By Rossie D. Alston, Jr. and Glenn M. Taubman©
(Revised and Updated)(1)
Whether they know it or not, employees in a unionized workplace have a choice to make: they can join and support the labor union that represents their bargaining unit, or they can choose to refrain from joining and supporting the union.(2) In a diverse society such as ours, it is hardly surprising that individual employees’ opinions frequently differ from those of the labor union officials charged with representing their interests, and that many employees will not want to join the union or support it.
Unfortunately, most employees do not know or clearly understand their choices and legal alternatives vis-a-vis the union. On the one hand, it is common knowledge that employees have the right to join and assist unions. Less well known, however, is employees’ right to refrain from supporting the union. This “right to refrain” includes: a) the right to refrain from joining the union in the first place;(3) b) the right to resign from union membership at any time, and thereby escape any post-resignation internal union fines or discipline;(4) and c) the right to stop paying full union dues and instead pay only a reduced “financial core fee” which excludes the union’s political and non-collective bargaining expenditures.(5) Unfortunately, many employees are misled into believing, either tacitly or through outright misrepresentations, that they are required as a condition of employment to join the union and pay full dues as a condition of employment.(6)
This article is designed to instruct both the employee and the practicing attorney about the rights of employees who choose to take some action contrary to the wishes or dictates of a union — such as returning to work during a strike — and on the obligations imposed by federal and state law upon the union if it attempts to levy internal fines or otherwise discipline employees who violate union rules.
Union Discipline Must Be Based Upon Voluntary, Formal Union Membership
Most employees do not realize that by joining a union, they are agreeing to be bound by the union’s internal rules and regulations (which are the union’s constitution and by-laws). And further, most employees do not realize that unions’ internal rules and regulations often provide the unions with the power to: a) issue monetary fines against employees who do not “toe the union line,” and b) sue those same employees in state court to collect those fines. Typically, unions levy monetary fines against employees who cross a picket line during a strike.
But any discussion of union fines and internal discipline must begin with the premise that a labor organization may only discipline voluntary members of the organization.(7) The seminal case of Scofield v. NLRB states: “[A] union [is] free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.“(8) Thus, a union cannot discipline an employee who is not a voluntary member at the time of the alleged infraction. As will be discussed infra, even a “member” can defend himself against a union’s disciplinary action if he can demonstrate that his membership was not voluntary.
Employees often mistakenly believe that they must become formal members of the union or be discharged.(9) Most individuals in the workplace do not realize that they cannot be required to become or remain a member of a union as a condition of employment. In Right to Work states,(10) employees’ “right to refrain” is complete, as they need not tender dues or even a reduced “financial core fee” to the union. In states that have not enacted Right to Work laws, the union and the employer may lawfully require some degree of financial support for the union as a condition of employment, i.e., the payment of the reduced “financial core fee.”
However, even in those non-Right to Work states, formal union membership cannot be required, regardless of the wording in the collective bargaining agreement.(11)
Accordingly, there is a critical distinction between voluntary, formal membership in a labor organization and “financial core fee” payor or “agency fee” payor status: voluntary union members are subject to internal union discipline and fines, while nonmembers (e.g., “financial core payers” or “agency fee payers”) are not.
Employees who are not members of the union remain “members of the bargaining unit,” fully covered by the collective bargaining agreement and all of its provisions regarding salary, benefits, seniority and pensions.(12)
Moreover, the union continues to owe these “members of the bargaining unit” a duty of fair representation.(13)
While such employees can be prohibited from participating in internal union affairs (such as voting in union elections, voting on decisions to strike or ratify a contract, or running for union office), they are immune from internal union discipline and fines.
Supreme Court Interpretations and Purported “Union Shop” Requirements
The language of the National Labor Relations Act (“NLRA”) seems to permit unions to negotiate contracts requiring “membership” in the union as a condition of employment.(14) However, in NLRB v. General Motors Corp.,(15)
the United States Supreme Court examined the nature of this purported “membership” requirement, and held that:
[T]he burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. ‘Membership’ as a condition of employment is whittled down to its financial core.“(16)
Thus, an employee cannot be required to sign a membership card or to take an oath of membership. Indeed, the so-called “union shop” — requiring formal membership in the union — ceased to exist as a matter of law after General Motors.
