325 F.3d 749 (6th Cir. 2003), 01-1434, Lee v. N.L.R.B.

Docket Nº:01-1434
Citation:325 F.3d 749
Party Name:Earl Lee, Petitioner, v. National Labor Relations Board, Respondent, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America; UAW Local 1853, Intervenors.
Case Date:April 08, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 749

325 F.3d 749 (6th Cir. 2003)

Earl Lee, Petitioner,

v.

National Labor Relations Board, Respondent,

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America; UAW Local 1853, Intervenors.

No. 01-1434

United States Court of Appeals, Sixth Circuit

April 8, 2003

Argued: September 10, 2002

On Petition for Review of an Order of the National Labor Relations Board. No. 26-CV-3508.

Page 750

[Copyrighted Material Omitted]

Page 751

COUNSEL

ARGUED:

Glenn M. Taubman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, Virginia, for Petitioner.

Jeffrey Horowitz, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.

ON BRIEF:

Glenn M. Taubman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, Virginia, for Petitioner. Jeffrey Horowitz, Robert J. Englehart, Aileen A. Armstrong, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.

Blair Katherine Simmons, Daniel W. Sherrick, ASSOCIATE GENERAL COUNSEL, INTERNATIONAL UNION, UAW, Detroit, Michigan, Michael Hamilton, PROVOST & UMPHREY, Nashville, Tennessee, for Intervenor.

Before: BOGGS and COLE, Circuit Judges; and BATTANI, District Judge.[*]

OPINION

BOGGS, Circuit Judge.

Earl Lee, an employee of the Saturn automobile manufacturing plant in Spring Hill, Tennessee, seeks review of a decision Page 752

by the National Labor Relations Board (the "Board" or "NLRB"), granting a motion for summary judgment filed by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, and its Local No. 1853 (collectively the "Union") in this case brought by Lee against the Union for an alleged violation of the National Labor Relations Act (the "Act"). Specifically, Lee attacks the Union's policy that requires employees who resign their Union membership, yet remain within a bargaining unit position, to pay a fee if they rejoin the Union, equivalent to the back dues for the period of their non-membership, while allowing employees who have resigned their Union membership to take a position outside of the bargaining unit to rejoin without having to pay such a fee. He claims that this policy violates sections 7 and 14(b) of the Act, 29 U.S.C. §§ 157, 164(b), because it serves to restrain, threaten, and coerce employees in an attempt to prevent them from resigning their union membership. Additionally, Lee contends that the Union's policy arbitrarily discriminates against a class of employees who, as he did, exercise their right to resign, while favoring those employees who leave the bargaining unit for various other reasons, including a temporary promotion. The Board, in its response to Lee's petition for review, contends that the authority relied upon by Lee is not applicable where an employee's decision to rejoin is wholly voluntary, that the Union's policy is not arbitrarily discriminatory, and that the policy is privileged by the proviso to section 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A), which gives the Union the right "to prescribe its own rules with respect to the acquisition or retention of membership." For the reasons given below, we affirm the Board's decision. Lee also raises two new objections to the Union's policy, which he did not raise in the original proceeding before the Board.1 First, he contends that the publication of his name in a periodic newsletter sent out by the Union as a person subject to the Union's policy, referring to Lee and others similarly situated as employees who had resigned their membership "dishonorably," is another coercive tactic, designed to harass and penalize non-members or otherwise restrain Union members from resigning their membership. Second, Lee contends that the Union's policy arbitrarily exempts employees who join the Union after having worked in the bargaining unit as non-members. As there are no extraordinary circumstances that would justify Lee's waiting until now to raise these two objections, Lee is barred from raising them in this appeal by section 10(e) of the Act, 29 U.S.C. § 160(e). See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982) (holding that an issue not raised during the proceedings before the Board is barred from judicial review by section 10(e) of the Act, 29 U.S.C. § 160(e)); NLRB v. Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 241 (6th Cir. 1983) (refusing to reach the merits of a claim because it was never presented to the Board and was, therefore, barred under section 10(e) of the Act, 29 U.S.C. § 160(e)).

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I

Since 1985, the Union has been the recognized collective-bargaining representative for a unit of operating and skilled-technician employees at the Saturn Corporation's Spring Hill, Tennessee facility. Under Tennessee's "right-to-work" statute, which is permitted under section 14(b) of the Act, 29 U.S.C. § 164(b), an employee cannot be compelled to join a union or to pay any amount in lieu of union dues. Tenn. Code Ann. §§ 50-1-201 through 204. As a result, the collective bargaining agreement in force between the Saturn Corporation and the Union is precluded from containing a union security clause. In February 1995, while Lee was an employee of the Saturn Corporation in Tennessee, he chose to exercise his right to resign his Union membership while nevertheless remaining within the same bargaining unit.

Over a year after Lee had resigned, in October 1996, the Union announced its policy towards employees who resign their membership in a periodic newsletter it publishes entitled "The Wheel." The newsletter stated the following:

There are two ways to leave the union: one...

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