Ruisi v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2017 Decided May 16, 2017

No. 16-1031

NATALIE RUISI AND MICHAEL PELUSO,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review of an Order

of the National Labor Relations Board

Aaron B. Solem argued the cause for petitioners. With him

on the briefs were Glenn M. Taubman and Alyssa K.

Hazelwood.

Kyle A. deCant, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

were Richard F. Griffin, Jr., General Counsel, Jennifer

Abruzzo, Deputy General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, and Robert J. Englehart, Supervisory

Attorney.

Before: KAVANAUGH and WILKINS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Petitioners Natalie Ruisi

and Michael Peluso (“Petitioners”) were employees of Host

International (“the Company”), which had a collective

bargaining agreement with the Local Joint Executive Board of

Las Vegas, representing the Culinary Workers Union, Local

226, and the Bartenders Union, Local 165 (“Union”). Ruisi and

Peluso signed Union dues-checkoff authorizations in 2004 and

2007, respectively, but they sought to revoke their

authorizations in 2013. In order to do this, Ruisi and Peluso

were required to submit written requests within 15 days of the

anniversary of the dates when they signed the authorizations.

Ruisi called the Union to find out the “Anniversary Dates” for

herself and Peluso. She was told that the requests needed to be

submitted in writing. She and Peluso then filed unfair labor

practice charges with the National Labor Relations Board

(“NLRB” or “the Board”), and the Board’s General Counsel

issued a complaint against the Union alleging multiple

violations of Section 8(b)(1)(A) of the National Labor

Relations Act (“the Act”), 29 U.S.C. § 158(b)(1)(A). The

Board found one violation and dismissed the remaining

charges.

In their petition for review, Ruisi and Peluso contend that

the NLRB erred in holding the Union did not violate its duty of

fair representation when it declined to provide them with their

Anniversary Dates over the telephone. They argue that “the

Union violated its duty of fair representation because its actions

were arbitrary, in bad faith, and discriminatory.” Br. of Pet’rs

at 10. In particular, they assert that a “Union cannot refuse to

provide employees with easily accessible, time-sensitive

information, over the telephone that is necessary to comply

with the Union’s self-imposed revocation procedure.” Id.

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The Board, in turn, says that, “applying the accepted duty-

of-fair-representation standard for determining whether

internal union policies are unlawfully arbitrary, [it] reasonably

found that the Union’s policy was not so far outside a wide

range of reasonableness as to be irrational.” Bd. Br. at 10.

“Indeed, as the Board recognized in assessing the Union’s

policy, when . . . employee[s] request[] their authorization

date[s] from the Union, the Union has a need to ensure that it

provides the correct employee with the correct information.

Requiring that the request be in writing allows the Union to

properly verify the request and authenticate the date before

divulging it.” Id.

On the record before us, we hold that the Board reasonably

concluded that the Union’s disputed policy was not arbitrary.

The Board also reasonably found that the Union neither

discriminated against Ruisi and Peluso, nor acted in bad faith

in requiring the employees to submit written requests in order

to receive their authorization dates. Therefore, the Board did

not err in concluding that the Union did not breach its duty of

fair representation. Accordingly, we deny the petition for

review.

I. Background

As noted above, Petitioners decided to resign their Union

memberships and revoke their dues-checkoff authorizations in

2013. Pursuant to established Union rules, Union members

could revoke their dues check-off authorization “by sending

written notice to both the Employer and the Union . . . during a

period of fifteen (15) days immediately succeeding” a

member’s Anniversary Date. Joint Appendix (“JA”) 217. The

Union stores paper copies of each member’s dated dues-

checkoff card, and also has some electronic copies scanned into

its database. The Union also sends copies of employee dues

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check-off authorizations to the Company’s payroll department.

If a Union member does not recall her Anniversary Date, she

may request the information from either the Union or the

employer.

When Ruisi telephoned the Union to find out the

Anniversary Dates for both herself and Peluso, she was told by

Wanda Henry, the Director of Operations, that the Union does

not provide that information over the telephone. Henry

informed Ruisi that she and Peluso could either submit a

written request for the dates or contact the Company’s payroll

department. Petitioners then called the payroll department, but

it provided them with the wrong dates, informing Ruisi and

Peluso that their Anniversary Dates were August 16 and March

8, respectively.

