Union Violated Fair-Representation Duty

The 6th U.S. Circuit Court of Appeals upheld the National Labor Relations Board's (NLRB) finding that a union breached its duty of fair representation by ignoring a member's timely request to resign from the union and revoke permission for the employer to deduct dues from his paycheck.

The National Labor Relations Act (NLRA) prohibits unions from restraining or coercing employees in their right to join or refrain from joining a labor organization. A union also must treat all members fairly—not arbitrarily, discriminatorily or in bad faith.

In this case, the employee had been a union member for 24 years but in March 2018 correctly followed the steps required to resign from the union and revoke his dues checkoff authorization. The union failed to notify the human resources professional to stop deducting dues. So, for three months, the employer continued to deduct dues and transmit them to the union.

The employee filed an unfair labor practice charge claiming that the union's failure to promptly process his resignation from the union restrained his right to withdraw from the union, attempted to cause employer discrimination against him and breached the union's duty of fair representation.

On June 1—after the employee had filed the unfair labor practice charge—the union instructed the employer to stop deducting dues. In mid-August, the union refunded some of the improperly collected dues. The union representative also criticized the employee for having filed the charge instead of continuing to try to resolve the matter directly through the union.

The union argued that its failure to process the member's resignation and dues revocation was inadvertent. The administrative law judge (ALJ) found that the union's failure to process the resignation and revocation was not a clerical error, but even if it had been, that was no defense to the charge of unlawful coercion.

The ALJ also found that delaying the process until after the member filed an unfair labor practice, issuing only a partial refund and reproaching the member for exercising his rights breached the union's duty of fair representation. Finally, the ALJ held that the union's actions also caused or attempted to cause unlawful employer discrimination against the employee. The NLRB upheld the ALJ's first two findings, but not the third.

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On review, the 6th Circuit noted that the NLRB's findings are entitled to deference. The board's interpretation of the law is judged by rationality and consistency with the NLRA; its factual findings and application of the law must be upheld if supported by substantial evidence.

Applying those standards, the court rejected the NLRB's conclusion that even an inadvertent delay in processing amounts to unlawful coercion. In other words, the court said, unlawful intent must be demonstrated as an element of a coercion charge. Therefore, it denied enforcement of that portion of the NLRB's order.

But the appeals court noted that the NLRB had found substantial evidence of an improper motive in the union's slow handling of the member's request, delay in issuing a refund—a partial one, at that—and a reproachful response to the member's filing the unfair practice charge. All these factual findings are entitled to the court's deference. Together, they created an impression of ill intent and also supported the board's finding that the union's conduct toward the member was in bad faith.

Accordingly, the 6th Circuit enforced the portion of the board's order holding that the union violated the employee's duty of fair representation.

UAW, Local 600 v. NLRB, 6th Cir., Nos. 19-2033, 19-2168 (April 13, 2020).

Professional Pointer: Union dues checkoff provisions are mandatory subjects of bargaining. When agreed to, they become part of the applicable union contract. Generally, contract provisions that involve mandatory subjects of bargaining must remain in force after contract expiration and during collective bargaining. However, the NLRB's position has changed as to whether this rule applies to dues checkoff provisions. The rule in place since December 2019 is that the employer is not required to deduct union dues after contract expiration. Any decision to cease dues collection during bargaining, nonetheless, should be undertaken with great caution.

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.