On February 19, an NLRB Administrative Law Judge ruled that a UFCW local union illegally restrained and coerced grocery store employees by requiring them to appear at the union office in person to file objections to paying full membership dues. See United Food & Commercial Workers Union Local 135, Case No. 21-CB-112391 (2/19/15). The ALJ reasoned that, through the requirement, the Union had implicitly threatened employees with discharge pursuant to a union-security clause in the applicable collective bargaining agreement for reasons other than failure to pay dues, thus coercing employees in the exercise of their Section 7 rights.
The Union and the employer were parties to a collective bargaining agreement running from March 2011 through March 2014 that contained a union-security clause. In July 2013, the Union sent a new hire at the grocery store a letter stating that the CBA between the Union and the employer requires that all employees shall, as a condition of employment, become members of the Union, and that “[a]ll new hires are required to come into one of our offices to affiliate in person with Local 135” (emphasis in original).
The new hire contacted the Union by phone and asked what his reduced dues amount would be if he objected to union membership, and he was told he would need to come to the Union office in person to receive information regarding reduced dues. After much back and forth, the Union finally sent the new hire a letter with information about reduced dues, and eventually registered him as a dues objector under Communications Workers of America v. Beck, 487 U.S. 735 (1988), which holds that objectors can be required, as a condition of employment, to support only those union activities that are related to collective bargaining, contract administration, and grievance adjustment (representational activities). The new hire then filed an unfair labor practice charge against the Union, and the NLRB’s General Counsel issued a complaint.
The ALJ’s Decision
In addition to protecting an employee’s right to support a union, Section 7 of the NLRA protects an employee’s right to refrain from supporting a union. In this case, the ALJ found that by requiring employees to come to the Union office in person to affiliate (i.e., to become full members or Beck objectors), the Union had implicitly threatened employees with discharge pursuant to the union-security clause for reasons other than failure to pay dues (namely, for failure to appear at the Union office in person), and that this amounted to unlawful coercion of employees in the exercise of their Section 7 rights.
The ALJ noted that it was irrelevant that the new hire ultimately was not required to go to the Union office to process his affiliation. The ALJ also found that it was of no consequence that the Union never actually threatened that the new hire could lose his job if he did not come to the Union office. Rather, the ALJ found that “[l]ike an overly broad rule set forth by an employer,” the Union’s rule “would cause a reasonable person to infer” that if he did not affiliate in person with the Union, the Union could cause his discharge. The Union was ordered to cease and desist from requiring new hires to affiliate in person, to revise its communications to new hires, and to post a corresponding notice at its offices and electronically.
The ALJ’s decision highlights that unions are held to the same standard as employers when determining whether employees’ Section 7 rights have been interfered with. As the ALJ noted, “[t]he test for illegality is not whether employees were actually threatened or coerced, but whether the rule in issue may reasonably tend to coerce employees in the exercise of rights protected under the Act.” As we have previously blogged, this test often comes into play for employers with respect to employee handbooks and other work rules.