Since General Motors, the Supreme Court has further “whittled down” employees’ obligations, so that they need not even pay full union dues. Today, the most that can be required of any employee is the payment of that portion of dues that covers the union’s costs of collective bargaining, contract administration, and grievance adjustment (the “financial core fee”), not the costs of the union’s political, ideological and non-representational activities.(17) It is now well-established law that an employee may satisfy any union security requirement (even those misleadingly phrased as a “membership” requirement) simply by paying a reduced portion of the dues (the “financial core fee”), and cannot be discharged for refusing to join the union.(18) Most importantly, the union has no power to discipline an individual employee who chooses the nonmember “financial core” or “agency fee” status.(19) Since a union can discipline only those employees who are voluntary members, a “financial core payor” or “agency fee payor” permanently shields himself from fines and other forms of union discipline that can be imposed on members who violate union rules.
Notwithstanding General Motors and it progeny, many union security provisions still purport to require employees to join a union as a condition of employment, but these are misleading and cannot be enforced literally.(20) Indeed, the NLRB and several federal circuit courts have held that union security clauses requiring membership as a condition of employment must be expunged from the union’s collective-bargaining agreement or modified to define what a “member of the union in good standing” means under Section 8(a)(3) of the NLRA, 29 U.S.C. §158(a)(3).(21)
In International Union of Electronic, Elec., Salaried, Mach. & Furniture Workers, Engineers Local 444 (Paramax Systems Corp.),(22) the National Labor Relations Board (NLRB) found that negotiating a clause in the collective bargaining agreement requiring all employees to become “members of the Union in good standing” to be a violation of the union’s duty of fair representation to its collective bargaining unit, because such a clause “fails to apprise employees of the lawful limits of their obligation” to the union and “would lead an employee unversed in labor law to believe that employees were obliged to join the Union and satisfy all of the requirements for membership as a condition of employment.”(23)
Similarly, the U.S. Court of Appeals for the Seventh Circuit has broadly condemned such “membership in good standing” clauses, stating:
[T]he only issue [in this case] is the likely effect of the misleading language of the collective bargaining agreement on these plaintiffs. Misleading it is. True, it is a close and accurate paraphrase of the statute, read literally; but as we noted at the outset the Supreme Court has glossed the statute to change its literal meaning, indeed virtually to invert it. Read literally, section 8(a)(3) authorizes the collective bargaining agreement to compel all the employees in the bargaining unit to join the union and pay the full union dues. As construed judicially, it authorizes no such thing; all that the collective bargaining agreement can require is the payment of the agency fee. This has been settled law for some time, and the only realistic explanation for the retention of the statutory language in collective bargaining agreements, as the courts have observed, is to mislead employees about their right not to join the union.
* * *
[N]othing we have said has been intended to suggest that unions and employers have a privilege to incorporate the language of section 8(a)(3) of the NLRA into their collective bargaining agreements if the consequence is to mislead the employees. This language does not mean what it says, and if its inclusion without appropriate qualification misleads employees, either by itself or in conjunction with other misleading representations, the union cannot hide behind the fact that it is, after all, the words of Congress that it is repeating.(24)
By the time this article is printed, the Supreme Court will have decided whether unions can satisfy their duty of fair representation by negotiating for the inclusion of these misleading union security clauses in their collective bargaining agreements.(25)
Regardless of whether an employee is a voluntary union member or instead was misled or coerced into joining, that employee has the right to resign and sever his relationship with the union, and thereby avoid internal union fines and discipline.