Based on this information, Peluso mailed his written

withdrawal to the Union on February 20, 2014. Unbeknownst

to him, his actual Anniversary Date was February 5, so he had

mailed his letter on the last day of his fifteen-day revocation

period. The Union determined, however, that Peluso’s

withdrawal was one day too late. On February 25, Henry called

Ruisi, whom Peluso had authorized to speak for him. Henry

informed Ruisi of Peluso’s actual Anniversary Date, and told

her that Peluso’s attempted withdrawal was untimely. Between

March 3 and June 23, 2014, Henry also mailed Peluso multiple

letters containing an explanation of this rejection and a copy of

his dues-checkoff card.

Petitioners then filed unfair labor practice charges with the

Board. The General Counsel issued a complaint against the

Union, alleging that it had unlawfully failed to honor Peluso’s

timely withdrawal, refused to provide Petitioners with their

Anniversary Dates, delegated to the Company the task of

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providing this information, and provided the Petitioners with

the wrong Anniversary Dates.

A hearing was held before an Administrative Law Judge

(“ALJ”). The ALJ recommended sustaining only the charge

that the Union had unlawfully refused to honor Peluso’s

withdrawal by miscalculating the applicable revocation period.

Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union,

Local 226, & Bartenders Union, Local 165 (“Local Joint

Executive Board”), 363 NLRB No. 33, at 5 (2015). The ALJ

found no merit in the remaining charges and recommended that

they be dismissed. With regard to the allegation that the Union

violated its duty of fair representation when it refused to

provide Petitioners with their Anniversary Dates over the

telephone, the ALJ determined that the Union’s requirement

that such requests be in writing was not “arbitrary,” and

therefore unlawful, because it was not “so far outside ‘a wide

range of reasonableness’ to be irrational.” Id. (quoting Mail

Handlers Local 307, 339 NLRB 93 (2003)). The ALJ also

found that Henry had not deliberately frustrated Petitioners’

attempts to leave the Union, and made a point to distinguish the

facts in this case from those in Electrical Workers, Local 66,

262 NLRB 483 (1982).

The Board adopted the ALJ’s rulings, findings, and

conclusions. Local Joint Exec. Bd., 363 NLRB No. 33, at 1. It

agreed that the Union’s refusal to provide Anniversary Dates

absent a written request did not violate the duty of fair

representation, and additionally stated that this conclusion was

consistent with Board precedent. Id. at 1 n.1.

Ruisi and Peluso then filed this petition for review,

challenging only the Board’s finding that the Union’s

requirement that Anniversary Date requests be made in writing

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does not violate the duty of fair representation. We have

jurisdiction to decide this case pursuant to 29 U.S.C. § 160(f).

II. Analysis

A. Standard of Review

Our role in reviewing a decision of the NLRB is limited.

“We will uphold the Board’s dismissal of an unfair labor

practice charge ‘unless its findings are unsupported by

substantial evidence in the record considered as a whole, or

unless the Board acted arbitrarily or otherwise erred in

applying established law to facts.’” United Food and

Commercial Workers Union Local 204 v. NLRB, 506 F.3d

1078, 1080 (D.C. Cir. 2007) (quoting Gen. Elec. Co. v. NLRB,

117 F.3d 627, 630 (D.C. Cir. 1997)) (internal quotation marks

omitted). Substantial evidence requires enough “relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Micro Pac. Dev. Inc. v. NLRB, 178 F.3d

1325, 1329 (D.C. Cir. 1999) (citation omitted).

Under this deferential standard of review, we will reverse

the Board “only when the record is so compelling that no

reasonable factfinder could fail to find to the contrary.” Bally’s

Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)

(quoting United Steelworkers of Am. v. NLRB, 983 F.2d 240,

244 (D.C. Cir. 1993)) (quotation marks omitted). Finally,

“[w]here, as here, the Board adopts the ALJ’s findings and

conclusions as its own, we apply the same deferential standard

to those findings and conclusions.” Weigand v. NLRB, 783 F.3d

889, 895 (D.C. Cir. 2015).

