Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Richa Amar and Jonathan Cohen
• Publication year: 2017
• Citation: Vol. 31 No. 3

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board. Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California.

Union's Policy Unlawfully Restricted Right to Resign Membership and Revoke Dues Deduction Authorization

Local 58, Int'l Bhd. of Elec. Workers, 365 NLRB No. 30 (Feb. 10, 2017)

In a 2-1 decision, the National Labor Relations Board (Board) ruled that a union's policy requiring members to appear in person at the union's office with a picture identification in order to resign from the union or to revoke a dues deduction authorization violated the National Labor Relations Act (NLRA or Act).

The union's business manager heard from another local union that it had problems with members fraudulently removing other members from its hiring-hall list, and, anticipating expiration of the union's main multi-employer contracts, wanted a clear policy for members desiring to resign. The union therefore implemented a policy requiring any member desiring to resign membership or to revoke a dues deduction authorization to appear in person at the union's office with a picture identification, unless doing so presented an undue hardship, in which case the member could make "other arrangements" to verify his or her identity. Following implementation of the policy, the charging party sent a letter to an employer stating his intent to resign, and the employer forwarded the letter to the union. The union then verified the employee's identity by calling him using the telephone number it had on file for the employee.

The Board held that the union's policy was unlawful on its face. The Board emphasized that any restriction on a member's section 7 right to resign is unlawful and concluded that the restraints imposed by the in-person and picture identification requirements were "obvious." The Board cited the burden of appearing in person at the union's office for those members who lived far away, as well as the imposition on those members who "wished to avoid a face-to-face encounter with a union representative." The Board also cited the additional burdens placed on those members wishing to resign but who lacked picture identification. The Board ruled that the policy's "undue hardship" exception did not save it, since the policy failed to include any clear guidelines for what types of "other arrangements" would suffice.

Noting that revocation of a dues deduction authorization implicates the section 7 right to refrain from union activity, the Board likewise concluded that the burdens imposed by the policy on revoking dues deduction authorizations were unlawful. The Board further ruled that the union's policy was unlawful for the independent reason that, because dues deduction authorizations are a contract between the union and its members, the union could not impose a new restriction on dues deduction revocation without the assent of the individual members who were parties to those contracts.

Dissenting, Member Pearce concluded that unlike unlawful restrictions on resignation which limit the time period for resignation or burden the ability to resign through fines or dues assessments, the union's policy simply designated a reasonable method by which members could submit resignations, but did not otherwise burden the right to resign. Member Pearce also emphasized that the policy had a legitimate purpose of avoiding fraudulent resignation.

Sixth Circuit Reverses Board's Conclusion That Union Requested to Bargain About Change in Service Awards Program

Ohio Edison Co. v. NLRB, 847 F.3d 806 (6th Cir. 2017)

The Sixth Circuit granted the employer's petition for review, and denied the Board's cross-application for enforcement, of the Board's decision in Ohio Edison Co.,¹ which held that the employer violated the Act by unilaterally changing its employee recognition program.

For nearly forty years, the employer had an employee recognition program pursuant to which it provided service awards to employees after every five years of service. The value of the service award increased with each successive five-year anniversary. By 2012, the value of the five-year award was $35; the value of the ten-year award...