Nlra Case Notes

• Publication year: 2019
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. 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.

NLRB General Counsel Instructs Regions to Pursue Cases Concerning Beck Notices and Dues Deduction Revocation

General Counsel Memorandum 19-04 (Feb. 22, 2019)

On February 22, 2019, the NLRB General Counsel provided guidance to Regional Offices regarding cases involving Beck notices and dues deduction revocation.

Following Communication Workers of America v. Beck,¹ a union is required to notify employees of certain rights before it can collect dues or fees from them pursuant to a union security clause. In this so-called Beck notice, a union must notify employees that they have a right to object to paying for union activities that are not germane to the union's representational duties, be provided sufficient information to decide whether to object, and be apprised of internal union procedures for challenging the union's calculations of chargeable expenditures. Under current law, a Beck notice is not required to identify the percentage reduction in dues for objecting employees.²

In guidance to Regional Offices, the General Counsel indicated his disagreement with existing precedent, and that he believes the Board should require unions to "provide the reduced amount of dues and fees for objectors in the initial Beck notice so that an employee can make an informed decision as to whether to become a Beck objector." Notably, the General Counsel acknowledged that a union that has not yet calculated the percentage reduction—for example, because it has no objectors—can make a good faith determination of the percentage reduction based on a "reasoned analysis" rather than "precise calculations or an independent auditor's report."

Under section 302(c)(4) of the Labor Management Relations Act, a dues deduction authorization "shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective [bargaining] agreement, whichever occurs sooner." In its guidance to Regional Offices, the General Counsel noted that dues deduction authorization cards often require employees to revoke their authorizations during window periods occurring annually or prior to expiration of a collective bargaining agreement. According to the General Counsel's guidance, a dues deduction authorization that requires an employee to revoke his or her authorization during a window period prior to contract expiration is unlawful. Thus, the General Counsel instructed "Regions . . . to issue complaint where a dues-checkoff authorization purports to limit an employee's right to revoke that authorization at cessation of the contract term by imposing an earlier revocation window period."

Finally, the General Counsel observed that unions often reject dues-checkoff authorization revocations that are not received during applicable window periods. Under the General Counsel's view, when a union rejects an untimely revocation request it "must either inform the employee of the specific next period where revocation can be effectuated or inform the employees that the request will be honored at the next available revocation period and that failure to do so violates a union's duty of fair representation."

Board Holds That Union Must Provide Audit Verification Letter to Beck Objectors, and That Union Cannot Charge Beck Objectors Lobbying Expenses

United Nurses and Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (Mar. 1, 2019)

In a 4-0 decision, the Board ruled that the duty of fair representation requires a union to provide Beck objectors with an audit verification letter. However, the Board split 3-1 in its further ruling that a union may not charge Beck objectors with expenses related to lobbying.

Under existing precedent, a union with a collective bargaining agreement containing a union security clause is required to provide a Beck objector—an employee who, based on Communication Workers of...