A recently released advice memorandum from the National Labor Relations Board’s Division of Advice found unlawful a union’s attempt to restrict individuals from resigning their union membership. In a July 2019 memorandum, released by the Board on April 14, the Division of Advice found that the Laborers’ International Union of North America (LIUNA) violated the National Labor Relations Act when it prohibited employees who authorized automatic dues deduction from resigning from union membership during the life of the agreement. Such restrictions, the Board’s counsel found, “violates the policy of ‘voluntary unionism’ underlying the Act.” This is a positive step, as it signals a willingness to scrutinize restrictions on employees’ rights to join — or refrain from joining — a union.

Union Membership And Dues Deduction

At the heart of Section 7 of the Act is an employee’s right to join — or not join — a union. The Board has long held unions cannot unilaterally restrict the rights of their members to resign from union membership, as doing so “directly impairs the employees’ Section 7 right to resign or otherwise refrain from union or other concerted activities.” It has ruled unlawful constitutional provisions, bylaws, and other union internal rules which only permit employees to resign from membership during limited window periods.

By contrast, the Board has found such window periods lawful for the revocation of dues deduction authorizations. The Board’s case law treats dues deductions and union membership as “two distinct actions.” It recognizes employees may voluntarily agree to pay dues, thereby financially supporting the union, even if they are not union members. This arrangement is generally found in right-to-work states, where union security clauses — requiring union membership or the payment of union dues as a condition of employment — are prohibited by state law.

LIUNA’s Authorization Card

In the present case, an unnamed employee signed a card authorizing the deduction and remittance of membership dues — otherwise known as dues checkoff — to LIUNA on his first day of work. The employee worked in Virginia, a right-to-work state, so was not required to maintain union membership or pay union dues as a condition of their employment. 

The card stated the authorization would be irrevocable for one year and would automatically renew on a yearly basis, unless the employee gave written notice to the union during a specified 10-day window prior to expiration each year. The card also stated, “For the effective period of this checkoff authorization and assignment, I hereby waive any right I may have to resign my union membership.”

Advice Memo Finds Unlawful “Intertwining of Dues Checkoff and Waiver of Membership Resignation”

The advice memo concluded the inclusion of the waiver of membership resignation in the dues authorization card violated the Act. It acknowledged the Board has yet to decide whether an employee can voluntarily waive their right to resign from membership. However, the Division of Advice stated that, even assuming they can, a union cannot place “too great a restriction on the ability of employees to revoke such waivers.”

Here, the Division of Advice found that limiting an employee’s right to resign from membership “in perpetuity,” subject only to short window periods, was an undue restriction which was “inconsistent with voluntarily unionism.” By making the process “inextricably part” of the dues checkoff authorization, employees could not voluntarily agree to such a waiver. It concluded LIUNA had unlawfully coerced employees into a “larger commitment to the Union than they may have desired,” in violation of Section 8(b)(1)(A) of the Act.

What Does This Advice Memo Mean?

This is a positive step for employees, as it signals the General Counsel’s willingness to closely examine any restriction on employees’ rights to join — or refrain from joining — a union. The parties in this specific case reached a settlement in December 2019, with the case closed in March 2020, so the law remains unchanged. However, this advice memo signals the General Counsel’s disposition toward such limitations on employee free choice.

Most importantly, it is a significant reproach to unions. Over the last few years, unions have been taking an aggressive approach to limit employees’ ability to stop dues deductions and resign from membership. Unions quietly began adding highly restrictive revocation windows to membership cards and dues deduction forms. These underhanded tactics are simply a bald effort by unions to ensure the dues money keeps filling their coffers in the face of continuously-declining membership.

The advice memo also comes at a critical time, when both unions and employees are dealing with the financial ramifications of the ongoing COVID-19 pandemic. Many unions currently face dire economic consequences following a precipitous drop-off in dues during the pandemic. However, newly hired employees and employees returning from layoff will be more inclined to resist union initiation fees and dues going forward, as they try to personally recover from this period of economic upheaval. Employees should therefore anticipate unions continuing to push the legal limits by innovating new ways to restrain their Section 7 rights.