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Union Violated NLRA for Deficient Beck Procedures, Threatening Discharge, NLRB General Counsel’s Office Concludes

The National Labor Relations Board’s General Counsel’s Division of Advice has determined a union violated the National Labor Relations Act by failing to provide to an employee a sufficient “Beck” notice and adequate post-objections disclosures and challenge procedures, and by threatening to discharge the employee for nonpayment of service fees before fulfilling its Beck obligations, according to a newly released Advice Memorandum. Teamsters Local 848 (MV Transportation), Case 31-CB-72773 (issued Dec. 17, 2012, released July 3, 2014). 

Beck Procedures

When a union seeks to collect dues and fees under a union-security clause contained in a collective bargaining agreement, it must first 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 to (1) object to paying for union activities not germane to its 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.

Facts

In this case, the collective bargaining agreement between the employer and the union contained a union-security clause providing that an employee become a member of the union upon hire and signing a notice of membership form:

I understand that under current law, I may elect “nonmember” status, and can satisfy any contractual obligation necessary to retain my employment by paying an amount equal to the uniform dues and initiation fee required of members of the Union. I also understand that if I elect not to become a member or remain a member, I may object to paying the pro-rata portion of regular Union dues or fees that are not germane to collective bargaining, contract administration and grievance adjustment, and I can request the Local Union to provide me with information concerning its most recent allocation of expenditures devoted to activities that are both germane and non-germane to its performance as the collective bargaining representative sufficient to enable me to decide whether or not to become an objector. I understand that nonmembers who choose to object to paying the pro-rata portion of regular Union dues or fees that are not germane to collective bargaining will be entitled to a reduction in fees based on the aforementioned allocation of expenditures, and will have the right to challenge the correctness of the allocation. The procedure for filing such challenges will be provided by the Union, upon request.

The employee became a union member in June 2010 and signed the form. In April 2011, he notified the union that he was electing non-member status and objected to paying the portion of dues not germane to the union’s representational activities. He also requested the union provide him the most recent allocation of expenditures as well as the procedure for filing a challenge to that allocation. In response, the union informed the employee of his service fee rate, which included a discount for the percentage of nonchargeable expenditures, and that dues could be paid monthly or quarterly. It enclosed a one-page schedule of allocated expenditures for 2009, which reflected categories of expenditures and the amounts attributable to chargeable and nonchargeable activities for the union. Three of the categories reflected per capita taxes paid to various affiliates, including the international. 

The union did not provide accompanying notes that the schedule document described as an “integral part” of the document. The union also did not provide a description of the process for challenging its allocation of expenditures.

After he received the union’s response, the employee asserted the response was deficient and asked for an independently audited financial disclosure for 2010 and the challenge procedure. However, the union either did not respond to those requests or responded inadequately. 

In mid-December 2011, the union sought to collect unpaid dues from the employee, sending him a letter detailing the amounts that were overdue and informing him that if he did not pay the dues by a stated deadline, the union would seek his removal from employment. When the employee failed to remit the outstanding amounts, the union informed the employer of the delinquency and requested that it discharge the employee. 

Deficiencies

The Division of Advice instructed the NLRB Regional office where the dispute originated to issue an unfair labor practice complaint alleging the union violated the NLRA by failing to provide a comprehensive initial Beck notice, failing to supply sufficient post-objection information, failing to maintain an adequate challenge procedure, and by threatening to seek, and seeking, the employee’s discharge without first complying with its Beck obligations. 

According to the Division, the Beck notice used here was deficient in two ways. First, it did not provide information sufficient to decide whether to object because it did not inform the Charging Party of the potential savings if he objected. Second, the notice did not apprise the Charging Party of the process for filing an objection. (At a minimum, the notice should inform employees to notify the union of their decision to become a Beck objector.) Here, the notice merely stated that an employee “may object to paying the pro-rata portion of regular Union dues or fees,” but did not specify how to lodge such an objection.

It appears the General Counsel, the NLRB’s chief prosecutor, is serious about protecting employees’ Beck rights. Unionized employers whose employees express concern about their obligations to become a union member under the collective bargaining agreement’s union security provision, or question the amount of money they are required to pay to the union may want to refer those employees to the local NLRB office for information about their Beck rights.

Jackson Lewis P.C. © 2019

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

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