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B. The Union Did Not Violate Its Duty of Fair

Representation

The duty of fair representation is not found in any express

provision of the NLRA, but is instead a judicially-created

doctrine which derives from a union’s status under Section 9(a)

of the Act as the exclusive bargaining representative of a unit

of employees. See 29 U.S.C. § 159(a); Marquez v. Screen

Actors Guild, 525 U.S. 33, 44 (1998). The core requirement of

the duty of fair representation is that a union must “represent

all members fairly.” Marquez, 525 U.S. at 44. The duty of fair

representation was first articulated in a case involving a charge

of race discrimination against a union. See Steele v. Louisville

& Nashville R.R. Co., 323 U.S. 192 (1944). However, the duty

“has grown enormously in scope since 1944 . . . from avoiding

racial discrimination to providing daily representation.” Int’l

Union of the United Ass’n of Journeymen & Apprentices of the

Plumbing & Pipefitting Indus. v. NLRB, 675 F.2d 1257, 1264

(D.C. Cir. 1982).

A union breaches its duty of fair representation when it

engages in conduct towards a member that is “arbitrary,

discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,

190 (1967). “Arbitrary,” “discriminatory,” and “bad faith” are

separate prongs of the duty of fair representation, each

requiring independent analysis. Crider v. Spectrulite

Consortium, Inc., 130 F.3d 1238, 1243 (7th Cir. 1997) (stating

that each prong must be individually assessed); see Marquez,

525 U.S. at 44 (reaffirming this tripartite standard). Parties who

seek to prove a breach of the duty of fair representation bear a

heavy burden. Petitioners concede this. See Br. of Pet’rs at 24–

26 (discussing “bad faith” and “discriminatory” tests); Oral

Arg. at 3:37–4:10 (counsel for Petitioners conceding that the

“arbitrary” test is difficult to meet).

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In this case, Petitioners invoke all three prongs of the duty

of fair representation. They contend that the Union’s policy of

refusing to provide Anniversary Dates absent a written request

is arbitrary, unlawfully discriminates against employees who

wish to leave the Union, and reflects bad faith on the part of

Union officials whose aim is to complicate the withdrawal

process in order to prevent employees from revoking their

memberships. We find no merit in these claims.

1. The Union’s policy is not arbitrary

Petitioners’ principal claim is that the Union violated the

duty of fair representation because its policy of providing

Anniversary Dates only after receiving a written request is

arbitrary. This claim fails. “[A] union’s actions are arbitrary

only if, in light of the factual and legal landscape at the time of

the union’s actions, the union’s behavior is so far outside a

wide range of reasonableness as to be irrational.” Air Line

Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (citation

and quotation marks omitted); accord Mail Handlers Local

307, 339 NLRB at 93. To survive an arbitrariness challenge, a

union need not “prove ‘that the choices it makes are better or

more logical than other possibilities,’ but, instead, that the

union ‘act[s] on the basis of relevant considerations,’ not

arbitrary ones.” Thomas v. NLRB, 213 F.3d 651, 656 (D.C. Cir.

2000) (quoting Reading Anthracite Co., 326 NLRB 1370, 1370

(1998)). Petitioners do not come close to showing that the

Union violated its duty of fair representation in this case.

The ALJ credited the testimony of Henry, who explained

that she follows a standard procedure in refusing to give out

Anniversary Dates over the telephone. Henry advises members

to send in written requests or contact their employer’s payroll

department. The ALJ further determined that Henry followed

this procedure when she spoke with Ruisi. The Board adopted

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the ALJ’s findings and conclusions on this point. Local Joint

Exec. Bd., 363 NLRB No. 33, at 1 n.1. Taken as a whole, the

Board’s decision (including its adoption of the ALJ’s findings

and conclusions) may be fairly read to hold that the

Anniversary Date policy was justified on the basis of the

Union’s legitimate concerns over member privacy and

administrative efficiency. The Board also correctly found that

the Union policy was supported by established precedent.

The Union considers an employee’s Anniversary Date to

be “confidential,” because it is specific to that worker and

tracks with the important right to withdraw from the Union. See

JA 47; Local Joint Exec Bd., 363 NLRB No. 33, at 4.

Therefore, out of concern for the privacy of its members, the

Union requires them to request Anniversary Dates in writing.

Henry testified that she instructs employees to include

identifying information in their written requests, such as their

name and social security number, so that she is able to ensure

that only the correct employee receives this information. It can

hardly be doubted that the Union has a legitimate interest in

verifying the identity of the requestor of such information.

