Local 58, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2018 Decided May 8, 2018

No. 17-1058

LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS (IBEW), AFL-CIO,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

RYAN GREENE,

INTERVENOR

Consolidated with 17-1108

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.

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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 for the Court filed by Circuit Judge ROGERS.

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.

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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 “also . . . 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

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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

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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 directed Local 58 to

rescind the policy and post a remedial notice. Local 58

petitions for review.

II.

Local 58 challenges the Board’s decision as erroneously

disregarding the long-established distinction between union

policies that restrict members’ statutory rights and those that

impose procedural or ministerial requirements to validate

resignation, which are not categorically impermissible and

whose burden on members’ rights the Board will balance

against the union’s reason for adopting the policy. Local 58

points to Board precedent striking down union rules that

temporally restrict resignation to a 30-day notice period or

prohibit resignation during a strike, Bricklayers Local 17 (Cal.

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Tile Co.), 271 NLRB 1571, 1571 (1984), Machinists Local

1414 (Neufeld Porsche-Audi, Inc.), 270 NLRB 1330, 1334

(1984), while ruling permissible a union rule that set

administrative or ministerial requirements, such as requiring a

writing stating the members’ intent to be sent to a designated

union officer, UAW, Local 148 (Douglas Aircraft Co.), 296

NLRB 970, 971 (1989); Telephone Traffic Union Local 212

(New York Telephone Co.), 278 NLRB 998, 998 n.1 (1986).

Based on these precedents, Local 58 maintains that the Board’s

conclusion that its policy, on its face, impermissibly restricts

resignation ignores both the actual text of the policy as well as

decades of labor law distinguishing between union rules that

circumscribe a member’s right to resign at a particular time or

punish a member for resigning and policies that provide for a

procedure necessary to ensure the authenticity of a resignation.

The Board possesses “special competence in the field of

labor relations” and is charged with “the primary responsibility

for applying the general provisions of the [NLRA] to the

complexities of industrial life.” Pattern Makers’ League of N.

Am. v. NLRB, 473 U.S. 95, 100, 114 (1985) (internal quotations

and citations omitted). Its interpretation of the NLRA is

entitled to “substantial deference” and must be upheld if

reasonable, even if a reviewing court “might prefer another

view of the statute.” Id. (internal quotations and citations

omitted); accord Ford Motor Co. v. NLRB, 441 U.S. 488, 497

(1979). This court will therefore “abide [by the Board’s]

interpretation . . . if it is reasonable and consistent with

controlling precedent.” Brockton Hosp. v. NLRB, 294 F.3d

100, 103 (D.C. Cir. 2002) (citing Local 702, Int’l Bhd. of Elec.

Workers v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000)). Indeed,

the court recognizes that the tendency of a particular union rule

to restrain or coerce employees is a matter “for the expertise of

the Board.” Intern. Union of Elevator Constructors Local

Union No. 8 v. NLRB, 665 F.2d 376, 382 (D.C. Cir. 1981).

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In Scofield v. NLRB, 394 U.S. 423, 429 (1969), the

Supreme Court interpreted the NLRA to distinguish between

lawful and unlawful union rules, holding union rules that

“invade[] or frustrate[] an overriding policy of the labor laws”

are impermissible without regard to the union interest

prompting their promulgation. Section 8 of the NLRA only

“leaves a union free to enforce a properly adopted rule which

reflects a legitimate union interest, impairs no policy Congress

has imbedded in the labor laws, and is reasonably enforced

against union members who are free to leave the union and

escape the rule.” Id. at 430. The Board, in turn, has concluded

that “restrictions on resignations impair the fundamental

policies found in the express language and consistent

interpretation of Section 7.” Neufeld Porsche-Audi, 270 NLRB

at 1333. The Board thus reasonably interprets the NLRA to

prohibit categorically union policies that “delay or otherwise

impede” a member’s right to resign or revoke. Id.; see Pattern

Makers’ League, 473 U.S. at 104-05.

The Board concluded Local 58’s policy was, on its face,

an impermissible restriction on members’ Section 7 rights to

resign. The policy requires members, regardless of where they

live or work, to visit the Union Hall in person. Together, the

Board found, “the combined ‘in person’ and ‘picture

identification’ requirements” were tantamount to a restriction

on resignation inasmuch as the policy would “burden”

members who live or work some distance from the Union Hall,

“surely cost[ing] them time and money.” Dec. at 3. The in-

person requirement would also be burdensome for “resigning

members who wished to avoid a face-to-face encounter with a

union representative,” and, in the Board’s view, “the prospect

of such face-to-face encounters could present a particularly

significant impediment for members who wish to resign during

a strike or lockout.” Id. Requiring members to present photo

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identification erects another hurdle for any member who lacks

such identification and must acquire it, if the member can. Id.

The Board distinguished Auto Workers Local 148 (McDonnell-

Douglas), 296 NLRB 970, 971 (1989), where it found

permissible union rules requiring a member wishing to resign

to put his resignation in writing and send it to a designated

union officer, Dec. at 3 & n. 11, on the ground that Local 58’s

“policy . . . demands far more of union members than our

decisions permit” because it places a “significant burden” on

union members, id. The Board observed that there was no

evidence Local 58 itself had experienced the type of fraud that

prompted Richard to issue the policy.

