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Union attempt to collect dues from expelled member lawful

July 25th, 2014  |  Ron Miller

A union did not violate the NLRA by threatening to sue a former member for the fees he accrued while the union continued to represent him after his expulsion; by not giving him notice that he had no further obligation to pay dues; or by refusing to disgorge the fees it collected from the employee after his expulsion but before he registered an objection, ruled a three-member panel of the NLRB. In International Brotherhood of Teamsters, Local Union 89 (United Parcel Service, Inc), the Board declined to give an expansive reading to Proviso B of Sec. 8(a)(3), so as to preclude the union from threatening a lawsuit to collect dues from a lawfully expelled union member who continued to receive representation by the union. Moreover, the Board concluded that the union had no obligation to inform the employee of his right to “refrain” from paying any dues or equivalent fees charged to nonmembers at the time of his expulsion.

Expulsion from union. The charging party in this case is a current employee of United Parcel Service (UPS), and former member of the Teamsters. The union continues to represent him as a member of the bargaining unit at UPS. UPS and the Teamsters were parties to a collective bargaining agreement that contained union-security and dues checkoff provisions, whereby the employer deducted monthly union dues from the paychecks of unit members and forwarded them to the union. The employee was a union member and a shop steward until October 27, 2007, when he was expelled for campaigning for a rival union. Following the employee’s expulsion until April 30, 2008, UPS continued to make monthly dues deductions from his paycheck in the amount of an objecting nonmember’s Beck fee.

On April 6, 2008, the employee sent a letter to the union demanding that it “not charge or attempt to collect any dues or fees from me,” and that it refund “all of the dues that have been collected from my paychecks” since the date of his expulsion. The union refunded the employee’s April dues, and agreed to no longer bill the employer for monthly dues. However, it stated that it was considering its legal options. In a second letter, the union contended that non-members must still pay a “financial core” fee to cover their share of the costs of representation. The letter stated that if the employee refused to pay, it would institute court action. Pending the outcome of this case, the union had not attempted to collect additional fees.

The NLRB General Counsel filed a complaint alleging that the union violated Sec. 8(b)(1)(A) by failing to inform the union member that he had a right to refrain from paying any union dues, nonmember financial core fees, or reduced Beck fees because of his recent expulsion from the union; (2) refusing to reimburse the member for the reduced Beck fees that were deducted from his pay from the time of his expulsion; and (3) threatening to sue him in civil court to recover the amount of reduced Beck fees that he failed to pay subsequent to April 6, 2008.

Johnson Controls II standard. In Johnson Controls II, the NLRB observed that the expulsion of a member for disloyalty was necessarily a termination of membership “for reasons other than the failure of the employee to tender periodic dues.” Accordingly, in that case, the Board concluded that the enforcement of a union-security clause against an expelled employee, for the purpose of collecting membership dues or the equivalent fee paid by nonmembers, by threatened or attempted discharge, was barred by Proviso B of Sec. 8(a)(3). In this instance, the General Counsel contended that Johnson Controls II similarly extinguished the union’s right to seek dues from the employee by means other than threat of discharge, while continuing to represent him. However, the Board found that the stipulated record in this case did not establish the violations alleged in the complaint, concluding that the General Counsel had misapplied Johnson Controls II to the fact of this case, and there was no statutory basis for finding the union’s actions unlawful.

Johnson Controls II goes no farther than to bar the threatened or actual enforcement of a union security clause by threat of discharge. It does not state that a union has no entitlement to fees from an ex-member who has been lawfully expelled but continues to receive representation. Nor does Johnson Controls II suggest that the union is barred from seeking ongoing payment in some form from a lawfully expelled employee by lawful means other than by threatening or seeking the employee’s discharge. In this case, the union never threatened the employee with discharge or attempted to procure his discharge for nonpayment of dues after his expulsion from membership. Further, there was no allegation that the union failed to comply with its duty to represent the employee fairly after his expulsion. Because the union’s threat of a collection lawsuit did not target any of the employee’s protected activity, none of the union’s action fell within the prohibition imposed by Johnson Controls II.

Collection of dues. Johnson Controls II applies Proviso B of Sec. 8(a)(3) and Sec. 8(b)(2) to bar a union and an employer from using a threat of discharge to enforce a union-security clause against an employee expelled from membership for disloyal misconduct. However, Sec. 8(a)(3) does not prohibit a union from attempting to collect dues or equivalent fees by any other lawful means from such an employee whom the union is required to represent. Similarly, Sec. 8(b)(2) echoed Proviso B in barring a union from causing an employer to discharge an employee for any reason “other than his failure to tender” dues. However, neither Sec. 8(b) nor any other provision in the Act bars a union from seeking dues or core fees by other lawful means from an employee who remains in the represented bargaining unit.

Here, the NLRB compared an employee who has been lawfully expelled or disciplined by a union to a Beck dues objector who voluntarily resigns from or refuses to join the union. Thus, the Board observed that there is no question that such an employee can reduce his or her monetary obligation to the amount chargeable for representational expenses. However, the NLRA does not bar a union from seeking payment of core fees from such an employee, as the union did here by threat of a collection lawsuit. Thus, the Board concluded that the union did not violate the Act by threatening to sue the employee for unpaid fees.