Laborers' Local 980 (Tutor-Perini) (05-CB-229670)

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bargaining agreement between my Employer and the Union,

whichever occur s sooner. For the effective period of this checkoff

authorization and assignment, I hereby waive any right I may have to

resign my union membership. Furthermore, this checkoff authorization

shall continue in accordance with the above renewal and revocation

provisions irrespective of my membership in the Union.1

Virginia has a right-to-work statute that prohibits the inclusion of a union-security

clause in collective-bargaining agreements.2

On October 4, 2018, the Charging Party sent the Union a letter to resign

membership in the Union and to revoke

dues authorization form.3 The Union

promptly accepted the Charging Party’s timely resignation and notified the Employer

to stop deducting and remitting dues. Beginning October 7, 2018, the Employer no

longer deducted dues from the Charging Party’s paycheck.

ACTION

We conclude that the Union violated Section 8(b)(1)(A) by maintaining the

provision because it unlawfully requires unit employees to agree to an undue

restriction on their right to resign membership, and imposes the restriction when they

may only want to waive their distinct right to cease dues checkoff.4

Section 8(b)(1)(A) provides that a union commits an unfair labor practice if it

“restrain[s] or coerce[s] employees in the exercise” of their Section 7 rights, which

1 Emphasis added.

2 See generally Va. Code Ann. §40.1-58 (2019).

3 The Region should determine whether the Union provides an alternative means,

other than its dues checkoff authorization form, for employees to become Union

members, and whether the Charging Party became a member through means other

than by signing this form

n the exercise” of their Section 7 rights, which

1 Emphasis added.

2 See generally Va. Code Ann. §40.1-58 (2019).

3 The Region should determine whether the Union provides an alternative means,

other than its dues checkoff authorization form, for employees to become Union

members, and whether the Charging Party became a member through means other

than by signing this form.

4 If the Region determines that the Union applied the challenged provision in its dues

checkoff authorizations to establish the Charging Party’s Union membership in the

first place, and/or that it routinely uses the form for that purpose, the Region should

allege that as an independent violation of Section 8(b)(1)(A). See cases cited in note

18, below.

(b) (6), (b) (7)

(b) (6), (b) (7)(

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include the right to refrain from joining or assisting labor organizations.5 In

interpreting that statutory provision, the Board has held that unions cannot

unilaterally place any meaningful restrictions on the right of their members to resign

from union membership because, among other reasons, “when a union seeks to delay

or impede a member’s resignation, it directly impairs the employees’ Section 7 right to

resign or otherwise refrain from union or other concerted activities.”6 In Pattern

Makers’ League v. NLRB, the Supreme Court upheld the Board’s interpretation of

Section 8(b)(1)(A) and agreed that the policy of “voluntary unionism” underlying the

Act prohibits internal union rules restricting a member’s right to resign.7

Subsequently, the Board consistently has found that unions violate Section 8(b)(1)(A)

by maintaining constitutional provisions, bylaws, and other internal rules impeding

employees’ right to resign because they unlawfully coerce employee support for a

union.8

Although the Board has consistently held that a union may not lawfully impose

unilateral restrictions on employees’ Section 7 right to resign their union

5 See, e.g., Pa

s violate Section 8(b)(1)(A)

by maintaining constitutional provisions, bylaws, and other internal rules impeding

employees’ right to resign because they unlawfully coerce employee support for a

union.8

Although the Board has consistently held that a union may not lawfully impose

unilateral restrictions on employees’ Section 7 right to resign their union

5 See, e.g., Pattern Makers’ League v. NLRB, 473 U.S. 95, 100–01 (1985) (upholding

Board’s decision that employees have a fundamental right under Section 7 to resign

their union membership at any time, and that Section 8(b)(1)(A) prohibits unions

from unilaterally placing any substantive restrictions on that right).

6 Electrical Workers IBEW Local 58 (Paramount Industries), 365 NLRB No. 30, slip

op. at 2 (Feb. 10, 2017) (quoting Machinists Local 1414 (Neufeld Porsche-Audi), 270

NLRB 1330, 1333 (1984), approved by Pattern Makers’ League v. NLRB, 473 U.S. at

103 & n.13, 104-05)), enforced, 888 F.3d 1313 (D.C. Cir. 2018). See also Sheet Metal

Workers Local 73 (Safe Air), 274 NLRB 374, 375 (1985) (clarifying that Neufeld

Porsche-Audi was “not meant to be limited to restrictions on resignation during a

strike or lockout,” but applied to “any restrictions”), enforced, 840 F.2d 501 (7th Cir.

1988).

