International Union of Electronic, Elec., Salaried, Mach. and Furniture Workers, AFL-CIO v. N.L.R.B.
Decision Date | 16 December 1994 |
Docket Number | AFL-CI,AFL-CIO,93-1380 and 93-1381,I,P,Nos. 93-1373,s. 93-1373 |
Citation | 41 F.3d 1532 |
Parties | 148 L.R.R.M. (BNA) 2070, 309 U.S.App.D.C. 377, 63 USLW 2395, 129 Lab.Cas. P 11,251, 129 Lab.Cas. P 11,279 INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, SALARIED, MACHINE AND FURNITURE WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Lawrence R. Ferriso, Intervenor. Lawrence R. FERRISO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers,ntervenor. ENGINEERS UNION, LOCAL 444, INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, SALARIED, MACHINE AND FURNITURE WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers,; Lawrence R. Ferriso, Intervenors. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Laurence Gold, Washington, DC, argued the cause for petitioner Intern. Union of Electronic, Elec., Salaried, Mach. and Furniture Workers, AFL-CIO. With him on the briefs were James G. Mauro, Jr., James Coppess, Mark Schneider, Robert Friedman, and Sheldon Engelhard.
Hugh L. Reilly, New York City, argued the cause and filed the briefs for petitioner Lawrence R. Ferriso.
Frederick C. Havard, Atty., N.L.R.B., Washington, DC, argued the cause for respondent. With him on the brief were Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Jill A. Griffin, Atty., N.L.R.B. Frederick L. Cornell entered an appearance.
Before: EDWARDS, Chief Judge, SENTELLE and ROGERS, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
The International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers and its Local 444 (collectively "IUE" or "Union") petition for review of a National Labor Relations Board ("NLRB" or "Board") order holding that the Union breached its duty of fair representation in violation of section 8(b)(1)(A) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. Sec. 158(b)(1)(A) (1988). In a reversal of longstanding NLRB policy, the Board determined that a union-security agreement requiring bargaining unit employees to become and remain "members of the Union in good standing" is "ambiguous" and therefore gives rise to a duty to explain to those employees that they need tender to the union only uniform initiation fees and dues. Accordingly, the Board held that IUE had acted in "bad faith" in violation of its duty of fair representation by maintaining such a union-security agreement without informing unit employees of the provision's legal limitations. Lawrence R. Ferriso, an individual bargaining unit employee, also petitions for review, and the NLRB cross-petitions for enforcement.
IUE raises several challenges to the Board's order, most of which we need not reach because we find no substantial evidence, indeed no evidence whatsoever, to support the Board's conclusion that the Union acted in bad faith merely by maintaining a union-security provision that was in conformity with longstanding, well-established Board precedent. Because there is no evidence in the record to support the Board's finding of bad faith, we find no basis for a duty-of-fair-representation violation in this case. We therefore grant IUE's petition for review and deny the Board's cross-petition for enforcement.
The Board is free to reconsider its policy regarding the permissible scope of union-security agreements, with an eye toward requiring unions to give full disclosure to employees regarding their right to decline union "membership." In fact, from this date forward unions are on notice that they risk breaching their duty of fair representation if they adopt union-security provisions of the sort at issue here without appropriate "notice" to employees who are covered by such provisions. In the instant case, however, we hold that no violation occurred, because the Union's actions were fully consistent with established law. We also deny Ferriso's petition for review because there is no basis for his claim that the union-security provision at issue in this case is facially invalid under Supreme Court precedent.
Section 8(a)(3) of the NLRA permits an employer and the employees' exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees wish to become full union members. See 29 U.S.C. Sec. 158(a)(3) (1988). While section 8(a)(3) generally makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization," id., that section contains two provisos authorizing union-security agreements between employers and unions. The first proviso of section 8(a)(3) authorizes a union and an employer to contract to require as a condition of employment that all employees in the bargaining unit establish and maintain "membership" in the union. Id. The second proviso, however, mandates that such membership must, inter alia, be equally available to all and require employees to do no more than "tender the periodic dues and the initiation fees uniformly required." Id.
Thus, despite the broad meaning that might be implied by the term "membership" in the first proviso of section 8(a)(3), the Supreme Court has held that the second proviso of that section mandates that such union membership is "whittled down to its financial core." NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963). It is well settled that causing or attempting to cause an employer to discharge an employee for breach of any union membership requirements other than failure to pay the financial core obligations of uniform initiation fees and dues violates the Act, specifically sections 8(b)(2) 1 and 8(b)(1)(A). 2 See Union Starch & Ref. Co., 87 N.L.R.B. 779, 787 (1949), enforced, 186 F.2d 1008 (7th Cir.), cert. denied, 342 U.S. 815, 72 S.Ct. 30, 96 L.Ed. 617 (1951). In its most recent pronouncement in this area, inCommunications Workers v. Beck, 487 U.S. 735, 745, 108 S.Ct. 2641, 2648-49, 101 L.Ed.2d 634 (1988), the Supreme Court held that section 8(a)(3) does not oblige employees "to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." In this way, the Court limited employee obligations under union-security agreements to comport with the congressional purpose of eliminating the problem of "free riders," i.e., employees who would receive the benefits of union representation but refuse to pay their fair share of the costs. See id. at 747-54, 108 S.Ct. at 2650-53.
The facts in this case are straightforward and not in dispute. Since 1970, IUE has been the exclusive collective bargaining representative of a unit of engineering and quality control employees at the New York facilities of Paramax Systems Corporation ("Paramax"), a manufacturer and distributor of electronics and security equipment. Successive collective bargaining agreements between the Union and Paramax have contained the following union-security provision:
All present employees of [Paramax], and those who in the future enter the bargaining unit, shall join the Union by the thirtieth day following the beginning of their employment, or by the thirtieth day following the effective date of this agreement, whichever is later, and continue to remain members of the Union in good standing as a term and condition of employment.
IUE & IUE Local 444 (Paramax Systems Corp.), 311 N.L.R.B. 1031, 1031 (1993) ("NLRB Decision") (emphasis added). The most recent collective bargaining agreement, executed on November 25, 1991, is effective from September 6, 1991 until February 3, 1995.
Ferriso joined the Union in 1974 as a full member, but two years later, during a strike at Paramax, he resigned his union membership and crossed the picket line to return to work. Thereafter, Ferriso paid dues as required by the union-security provision, but he declined Union membership. In 1991, Ferriso requested and IUE agreed to reduce his dues pursuant to the Supreme Court's decision in Beck. IUE has never sought to discharge or otherwise discipline any employee for failure to comply with the union-security provision. And the parties presented no evidence suggesting that bargaining unit employees have been confused about their obligations under the union-security agreement or that IUE had ever misrepresented to employees the extent of their obligations under the agreement. Indeed, Ferriso's resignation from Union membership in the 1970s suggests that at least he always has fully understood his rights under the law.
In 1991, Ferriso filed unfair labor practice charges with the NLRB, alleging that the IUE-Paramax union-security agreement was facially invalid under the Act in violation of sections 8(b)(1)(A) and (2). On January 15, 1992, the NLRB General Counsel issued a complaint alleging that the Union violated sections 8(b)(1)(A) and (2) by maintaining a union-security clause that "fails to state that the only condition of continued employment ... is the payment of initiation fees and dues." NLRB Decision, 311 N.L.R.B. at 1031 (internal quotations omitted).
Before the Administrative Law Judge ("ALJ"), the General Counsel first contended that maintaining the union-security clause constituted a per se violation of sections 8(b)(1)(A) and (2). In this regard, the General Counsel argued that a "union-security clause--requiring membership in good standing--was facially invalid ... because it failed to...
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