National Ass’n of Gov’t Employees, Local R14-139 (EDP Enterprises) (14-CB-227097)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE:

April 8, 2019

TO:

Leonard J. Perez, Regional Director

Region 14

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: National Association of Government

Employees, Local R14-139

(EDP Enterprises, Inc.)

Case 14-CB-227097

133-2575

536-5025-6700-0000

536-5025-8300-0000

The Region submitted this case for advice as to whether the Union violated

Section 8(b)(1)(A) of the Act by maintaining a provision in its Constitution and

Bylaws that requires members who believe their grievances have been mishandled to

first exhaust internal Union remedies before pursuing legal claims against the Union

in court or with an administrative agency. We initially conclude that the Union’s rule

is lawful under the Board’s recent decision in IATSE Local 151 (Freeman Decorating

Services).1 However, the Region should issue complaint, absent settlement, and urge

the Board to overturn that precedent because it is based on faulty legal premises. The

Region should ask the Board to find that the Union’s rule is per se unlawful because it

fails to explicitly refer to the four-month limitation for exhausting internal remedies

imposed by Section 101(a)(4) of the Labor Management Recording and Disclosures Act

(“LMRDA”). Absent that limiting language, employees would reasonably interpret the

rule as precluding them from filing a Board charge for the entire duration of the

Union’s internal appeal process, even if it extended beyond the six-month limitations

period for filing a charge.

FACTS

National Association of Government Employees Local R14-139 (“the Union”)

represents a bargaining unit of food service employees employed by EDP Enterprises

(“the Employer”) at Fort Leonard Wood, a United States Army training installation in

Missouri. In about

, the Employer hired the Charging Party, who

subsequently became a Union member

limitations

period for filing a charge.

FACTS

National Association of Government Employees Local R14-139 (“the Union”)

represents a bargaining unit of food service employees employed by EDP Enterprises

(“the Employer”) at Fort Leonard Wood, a United States Army training installation in

Missouri. In about

, the Employer hired the Charging Party, who

subsequently became a Union member. On

2018,2 the Employer terminated

1 364 NLRB No. 89 (Aug. 26, 2016).

2 All subsequent dates are in 2018.

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

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

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the Charging Party for alleged misconduct that occurred the previous day. The

Charging Party then contacted the Union’s recently elected

about

grieving the termination. On about August 14, the Charging Party learned that the

Union’s newly elected officers had failed to timely file a grievance regarding the

termination, and that the Employer would not waive the untimeliness of a grievance

as a defense. On September 6, the Charging Party filed the instant charge against the

Union alleging it had violated Section 8(b)(1)(A) by failing to timely file a grievance

over the termination.3

As part of its defense before the Region, the Union asserted that the Charging

Party did not have standing to file the instant charge because the Charging Party did

not first exhaust internal Union remedies. Article IV A of the Union’s Constitution

and Bylaws,4 which is entitled “The Handling of Grievances,” states in Section 3 that:

Local Unit members who believe their grievances have been

improperly handled by their Local Unit Grievance Committee or other

authorized local bargaining agent shall, without exception, employ the

remedies and procedures contained herein

st internal Union remedies. Article IV A of the Union’s Constitution

and Bylaws,4 which is entitled “The Handling of Grievances,” states in Section 3 that:

Local Unit members who believe their grievances have been

improperly handled by their Local Unit Grievance Committee or other

authorized local bargaining agent shall, without exception, employ the

remedies and procedures contained herein. Complainants shall not be

entitled to enforce or present his or her claims against the National

Union or its Local Unit subordinate in any court or other

administrative body without first exhausting these internal

procedures.5

Section 2 of the same article sets forth the appeal procedure that members must

follow if they disagree with how the Union processed their grievances. It states that

3 The Region has concluded that the Union’s failure to timely process the Charging

Party’s grievance violated Section 8(b)(1)(A).

4 The internal Union rules quoted and referred to in this memorandum are from the

National Union’s Constitution and Bylaws. That document states that affiliated

locals, such as the Union here, are required to adopt the National Union’s governing

documents as their own unless they follow a specified procedure for opting out. See

National Union’s Constitution and Bylaws, Article IV, Section 4 (“Each authorized

Local Unit shall adopt as its Constitution and By-Laws, the Constitution and By-

Laws of the National Association of Government Employees. . . .”). The Union has

cited to the National Union’s governing documents in defending against this charge,

and there is no evidence that the Union opted out and adopted different governing

documents.