Furthermore, the record shows that the Union’s policy

allows it to efficiently organize and respond to Anniversary

Date requests. As the Board noted, at the time of this dispute

the Union had approximately 50,000 members, and Henry

received, on average, three to four phone calls each day

regarding membership withdrawals. Henry explained that

responding to Anniversary Date requests could be time-

consuming because that information is not always readily and

accurately available. While the Union had some electronic

scans of dues-checkoff cards, Henry had found those records

sometimes contained errors or were incomplete. Therefore, the

only way for Henry to ensure that the Union was properly

conveying accurate information to its members was by

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searching the Union’s paper filing system in order to find a

member’s original dues-checkoff card. The Union’s policy thus

enables it to respond to its members in a responsible fashion. It

certainly does not reflect an arbitrary administration of Union

affairs.

In rejecting Petitioners’ claim, the Board said: “We agree

with the [ALJ’s] finding that the Respondent’s action was not

“so far outside ‘a wide range of reasonableness’ as to be

irrational.” Local Joint Exec. Bd., 363 NLRB No. 33, at 1

n. 1 (citing Mail Handlers Local 307, 339 NLRB at 93). The

Board further noted:

Other Board precedent also supports the judge’s

conclusion. See Postal Service, 302 NLRB 701, 702

(1991) (finding union did not violate Sec. 8(b)(1)(A)

when it responded to member’s request for

anniversary dates of dues-checkoff authorizations by

informing employee that standard procedure for

obtaining those dates was to submit written

revocation form); see also Boston Gas Co., 130

NLRB 1230, 1231 (1961) (contract clause requiring

written notice of revocation of dues-checkoff

authorizations to both employer and union not so

unduly burdensome as to effectively preclude

employees from revoking dues assignment).

Id. The Board’s reasoning and the authority upon which it

relies are compelling.

Petitioners argue that the Board’s decision is shortsighted

and unreasonable because it fails to take account of the “time-

sensitive” nature of the information in question. Br. of Pet’rs at

10–11. This argument makes little sense, however, because

even if the Union was required to disclose information over the

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telephone, some employees would still miss the fifteen-day

cut-off date if they called too late.

Petitioners also point to some Board decisions which they

claim stand for the proposition that a union violates the duty of

fair representation if it fails to provide employees with

information upon request. But these cases are inapposite

because they involve situations in which unions entirely

refused to share information. E.g., Branch 529, Nat’l Ass’n of

Letter Carriers, 319 NLRB 879, 880–81 (1995) (union refused

to provide copies of a member’s grievance forms); Law Enf’t

& Sec. Officers, Local 40B, 260 NLRB 419, 420 (1982) (union

refused to share relevant collective bargaining agreement and

health and welfare plan documents). The Union here did not

tell Petitioners that it would not disclose their Anniversary

Dates. Rather, the Union simply required employees to submit

their requests in writing. And the Union readily disclosed

Peluso’s Anniversary Date once he submitted a written request.

The Union’s policy may be annoying to some, but it certainly

cannot be seen to violate the duty of fair representation.

Petitioners cite Hughes Aircraft Co., 164 NLRB 76 (1967),

in support of their claim that a union has an affirmative “duty

to divulge information it has easy access to.” Br. of Pet’rs at

20–21. Petitioners say that Henry violated this duty because she

could have quickly and easily accessed Petitioners’

Anniversary Dates on her computer. This claim fails. In

Hughes Aircraft, the Board found that the employer and the

union violated the Act by giving an employee incorrect

information about the time period in which he could revoke his

dues-checkoff authorization. 164 NLRB at 77–79. In this case,

the record clearly shows that the Union’s policy was designed

to protect the privacy of employees and to ensure that

employees who submitted written requests received accurate

information from the Union. Henry explained that Anniversary

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Dates were not always easily and accurately accessible by

computer. Therefore, once Henry received a written request,

she searched hard copy records to be sure that the employee

was given accurate information. That is exactly what happened

here. Upon receiving Peluso’s written revocation, Henry found

his dated paper dues-checkoff card and made sure he received

a copy. The decision in Hughes Aircraft is thus inapposite.