In Pattern Makers v. NLRB,(26) the Supreme Court held that employees have the right to resign from a union at any time, and that union rules restricting resignations are illegal. By granting employees the right to “refrain from any or all” activities, the NLRA guarantees each employee the right to resign from union membership at any time,(27) although the employee may be required to comply with a union’s constitution and by-laws provisions that require the resignation be in writing and sent to a designated officer of the local union.(28)
In Pattern Makers, the Court reaffirmed its holding in NLRB v. Granite State Joint Bd., Textile Workers Local 1029, which said:
[T]he power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street.(29)
Thus, a union member is free to resign from union membership at any time and cannot be disciplined by the union for post-resignation conduct, even if its constitution or bylaws purport to restrict the member’s right to resign. When an individual effectively severs his relationship with the union through resignation, the union’s right to discipline him for post-resignation conduct ceases.(30)
If a union official tells a member that he is not free to resign, this is a false statement and the union should thereafter lose its power to discipline that employee for actions taken after that false statement, because employees are not required to undertake gestures which the union tells them will be futile.(31) Moreover, if a union attempts to discipline a former member for events that occurred after his resignation, it violates Section 8(b)(1)(A) of the National Labor Relations Act. In Laborers Northern California District Council (Hayward Baker),(32) the NLRB concluded that, where a union files disciplinary charges against employees in retaliation for their exercise of statutory rights, the employees should be awarded their costs in defending against those charges. (One might also argue that a union’s filing of a state court lawsuit to enforce discipline against a nonmember provides a basis for a civil remedy under an abuse of process or malicious use of process theory.)
Federal circuit courts have held that “resignation may be accomplished in any manner sufficient to show a voluntary decision to part with union membership.”(33) In one decision, the NLRB concluded that a union member effectively resigned by telling the union president “I quit” and then destroying and discarding his union card in the president’s presence.(34) On the other hand, a California court has held that an individual does not effectively resign by stating, in a chance, casual meeting, that he is quitting the union.(35)
In determining when a resignation becomes effective, the NLRB has applied different presumptions according to the manner of delivery in which notice of resignation is given. When the member personally serves an agent of the labor organization with a written resignation (e.g., hand-delivering a letter to a union business agent at the member’s workplace or the union hall), the resignation is effective upon receipt by the union representative.(36) When the notice of resignation is sent by U.S. Mail, the resignation is effective at 12:01 a.m. local time on the day following the deposit of the letter in the mail.(37) This applies regardless of the type of mail delivery used — regular, certified, registered, or special delivery.(38) The date of deposit is determined by the postmark.(39)
The safest and most effective course for an employee to follow when resigning from union membership is to use a method that results in documentation of the sending of the letter and the union’s actual receipt of the letter. For example, an employee would be well advised to send a resignation letter by certified mail, return receipt requested. A copy of the letter and the return receipt should be retained by the employee in case the union denies receipt or challenges its timeliness. (It might also be advisable to send a copy of the resignation letter to the employer, as an additional way to verify that the employee took steps to resign). Reliable delivery services which provide a receipt, like Federal Express or United Parcel Service, work equally as well.
There are no magic words that must be used. “A member may resign from the union at will so long as the desire to resign is clearly communicated. Further, such communication may be made in any feasible way and no particular form or method is required.”(40) In one case, the employees’ letter to the union stated “… I am changing my membership status … from that of a ‘full’ member to that of a ‘financial core’ member. … I am not resigning from the union, only changing my membership status.” The Board and the Third Circuit both recognized this communication as a valid resignation, even though the employees inartfully stated that they were “not resigning.”(41) Thus, a resignation letter should simply state that the employee wishes to immediately terminate his union membership. However, if the union’s constitution specifies that a resignation should be directed to a designated union official, the employee should follow that direction.(42)
Some employees mistakenly believe that their union membership ceases if they simply ask their employer to cancel the deduction of union dues from their paychecks. However, the NLRB has held that cancellation of a dues deduction authorization, standing alone, is not sufficient to constitute a notice of resignation.(43) The theory behind the Board’s decision is that an individual canceling his dues deduction authorization does not necessarily want to resign his union membership, but may only desire to make dues payments directly to the union. A revocation of a dues withholding authorization, along with a signed writing stating the member’s desire to resign, however, is sufficient to effect resignation.(44)
Involuntary Membership Defenses Under Federal Law
Any individual who becomes or remains a member of a labor organization through coercion, duress or misrepresentation may have a valid defense to any union disciplinary action. Any such defenses should first be pursued by filing an unfair labor practice charge with the NLRB, as it is a violation of Section 8(b)(1)(A) of the Act for a union to procure an employee’s membership through coercion, duress or misrepresentation.(45) An employee who becomes a member of the union as a result of a “membership in good standing” requirement in the collective bargaining agreement can argue to the NLRB that subsequent union discipline is an unfair labor practice because he was never a voluntary member of the union in the first place, and was misled into believing that resignation from the union would mean loss of his job.(46)
Finally, employees should remember that there is a six-month statute of limitations for filing NLRB unfair labor practice charges, and this six-month period has been held to begin to run when the union first notifies the employee of the amount of the fine.(47)
Defenses For The Union Member Under State Law
Additional defenses may be available in state court to defeat the union’s efforts to collect a disciplinary fine. In the case of NLRB v. Boeing Co.,(48) the Supreme Court ruled that a union constitution is a contract between a union and its members, and is enforceable in state court under principles of state contract law. Thus, traditional contract formation principles, and traditional contract defenses, apply to a union lawsuit to collect a strike fine, since that lawsuit is, at base, a simple breach of contract action.