5 In the National Union’s Constitution and Bylaws, the term “Local Unit” refers to the

various local unions. Thus, it is generally understood that this provision applies only

to Union members.

. .”). The Union has

cited to the National Union’s governing documents in defending against this charge,

and there is no evidence that the Union opted out and adopted different governing

documents.

5 In the National Union’s Constitution and Bylaws, the term “Local Unit” refers to the

various local unions. Thus, it is generally understood that this provision applies only

to Union members.

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

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step one is for the aggrieved member, within 72 hours of being notified in writing by

the Local Grievance Committee that it will not proceed with a grievance, to provide

written notice to the Local Grievance Committee that the member is appealing that

decision to the National President. Step two requires the aggrieved member, within

five days of receiving the aforementioned written notice from the Local Grievance

Committee, to provide written notice to the National Union’s General Counsel that

the member is appealing the Local’s decision.6 The National President then

designates a National Officer to decide the appeal. The National Officer is required to

schedule and conduct a hearing, if necessary, as soon as administratively possible.

The National Officer may then decide the appeal or refer it to the National Executive

Committee, which is comprised of the National President, all National Executive Vice

Presidents, and all National Vice Presidents and is required to meet at least every

other month. The Union’s Constitution and Bylaws do not specify timelines for

decisions by either the National Officer or National Executive Committee.7

ACTION

We initially conclude that the Union’s rule is lawful under current Board

precedent. However, the Region should issue complaint, absent settlement, and urge

the Board to overturn that precedent and conclude that the rule is per se unlawful

because it fails to explicitly refer to the four-month limitation for exhausting internal

remedies imposed by LMRDA Section 101(a)(4)

ittee.7

ACTION

We initially conclude that the Union’s rule is lawful under current Board

precedent. However, the Region should issue complaint, absent settlement, and urge

the Board to overturn that precedent and conclude that the rule is per se unlawful

because it fails to explicitly refer to the four-month limitation for exhausting internal

remedies imposed by LMRDA Section 101(a)(4). Absent that limiting language,

employees would reasonably interpret the rule to preclude them from filing a Board

charge for the entire duration of the Union’s internal process, even if it extended

beyond the six-month limitations period for filing a charge.

6 Although the Union’s Constitution and Bylaws refer to these appeal procedures as

“Step One” and “Step Two,” those phrases do not appear to indicate successive rounds

of an appeal process. Rather, it appears that an aggrieved member must take both

“steps” together to appeal an adverse decision by the Local Grievance Committee.

7 The National Union’s website sets out a different procedure for a member to appeal

a Local’s denial of a request to proceed to arbitration. To appeal such a decision, the

member must provide written notice to the National President within seven business

days following the Local’s determination. The National President then designates an

Appeals Board comprised of one National Vice-President and two members of the

Executive Board, which is a different body than the National Executive Committee.

After a decision by the Appeals Board, the member or Local President may request

final review by the National President. No timelines are given for designating the

Appeals Board or issuing decisions. See http://www.nage.org/member/arbitration-

policy (last visited March 14, 2019).

resident and two members of the

Executive Board, which is a different body than the National Executive Committee.

After a decision by the Appeals Board, the member or Local President may request

final review by the National President. No timelines are given for designating the

Appeals Board or issuing decisions. See http://www.nage.org/member/arbitration-

policy (last visited March 14, 2019).

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A. The Union Did Not Violate Section 8(b)(1)(A) Under Recent Board

Precedent by Maintaining an Exhaustion-of-Internal-Remedies Rule.