In light of the Union’s legitimate concerns over privacy

and efficiency, and under established Board precedent and case

law, it is clear that the Union’s policy is not “so far outside a

‘wide range of reasonableness’ as to be irrational.” O’Neill,

499 U.S. at 67 (citation omitted).

2. The Union’s policy is not discriminatory

Petitioners further contend that the Union’s policy violates

the duty of fair representation because it discriminates against

those who wish to leave the Union. The Supreme Court has

explained that the duty of fair representation bars only

“invidious” discrimination. Id. at 81. Proving such

discrimination requires “substantial evidence of discrimination

that is intentional, severe, and unrelated to legitimate union

objectives.” Amalgamated Ass’n of St., Elec. Ry. & Motor

Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971).

In assessing whether a union has violated the discrimination

prong of the duty of fair representation, courts look to the

union’s subjective motivations. See Simo v. Union of

Needletrades, Indus. & Textile Emps., 322 F.3d 602, 618 (9th

Cir. 2003) (quoting Crider, 130 F.3d at 1243).

Petitioners’ allegation is completely without merit because

there is nothing in the record to support it. The record indicates

that the Union treats all members the same with regard to

Anniversary Date requests and Petitioners cite nothing to refute

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this. The policy is related to the “legitimate union objectives”

of safeguarding members’ privacy and operating in an efficient

manner. See Lockridge, 403 U.S. at 301. And there is no

indication whatsoever that the Union bore any animosity

towards Petitioners or others who wished to revoke their dues-

checkoff authorizations. Because Petitioners are unable to

point to any evidence of unlawful discrimination, much less

“substantial evidence” of “intentional [and] severe”

discrimination, we reject their claim. See id.

3. There is no evidence that the Union acted in bad faith

Finally, Petitioners claim that the Union violated the duty

of fair representation by acting in bad faith. A union commits

a bad faith violation of the duty of fair representation when it

engages in “fraud, or deceitful or dishonest action.” Int’l Union

of Elec., Elec., Salaried, Mach. & Furniture Workers v. NLRB,

41 F.3d 1532, 1537 (D.C. Cir. 1994) (citation omitted). This is

a “demanding standard . . . requiring a union’s actions toward

unit employees to be sufficiently egregious or so intentionally

misleading [as] to be invidious.” Id. (quotation marks and

citation omitted).

There is not a shred of evidence in the record indicating

“egregious,” “deceitful,” or “misleading” conduct by the

Union. To the contrary, the record shows that Henry acted in

good faith in her dealings with Ruisi and Peluso. The ALJ

determined that Henry did not treat Ruisi with disrespect in

their initial phone conversation, but simply explained to her

that she and Peluso could secure their Anniversary Dates by

sending in a written request to the Union or contacting the

Company’s payroll department. And after Peluso submitted his

written revocation on February 20, 2014, Henry responded to

him in a timely and diligent manner. She called him on

February 25, and sent him a copy of his dues-checkoff card via

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certified mail on March 3. That letter was returned, so Henry

sent another on March 12. When that letter also failed to reach

Peluso, Henry sent two more in order to ensure he received a

copy of his dues-checkoff card.

The Board properly determined that the facts in this case

are readily distinguishable from those in Electrical Workers,

Local 66, 262 NLRB 483. There, a union official repeatedly

refused to allow a member to revoke his membership, and also

verbally abused him. See id. at 484. Henry did not engage in

any such behavior.

Because the record is clear that the Union did not act in

bad faith, we reject Petitioners’ claim that it violated this aspect

of the duty of fair representation.

C. There Is No Good Reason to Remand This Case to the

Board

Finally, we reject Petitioners’ assertion that the Board’s

Decision was devoid of reasoning or citations to applicable

law, and therefore should, at a minimum, be remanded for

further consideration and explanation. In holding that the

Union did not violate the duty of fair representation, the Board

adopted the ALJ’s discussion of and reliance on the Union’s

privacy and efficiency concerns, and on the ALJ’s application

of the law. In addition, the Board cited relevant precedent to

support its determination that the Union’s Anniversary Date

policy was not unlawful. Based on the Union’s legitimate

concerns and the established case law, this was a

straightforward decision that did not require more analysis.

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III. Conclusion

For the reasons stated above, we deny the petition for

review.