For example, some state courts hold that a fine imposed by a union may not be enforced in court if the union constitution and by-laws do not provide for the recovery of the fine through an action in a court of law.(49) Some states, such as Arkansas, Mississippi, South Dakota, and Washington, require union constitutions to specify that fines against members represent liquidated damages, which can be collected through a breach of contract action in state court.(50) Even explicitly describing fines as “liquidated damages” in a union constitution may not be sufficient to indicate the intent of the parties to agree to liquidated damages if no maximum fine is specified in the constitution or by-laws or if the fine specified is unreasonable.(51)
Other states require the union constitution or bylaws to explicitly state that the member may be “fined,” in order to avoid the implication that suspension or expulsion are the only methods of discipline available to the union.(52) Some states, however, consider any fine imposed according to the union constitution or by-laws a debt subject to collection by court action even if suspension or expulsion procedures are the only enforcement procedures specifically mentioned in the union constitution or by-laws.(53)
Under normal contract formation principles, state courts have jurisdiction to determine whether employees were voluntary members (or coerced “members” who may not be subject to fines) at the time of the violation of the union’s rules.(54) For example, state courts will review and accept an employee’s argument that he was not a voluntary member, and that his failure to resign was the result of misrepresentations by the union regarding his obligation to remain in the union.(55) Fraud on the part of a union official in inducing a union member to remain a part of the union may give rise to a “constructive resignation” defense in state court if the member can show that he or she intended to resign but was prevented from doing so by a union official’s misrepresentation of his or her rights.(56) Again, however, it should be remembered that many of these state court defenses can, and should, be first used as part of an NLRB unfair labor practice charge challenging the union’s imposition of discipline. If that NLRB charge is successful, the case should never even reach a state court forum.
Similarly, when an individual facing union discipline claims that he had resigned his membership prior to engaging in the conduct that violates union rules, the burden of proof shifts to the union to show by a preponderance of the evidence that the individual was a member of the union at the time of the alleged violation.(57) Evidence that the individual participated in union elections or acted or was treated as a union member is not sufficient to meet this burden.(58) Rather, the union must demonstrate that the individual followed the procedures for becoming a union member formally adopted in the union constitution and by-laws, such as signing a union card and paying an initiation fee, and had not resigned prior to the act.(59)
Some state courts refuse to enforce union fines by reasoning that fines are a form of penalty or punishment, and that only governmental entities hold such power — a power that by definition cannot be delegated to or exercised by a wholly private actor, such as a union, under state and federal constitutional law or state contract law.(60)
A challenge to the amount of a fine may only be raised in state court. In NLRB v. Boeing Co., the U.S. Supreme Court overturned an NLRB ruling that a particular fine amount was excessive, holding that issues concerning the amount of a fine are governed solely by state law.
[I]ssues as to the reasonableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudicate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the memberfined.(61)
For formal union members, the federal Landrum-Griffin Act provides a “Bill of Rights of Members of Labor Organizations” that contains several safeguards against the improper imposition of disciplinary action.(62) Some of this safeguards may be used as defenses to a union’s lawsuit to collect fines. Section 101(a)(5) of the Landrum-Griffin Act delineates the minimum procedural protections that must be given to union members before they can be subjected to union discipline: “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.”
These Landrum-Griffin protections are generally used as an offensive weapon which provides disciplined union members access to the federal courts, as the Act provides for federal district court jurisdiction for claims that the Act has been violated. However, these protections can easily be transformed into affirmative defenses for individuals attempting to ward off enforcement of union discipline in state forums.
