Gorham v. Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO

• Decision Date: 20 August 2010
• Docket Number: Case No. RWT 09cv2472
• Citation: 733 F.Supp.2d 628
• Parties: Rick GORHAM, et al., Plaintiffs v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Defendant.
• Court: U.S. District Court — District of Maryland

733 F.Supp.2d 628

Rick GORHAM, et al., Plaintiffs

v.INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Defendant.

Case No. RWT 09cv2472.

United States District Court, D. Maryland.

Aug. 20, 2010.

Milton L. Chappell, Glenn Matthew Taubman, William L. Messenger, National Right to Work Legal Defense Foundation Inc., Springfield, VA, for Plaintiffs.

Bruce R. Lerner, Jeremiah A. Collins, Bredhoff and Kaiser PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

The issue before the Court is whether a union breaches its duty of fair representation by requiring nonmembers, who previously articulated a "permanent and continuing" objection to paying for a union's political and other non-representational activities, to renew their objection annually if they wish to continue to be excused from paying such fees.

BACKGROUND AND PROCEDURAL HISTORY

Defendant International Association of Machinists and Aerospace Workers, AFL-CIO (the "IAM" or the "Union") maintains a nationwide annual renewal policy pursuant to which nonmembers who have previously objected to paying for the IAM's political and other non-representational expenses and subsequently fail to renew their objection during a thirty-day window period are deemed non-objectors and charged full dues. Compl. ¶¶ 9-11, ECF No. 1; see also Notice to Employees Subject to Union Security Clauses, ECF No. 10-3.

In July 2008, Plaintiffs Rick Gorham and Robert Negosta allegedly notified the IAM that they objected to paying for such fees and that their objections were "permanent and continuing in nature." Compl. ¶ 19. However, because Plaintiffs did not restate their objection during the thirty-day window period in November 2008, the IAM demanded in April 2009 that Plaintiffs pay, as a condition of employment, full union dues. Id. ¶ 20.

On September 21, 2009, Plaintiffs filed a purported class action complaint challenging the IAM's automatic opt-in procedure. In their complaint, Plaintiffs allege that Defendant has breached its duty of fair representation arising from the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-169 (West 2010), because (i) the IAM does not have the substantive authority to convert nonmember employees from objectors into non-objectors and (ii) the annual renewal policy is procedurally invalid. Compl. ¶¶ 32-34. Plaintiffs contend that the IAM's policy does not serve a legitimate purpose, id. ¶ 13, and is designed to maximize revenues and hinder employee opposition to the Union, id. ¶ 12.

Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted on November 16, 2009, ECF No. 10, and the Court conducted a hearing on the dispositive motion on January 29, 2010, ECF No. 23.

STANDARD OF REVIEW

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

ANALYSIS

I. Duty of Fair Representation and Union Fees

"[A] union breaches its duty of fair representation if its actions are either arbitrary, discriminatory, or in bad faith...." Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)) (quotation marks omitted). Each element requires "distinct and separate inquiries." Jeffreys v. Commc'ns Workers of Am., 354 F.3d 270, 274 (4th Cir.2003). A court must evaluate the objective adequacy of a union's conduct to determine whether it was arbitrary, but also must analyze the subjective intent ofunion officials to determine whether the action was discriminatory or in bad faith. See Thompson v. ALCOA, 276 F.3d 651, 658 (4th Cir.2002). Courts generally afford considerable deference to unions in determining whether they have breached their duty of fair representation. See, e.g., Air Line Pilots Ass'n, 499 U.S. at 78, 111 S.Ct. 1127; Thomson v. Verizon Md., Inc., 140 F.Supp.2d 546, 551 (D.Md.2001).

Section 8(a)(3) of the NLRA permits employers and unions to enter into agreements ("shop agreements") that require all employees represented by the union to pay dues or fees as a condition of their employment. See 29 U.S.C. § 158(a)(3). Pursuant to this provision, unions may charge members and nonmembers fees relating to the union's collective bargaining activities. However, unions cannot charge nonmembers fees unrelated to collective bargaining activities (i.e., fees related to the union's political and other non-representational activities) without their consent. Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 762-63, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988). Nonmembers have the burden of affirmatively making their objection known. Chi. Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 306 n. 16, 307, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) (citing Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 774, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961)).