Further, the Board concluded that the undue hardship

alternative in the 2014 policy was insufficient to render the

policy permissible because it was unacceptably ambiguous.

The text “create[d] uncertainty about whether unfettered access

to resignation will be granted at all if a member is unable to

negotiate other arrangements . . . to the satisfaction of [Local

58].” Dec. at 3 (italics in original). It was also “silent about

what such ‘other arrangements’ might be or how [Local 58]

will exercise its apparent discretion to determine whether the

arrangements are sufficient.” Id. The Board has forewarned

that “[i]mpressions created by ambiguous union rules . . . may

themselves coerce employees in violation of Section 8 of the

[NLRA].” Intern. Union of Elevator Constructors, Local

Union No. 8, 665 F.2d at 382 (citation omitted). Although the

dissenting Member interpreted Local 58’s policy to allow its

members to determine what constitutes a hardship and what

other arrangements might be sufficient, see Dis. Op. at 7, the

Board persuasively responded that “[a]t a minimum, the policy

— as a rule adopted by and imposed on members — can

reasonably be interpreted to give ultimate authority to [Local

58].” Dec. at 3 n.10.

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Still, Local 58 objects to the Board’s evaluation of its

policy because, in addition to the fraud concerns identified at

the hearing, the Board failed to give appropriate weight to the

difficult practical position it faced. As Local 58’s counsel

indicated, requiring a writing to verify resignation or

revocation may not suffice. For instance, the author of such a

writing could fraudulently assume another member’s identity

and resign in his name. A member might notice that union dues

had ceased being deducted from his or her paycheck and re-

join the union, but that member may not be aware of the impact

that even a short break in membership would have on his or her

pension, preventing collection of any benefit. See Oral Arg.

8:24. Similar fraudulent resignations could be used to alter the

voting pool ahead of an election. See Oral Arg. 9:08.

Implicit in Local 58’s position is that the Board was

required to weigh its interests before determining whether its

policy was an invalid restriction on members’ Section 7 rights.

The Board never reached the question of whether limiting

Local 58 to requiring a writing to verify resignation or

revocation would be insufficient to vindicate Local 58’s

concerns. Nor was it required to do so upon concluding that

the policy was facially invalid. Where the Board reasonably

construed its precedents in concluding Local 58’s policy

restricted members’ rights to resign, it was not required under

Scofield to weigh Local 58’s interest. See Scofield, 394 U.S. at

429-30. The court has no occasion to decide whether, had there

been evidence proffered of “instances of fraud” among Local

58’s members, the Board could reasonably have invoked

Scofield’s “impairment” standard without balancing a union’s

interest as shown by an evidentiary record. Here, the Board

concluded simply that, on the record before it, requiring

physical presence with photo identification was unduly

burdensome.

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In concluding the Board’s decision that Local 58’s policy

was facially invalid was reasonable, the court rests in part on

the Board’s reaffirmation of its precedent that not every

procedural requirement will unlawfully burden members’

Section 7 rights. Dec. at 3. Contrary to the statements in Local

58’s brief, Pet’r’s Br. 5, 31-32, the Board expressly preserved

a union’s ability to impose ministerial requirements on the

resignation process. “Certainly, a union member who wishes

to resign can be required to take minimal affirmative steps to

effectively communicate his intention to the union, such as

putting the resignation in writing and sending it to a designated

union officer.” Dec. at 3 & n.11 (citing McDonnell-Douglas,

296 NLRB at 971). The Board has not foreclosed Local 58

from requiring other means of verifying identification to

vindicate its antifraud interests. Nor did the Board foreclose

Local 58 from promulgating a substantially similar policy that

included a description of acceptable alternative arrangements

in the event of undue hardship. Technology may provide

alternatives even as may more prosaic means; here, for

example, Local 58 was able to verify Ryan Greene’s

resignation by telephone without requiring his physical

presence at the Union Hall.

For reasons discussed, the Board reasonably concluded

that Local 58’s policy impermissibly restricts members’ rights

to revoke their dues-deduction authorizations. The Board

relied on Newport News Shipbuilding and Dry Dock Co., 253

NLRB 721, 731-32 (1980), enf’d sub nom. Peninsula

Shipbuilders’ Ass’n v. NLRB, 663 F.2d 488 (4th Cir. 1981).

There, the Board had concluded that “a requirement that

employees appear in person at a union hall in order to revoke

checkoff would impose, inherently, an unconscionable

impediment to the free choice conferred by [LMRA] Section

302(c)(4).” Id. Here, the Board concluded that, “[a]s

explained,” the undue hardship provision in Local 58’s policy

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“is insufficient to mitigate the burden imposed by the policy.”

Dec. at 4. Again, the Board did not foreclose the possibility

that Local 58 could identify acceptable alternatives in the event

of undue hardship. The court, therefore, has no need to reach

the Board’s conclusion that the policy represents a unilateral

modification by the union of the dues-deduction agreements

without individual employees’ consent.

Accordingly, we deny the petition for review and grant the

Board’s cross-application for enforcement of its Order.