If one plans to raise these due process defenses, it is advisable to review the union’s constitution and by-laws regarding the procedures for disciplining members. The Landrum-Griffin safeguards are the minimum standards required. Therefore, where the union has adopted specific standar.ds for disciplining union members, it must adhere to those standards regardless of whether or not they exceed the minimum set by Landrum-Griffin.(63)
In addition to such due process defenses, other “notice” types of defenses should be raised if they are available. For example, union members are often not given a copy of the union’s constitution or by-laws, and this omission permits the argument to be made in state court that the individual being disciplined was unaware that his alleged offense was a violation of union rules, or that he could be sued for violating the union’s constitution or by-laws. It would follow that the union’s failure to give adequate notice to the accused of his rights and obligations under its constitution and by-laws serves to nullify any “contract” into which the accused allegedly entered.(64) Traditional “contract of adhesion” defenses should be useful here.
One final defense to a suit to collect a union fine should be noted. Since such suits are essentially breach of contract actions, the union must prove the damage it suffered as a result of the alleged contractual breach, as in any civil case. In the case of fines for crossing a picket line, the union will generally seek to recover the amount of money that the employee earned during the time worked during the strike. However, this amount can be considered to be arbitrary, bearing no relation to any “damage” the union may have suffered as a result of an individual’s return to work during a strike. As the normal strike involves many people, including supporters and non-supporters, it would be difficult, if not impossible, to determine what damage one particular individual caused the union by crossing the picket line and returning to work. This is especially true with regard to large national strikes. If the union sues to collect a fine, it can and should be put to its burden of proof on this issue. The standard of proof should be that applicable to traditional breach of contract actions.
In summary, the law of union discipline can be analyzed under various federal labor law, state contract law, and federal and state “due process” theories. Many states have developed their own bodies of law in this area, and a review of each state’s decisions will provide insight as to the particular defenses that can be raised by an employee faced with union disciplinary fines and penalties. Moreover, the U.S. Supreme Court and the NLRB have made it clear that employees can protect themselves against union discipline by not joining in the first place, or by resigning from the union, notwithstanding the existence of a union security agreement purporting to compel “membership” in the union.
Neither employers nor labor unions can be depended upon to give employees an adequate explanation of their rights and obligations. Justice Hugo Black recognized this problem almost twenty years ago:
Few employees forced to become ‘members’ of the union security clause will be aware of the fact that they must somehow ‘limit’ their membership to avoid the union’s court-enforced fines. Even those who are brash enough to attempt to do so may be unfamiliar with how to do it. Must they refrain from doing anything but paying dues, or will signing the routine union pledge still leave them with less than full membership? And finally, it is clear that what restrains the employee from going to work during a union strike is the union’s threat that it will fine him and collect the fine from him in court. How many employees in a union shop whose names appear on the union’s membership rolls will be willing to ignore that threat in the hope that they will later be able to convince the Labor Board or the state court that they were not full members of the union?(65)
The authors hope that more employees become aware of their individual rights, and in a timely fashion. Not only will this enable employees to exercise those rights in a more intelligent and informed fashion, but it will enable involuntary union “members” to protect themselves from unfair or unlawful union disciplinary actions.
Rossie D. Alston, Jr. is a partner in the Manassas, Virginia office of the law firm of Smith, Hudson, Alston and Carluzzo. He was formerly employed in the National Labor Relations Board’s Division of Advice, and as a staff attorney with the National Right to Work Legal Defense Foundation. He received a J.D. with Distinction from the North Carolina Central University School of Law.
Glenn M. Taubman is a staff attorney with the National Right to Work Legal Defense Foundation. He received a J.D. with Distinction from the Emory University Law School, and an LL.M in Labor Law from the Georgetown University Law Center.
The authors gratefully acknowledge the assistance of Jeff Rhodes, Washington and Lee School of Law, a law clerk working at the National Right to Work Legal Defense Foundation.
1. A previous version of this article was published in the February, 1987 edition of the Labor Law Journal. This revised and updated article takes into account the many court and NLRB decisions rendered over the past eleven years. Back.
7 of the National Labor Relations Act, 29 U.S.C. § 157, gives employees
“the right to self-organization, to form, join or assist labor organizations”
but also provides them with “the right to refrain from any or all of such activities….”