Whether a union breaches its duty of fair representation by charging such fees to nonmembers who have previously objected but have subsequently failed to renew their objection has not yet been addressed by the Supreme Court or the Fourth Circuit.

II. Whether the IAM's Annual Renewal Policy is Arbitrary, Discriminatory, or in Bad Faith

A handful of courts has addressed the validity of various aspects of annual renewal policies, and reached divergent outcomes using different analytical frameworks.¹

Applying rigorous First Amendment scrutiny rather than the less demanding duty of fair representation standard,² the Second Circuit, Fifth Circuit, and Eastern District of Virginia have held that such renewal policies are unconstitutional, while the Sixth Circuit has, without significant analysis, upheld a similar policy. Compare Seidemann v. Bowen, 499 F.3d 119, 124-26 (2d Cir.2007) (holding that procedures for dealing with nonmember objections failed to minimize the risk that their First Amendment rights would be burdened because they were not narrowly drawn), Shea v. Int'l Ass'n of Machinists & Aerospace Workers, 154 F.3d 508, 515 (5th Cir.1998) ("Certainly the procedure that least interferes with an employee's exercise of his First Amendment rights is the procedure by which an employee can object inwriting on a continuing basis."),³and Lutz v. Int'l Ass'n of Machinists & Aerospace Workers, 121 F.Supp.2d 498, 506-07 (E.D.Va.2000) (faulting the IAM for not offering any legitimate reason for the annual objection requirement and comparing it to "a governmental pronouncement that a citizen who fails to cast a ballot on election day will be considered to have voted for a previously designated 'default' candidate"), with Tierney v. Toledo, 824 F.2d 1497, 1506 (6th Cir.1987) ("Since Hudson places the burden of objection upon the employees (as contrasted to burden of proof), we do not consider unreasonable the plan's provision that each member be required to object each year so long as the union continues to disclose what it must before objections are required to be made."). The parties in the instant case, however, do not raise any First Amendment concerns.⁴

Far more relevant to this case are two decisions originating from the D.C. Circuit and this Court purporting to analyze annual renewal policies through the lens of the duty of fair representation standard. In Abrams v. Communications Workers of America, the D.C. Circuit held, inter alia, that a union's renewal policy requiring annual objections within a limited window period was not procedurally unduly burdensome and was "permissible in light of the Supreme Court's instruction that 'dissent is not to be presumed-it must affirmatively be made known to the union by the dissenting employee.' " 59 F.3d 1373, 1381-82 (D.C.Cir.1995) (quoting Street, 367 U.S. at 774, 81 S.Ct. 1784). The Abrams Court also quoted the Sixth Circuit's decision in Tierney, a first amendment case, and then United States District Court Judge ⁵ Paul V. Niemeyer's memorandum opinion in Kidwell v. Transportation Communications International Union, 731 F.Supp. 192, 206-07 (D.Md.1990), aff'd in part and rev'd in part on other grounds, 946 F.2d 283 (4th Cir.1991). 59 F.3d at 1381-82.

In Kidwell, Judge Niemeyer addressed a variety of issues including whether a union's thirty-day objection window was too narrow and whether its annual renewal policy was overly burdensome on objectors' rights. 731 F.Supp. at 205. He concluded that the policy was not unreasonable or unduly restrictive, stating that "objections are not to be presumed on an ongoing basis" and noting that "an employee who previously objected may have a change of heart and choose not to exercise his or her right to object in future years." Id. Although Kidwell has been recognized as having been decided under the rubric of a union's duty of fair representation, see Lutz, 121 F.Supp.2d at 502 n. 13,⁶ Judge Niemeyer only briefly discussed the standard, 731 F.Supp. at 206 (observing that the parties "have given this issue only cursory treatment in their papers and at oral argument"), focusing instead on plaintiffs' constitutional and statutory challenges, id. at 205-06 (citing cases analyzing the constitutionality of union procedures).

Accordingly, the Court will independently analyze whether the IAM's annual renewal policy-which transforms...