Buzenius v. N.L.R.B.
| Decision Date | 08 September 1997 |
| Docket Number | No. 96-5139,96-5139 |
| Citation | 124 F.3d 788 |
| Parties | 156 L.R.R.M. (BNA) 2207, 134 Lab.Cas. P 10,038 Roland BUZENIUS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Paperworkers International Union; United Paperworkers International Union, Local 1033, Intervenors. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John C. Scully, (argued and briefed), National Right To Work Legal Defense Foundation, Springfield, VA, for Petitioner.
Aileen A. Armstrong, (briefed), Deputy Associate Gen. Counsel, Deborah E. Shrager, (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, Margaret Gaines Neigus, (briefed), National Labor Relations Board, Washington, DC, for Respondent.
Peter M. Fox, Kircher, Robinson, Newman & Welch, Cincinnati, OH, James B. Coppess, (argued and briefed), AFL-CIO Legal Department, Washington, DC, for Intervenor.
Before: SILER and BATCHELDER, Circuit Judges; HULL, District Judge. *
In this case we must decide whether a union-security clause requiring employees to become and remain "members of the Union in good standing" as a condition of continued employment, without concurrent definition in the collective bargaining agreement, is facially valid. For the following reasons, we hold that it is not. We therefore REVERSE the order of the National Labor Relations Board.
The facts of this case are undisputed. The United Paperworkers International Union, AFL-CIO, CLC, and its Local 1033 (collectively the "Union") are the exclusive collective bargaining representatives of Weyerhaeuser Paper Company's ("Company") production and maintenance employees. The Union and the Company entered into a collective bargaining agreement ("CBA") containing the following union-security clause:
It is agreed that all employees who are members of the Union shall remain members of the Union in good standing. All new employees, who after completion of thirty (30) days shall become and remain members of the Union in good standing as a condition of employment for the term of this Agreement [sic].
The CBA does not define "member in good standing." Additionally, the Union has no procedure to provide employees with information regarding their right to refuse to join the Union or pay full dues, so long as they pay that portion of dues related to the Union's core representational activities. See Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988); NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963).
Petitioner Roland Buzenius works for the Company and was a member of the Union. On April 30, 1993, petitioner informed the Union by letter of his immediate resignation from the Union's membership in accordance with the Supreme Court's decision in Pattern Makers' League v. NLRB, 473 U.S. 95, 105 S.Ct. 3064, 87 L.Ed.2d 68 (1985). Petitioner also asserted his right under Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), to object to supporting financially the Union's non-collective bargaining activities. The Union, however, ignored petitioner's letter and continued to deduct dues from petitioner's paycheck in the same amount it had prior to petitioner's resignation. Moreover, in November 1993, the Union mailed petitioner a new Union-membership card.
Petitioner filed a charge against the Union with the National Labor Relations Board ("NLRB" or "Board"). The Board ruled that the Union violated § 8(b)(1)(A) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. § 158(b)(1)(A), by failing to acknowledge petitioner's resignation from the Union; failing to inform petitioner and all other Company employees of their rights under NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), and Beck; and collecting and using petitioner's full union-membership fees. United Paperworkers Int'l Union, 320 N.L.R.B. 349 (1995). The Board issued an order requiring the Union to cease and desist from the unfair labor practices and to undertake a number of remedial actions, including notifying each Company employee in writing of his rights under General Motors and Beck and that the only required condition of employment under the union-security clause is the payment of any uniform initiation fee and the "financial core" membership service fees. The Board also ordered the Union to post notice at Union business offices and local meeting halls for sixty consecutive days stating that the Union will not restrain and coerce Company employees from exercising their rights. The Board, however, refused to order the Union to expunge or modify the union-security clause. Petitioner timely appealed.
Petitioner challenges the Board's order to the extent that it allows the union-security clause to remain in the CBA. Petitioner argues that the plain language of the clause patently misleads employees regarding their obligations as defined by the Supreme Court. Therefore, petitioner claims, the clause is facially invalid and the Board abused its discretion in failing to order its expunction from the CBA. We agree.
Section 10(c) of the Act empowers the Board, upon finding that a party has committed an unfair labor practice, to issue an order requiring the offending party to "cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies" of the Act. 29 U.S.C. § 160(c). "This statutory command vests in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review." NLRB v. Joyce Western Corp., 873 F.2d 126, 128 (6th Cir.1989) (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812-13, 81 L.Ed.2d 732 (1984)). Accordingly, our review is limited to determining whether the Board has abused its discretion in fashioning the remedial order. Id.
Section 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate in hiring, tenure, or terms or conditions of employment for the purpose of encouraging or discouraging membership in a labor organization. 29 U.S.C. § 158(a)(3). Standing alone, this provision seems to prohibit union-security clauses. Clearly an employer "encourages" union membership by agreeing to such a clause in a CBA. Section 8(a)(3), however, goes on to state that "nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later." Id. In other words, the Act explicitly permits an employer to enter into a CBA that contains a union-security clause requiring employees to acquire and retain "membership" in a union as a condition of employment.
"Membership" as used in § 8(a)(3), however, does not mean membership in the colloquial sense, i.e., formal union membership. Indeed, over the years the Supreme Court has significantly limited the concept of union membership for purposes of union-security clauses. In NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1458, 10 L.Ed.2d 670 (1963), the Court whittled the "membership" that may be required under § 8(a)(3) down to its "financial core," stating that "the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues." See also Radio Officers' Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 41-42, 74 S.Ct. 323, 335-36, 98 L.Ed. 455 (1954) (). Further, in Pattern Makers' League v. NLRB, 473 U.S. 95, 106, 105 S.Ct. 3064, 3070, 87 L.Ed.2d 68 (1985), the Court explained that the union-security clauses authorized by § 8(a)(3) require only that employees pay dues; full union membership may not be a condition of employment. Indeed, such a requirement would be inconsistent with the Act's policy of voluntary unionism. See id. at 104, 106, 105 S.Ct. at 3069, 3070; see also Bloom v. NLRB, 30 F.3d 1001, 1003-04 (8th Cir.1994).
The Court revisited the concept of "financial core" union membership in Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). At issue in Beck was "whether th[e] 'financial core' includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." Id. at 745, 108 S.Ct. at 2648. The Court held that it does not. Section 8(a)(3) allows a union to exact only "those fees and dues necessary to 'performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.' " Id. at 762-63, 108 S.Ct. at 2657-58 (quoting Ellis v. Brotherhood of Ry., Airline & Steamship Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984)). In short, § 8(a)(3) of the Act "permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees [related to the union's representational activities] as a condition of continued employment, whether or not the employees otherwise wish to become union members." Id. at 738, 108 S.Ct. at 2644. The Beck Court did not address the question of what language is permissible in a union-security clause.
To summarize, § 8(a)(3) of the Act explicitly allows union-security clauses that require union "membership" as a condition of employment. 29 U.S.C. § 158(a)(3). Read literally, this section authorizes an employer and a labor organization to enter into a...
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