Section 8(b)(1)(A) prohibits a union from “restrain[ing] or coerc[ing] employees in

the exercise of the rights guaranteed in section 7,”8 but includes a proviso stating that

“this paragraph shall not impair the right of a labor organization to prescribe its own

rules with respect to the acquisition or retention of membership therein.”9 In Scofield

v. NLRB, the Supreme Court explained that under Section 8(b)(1)(A) unions are free

to maintain and enforce internal regulations so long as those regulations do not affect

a member’s employment status or “invade[ ] or frustrate[ ] an overriding policy of the

labor laws . . . .” 10 The Court noted that it previously had recognized the ability of

employees to freely file unfair labor practice charges or otherwise access Board

processes as one overriding policy of the Act that union’s may not regulate.11

At the same time, Section 101(a)(4) of the LMRDA provides that union members

“may be required to exhaust reasonable hearing procedures (but not to exceed a four-

month lapse of time) within . . . [a labor] organization, before instituting legal or

administrative proceedings against such organizations or any officer thereof . . . .”12

In NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, the

Supreme Court considered the relationship between Section 8(b)(1)(A) of the Act and

8 29 U.S.C. § 158(b)(1)(A).

9 Id

labor] organization, before instituting legal or

administrative proceedings against such organizations or any officer thereof . . . .”12

In NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, the

Supreme Court considered the relationship between Section 8(b)(1)(A) of the Act and

8 29 U.S.C. § 158(b)(1)(A).

9 Id.

10 See 394 U.S. 423, 429, 430 (1969) (Ҥ 8(b)(1) 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”). See also IATSE Local

151, 364 NLRB No. 89, slip op. at 4 (same).

11 See Scofield, 394 U.S. at 430 (citing NLRB v. Industrial Union of Marine and

Shipbuilding Workers, 391 U.S. 418, 424 (1968)). See also Operating Engineers

Local 138 (Charles S. Skura), 148 NLRB 679, 682 (1964) (“Considering the overriding

public interest involved, it is our opinion that no private organization should be

permitted to prevent or regulate access to the Board, and a rule requiring exhaustion

of internal union remedies by means of which a union seeks to prevent or limit access

to the Board’s processes is beyond the lawful competency of a labor organization to

enforce by coercive means.”).

12 29 U.S.C. § 411(a)(4).

c interest involved, it is our opinion that no private organization should be

permitted to prevent or regulate access to the Board, and a rule requiring exhaustion

of internal union remedies by means of which a union seeks to prevent or limit access

to the Board’s processes is beyond the lawful competency of a labor organization to

enforce by coercive means.”).

12 29 U.S.C. § 411(a)(4).

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Section 101(a)(4) of the LMRDA.13 In that case, the issue was whether the union had

violated Section 8(b)(1)(A) by expelling a member for filing a Board charge before the

member had exhausted internal remedies as required by the union’s constitution.14

The Court affirmed the Board’s holding that the union had violated Section

8(b)(1)(A).15 It reasoned that while a union is free to self-regulate its legitimate

internal affairs, “other considerations of public policy come into play” when an

internal rule penalizes an employee for filing a Board charge.16 In the Court’s view, a

“policy of keeping people ‘completely free from coercion’ ” when making complaints to

the Board is paramount to the Board’s ability to effectuate public policy considering it

cannot initiate its own proceedings.17 Thus, “[a]ny coercion used to discourage, retard,

or defeat that access [to the Board] is beyond the legitimate interests of a labor

organization.”18

In IATSE Local 151 (Freeman Decorating Services), the Board recently

considered the issue of whether a union violated Section 8(b)(1)(A) simply by

maintaining a provision that required the exhaustion of internal remedies before

filing a Board charge, and specifically focused on whether such a provision is facially

unlawful because it does not explicitly refer to the four-month limit in LMRDA

Section 101(a)(4).19 The Board majority concluded that the absence of the four-month

limitation did not cause the provision to be facially unlawful. It found that internal

13 See 391 U.S. at 424

nd specifically focused on whether such a provision is facially

unlawful because it does not explicitly refer to the four-month limit in LMRDA

Section 101(a)(4).19 The Board majority concluded that the absence of the four-month

limitation did not cause the provision to be facially unlawful. It found that internal

13 See 391 U.S. at 424.

14 Id. at 420–21. The Court considered only whether the union had violated Section

8(b)(1)(A) by enforcing its exhaustion-of-internal-remedies rule, not by maintaining it.

15 Id. at 424, 428, approving Operating Engineers Local 138 (Charles S. Skura), 148

NLRB at 682 (finding union violated Section 8(b)(1)(A) by fining a dissident member

who filed a Board charge for violating an exhaustion-of-internal-remedies provision).