6. Bloom v. NLRB, 30 F.3d 1001 (8th Cir. 1994);
Schreier v. Beverly California Corp., 892 F. Supp. 225 (D. Minn. 1995);
Wegscheid v. Local Union 2911, UAW, 117 F.3d 986 (7th Cir. 1997); Buzenius
v. NLRB, 124 F.3d 788 (6th Cir. 1997); see also Monson
Trucking, Inc. (Teamsters Local 160), 324 N.L.R.B. No. 149 (1997) (Gould,
concurring); but see Marquez v. Screen Actors Guild, 124 F.3d
1034 (9th Cir. 1997), cert. granted, 66 U.S.L.W. 3620 (March 23, 1998)
(No. 97-1056). In every one of these cases, the employees were affirmatively
told that formal union membership and the payment of full union dues was required
as a condition of employment. Back.
9. See cases cited in footnote 6. Surprisingly,
this mistaken belief is found among workers even in those states which have
Right to Work laws, which invalidate any union security agreement requiring
union membership as a condition of employment. Back.
10. The states which currently have
Right to Work laws are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho,
Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North
Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and
11. See generally Bloom v. NLRB, 30 F.3d 1001
(8th Cir. 1994); Wegscheid v. Local Union 2911, UAW, 117 F.3d 986 (7th
Cir. 1997); Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997); CWA
487 U.S. 735 (1988). Oftentimes, unions refer to their union security arrangements
as “union shops” or “closed shops,” but these terms are misnomers carried over
from a former era, which simply lead to confusion among the employees. Wegscheid,
117 F.3d at 990. Back.
12. IATSE Local 219 (Hughes-Avicom International),
322 NLRB No. 195, slip op. at 2 (February 14, 1997) (“The maintenance of a contractual
provision which on its face accords preferential treatment to union members
against nonmembers concerning the receipt of benefits violates Section 8(b)(1)(A)
and (2) of the Act.”) Back.
15. 47 L.C. ¶ 18,285, 373
U.S. 734 (1963); see also Radio
Officers v. NLRB,
347 U.S. 17, 41 (1954) (“union security agreements cannot be used for any
purpose other than to compel payment of union dues and fees”). Back.
Workers of America v. Beck,
supra, at 749. The same rules apply under the Railway Labor Act.
Spehar v. IAM, 112 L.C. ¶ 11,301 (C.D. Cal. 1985); Ellis
466 U.S. 435 (1984). Back.
Makers v. NLRB,
473 U.S. 95 (1985); United Stanford Employees Local 680 v. NLRB,
86 L.C. ¶ 11518, 601 F.2d 980 (9th Cir. 1979); Hotel and Restaurant
Employees Local 54 (Atlantis Hotel), 291 NLRB 989 (1988), enforced,
887 F.2d 28 (3d Cir. 1989). Back.
20. Many union security clauses read as follows: “It shall
be a condition of employment that all employees covered by this agreement shall
become and remain members of the union in good standing on or before the thirtieth
day after this contract is signed, and all new employees covered by this agreement
shall become and remain members of the union in good standing on or before the
thirtieth day after their first day of work.” But see the
cases cited in footnote 6, supra, which by and large invalidate such
21. Bloom v. NLRB, 30 F.3d 1001, 1005 (8th Cir.
1994), on remand, 323 N.L.R.B. No. 31, 154 L.R.R.M. 1204 (1997), supplemental
decision and order, 325 N.L.R.B. No. 49 (1998), petition for review
pending, Eighth Circuit Case No. 97-1582; see also cases
cited in note 6, especially Buzenius v. NLRB, 134 L.C. ¶ 10,038,
124 F.3d 788, 793-94 (6th Cir. 1997). Back.
22. 311 N.L.R.B. 1031, 1037 (1993). Back.
23. Id. at 1041. Back.
25. Marquez v. Screen Actors Guild, 134 L.C. ¶
10,049, 124 F.3d 1034, 1042-43 (9th Cir. 1997), cert. granted, 66 U.S.L.W.
3458 (1998). Back.
27. International Bhd. of Boilermakers v. Local Lodge
D129, 910 F.2d 1056,1060 (2d Cir. 1990); Pattern Makers (Michigan
Model Mfrs.), 310 N.L.R.B. 929 (1993). Back.
28. International Union, UAW v. NLRB, 865 F.2d
791, 797 (6th Cir. 1989), cert. denied 107 L.Ed.2d 38, 110 S.Ct. 71.
