A union fulfilled its “Beck” notice obligations to a new employee even though it failed to disclose the “reduced fees and dues” for which the employee would be responsible by refusing to become a member under a union security clause at the same time it first informed the employee of his obligations under the clause, the National Labor Relations Board has ruled. United Food & Commercial Workers Local 700, 361 NLRB No. 39 (Sept. 10, 2014). In a 3-2 decision, the Board dismissed the NLRB General Counsel’s complaint against the union.
A union seeking to collect dues and fees under a union security clause in a collective bargaining agreement first must inform employees of their rights to be, or remain, a non-member. It also must inform them of their Beck rights: that non-members have the right (1) to object to paying for union activities not germane to its representational duties and to obtain a reduction in fees for such activities; (2) to be given sufficient information to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for filing objections.
The union and employer were parties to a collective bargaining agreement that, as a condition of employment, required all bargaining unit employees join or pay fees to the union. Laura Sands, a new employee, did not join the union initially. The union sent her a membership application packet and notice advising her of her right to be and remain a non-member of the union and to object to paying any fees or dues not germane to the union’s representational duties. However, the union did not provide the dollar amount Sands would owe for non-member status in this initial notice.
Sands filed an unfair labor practice charge against the union. In furtherance of the General Counsel’s apparent aim to ensure transparency in dues and fees associated with membership or representation under a union security clause, the General Counsel issued a complaint, arguing the union should have disclosed the fees associated with non-member representation in the initial notice, before the employee decides to become a Beck objector.
An NLRB administrative law judge dismissed the complaint, relying on the NLRB’s decision in California Saw and Knife Works, 320 NLRB 224 (1995), which held that a union is not required until after an employee elects non-member status to calculate and provide the specific amount of reduced fees and dues the employee would pay if she becomes a non-member and objects to paying for union activities not germane to the union’s duties as her collective bargaining representative. The General Counsel appealed to the Board, arguing that the Board should overrule its precedent.
Initial Notice Stage Fulfilled
The Board refused to overrule its precedent and affirmed the ALJ’s complaint dismissal.
Under California Saw, the Board had created a three-stage Beck notice process:
- the initial notice stage;
- the objection stage; and
- the challenge stage.
The Board held that in Stage 1, the union’s obligation is only to inform the employee of her rights to refrain from union membership, to advise her of any internal union procedures for objecting to payment of full dues and fees, and to provide sufficient information for the employee to decide reasonably whether to object. According to the Board, an employee bases her decision whether to object primarily on whether her political beliefs are compromised by paying full fees and dues to the union. Therefore, the precise reduction in fees and dues often is less important. In addition, even where employees are motivated to object by a desire to pay reduced fees and dues, the union’s duty of fair representation “does not require a union to perfectly anticipate every interest of every employee,” the Board said. Finally, no economic consequences are imposed on an employee by receiving the information about reduced fees and dues at a later time, since the employee is entitled to the reduction from the date she files her Beck objection.
Two Board members dissented, agreeing with the General Counsel’s argument that, to enable employees to make intelligent decisions about exercising their Beckrights, unions should be required at Stage 1 to provide the percentage of fees and dues reduction a non-member will receive. The Board disagreed with this, determining the financial and time constraints on the union to provide this information at Stage 1 outweighed the benefit of providing this information to the employee.
Despite what some saw as a slight shift in the Board’s scrutiny of Beck notifications earlier this year when the Division of Advice found deficiencies in a notice (see our article, Union Violated NLRA for Deficient Beck Procedures, Threatening Discharge, NLRB General Counsel’s Office Concludes), it now appears the Board actually has no appetite for modifying its stance on union obligations in favor of clarity and employee protection. In the end, this does the employee no favor.