16 Id. at 424.

17 Id. at 424 (internal quotation marks and citations omitted).

18 Id. at 424.

19 364 NLRB No. 89, slip op. at 3–4. There have been other cases that have considered

the facial validity of such clauses, e.g., Operative Plasterers’ Local 521 (Arthur G.

McKee & Co.), 189 NLRB 553, 556-57 (1971), and Teamsters (Red Ball Motor Freight),

191 NLRB 479, 479 (1971), enforcement denied on other grounds, 462 F.2d 201 (5th

Cir. 1972), but those cases did not focus on whether the clauses were facially unlawful

because they failed to refer to the four-month limitation in LMRDA Section 101(a)(4).

auses, e.g., Operative Plasterers’ Local 521 (Arthur G.

McKee & Co.), 189 NLRB 553, 556-57 (1971), and Teamsters (Red Ball Motor Freight),

191 NLRB 479, 479 (1971), enforcement denied on other grounds, 462 F.2d 201 (5th

Cir. 1972), but those cases did not focus on whether the clauses were facially unlawful

because they failed to refer to the four-month limitation in LMRDA Section 101(a)(4).

Case 14-CB-227097

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exhaustion provisions serve the legitimate interest of allowing unions to resolve their

members’ problems internally, while still permitting resort to outside tribunals when

a matter cannot be resolved internally, and are consistent with Section 101(a)(4) even

if they do not explicitly refer to the four-month limit.20

The majority then rejected the dissent’s argument that, absent an explicit

reference to the four-month limit, employees would reasonably believe their obligation

to exhaust internal remedies is open-ended and, therefore, may interfere with their

right to file Board charges. The majority distinguished cases the dissent relied on,

which involved employer-mandated arbitration policies that interfered with

employees filing Board charges, noting they permanently prohibited recourse to the

Board. In contrast, the union’s rule expressly allowed members to access other forums

after exhausting internal remedies, and the four-month limit imposed by Section

101(a)(4) “ensures that the internal exhaustion may not exceed 4 months, leaving

ample time to file a charge with the Board.”21 The majority continued that the

dissent, by considering how employees would reasonably interpret the rule, applied

the wrong standard for determining if an internal union rule is facially unlawful

hausting internal remedies, and the four-month limit imposed by Section

101(a)(4) “ensures that the internal exhaustion may not exceed 4 months, leaving

ample time to file a charge with the Board.”21 The majority continued that the

dissent, by considering how employees would reasonably interpret the rule, applied

the wrong standard for determining if an internal union rule is facially unlawful.

Rather, an internal union rule is lawful so long as it complies with the test articulated

in Scofield (i.e., does not affect a member’s employment or frustrate an overriding

labor law policy).22 The majority also stressed that the Board previously had found

only the enforcement of exhaustion-of-internal-remedies provisions to be unlawful,

which the case did not involve. Finally, the majority noted that nothing in the text of

the LMRDA requires labor organizations to explicitly set forth Section 101(a)(4)’s

four-month limitation in their constitution and bylaws.23 Nor does the LMRDA make

it an actionable offense for a union to maintain a contrary provision.24

Based on the majority’s reasoning in IATSE Local 151, the Union here did not

violate Section 8(b)(1)(A) by maintaining the exhaustion-of-internal-remedies

provision in Article IV A, Section 3.

20 Id., slip op. at 4.

21 Id.

22 Id., slip op. at 5.

23 Id.

24 Id.

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B. The Region Should Urge the Board to Overturn IATSE Local 151 and

Require the Union to Explicitly Refer to Section 101(a)(4)’s Four-Month

Limit in the Exhaustion-of-Internal-Remedies Provision.

The Region should use this case as a vehicle to urge the Board to reconsider its

recent decision in IATSE Local 151 (Freeman Decorating Services) because it was

based on faulty legal premises that resulted in a standard that fails to protect

employee access to the Board

the Union to Explicitly Refer to Section 101(a)(4)’s Four-Month

Limit in the Exhaustion-of-Internal-Remedies Provision.