30. The Board has struck down a provision in a union constitution
that purported to govern the member’s conduct after resignation of membership.
Operating Engineers Local 399 (Tribune Properties), 304 N.L.R.B. 439,
139 L.R.R.M. 1158 (1991). Back.
31. Newspaper Guild Local 3 (New York News),
271 NLRB 1251 (1984). The ALJ opinion in Newspaper Guild describes
conversations between union officials and an employee, wherein the union official
orally stated that “the Guild wasn’t accepting any resignations” and that it
“would fine people for either attempting to resign or for resigning.” 271 NLRB
See also UFCW Local 81 (MacDonald Meat Co.), 284 NLRB 1084, 1098 (1987);
Carpenters Local 1233 (Polk Construction Co.), 231 NLRB 756 (1977) (submission
of seemingly futile resignation not necessary); Sheet Metal Workers Local
18 (Rohde Brothers, Inc.), 298 NLRB 50 (1990) (where a union maintains
an illegal policy restricting resignations, members need not tender resignations
because it would be a futile act). Back.
32. 275 N.L.R.B. 278 (1985); see also Sheet Metal Workers
Local 104 (Lux Metals, Inc.), 322 NLRB No. 158 (1997); Teamsters Local
776 (Rite Aid), 305 NLRB 832, 836 (1991), enforced, 973 F.2d 230
(3d Cir. 1992). Back.
33. International Bhd. of Boilermakers v. Local Lodge
D129, 910 F.2d 1056. 1060 (2d Cir. 1990), citing Tile, Marble,
Terrazzo, Finishers, Shopworkers and Granite Cutters Int’l Union, AFL-CIO v.
Local 23, 896 F.2d 1404, 1413 (3d Cir. 1990)). Back.
34. NLRB v. Mechanical & Allied Prod. Workers Local
444, 427 F.2d 883, 884-85 (1st Cir. 1970). Back.
37. Id. Back.
38. Id. Back.
39. Id. Back.
40. Electrical Workers, Local 66 (Houston Lighting
& Power Co.), 262 NLRB 483, 486 (1982). Back.
41. Hotel and Restaurant Employees Local 54 (Atlantis Hotel), 291 NLRB 989 (1988), enforced, 887 F.2d 28 (3d Cir. 1989). Back.
42. International Union, UAW v. NLRB, 865 F.2d 791, 797 (6th Cir. 1989), cert. denied 107 L.Ed.2d 38, 110 S. Ct. 71 (1989). For example, the Teamsters’ constitution designates the secretary-treasurer of the local union as the appropriate person to receive such letters, and requires the resignation to be in writing. Back.
43. See Machinists District Lodge 99, 194 N.L.R.B. 938 (1972); but see IBEW (Lockheed Space Operations Company), 302 NLRB 322 (1991) (in certain circumstances, an employees’ resignation from union membership will automatically cancel his dues deduction authorization). Back.
44. Bradley v. Local 119, IUE, 236 F. Supp. 724, 729 (E.D. Pa. 1964); International Bhd. of Boilermakers v. Local Lodge 714, 696 F. Supp. 391, 393-94 (N.D. Ill. 1988) (revocation of dues withholding authorization in a signed petition to disaffiliate was sufficient to effect resignation).
45. Teamsters Local 302 v. Vevoda, 772 F.2d 530, 532-33 (9th Cir. 1985), cert. denied 475 U.S. 1036 (1986). See also Buckley v. Television Artists (AFTRA), 73 L.C. ¶ 14,506, 496 F.2d 305 (2d Cir. 1974), cert. denied, 419 U.S. 1093 (1974). Back
46. Rochester Manufacturing Co. (Teamsters Local 614), 323 NLRB No. 36 (1997) (when union fails to provide notice required by California Saw & Knife Works, 320 NLRB 224 (1995), the appropriate remedy is to provide employees with a nunc pro tunc right to resign retroactively); see also Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing of the National Labor Relations Board, Teamsters Local 776 (United Parcel Service and Jerome Buggy, et. al)., Case Nos. 4-CB-8022-1 and 4-CB-8022-2; Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing of the National Labor Relations Board, Teamsters Local 355 (United Parcel Service and Eric Dennis, et. al)., Case Nos. 5-CB-8655, 8656 and 8657. Back.
