On February 22, 2019, NLRB General Counsel Peter Robb issued a Memorandum on a union’s duty to properly notify employees of their General Motors/Beck rights and to accept dues checkoff revocations after contract expiration. Memorandum GC 19-04 (Feb. 22, 2019).

Employees subject to compulsory dues payment under the National Labor Relations Act have rights to be informed of their ability to be less than full union members, object to paying for union activities not germane to unions’ representational duties, to revoke dues checkoff authorizations at certain times; and to receive the information necessary to make those choices. Consequently, the Board and courts have required unions to take certain actions. To assist Regions with processing charges alleging unions’ violations of those duties, the General Counsel issued this memorandum.

Union’s Obligation to Properly Notify Represented Employees of their Rights

The Supreme Court held in General Motors and Beck, respectively, that employees subject to a union-security clause have the right to be non-members, and that a union has a corresponding duty of fair representation that extends to not spending an objecting non-member’s dues and fees on non-representational activities.

When a union initially seeks to collect dues and fees under a union-security clause, it must first inform employees of their right to be or remain non-members. It must also inform them of their Beck rights, namely, that non-members have the rights to: (1) object to paying for union activities not germane to the union’s representational duties and to obtain a reduction in fees for such activities; (2) be given sufficient information to intelligently decide whether to object; and (3) be apprised of any internal union procedures for filing objections. These notices must be provided to an employee concurrently with the union’s first attempt to collect dues from the employee and not, for instance, in a periodic publication.

Additionally, a union’s separate obligation to provide an annual notice to represented employees of their General Motors/Beck rights must be reasonably prominent and not “hidden in a lengthy publication.” Under current law, the union need only apprise employees of the percentage of the Beck reduction if they decide to become Beck objectors.

In the General Counsel’s view, the Board should overrule Kroger and require that a union must 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. According to the General Counsel: “It is obvious that employees will be better able to make informed decisions about whether to become Beck objectors if they know the amount of savings that will result from that decision. It should not be burdensome for unions to provide that figure.” The General Counsel opined that “if the union does not yet have the exact fee calculated (because it has, as yet, no objectors), it can make a good faith determination as to what the amount will be. This good faith determination need not be based on precise calculations or an independent auditor’s report, but the union must have utilized a reasoned analysis to determine the figure and the union must explain to the employee how it derived the figure should the employee ask.”

Employees’ Right to Revoke Dues Authorization Annually and at Contract Expiration

Section 302(c)(4) of the Labor Management Relations Act permits dues-checkoff arrangements for employees only if employees have the opportunity to revoke their authorizations: (1) at least once per year, and (2) upon expiration of the applicable collective-bargaining agreement.

The General Counsel observed that the language of Section 302(c)(4) of the LMRA “creates an unconditional statutory right for employees to revoke their dues-checkoff authorizations upon cessation of the governing collective-bargaining agreement, whether by expiration or termination.”

Dues-Checkoff Revocation Window Periods

According to the General Counsel, “a dues-checkoff authorization’s pre-expiration window period that requires an employee seeking revocation to submit their revocation request 60-75 days before contract expiration is inconsistent with, and restricts, the right of an employee to seek and effectuate revocation immediately upon contract expiration. A clause containing the window requirement is therefore unlawful under Section 302(c)(4) of the LMRA.”

In the General Counsel’s view, because such windows may operate to eliminate or cut short the employee’s statutory right to revoke at contract expiration, they are facially invalid under the NLRA. However, the General Counsel reasoned that “window periods associated with an employee’s anniversary date on which he/she signed the dues authorization are not in conflict with Section 302(c)(4) of the LMRA and the Board should continue to permit them.”

Applying the foregoing analysis, the General Counsel directed the NLRB’s Regions to issue complaints 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. “It is the General Counsel’s position that an employer that continues to check off an employee’s dues following receipt of the employee’s written revocation request made at or following expiration of a governing contract, as well as a union that receives such dues, does so without employee authorization in violation of Section 8(b)(1)(A) and 8(a)(3).”

Dues Checkoff Authorization Revocation Requirements

Some check off authorization revocation procedures impose additional requirements that result in impediments to the revocation process. In the General Counsel’s view, a certified mail requirement, or a requirement that the union must sign for the certified mail for the request to be valid, create unnecessary impediments and restrain employees in their rights to revoke dues check-off authorizations. To certify mail a document, an employee must go to a post office or facility to fill out a form, pay money to mail it, etc. Employees may face language barriers, transportation issues and the absence of available facilities. An employee may also interpret language about a union needing “to receive and sign for” the notice to also suggest the union can reject the revocation letter by merely refusing to sign for it. Therefore, the General Counsel believes that a certified mail requirement unlawfully restrains and coerces employees in their rights to revoke dues checkoff authorizations.

Dues Checkoff Authorization Language

According to the General Counsel, “Section 302(c)(4) of the LMRA makes clear that the congressional policy protecting an employee’s right to refrain from financially assisting a union includes the right of an employee, at least annually, to revoke his/her dues-checkoff authorization. To exercise that right, it is critical that the employee clearly understands the exact date or dates when revocation requests can be submitted.” In this regard, “plain language to describe when revocation requests can be made is strongly encouraged so that employees understand the clear parameters around revocation.” Even where a union lawfully asserts that a request to revoke is untimely, the employee often is not told when the open period for revocation occurs. This has led to employees filing multiple untimely revocation requests that are summarily denied. To remedy this situation, the General Counsel believes that “the union must either inform the employee of the specific next period where revocation can be effectuated or inform the employee 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.” Thus, according to the General Counsel, “Regions should find that a failure to do so should be considered a breach of the union’s duty of fair representation, in violation of Section 8(b)(1)(A) of the Act. This is a minimal burden on the union, which has to determine the correct window period to deny the revocation request, will help avoid disputes over whether the revocation dates were clearly known to the employee and will be of great benefit to employees.”

The Board and the General Counsel continue to level the playing field when it comes to the rights of employers, unions and employees.