The Region should use this case as a vehicle to urge the Board to reconsider its

recent decision in IATSE Local 151 (Freeman Decorating Services) because it was

based on faulty legal premises that resulted in a standard that fails to protect

employee access to the Board. Thus, the Region should request that the Board find

the Union’s exhaustion-of-internal-remedies policy to be unlawful because it does not

contain explicit language that indicates its compliance with the four-month limit in

LMRDA Section 101(a)(4).25

Under Scofield, an internal union rule violates Section 8(b)(1)(A) if it frustrates

an “overriding policy of the labor laws.”26 Both the Supreme Court and the Board

have long recognized that unfettered access to Board processes is an overriding policy

of the Act, particularly because the Board cannot initiate its own proceedings to

enforce public rights.27 By failing to explicitly refer to Section 101(a)(4)’s four-month

limit for exhausting internal remedies, Article IV A, Section 3 of the Union’s

Constitution and Bylaws frustrates that policy. No language in that provision informs

Union members, such as the Charging Party, that they are free to file a Board charge

or pursue other legal claims against the Union after four months even if internal

Union procedures have not been completed.28 As a result, members would reasonably

interpret the provision to impose an open-ended restriction on their right to file Board

25 The Region should also urge the Board to overrule Operative Plasterers’ Local 521

and Teamsters (Red Ball Motor Freight) to the extent they are inconsistent with this

approach.

26 Scofield, 394 U.S. at 430.

27 See, e.g., Marine & Shipbuilding Workers, 391 U.S. at 424; Operating Engineers

Local 138 (Charles S. Skura), 148 NLRB at 681–82

25 The Region should also urge the Board to overrule Operative Plasterers’ Local 521

and Teamsters (Red Ball Motor Freight) to the extent they are inconsistent with this

approach.

26 Scofield, 394 U.S. at 430.

27 See, e.g., Marine & Shipbuilding Workers, 391 U.S. at 424; Operating Engineers

Local 138 (Charles S. Skura), 148 NLRB at 681–82.

28 The Union’s reliance on a phrase in Article XIII, Section 5 of its Constitution and

Bylaws stating that its internal exhaustion process is “[s]ubject to the provisions of

applicable statutes” is misplaced. Article XIII sets forth the internal process to appeal

either Union election results or disciplinary decisions based on internal Union

charges. Article XIII, Section 7 explicitly states that the procedures in Article XIII do

not apply to internal appeals over the mishandling of grievances, which is what is

involved here. Thus, apart from whether the phrase in Section 5 is sufficient to inform

Union members of the four-month limit in Section 101(a)(4), it does not apply to the

internal exhaustion provision at issue in this case.

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charges.29 And if internal Union procedures take longer than six months to complete,

the statute-of-limitations in Section 10(b) of the Act will permanently bar members

from filing a charge.30

With respect to the last point above, the majority in IATSE Local 151 relied on a

faulty legal premise to reject the possibility of such internal union rules causing

members to forfeit their right to file a charge

f internal Union procedures take longer than six months to complete,

the statute-of-limitations in Section 10(b) of the Act will permanently bar members

from filing a charge.30

With respect to the last point above, the majority in IATSE Local 151 relied on a

faulty legal premise to reject the possibility of such internal union rules causing

members to forfeit their right to file a charge. Specifically, the majority stated that

“LMRDA Section 101(a)(4) ensures that the internal exhaustion may not exceed 4

months, leaving ample time to file a charge with the Board.” But “[n]othing in

LMRDA Section 101(a)(4) imposes a requirement that all internal union procedures

be completed within 4 months.”31 The Supreme Court read Section 101(a)(4) to mean

only that “public tribunals whose aid is invoked may in their discretion stay their

hands for four months, while the aggrieved person seeks relief within the union.”32

Moreover, in the current case, while the Union’s internal appeal process for the

mishandling of grievances imposes deadlines that members must meet to preserve

their appeals, it does not include any timelines by which those appeals will be

decided. Thus, nothing in the Union’s Constitution and Bylaws suggests that the

Union’s internal process will end at the four-month mark so that members will be

able to timely file Board charges if they desire.33 In short, the majority’s reasoning in

29 See IATSE Local 151 (Freeman Decorating Services), 364 NLRB No. 89, slip op. at 8

(Member Miscimarra, dissenting in relevant part) (agreeing with the General

Counsel’s argument that “employees would reasonably believe that their obligation to

exhaust internal remedies is open-ended” because the union’s exhaustion-of-internal-

remedies provision did not refer to Section 101(a)(4)’s four-month limit).

