceedings that can result in your discharge" payment should be made by a date certain.
Employee responded by letter which said, in part,
The [union's] letter states that it is a 'final notice' yet this is the first letter that has ever been sent to me stating an amount owed by me to the union. It is difficult to conceive under what set of rules, laws, circumstances or principles that a letter, stating for the first time that an amount owed, could be considered in any arena a final notice. . .
Employee's letter then asked for information about the amount the union claimed he owed, including "a full accounting of how my dues amount was calculated." Union sent employee additional "Final Notices," each one claiming employee now owed increasing amounts in back dues. Eventually union sought employee's discharge. After giving employee some additional time, the hospital finally terminated employee. Employee filed charges alleging a violation of Section 8(b)(1)(A).
The law on this issue seems clear: "Before seeking an employee's termination for failure to pay dues, at a minimum, the union must provide an employee with a precise amount of dues owed, the time period in question, the method of computation, and a reasonable opportunity to meet the dues obligation." A valid union security provision is a prerequisite. The ALJ concluded the union violated the Act by causing the employee's discharge because even though it sent several letters, it failed to disclose the time period involved in the delinquency or the method used to calculate the dues owed.
The union asserted what is known as the "free rider" defense, which asserts that "employees who from hostility, disaffection or other reason game the dues paying process in an effort to knowingly evade their dues obligation" are treated differently than those who do not pay out of ignorance. The union alleged the employee knew he had to pay dues and the amount because he was a former union steward, and his deliberate failure to pay the full amount warranted his termination.
The ALJ rejected this argument, holding that even though the employee "intentionally" paid lower dues he had not received the information he requested, and to which he was entitled. As to his intent, the judge stated:
While [employee's] aversion to the union is clear on the record, dissatisfaction or aversion to the union or to union representation is importantly different from employee aversion to payment of required dues and/or an intention not to pay those dues. it is the latter neus that determines free rider status.
So, the ALJ appeared to find that employee's act of defiance in paying a lower dues amount was a protected act of defiance because he disliked the union and not the dues, so long as the union failed to comply with its obligation to provide the information sought.
A couple interesting tidbits to help kickoff the summer months.