47. Musicians (Royal Palm Theater), 275 NLRB 677, 679 (1985); Sheet Metal Workers Local 75 (Owl Constructors), 290 NLRB 381 (1988) (§ 10(b) period only runs from the final imposition of the discipline); see also NLRB Advice Memoranda in Newspaper Guild of New York, Local 3, Case No. 2-CB-13806 et al., and Tri-State Local, AFTRA, 9-CB-7779. These Advice Memoranda support the proposition that an employee can challenge internal union discipline occurring within the § 10(b) period, even if the union’s actions that make the discipline illegal (i.e., threats, misrepresentations or coercion regarding the right to resign) occurred outside of the § 10(b) period. Back.
49. Local Union 112, Int’l Bhd. of Elec. Workers, AFL-CIO
v. Bray, 770 P.2d 634, 637 (Wash. 1989) (citing United Glass Workers’ Local 188 v. Seitz, 65 Wash.2d 640, 641 (1965)). See also Annot., Right of Labor Union to Enforce in Courts Fine Validly Imposed Upon Member, 13 A.L.R. 3d 1004, 1005-06 (1968). Back.
50. See Johnson v. Jones, 138 L.R.R.M. 2273, 2275 (Ark. Ct. App. 1991); Communications Workers of Am., Local 10517 v. Gann, 510 So.2d 781, 783 (Miss. 1987); Mid-America Mktg. Corp. v. Dakota Indus. Inc., 281 N.W.2d 419, 425 (S.D. 1979); Local Union 112, Int’l Bhd. of Elec. Workers, AFL-CIO v. Bray, 770 P.2d 634, 637 (Wash. 1989). Back.
51. Johnson v. Jones, 138 L.R.R.M. at 2275; Communication Workers, Local 10517 v. Gann, 510 So.2d at 783. See also American Men’s & Boys’ Clothing Mfrs. Ass’n v. Prosser, 190 A.D. 164, 179 N.Y.S. 207 (N.Y. Sup. Ct. 1919). Back.
52. Jost v. Communications Workers of Am., 91 Cal. Rptr. 722 (1970); Communications Workers of Am., Local 7400 v. Abrahamson, 422 N.W.2d. 547, 552 (Neb. 1988). Back.
53. Local 248, UAW v. Natzke, 153 N.W.2d 602, 610 (Wis. 1967). Back.
54. Communications Workers of Am., Local 5900 v. Bridgett, 512 N.E.2d 195, 128 L.R.R.M. 3014 (Ind. Ct. App. 1987). Back.
55. International Bhd. of Elec. Workers v. Trad, 539 A.2d 316, 131 L.R.R.M. 2058 (N.J. Sup. Ct. App. Div. 1988), further proceedings, 133 L.R.R.M. 3025 (N.J. Sup. Ct. App. Div. 1988); Communications Workers of Am., Local 5900 v. Bridgett, supra. Back.
56. Communications Workers of Am., Local 5900 v. Bridgett, 512 N.E.2d at, 200, 128 L.R.R.M. 3014. Back.
57. Communications Workers of Am., Local 5800 v. Beckman, 132 L.R.R.M. 2596, 2601 (Ind. Ct. App. 1989). Back.
58. Telephone Employees Org. v. Woods, 625 N.Y.S.2d 1015, 1023 (N.Y.City Civ.Ct. 1995). Back.
59. Id. Back.
60. Johnson v. Jones, 138 L.R.R.M. at 2276-77; see also Unit Owners Association of Buildamerica – 1 v. Gillman, 223 Va. 752, 292 S.E.2d 378 (1982) (condominium association has no power to levy penalties).
63. See, e.g., Gross v. Kennedy, 40 L.C. ¶ 66,432, 183 F. Supp. 750 (D.N.Y. 1960). Back.
64. The Supreme Court’s language in NLRB
v. Boeing Co.,
71 L.C. ¶ 13,688, 412 U.S. 67 (1973), and that of the circuit court in Booster Lodge No. 405 v. NLRB, 67 L.C. ¶ 12,404, 459 F.2d 1143
(D.D.C. 1972), affirmed 71 L.C. ¶ 13,669, 412
U.S. 84 (1973), support this approach. Back.