7 See Pattern Makers’ League v. NLRB, 473 U.S. at 104–05.

8 See, e.g., Electrical Workers IBEW Local 58 (Paramount Industries), 365 NLRB

No. 30, slip op. at 2 (finding union violated Section 8(b)(1)(A) by maintaining newly-

announced resignation policy requiring members either to present written

resignations in-person with photo identification at the union’s hall or make other

arrangements to verify their identity because policy imposed an unlawful restriction

on their right to resign union membership). Cf

Industries), 365 NLRB

No. 30, slip op. at 2 (finding union violated Section 8(b)(1)(A) by maintaining newly-

announced resignation policy requiring members either to present written

resignations in-person with photo identification at the union’s hall or make other

arrangements to verify their identity because policy imposed an unlawful restriction

on their right to resign union membership). Cf. Auto Workers Local 148 (McDonnell-

Douglas), 296 NLRB 970, 971 (1989) (union may lawfully require a member who

wishes to resign to put the resignation in writing and send it to a designated union

officer)

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membership, it has not directly resolved whether employees may voluntarily waive

their right to resign from a union by individual agreement.9 Assuming that employees

may do so, the Act’s policy of “voluntary unionism” recognized in Pattern Makers’

directs that unions cannot place too great a restriction on the ability of employees to

revoke such waivers.10 The Union’s policy here, which waives an employee’s right to

resign in perpetuity subject to short window periods, represents an undue restriction

that is inconsistent with voluntary unionism. Indeed, the Board has held that unions

have violated Section 8(b)(1)(A) by maintaining constitutional provisions that permit

membership resignations only during a window period.11 It also has held that unions

violate Section 8(b)(1)(A) by maintaining voluntary agreements of short duration that

do not permit employees to escape them and exercise their right to resign from union

membership.12

The Union here attempts to make its waiver policy appear reasonable by linking

it to the procedure for revoking dues checkoff authorizations. But the Board has made

9 Compare Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302

NLRB 322, 328 n.25 (1991) (“we need not, and do not, decide whether or not an

employee may . .

o resign from union

membership.12

The Union here attempts to make its waiver policy appear reasonable by linking

it to the procedure for revoking dues checkoff authorizations. But the Board has made

9 Compare Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302

NLRB 322, 328 n.25 (1991) (“we need not, and do not, decide whether or not an

employee may . . . agree to an enforceable waiver of the right to resign for a limited

period”), with Sheet Metal Workers Local 9 (Concord Metal), 297 NLRB 86, 89-90

(1989) (finding union violated Section 8(b)(1)(A) by maintaining and enforcing strike

support agreements that employees voluntarily entered because they restricted the

employees’ right to resign from the union and refrain from engaging in a strike; “even

a clear and unmistakable waiver will not be permitted, where the union has an

apparent self-interest in perpetuating itself” (quoting Sheet Metal Workers Local 29

(Metal-Fab), 222 NLRB 1156, 1160 (1976))).

10 See also Scofield v. NLRB, 394 U.S. 423, 430 (1969) (stating unions may lawfully

enforce an internal rule only when, among other things, union members are “free to

leave the union and escape the rule”).

11 See, e.g., Auto Workers Local 449 (National Metalcrafters), 283 NLRB 182, 182 n.1

(1987) (finding, among other things, provision in international union’s constitution

restricting submission of membership resignations to a ten-day period to violate

Section 8(b)(1)(A)), enforced in relevant part, 865 F.2d 791, 796-97 (6th Cir.), cert.

denied, 493 U.S. 818 (1989).

12 See Sheet Metal Workers Local 9 (Concord Metal), 297 NLRB at 90 (finding strike

support agreements that expired at end of year and were effective for only an eight-

week period unlawfully restricted the employees’ rights to resign and refrain from

engaging in a strike).

(A)), enforced in relevant part, 865 F.2d 791, 796-97 (6th Cir.), cert.

denied, 493 U.S. 818 (1989).

12 See Sheet Metal Workers Local 9 (Concord Metal), 297 NLRB at 90 (finding strike

support agreements that expired at end of year and were effective for only an eight-

week period unlawfully restricted the employees’ rights to resign and refrain from

engaging in a strike).

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clear that “paying dues and remaining a union member can be two distinct actions.”13

Section 302(c)(4) of the Act expressly permits employees to enter dues checkoff

authorizations by which they irrevocably assign the payment of union dues from an

employee’s wages for a period not to exceed one year.14 In interpreting Section

302(c)(4), the Board has held that it is lawful for a union to impose window period

requirements (at the end of that one year period), and to reject checkoff revocation

requests initiated outside those window periods.15 However, the framework that

Section 302(c)(4) establishes for waiving the right to refrain from assisting a union

through checkoff, and revoking such a waiver, is specifically for dues checkoff

authorizations and is not applicable to other Section 7 rights. In short, although

unions may utilize dues checkoff authorizations that automatically renew each year

absent employees revoking them during a window period, it does not follow that

unions can use the same device to lock employees into the waiver of other Section 7

rights.

Moreover, a union’s intertwining of dues checkoff and waiver of membership

resignation results in the latter not being voluntary

lthough

unions may utilize dues checkoff authorizations that automatically renew each year

absent employees revoking them during a window period, it does not follow that

unions can use the same device to lock employees into the waiver of other Section 7

rights.

Moreover, a union’s intertwining of dues checkoff and waiver of membership

resignation results in the latter not being voluntary. The Board has held that the

policy of “voluntary unionism” underlying the Act should generally inform the right of

employees to refrain from union activities.16 For example, in Electrical Workers Local

2088 (Lockheed Space Operations), the Board confronted whether an employee’s union

resignation also revoked his dues checkoff authorization where there was no

applicable union-security clause. The Board found the union’s continued retention of

13 See Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302 NLRB

at 328 (dues checkoff authorizations are not union-security devices because they do

not impose union membership or support as a condition required for continued

employment).