30 Id. LMRDA Section 101(a)(4) also does not provide a separate cause of action if a

union member cannot timely file a Board charge

with the General

Counsel’s argument that “employees would reasonably believe that their obligation to

exhaust internal remedies is open-ended” because the union’s exhaustion-of-internal-

remedies provision did not refer to Section 101(a)(4)’s four-month limit).

30 Id. LMRDA Section 101(a)(4) also does not provide a separate cause of action if a

union member cannot timely file a Board charge.

31 See IATSE Local 151, 364 NLRB No. 89, slip op. at 10 (Member Miscimarra,

dissenting in relevant part).

32 Marine & Shipbuilding Workers, 391 U.S. at 426. The majority in IATSE Local 151

relied on different language in Marine & Shipbuilding Workers to support their

conclusion that Section 101(a)(4) limits internal exhaustion procedures to four

months. See 364 NLRB No. 89, slip op. at 4. But the majority’s conclusion is based on

a misconception of what the Court decided in that case. See also IATSE Local 151,

364 NLRB No. 89, slip op. at 10, n.9 (Member Miscimarra, dissenting in relevant

part) (noting that the majority improperly relied on dictum from Marine &

Shipbuilding Workers to support its conclusion).

33 See IATSE Local 151, 364 NLRB No. 89, slip op. at 10 (Member Miscimarra,

dissenting in relevant part).

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IATSE Local 151 fails to properly explain how internal exhaustion rules such as that

at issue here will not block access to the Board.

The majority in IATSE Local 151 further erred by failing to consider how

employees would reasonably interpret an internal exhaustion requirement. The

majority relied on Scofield, which imposes a different standard for internal union

rules than is applicable to employer-mandated work rules,34 but Scofield does not

preclude consideration of how employees would reasonably interpret an internal

union rule when determining if that rule frustrates an overriding labor policy

oyees would reasonably interpret an internal exhaustion requirement. The

majority relied on Scofield, which imposes a different standard for internal union

rules than is applicable to employer-mandated work rules,34 but Scofield does not

preclude consideration of how employees would reasonably interpret an internal

union rule when determining if that rule frustrates an overriding labor policy. Indeed,

the Board specifically has considered how an employee would reasonably read a union

policy in determining whether that policy violates Section 8(b)(1)(A).35 Similarly, the

Board has considered whether union members would reasonably understand their

membership obligations under their union’s constitution and bylaws when deciding if

the union had provided them with proper notice of those obligations.36 Based on these

principles, it would be improper—if not illogical—for the Board to ignore employees’

reasonable interpretation of union rules and policies when determining if they

restrain or coerce Section 7 rights.

Here, Article IV A, Section 3 states that a grievant “shall not be entitled to

enforce or present his or her claims against [the Union] in any court or other

34 364 NLRB No. 89, slip op. at 4–5 (majority opinion).

35 See California Nurses Assn. National Nurses Organizing Committee, 2018 WL

6017809 (Nov. 14, 2018) (Board remanded Section 8(b)(1)(A) allegation that statement

on the union’s contract about employees’ Weingarten rights was unlawful to the ALJ

for reconsideration under the new standard in Boeing Co. for assessing whether work

rules are facially unlawful), remanding, 359 NLRB 1391 (2013), vacated on other

grounds, NLRB v. Noel Canning, 573 U.S. 513, 557 (2014). Cf. Boeing Co., 365 NLRB

No. 154, slip op. at 3, 14 (Dec

b)(1)(A) allegation that statement

on the union’s contract about employees’ Weingarten rights was unlawful to the ALJ

for reconsideration under the new standard in Boeing Co. for assessing whether work

rules are facially unlawful), remanding, 359 NLRB 1391 (2013), vacated on other

grounds, NLRB v. Noel Canning, 573 U.S. 513, 557 (2014). Cf. Boeing Co., 365 NLRB

No. 154, slip op. at 3, 14 (Dec. 14, 2017) (establishing new standard for determining

whether facially neutral employer work rules violate Section 8(a)(1); new standard

focuses on the balance between the rule’s negative impact on employees’ ability to

exercise their Section 7 rights and the rule’s connection to employers’ legitimate

interest in maintaining discipline and productivity in their workplace).

