Lee v. N.L.R.B.

• Citation: 325 F.3d 749
• Decision Date: 08 April 2003
• Docket Number: No. 01-1434.,01-1434.
• Parties: Earl LEE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America; UAW Local 1853, Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

325 F.3d 749

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.

Argued: September 10, 2002.

Decided and Filed: April 8, 2003.

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Glenn M. Taubman (argued and briefed), National Right to Work Legal Defense Foundation, Springfield, VA, for Petitioner.

Aileen A. Armstrong (briefed), Dep. Asso. Gen. Counsel, Robert J. Englehart (briefed), Jeffrey Horowitz (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, D.C., for Respondent.

Daniel W. Sherrick (briefed), Blair Katherine Simmons (briefed), Associate General Counsel, International Union, UAW, Detroit, MI, Michael Hamilton (briefed), Provost & Umphrey, Nashville, TN, for Intervenors.

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 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, 102 S.Ct. 2071, 72 L.Ed.2d 398 (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)).

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 being an honorable withdrawal, the other being a dishonorable withdrawal. When a team member becomes a non-rep at Saturn, they cease to perform work which belongs to the UAW. They are no longer entitled to representation by the UAW. They receive a card from the union which states that they have honorably withdrawn and have left in good standing with all dues paid up to the point of their leaving the bargaining unit.

On the other hand, when a team member quits the union while still performing work that the UAW has negotiated, they withdraw dishonorably and are no longer in good standing. If a team member who has honorably withdrawn subsequently returns to the bargaining unit, they began paying dues only upon their re-entry, those who have withdrawn dishonorably must pay all back dues in order to return to a status of good standing.

(emphasis added). In response to this announcement of the Union's policy, Lee filed an unfair labor practice charge with the Board on November 25, 1996, thereby initiating this case.

On March 5, 1997, based on Lee's charge, the NLRB's General Counsel issued a formal complaint against the Union and, in June 1997, the General Counsel filed a motion to transfer the case to the Board. Subsequently cross motions for summary judgment were filed and, on February 13, 2001, the Board granted the Union's motion and dismissed the complaint against the Union, holding that the Union's policy was neither coercive nor discriminatory and constituted a legitimate exercise of the Union's right to prescribe its own rules with regard to membership pursuant to section 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A). On August 16, 2001, Lee filed a petition for review of the Board's decision to this court.

II

Analyzing the merits of this case requires us to distinguish permissible behavior on the part of a union seeking to retain its membership from behavior that violates the rights of employees who do not wish to be members of the union. Lee contends that the Union's policy of charging a reentry fee, equal to unpaid dues, to any former members who resigned but continued to perform bargaining-unit work, improperly coerces or restrains employee-members from exercising their right to resign from the Union, in violation of the Act. He further argues that the policy discriminates against those employees who resign remain in the same bargaining unit, and later decide to rejoin. We hold that the Union's policy is not in violation of the Act, as it is reasonably designed to promote Union membership, a legitimate purpose under the Act, and leaves Union members free to resign, without coercion.

We have jurisdiction to review the Board's order because the events which gave rise to the alleged unfair labor practice occurred in Spring Hill, Tennessee. See 29 U.S.C. § 160(f). We review the NLRB's factual findings under a substantial evidence standard. NLRB v. Fluor Daniel, Inc., 161 F.3d 953, 971 (6th Cir.1998). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500 (6th Cir.2002) (citations omitted). We review the Board's conclusions of law unrelated to the National Labor Relations Act de novo and otherwise show deference to the Board's reasonable interpretation of the Act. Albertson's Inc. v. NLRB, 301 F.3d 441, 447-48 (6th Cir.2002) (citing Holly Farms Corp. v. Nat'l Labor Relations Bd., 517 U.S. 392, 398-99, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Sandusky Mall Co. v. NLRB, 242 F.3d 682, 687 (6th Cir.2001)). Furthermore, we do so not only with respect to its interpretations in promulgated regulations such as those that were at stake in Chevron, but also with respect to its interpretations of the Act as applied to various fact patterns in particular decisions. See Holly Farms, 517 U.S. at 398-99, 116 S.Ct. 1396; NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) modified on other grounds by Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 268, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). In sum, for the "Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one." Holly Farms, 517 U.S. at 409, 116 S.Ct. 1396. On the other hand, we give no deference to the Board's interpretation...