14 See 29 U.S.C. § 186(c)(4) (2012) (stating that employees’ written dues checkoff

authorizations “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”).

15 See, e.g., Smith’s Food & Drug Centers d/b/a Fry’s Food Stores, 366 NLRB No. 138,

slip op. at 2 (July 24, 2018) (“Pursuant to Section 302(c)(4), a union can limit

revocability of checkoff authorizations to window periods (1) at least once every year,

for example, around the anniversary of their signing, and (2) prior to the expiration of

the applicable collective-bargaining agreement.”).

16 See Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302 NLRB

at 328.

2018) (“Pursuant to Section 302(c)(4), a union can limit

revocability of checkoff authorizations to window periods (1) at least once every year,

for example, around the anniversary of their signing, and (2) prior to the expiration of

the applicable collective-bargaining agreement.”).

16 See Electrical Workers IBEW Local 2088 (Lockheed Space Operations), 302 NLRB

at 328.

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dues violated Section 8(b)(1)(A) because the dues checkoff authorization the employee

had signed did not clearly indicate that dues would continue to be deducted from his

paycheck post-resignation. Thus, he had not clearly and unmistakably waived the

right to refrain from supporting the union when he was neither a member nor

otherwise required to pay dues.17 And, if an employee not subject to a union-security

requirement did not explicitly agree to have dues deducted post-resignation, “then the

employee’s continued financial support of the union is not clearly ‘voluntary’” after

resignation.18

Applying these principles here, even assuming employees could voluntarily waive

the right to resign membership for some period of time, the Union violated Section

8(b)(1)(A) by imposing such a waiver on employees who may only have wanted to avail

themselves of the Union’s dues checkoff process. Because the waiver is inextricably

part of the Union’s dues checkoff authorization, employees are not voluntarily

agreeing to that waiver, which violates the policy of “voluntary unionism” underlying

the Act. Thus, employees with no union-security requirement, as is the case here, may

nevertheless desire to financially assist the union representing them but not subject

themselves to all the obligations attendant with full union membership

Union’s dues checkoff authorization, employees are not voluntarily

agreeing to that waiver, which violates the policy of “voluntary unionism” underlying

the Act. Thus, employees with no union-security requirement, as is the case here, may

nevertheless desire to financially assist the union representing them but not subject

themselves to all the obligations attendant with full union membership. By including

language in its dues checkoff authorization that restricts the right of signatory

employees to resign, the Union does not allow those employees who may only want to

financially assist the Union for its representational services to opt out of the

restriction on resignation from membership. In short, the Union cannot bootstrap the

resignation waiver into its dues checkoff authorization, and thereby make resignation

subject to the checkoff’s revocation window period, without violating the voluntariness

principle regarding union membership. By doing so, the Union is unlawfully coercing

employees into a larger commitment to the Union than they may have desired, which

violates Section 8(b)(1)(A).

17 Id. at 329.

18 Id. at 328. See also Bellkey Maintenance Co., 270 NLRB 1049, 1056 (1984) (finding

union violated Section 8(b)(1)(A) by requiring users of its exclusive hiring hall to sign

dues checkoff authorization forms, which also served as the referral slips). Cf.

Communications Workers Local 1101 (New York Telephone Co.), 281 NLRB 413, 413,

417 (1986) (finding union violated Section 8(b)(1)(A) by using dual purpose

membership-dues checkoff card as sole method by which employees could comply with

union-security clause).

ts exclusive hiring hall to sign

dues checkoff authorization forms, which also served as the referral slips). Cf.

Communications Workers Local 1101 (New York Telephone Co.), 281 NLRB 413, 413,

417 (1986) (finding union violated Section 8(b)(1)(A) by using dual purpose

membership-dues checkoff card as sole method by which employees could comply with

union-security clause).

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Accordingly, the Region should issue complaint, absent settlement, alleging that

the Union violated Section 8(b)(1)(A) based on the analysis above.19

/s/

J.L.S.

ADV.05-CB-229670.Response.LaborersLocal980.

19 The Region should also allege that the Union violated Section 8(b)(1)(A) by

maintaining dues checkoff authorizations that limit an employee’s right to revoke

that authorization at cessation of the contract term by imposing an earlier revocation

window period. See GC Memorandum 19-04, Unions’ Duty to Properly Notify

Employees of Their General Motors/Beck Rights and to Accept Dues Checkoff

Revocations after Contract Expiration, at Section II.A. (Feb. 22, 2019). With regard to

the alleged Section 8(b)(2) violation in the charge, because the Union granted the

Charging Party’s request to resign from the Union and revoke

dues checkoff

authorization and did not take any subsequent action to cause the Employer to

continue deducting dues from

paycheck, there is no basis for finding a

Section 8(b)(2) violation. See Electrical Workers IBEW Local 2088 (Lockheed Space

Operations), 302 NLRB at 330.

(b) (6), (b) (7

(b) (6), (b) (7)

(b) (6), (b