36 See Distillery, Rectifying, Wine & Allied Workers Local 38 (Schenley Distillers), 242

NLRB 370, 371 (1979) (finding union violated Section 8(b)(1)(A) by requesting that

employer discharge two members for not satisfying their union-security obligation

where, among other things, the union’s constitution and bylaws informed members

only that they “may be” removed from employment and expelled from the union for

dues arrearages), enforced, 642 F.2d 185 (6th Cir.), cert. denied, 452 U.S. 941 (1981).

Case 14-CB-227097

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administrative body without first exhausting these internal procedures.” Union

members simply would not reasonably interpret that language as permitting them to

file Board charges against the Union if internal procedures continued after four

months.37 “Rank-and-file employees do not generally carry law books to work or apply

legal analysis,”38 and they certainly cannot be expected to understand that the

Union’s exhaustion-of-internal-remedies provision is subject by law to the four-month

limitation in LMRDA Section 101(a)(4)

age as permitting them to

file Board charges against the Union if internal procedures continued after four

months.37 “Rank-and-file employees do not generally carry law books to work or apply

legal analysis,”38 and they certainly cannot be expected to understand that the

Union’s exhaustion-of-internal-remedies provision is subject by law to the four-month

limitation in LMRDA Section 101(a)(4). Because the Union’s constitutional provision

restrains member access to Board processes, the Union violated Section 8(b)(1)(A) by

maintaining it.39 The Union can lawfully maintain an exhaustion-of-internal-

remedies provision if it states that members are free to pursue external legal claims

after four months even if internal Union procedures remain ongoing.

37 See IATSE Local 151, 364 NLRB No. 84, slip op. at 9 (Member Miscimarra,

dissenting in relevant part) (concluding that an exhaustion-of-internal-remedies

provision “is a trap for the unwary” if it does not state members can file Board

charges after four months).

38 See Ingram Book Co., 315 NLRB 515, 516 n.2 (1994) (finding employer maintained

overbroad no-distribution rule; rejecting employer’s defense that savings clause

adequately informed employees of their rights by stating, “[t]o the extent any policy

may conflict with state or federal law,” the employer would abide by those laws).

39 Although this memorandum specifically addresses the Union’s exhaustion-of-

internal remedies provision applicable to the handling of grievances (i.e., Article IV A,

Section 3), the Region should allege that the Union has separately violated Section

8(b)(1)(A) by maintaining similar provisions on its website and in Article XIII of its

Constitution and Bylaws, which provides the procedure by which members may

appeal internal Union discipline or dispute Union election results, each of which do

not refer to the four-month limit in LMRDA Section 101(a)(4)

A,

Section 3), the Region should allege that the Union has separately violated Section

8(b)(1)(A) by maintaining similar provisions on its website and in Article XIII of its

Constitution and Bylaws, which provides the procedure by which members may

appeal internal Union discipline or dispute Union election results, each of which do

not refer to the four-month limit in LMRDA Section 101(a)(4). To the extent the

Union argues that the internal exhaustion provision in Article XIII is lawful because

Section 5 therein states it is “[s]ubject to the provisions of applicable statutes,” that

language would not result in members reasonably interpreting the rule as permitting

Board access after four months. Union members would not know what conduct is

permitted by “applicable statutes” unless the Union specifically informs them. See

McDonnell Douglas Corp., 240 NLRB 794, 802 (1979) (finding employer maintained

overbroad no-distribution rule despite language in rule explicitly stating it would not

interfere with Section 7 rights; “it can reasonably be foreseen that employees would

not know what conduct is protected by the [NLRA] and, rather than take the trouble

to get reliable information on the subject, would elect to refrain from engaging in

conduct that is in fact protected by the Act”)

Case 14-CB-227097

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

the Union violated Section 8(b)(1)(A).

/s/

J.L.S.

H:ADV.14-CB-227097.Response.NAGELocalR14

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